CoreDial Terms of Service
Last Update: August 2022
These Terms of Service, together with the Order, Pricing Schedule and any other documents annexed hereto and made part of this agreement (collectively, the “Agreement”), is made by and between CoreDial, LLC (“Company”, “we”, “us” or “our”) and the Reseller identified on the Order (“Reseller” or “you”) (each individually a “Party” and collectively the “Parties”).
We provide services and equipment intended solely for business use, pursuant to the terms and conditions set forth in this Agreement. By signing this Agreement or by using the Services, you (a) accept this Agreement and agree to be legally bound by its terms; and (b) represent and warrant that the person executing this Agreement has the authority to bind you.
These Terms of Service are effective as of October 1, 2022.
- “Account Data” means any data or metadata pertaining to you and your Customer(s) account(s) including, without limitation, customer lists, customer contact details, customer payment information, customer login credentials, customer IP address information and other similar data.
- “Affiliate(s)” means any individual, company, corporation, partnership or other entity, directly or indirectly, controlling, controlled by, or under common control with a Party, with control being the ownership or control of at least fifty percent (50%) of the equity or voting rights.
- “Customer” means a business who contracts with you for the provision of the Services.
- “Customer Content” means the content of calls, facsimiles, SMS or MMS messages, voicemails, voice recordings, shared files, conferences, or other communications transmitted or stored through the Services.
- “End User” means an individual user to whom you or your Customer(s) makes the Services available.
- “Equipment” means hardware which you acquire from us, our Affiliates, or our authorized vendors for use in connection with the Services.
- “Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (a) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (b) copyrights and copyright registrations, and “moral” rights; (c) the protection of trade and industrial secrets and Confidential Information; (d) other proprietary rights relating to intangible property; (e) trademarks, trade names and service marks; (f) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (g) analogous rights to those set forth above; and (h) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).
- “IP” means all intellectual property rights associated with any design, data, specification, know-how, software, device, technique, algorithm, method, discovery or invention, whether or not reduced to practice, relating to any (a) Service, including our work product, (b) result of a Service, (c) joint development, and/or (d) enhancement or improvement to or derivative of any of the foregoing.
- “Losses” means any allegations, claims, demands, suits, proceedings, liabilities, judgments, awards, losses, damages, physical injury or death, damage to real property, costs or expenses (including reasonable legal fees).
- “Network” means the network and supporting facilities between and among our physical or virtual data centers or cloud environments under our direct control, up to and including the interconnection point between our network and facilities. The Network does not include the public internet, you or your Customer(s) own private network, or the PSTN.
- “Service(s)” means all services available on our platform(s), including but not limited to desktop software and services, browser and mobile services and features, Unified Communications as a Service (“UCaaS”), SIP trunking, and any additional services that may be offered by us.
- “Software” means (a) computer programs, written by us or our Affiliates, contractors or other entities that comprise a series of instructions, rules, routines, or statements, regardless of the media in which recorded, which allow us to deliver the Services and products or to integrate with other systems, people, and services. This includes source code which allows computers, servers, and the like to perform a specific operation or series of operations; and (b) recorded information comprising source code listings, design details, algorithms, processes, flow charts, formulas, and related material that would enable the computer program to be produced, created, operated, installed, or compiled.
- “Taxes and Fees” means all taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service, including but not limited to value added, consumption, sales, use, gross receipts, foreign withholding (which will be grossed up), excise, access, bypass, ad valorem, franchise or other taxes, fees, duties or surcharges (including regulatory and 911 charges), whether imposed on us or our Affiliates, along with similar charges. Taxes and Fees do not include taxes based on our employees, property and net income.
2. PROVISION OF THE SERVICE
- General Terms
- We will provide the Services as described in the Agreement. The Services afford you with the ability to support your Customer’s Services and products, including but not limited to comprehensive cloud and VoIP based calling services, plans, and unified communications services, which allow you to configure Services on a customized basis to meet the needs of the Customer.
- We may retire Services that become obsolete and replace them with new Services that provide the same or similar functionality, as necessary, upon thirty (30) days notice to you.
- Beta Services: We may, from time to time, offer access to services that are classified as a Beta version. Access to and use of Beta versions may be subject to additional agreements. We make no representations that a Beta version will ever be made generally available and reserve the right to discontinue or modify a Beta version at any time without notice. Beta versions are provided AS IS, may contain bugs, errors or other defects, and your use of a Beta version is at your sole risk.
- Support: We provide technical support for Services to you as outlined in our Support Policy, available at https://rhelp.corenexa.com/en/home/CSC.
- Professional Services: Certain Services may require professional services for implementation. If you opt to obtain this service from us, you will enter into a separate Statement of Work or submit a Support ticket which will identify the services to be provided and their associated fees and payment terms.
- Subcontracting: We may provide any of the Services hereunder through any of our Affiliates or subcontractors, provided that we will bear the same degree of responsibility for acts and omissions for those subcontractors acting on our behalf in the performance of our obligations under this Agreement as we would bear if such acts and omissions were performed by us directly.
3. USE OF THE SERVICE
- Service Requirements: Use of the Service requires one or more compatible devices, internet access, certain software, and may require obtaining updates or upgrades to such from time to time. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility, and that you are responsible for all Customer equipment, including installation and management thereof. Because use of the Service involves hardware, software, and internet access not controlled by us, you and your Customer’s ability to access and use the Service may be affected by the performance of these items and may not be used as a basis for withholding payments due under this Agreement.
- Not Responsible for Quality of Service. Uptime of the Services does not guarantee overall quality of your service to the End User. You and/or your End Users (and not us) are responsible for the quality of the last mile internet connection which is primarily determinative of the quality of service the End User will experience.
- Incompatibility With Certain Broadband Services: We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
- Use of Services. You are responsible and liable for all use of the Services, with or without your permission. The Services may not be used for any unlawful, abusive or fraudulent purpose. Additionally, you are responsible for ensuring that all End Users use the Services in compliance with the use policies available at https://coredial.com/legal/ (collectively, the “Use Policies”), which are incorporated into and form part of this Agreement. You may not use, or permit the use of, the Services in any way which interferes with the use of the Services by others or with the operation of the Network. You shall defend, indemnify, and hold harmless us and our suppliers, officers, directors, shareholders, agents, Affiliates and employees from and against any claims, liabilities, losses, costs or damages (including legal fees and costs) arising out of any third-party claim or allegation that if true, would constitute a violation of the above. Any violation of this Section shall constitute a material breach establishing cause for termination of the Agreement.
- Fraudulent or Illegal Activity
- You shall bear the risk of loss arising from any unauthorized or fraudulent use of the Services provided under the Agreement. We reserve the right, but are not required, to take any and all action we deem appropriate, including blocking access to particular calling numbers or geographic areas, to prevent or terminate any fraud or abuse in connection with the Services or any use thereof. You are responsible for your own network security and security violation response procedures.
- If you become aware that the security of your network, IP address(es), and/or any equipment components have been stolen or "hacked" by an unauthorized third party, you must immediately (a) attempt to stop or disconnect the fraudulent traffic and (b) notify our Support Team by calling and sending an email with "Fraud Traffic" in the subject line. When you contact us to report the problem, you must include the account number and a description of the alleged theft or fraudulent use of Services. We reserve the right to immediately suspend the fraudulent Services. We will not issue credits for any charges resulting from fraudulent/unauthorized use.
- If we have reason to believe that you or your Customer(s) has/have used the Service(s) for an unlawful purpose, we may forward the relevant communication and other information, including your identity or that of your Customer and End User(s), to the appropriate authorities for investigation and prosecution. Appropriate authorities include, without limitation, law enforcement agencies, the Federal Communications Commission (“FCC”) or the single industry Traceback Consortium designated by the FCC to trace suspicious calls back to the point of origin. You hereby consent to the forwarding of any such communications and information to these authorities, including, as necessary to comply with a lawful request, Confidential Information.
- Recording Conversations: Some Services provide a function that allows End Users to record conversations, including video calls. The laws regarding notice and other requirements of recorded conversations vary by state. We do not warrant that the function complies with any such requirements, and you and your Customers are solely responsible for compliance with all applicable laws and regulations when using this feature.
- Voice Recording: When using voice Services, an End User who chooses to record a call must give the other participants on the call verbal notification that the call is being recorded. If an End User does not consent to being recorded, the End User must leave the call.
- Video Recording: When using video Services, End Users will receive a notification (visual or otherwise) when recording is enabled. If an End User does not consent to being recorded, the End User must choose to leave the video call.
- Account Data Retention: We, and our third party providers, reserve the right to delete your Account Data (including but not limited to, voicemail, call detail records, faxes, data, or files) or other information that is stored through the Services and/or our third party service providers servers or systems in accordance with our storage policies located at https://rhelp.corenexa.com for the associated service. You agree that we do not have any liability whatsoever as a result of the loss, access or removal of any such Account Data or other information pursuant to these policies. We advise you to store your Account Data with a third-party storage provider if you foresee the need for historical data.
- Additional Services: Sometimes when you use the Service, you may also use a service or purchase goods provided or offered by a third party. Your use of these other services or goods may be subject to separate terms, and you agree that we have no liability or obligation relating to those services or goods.
- No High-Risk Use: The Service is not designed for or made available for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. You and your Customers may not use or sell the Service to any End User that falls into this category.
- Use by Children Prohibited: Video Services may not be used by anyone under the age of sixteen (16) unless you have entered into a separate agreement with an educational facility. You and your Customers and End Users under the age of sixteen (16) may not create accounts or use the Service without a separate agreement. We may terminate your access to the video Service without warning if we believe that you, your Customer(s) and/or End User(s) are under the age of sixteen (16) or are otherwise ineligible to use the Service.
4. RESELLER OBLIGATIONS
- General Obligations: You shall be responsible for performing all tasks necessary and appropriate to provide and maintain the Services for your Customers, which are not specifically identified in this Agreement or any attachment as being our responsibility. Your responsibilities include, but are not limited to: (i) procuring your own internet connection and access, which may be required to use the Services; (ii) marketing the Services; (iii) connecting Customers to the Services provided by you; (iv) servicing such Customers, including but not limited to the provision of technical support to Customers in their use of the Services; (v) installing and managing all Customer equipment, including, without limitation, ATAs, IADs, software-based SIP clients, and other VoIP or network-specific hardware; (vi) providing Customers with appropriate legal and regulatory disclosures and Use Policies; (vii) entering into appropriate contractual arrangements with all Customers, which shall include restrictions related to the Customers use of the Services that are at least as stringent as this Agreement, which you shall require all Customers to agree to prior to making the Services available; (viii) billing and collecting payments from Customers, agents or subcontractors; (ix) managing the Software in support of the Services you have sold or agreed to provide to your Customers, and; (x) complying with all legal, accounting and regulatory obligations, including but not limited to local, state and federal regulatory obligations, and taxes and regulatory fees, associated with your offerings.
- Support: You are responsible to provide support to your Customers. You will not direct your Customers to contact us for support and we are not responsible for providing support services to your Customers. In the event that your Customer contacts us directly, we will, on the first occasion, redirect the Customer to you and inform you of the attempted contact. Any request made by you for us to speak directly to your Customer may result in professional service fees being charged to you for our time spent with that Customer.
- Provisioning Service: You are solely responsible for provisioning all Services on behalf of or for your Customer. We are not responsible for any errors or improperly provisioned Services, including improperly set taxes, fees, and surcharges. If you improperly provision a Service, you may be improperly invoiced by us. Until such time as you correct the improperly provisioned Services, you will be responsible for all such charges.
- Unlawful Robocalls: You will engage in due diligence when entering into new service agreements, or renewing existing agreements, with your Customers to ensure that the Network is not used to originate illegal traffic. Subject to Section 14 (Indemnification), you will indemnify us from any and all Losses resulting from illegal traffic originating from any of your Customers. Any breach of this Section will be deemed a material breach of this Agreement.
- Cooperation with Traceback Requests: You agree that when you are acting as an upstream provider originating traffic (hereinafter referred to as an “Originating Provider”) or passing traffic through (hereinafter referred to as a “Transit Provider”), if you receive a request from a traceback administrator authorized by the Traceback Consortium for information about suspicious robocalls that have been sent to a downstream provider (hereinafter referred to as a “Traceback Request”), you will respond within twenty-four (24) hours to the Traceback Request in good faith. You agree that your response will indicate if you are in the call path as the Originating Provider of the calls (i.e., you received the calls from your Customer) or (ii) a Transit Provider (i.e., you received the calls from another voice provider). The response must also identify the source of the calls. You agree to share this information without requiring a subpoena or other formal demand or request. Any breach of this Section will be deemed a material breach of this Agreement.
- General; Shipping: You may purchase or rent Equipment from us for use with the Services within manufacturer guidelines and applicable laws. You will pay all shipping and related charges unless otherwise agreed upon in writing. Equipment purchased or rented through us may be subject to additional terms and conditions, and you agree to be bound by such terms and conditions, including any third-party terms and conditions. You shall be deemed the importer of Equipment for all purposes, and shall be liable for any applicable customs, import/export duties, clearance charges and other Taxes and Fees (including VAT), in connection with international shipments.
- Warranty: We will pass through to you all warranties that we are expressly authorized by the original supplier to pass through.
- Lost, Stolen, Altered or Broken Equipment: You will not modify the Equipment in any manner without our express written consent and will only use the Equipment in connection with the Services. You will be responsible for all lost, stolen or broken Equipment (except to the extent covered by warranty) and shall promptly notify us of any such loss or theft to prevent unauthorized use of Equipment.
- Unsupported Devices: You shall not access or use the Services with any equipment or devices other than supported Equipment without our consent. We shall have no liability whatsoever for your access or use of the Services with any equipment or device that is not supported by us, even if we have consented to your use of such device. A list of supported equipment can be found in our knowledge base at https://rhelp.corenexa.com/en/home/devices/voice.
- Prices and Charges
- Unless otherwise specified, all prices are identified in US dollars as set forth in Schedule A of the Order. Schedule A may be updated to include new Services and associated rates for such new Services. If you use a Service where a particular rate for the Service is not identified in Schedule A, the rate applicable to that Service will be as stated on your monthly service bill.
- You will be liable for all charges resulting from use of the Services on your account. No set-off, deduction or cross-collateralization will be permitted.
- All professional services will be billed at prevailing professional service rates in one (1) hour blocks, unless otherwise specified.
- We reserve the right to change pricing. We will provide you with at least fifteen (15) days prior notice to any rate changes unless such rate change is made effective to us in a shorter notice period by an upstream service provider, in which case we will provide as much notice as practicable. You will have an opportunity to terminate the applicable Service if we change the price of a Service to which you are subscribed.
- If changes in applicable law, regulation, rule or order materially affect delivery of a Service, the Parties will negotiate appropriate changes to this Agreement. If the Parties cannot reach agreement within thirty (30) days after our notice to you requesting such a renegotiation, we may, on a prospective basis after such thirty (30) day period, pass any increased delivery costs on to you or eliminate Services impacted by the change in law, regulation, rule, or order.
- Billing and Payment
- You shall provide a valid credit card or ACH authorization form, which will be kept on file by us. All amounts due to us will be collected from the credit card or payment authorization form on file. You shall receive an invoice or statement of account detailing the amounts charged on each billing cycle prior to any charges collected by us. Your termination of our authority to charge a particular payment method does not relieve your responsibility to pay charges due.
- Amounts not paid due to bank decline or otherwise shall be due and payable one (1) business day after you have been notified of the declined transaction. A processing fee of seventy-five dollars ($75) will be assessed for any payment transaction that is declined. Any amount not paid by the due date shall be considered past due and subject to a late payment charge equal to the lesser of (a) one and a half percent (1.5%) per month compounded, or (b) the maximum amount allowed by law. You agree that in the event we are unable to collect amounts owed for the Services, we may take any other steps we deem necessary to collect such fees and that you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys' fees.
- For new accounts, all non-recurring charges for setup and onboarding fees will be due upon signing.
- Taxes: In addition to payment for the rates and charges for Service(s), you are responsible for payment of all sales, use, gross receipts, value added, excise and other local, state, and federal taxes, fees, charges, and surcharges, however designated, imposed on or based upon the provision, sale or use of the Services, excluding taxes based on our employees, property and net income.
- Tax Exemption. If you claim that your purchase of the Services is subject to tax exemption, you must furnish us with the proper tax exemption certificate as authorized by the appropriate taxing authority or required by statute or regulation. If applicable, we will not collect such tax amounts from you beginning on the date such certificate is provided. However, if we do not collect such amounts in reliance on your tax exemption certificate, which certificate is later determined to be inadequate, then, as between us and you, you shall be liable for such uncollected amounts and for all interest, penalties and additions to tax which are determined to be due with respect to such uncollected amounts. We will not issue any credit(s) for applicable taxes, tax-like charges and surcharges assessed prior to our receipt of your evidence of exemption. Notwithstanding any representation you make that any exemption application is pending, no exemption shall be available to you until you present us with the valid certificate(s).
- Governmental Charges. We may adjust our rates and charges or impose additional rates and charges in order to recover fines and other amounts we are required to pay to others in support of statutory or regulatory programs or we are permitted by governmental or quasi-governmental authorities to collect from you ("Governmental Charges"). If the rates and/or charges are adjusted, we shall provide notice to you of any such change. Any change shall become effective beginning on the first day of the next calendar month following notice to you, or thereafter, on the first day of the next service billing cycle whenever adjustments are made to rates or charges. Any Governmental Charge will be charged on the monthly invoice or statement of account following the date such Governmental Charges are charged to Company, or later, as the case may be.
- Enforcement Violations: Polices implemented by us or our third party providers will be enforced. Violations of these policies may result in affirmative action by us or our third party providers which may include fines or other amounts that we may be required to pay. Such polices include but are not limited to messaging policies.
- Billing Disputes: If you reasonably and in good faith dispute any portion of your monthly invoice or statement of account (as applicable), you must provide written notice to us within fourteen (14) days of the billing date, identifying the reason for the dispute and the amount being disputed. Your dispute as to any portion of fees due to us will not excuse your obligation to timely pay the undisputed portion of the monthly fees. Upon resolution in our favor, you must pay any unpaid amounts within ten (10) days, including any late payment fee.
- Security Deposit: In the event that your payment method on file is declined three (3) or more times during any ninety (90) day period, we may, at our option, require you to provide a security deposit in an amount sufficient to meet sixty (60) days’ worth of service fees. If we collect a security deposit, we may draw upon the deposit at any time to recover any amounts due and unpaid, and upon notice to you, you shall immediately replenish the deposit to its original value. We do not waive any rights or remedies by drawing upon the deposit to recover overdue or unpaid amounts. If we draw upon the deposit, we may suspend the Services until you replenish the deposit to its original value. If you fail to provide or replenish such security deposit, we may immediately suspend the Services and/or terminate this Agreement without further notice or demand.
7. TERM AND AUTOMATIC RENEWAL:
This Agreement will commence as of the effective date of the most recent Order, and, unless terminated earlier as set forth herein, will continue for the term set forth on the Order (“Initial Term”). This Agreement will automatically renew for additional one (1) year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless a party gives the other party written notice of termination of this Agreement at least sixty (60) days prior to the then-current expiration date.
- Termination or Suspension with Notice
- Subject to Section 6(g) (Billing Disputes), you shall have ten (10) days from the date of any default notice in which to cure a default in payment. If payment in full is not received by us on or before the tenth (10th) day, we have the right to suspend Service(s) including your access to the portal for adds, deletions or changes in service, without liability until such time that you have paid all charges, including any late payment charge.
- In the event that you do not bring your account current within thirty (30) days from the date of suspension as set forth in (i) above, then we may terminate the Agreement with five (5) days prior written notice to you.
- Additionally, we may, at our discretion, terminate this Agreement if the payment method on file is declined three (3) or more times during any ninety (90) day period and you do not provide a security deposit within five (5) days after receiving a request from us.
- If Services are terminated for defect in payment, any unposted credits due or prepayments collected for Services will be applied to any outstanding payments due to us.
- Termination or Suspension without Notice. We have the right to terminate or suspend one or more Services without notice to you, if in our opinion; (i) the interruption of the Service(s) is necessary to prevent or protect against fraud or otherwise protect our or any of our resellers’ or customers’ personnel, facilities, or network; (ii) we have reasonable evidence of your illegal, improper or unauthorized use of the Services; (iii) we are required by legal or regulatory authority as set forth in Section 18(k) (Regulatory and Legal Changes), or (iv) your insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver or other similar event.
- Termination for Cause: Either Party may terminate this Agreement and any Services purchased hereunder, in whole or part, by giving written notice to the other Party if the other Party: (i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of such notice, except that we will have the right to terminate this Agreement without such cure period; and/or (ii) your failure to timely pay all undisputed amounts due for Services rendered under this Agreement.
- Effect of Termination
- If you terminate this Agreement in its entirety due to our material breach under Section 8(c) (Termination for Cause), you will be liable for all fees and charges for all Services (including usage) up through and including the date of termination of the Service(s).
- If this Agreement or any Services are terminated for any reason other than as a result of a material breach by us or as set forth in Section 18(k) (Regulatory and Legal Changes), you must, to the extent permitted by applicable law and without limiting any of our other rights or remedies, pay within ten (10) calendar days of such termination all amounts that have accrued prior to such termination, as well as all sums remaining unpaid (including but not limited to monthly minimum commitments) for the Services for the remainder of the then-current Term plus related Taxes and Fees.
- Data Retention Upon Suspension/Termination
- In the event of suspension, we will not take any action to intentionally erase any Account Data stored on the platform. You shall have no rights to retrieval of stored data while suspended.
- In the event of termination of this Agreement, we will not take any action to intentionally erase any Account Data stored on the platform for a period of thirty (30) days after the effective date of termination. After termination, Account Data retrieval requests can be made by opening a ticket with our Support Team. Professional services fees may be charged for any Account Data retrieval requests.
- Except as provided above, we shall have no obligation to continue to store Account Data during any period of suspension or termination or to permit you to retrieve the same.
- Obligations. Commencing on the Effective Date of the Agreement, and continuing for a period of three (3) years following the termination or expiration of the Agreement, each Party shall protect as confidential, and shall not disclose to any third party, any Confidential Information received from the disclosing Party or otherwise discovered by the receiving Party during the Term of the Agreement, including, but not limited to, the terms of the Agreement, Amendments, Service Level Agreements, all other documentation that is made part of the Agreement, all pricing, network or other designs, or other information that is marked confidential or bears a marking of like import, or that the disclosing Party states (orally or in writing) is confidential or which under the circumstances surrounding the disclosure, the receiving Party knows or should know is treated as confidential by the disclosing Party, as well as any information relating to the disclosing Party’s technology, business affairs, and marketing or sales plans (collectively the “Confidential Information”). The Parties shall use Confidential Information only for the purpose of the Agreement. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (a) is in the possession of the receiving Party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (b) is or becomes publicly known through no wrongful act or omission of the receiving Party; (c) is received, without restriction, from a third party free to disclose it without obligation to the disclosing Party; (d) is developed, independently, by the receiving Party without reference to the Confidential Information, or (e) is required to be disclosed by law, regulation, court or governmental order.
- Return/Destruction of Confidential Information: Confidential Information, including copies, will be deemed the property of the disclosing Party. The receiving Party will, within twenty (20) days of a written request by the disclosing Party return all Confidential Information (or any designated portion thereof), including all copies thereof, to the disclosing Party or if directed by the disclosing Party, destroy such Confidential Information. The receiving Party will also certify in writing that it has satisfied its obligations under this Section.
10. INTELLECTUAL PROPERTY
- Limited License
- Subject to, and conditional upon your compliance with, the terms of this Agreement, we grant to you and your Customers, a limited, personal, revocable, non-exclusive, non-transferable (other than as permitted under this Agreement), non-sublicensable license to use any Software provided or made available by us as part of the Services to the extent reasonably required to use the Services as permitted by this Agreement, only for the duration that you are entitled to use the Services.
- You will not, and will not allow your Customers to:
1. sublicense, resell, distribute or assign your rights under the license granted under this Agreement to any other person or entity;
2. modify, adapt or create derivative works of the Software or any associated documentation;
3. reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software;
4. use the Software for infringement analysis, benchmarking, or for any purpose other than as necessary to use the Services you are authorized to use;
5. create any competing Software or Services; or
6. remove any copyright or other proprietary or confidential notices on any Software or Services.
- IP Rights
- IP Rights: Except as expressly provided in this Agreement, the limited license granted to you under Section 10(a) (Limited License) does not convey any ownership or other rights or licenses, express or implied, in the Services, any related materials, work product developed in connection with any professional services, or in any intellectual property and no IP Rights or other rights or licenses are granted, transferred, or assigned to you, your Customers, or any other party by implication, estoppel, or otherwise. All rights not expressly granted herein are reserved and retained by us and our licensors. You will not allow access to IP, including without limitation, Software and systems, by anybody other than your employees and subcontractors who (a) are bound by law or written agreement to comply with this Agreement with respect to IP and Confidential Information, and (b) require such access to assist you in your permitted use thereof. You will return all IP to us at the conclusion of the applicable Service. You will cooperate to take such actions reasonably requested to vest ownership of IP to us.
- Third Party Rights: The Software and Services may comprise or incorporate services, software, technology or products developed or provided by third parties, including open-source software or code. You acknowledge that misuse of the Services may violate third-party IP Rights.
- Reseller Rights: As between the Parties, you retain title to all IP Rights that are owned by you. To the extent reasonably required or desirable for the provision of the Services, you grant to us a limited, personal, non-exclusive, royalty-free, license to use your IP Rights. You must provide (and are solely responsible for providing) all required notices and obtaining all licenses, consents, authorizations, or other approvals related to the use, reproduction, transmission, or receipt of any Customer Content that includes personal or Confidential Information or incorporates any third-party IP Rights.
- Use of Marks: Reseller shall not use any service mark or trademark of ours, without our prior written consent. We shall have the right to disclose Reseller’s name and trademark in connection with any advertising, promotion, press release or publication.
11. GOVERNMENTAL USERS
If Reseller (or its Customers and/or End Users) is an agency, department, or other entity of any government, then any use, modification, duplication, reproduction, release, performance, display, transfer or disclosure of the Services and accompanying documentation shall be governed solely by this Agreement. Any other use is prohibited and no other rights are granted.
12. DISCLAIMER OF WARRANTY
SERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS. WE DO NOT WARRANT THAT THE SERVICE(S) WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF QUALITY OR LOSS OF CONTENT, DATA, OR INFORMATION, EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, ANY ATTACHMENTS, AND ANY APPLICABLE SERVICE LEVEL AGREEMENT. IN ADDITION, WE MAKE NO OTHER REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE(S), RELATED PRODUCTS, EQUIPMENT, SOFTWARE OR DOCUMENTATION AND WE SPECIFICALLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. BROADBAND SPEED CLAIM(S) REPRESENT MAXIMUM DOWNSTREAM AND/OR UPSTREAM CAPABILITIES WHICH MAY VARY AND ARE NOT GUARANTEED. FACTORS INCLUDING LINE QUALITY AND CUSTOMER’S DISTANCE FROM THE EXCHANGE MAY LIMIT AVAILABLE BANDWIDTH.
13. LIMITATION OF LIABILITY
- Excluded Damages: TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS AND SHAREHOLDERS BE LIABLE FOR (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND; (2) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (3) LOSS OF USE, LOSS OR CORRUPTION OF DATA; AND/OR (4) LOSS OF BUSINESS OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW.
- Direct Damages: EXCEPT AS SET FORTH HEREIN, OUR TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT FOR THE SIX (6) MONTH PERIOD PRIOR TO THE MOST RECENT CAUSE OF ACTION. THIS SECTION WILL NOT APPLY TO: (1) YOUR PAYMENT OBLIGATIONS; (2) EITHER PARTY’S LIABILITY AS SET FORTH IN SECTION 13 (LIMITATION OF LIABILITY) OF THIS AGREEMENT; (3) YOUR INDEMNIFICATION OBLIGATIONS; (4) EITHER PARTY’S LIABILITY RESULTING FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT; OR V) YOUR LIABILITY RESULTING FROM USE OF THE SERVICES IN BREACH OF THE AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED, OR EXCLUDED PURSUANT TO APPLICABLE LAW.
- Third Party Providers: WE SHALL HAVE NO LIABILITY TO YOU WHATSOEVER FOR THE FAILURE OF OUR THIRD-PARTY PROVIDER(S) TO RENDER SERVICES, OR DUE TO DEFECTS IN THE QUALITY OF SERVICE PROVIDED BY OUR THIRD-PARTY PROVIDER(S). SERVICES RENDERED BY OUR THIRD-PARTY PROVIDERS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. IF OUR THIRD-PARTY PROVIDER(S) CEASE PROVIDING SERVICES TO US OR REVISE THEIR TERMS OF SERVICE, THEN ANY AND ALL OF OUR OBLIGATIONS HEREUNDER SHALL TERMINATE ACCORDINGLY, AT OUR OPTION, AND WE SHALL INCUR NO ASSOCIATED LIABILITY TO YOU.
- By Reseller: You hereby agree to indemnify, defend and hold us harmless, and our respective Affiliates, subsidiaries, directors, officers, agents, suppliers, employees, successors and assigns from and against any Losses arising out of or relating to: (i) your or your Customers’ use of Services; (ii) Customer Content and/or any third-party information used, maintained or stored in connection with the Services; (iii) your breach of any representation, covenant or warranty contained herein; (iv) violation of any law by you or any third party arising out of or relating to your actions; or (vi) the modification or unauthorized use by you or your Customers’ or distribution of the Services or IP.
- By Company: Subject to the limitations set forth in Section 13 (Limitation of Liability), we shall, during the Term of this Agreement, defend and indemnify, at our expense, any third-party claim or suit brought against you alleging that the Software infringes a U.S. trademark, patent or copyright and shall pay all costs and damages finally awarded. If use of the Software under the terms of this Agreement is, or in our opinion is likely to be, enjoined due to the type of infringement specified above, then we will, at our sole option and expense, obtain for you the right to continue using the Software, or replace or modify the Software so that it becomes non-infringing. We shall have no liability for actual or alleged infringement based upon the use of the Software in combination with other products, devices or software not furnished by us, use not in compliance with our specifications, or modifications made to the Software if the claim or suit of infringement would not have occurred but for such combination or modifications of the Software. We disclaim all other liability for patent, trade secret and copyright and other intellectual property rights infringement, including any incidental, special, consequential, and punitive damages. With respect to any claims or actions relating to infringement of intellectual property rights, the remedies set forth in this Section shall be the sole and exclusive remedies to which you are entitled.
- Defense and Indemnification Procedures: Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from which it seeks such indemnification or defense (the “Indemnifying Party”) with the following: (i) prompt written notice of the third-party claim, (ii) sole control over the defense and settlement of the third-party claim, and (iii) reasonable information, cooperation, and assistance in connection with the defense and settlement of the third-party claim. The Indemnified Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section 14 (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party will have the right to participate at its own expense in the defense of such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each party bringing such third-party claim.
15. DISPUTE RESOLUTION
- Good Faith Attempt to Settle Disputes: In the event of any dispute or claim arising out of or relating to the Agreement (a “Dispute”), each Party will appoint a duly authorized representative who will confer with the other Party before either Party brings legal action to make a reasonable and good faith effort to settle or otherwise resolve such Dispute. If the Parties are unable to resolve the dispute within thirty (30) days (or as extended upon the mutual agreement of both Parties) of initial notification of the Dispute, either Party may invoke arbitration pursuant to subsection (b) below.
- Arbitration: Any dispute or claim between the Parties, including those arising out of or relating to the Service, will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in the Montgomery County, Pennsylvania. Each Party shall bear its own costs and expenses, including without limitation attorney’s fees and expenses related to the presentation of evidence, witnesses and document production, and an equal share of the arbitrator’s and administrative fees of the arbitration. The arbitrator’s decision will follow the plain meaning of the relevant documents and will be final and binding. Without limiting the foregoing, the Parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party's individual claim. All claims shall be arbitrated individually. Unless the Parties agree otherwise, the arbitrator may not consolidate more than one person's or entity's claims and may not otherwise preside over any form of a representative or class proceeding. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
- Equitable Relief: Any breach of either Party’s IP Rights or confidentiality obligations will cause that Party irreparable harm for which monetary damages will be inadequate and such Party may, in addition to other remedies available at law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement, in addition to any other relief to which such Party may be entitled under applicable law.
16. ON-SITE SERVICES
If our personnel perform Services on your premises: (i) you will provide all facilities, access, furnishings, equipment, software, documentation, passwords, and data necessary to perform the Services; (ii) you will maintain adequate security, safety, utilities, and environmental standards, consistent with industry standards and its regular practices; (iii) while on your premises, our personnel will comply with your standard rules and regulations consistently applied and communicated to us in advance; (iv) except as otherwise provided, you will reimburse us for our reasonable out-of-pocket expenses incurred in connection with the Services, including travel related costs including.
You are solely responsible for maintaining and ensuring that you will maintain insurance coverage that is usual, reasonable, and customary for the service you are providing, including without limitation automobile, general liability and workers compensation, as applicable. On written request, you will furnish certificates evidencing the foregoing insurance.
- Force Majeure: If either Party’s performance under the Agreement or any obligation thereunder (excluding your obligation of payment under the Agreement) is prevented, restricted or interfered with by causes beyond its reasonable control including, but not limited to, acts of God, epidemics, pandemics, quarantines, public health emergencies, fire, explosion, vandalism, cable cut by a third party, earthquake, storm or other similar occurrence, any law, order, regulation, direction, action or request of the United States government, or state or local governments, or of any department, agency, commission, court, bureau, corporation or other instrumentality of anyone or more such governments, or of any civil or military authority, or by national emergency, insurrection, riot, terrorism, war, accident, strike, lockout or work stoppage or other labor difficulties, or supplier failure, shortage, breach or delay, then the affected Party shall be excused from such performance on a day-to-day basis to the extent of such restriction or interference. The affected Party shall use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease.
- Notices: Unless otherwise advised, all notices hereunder shall be in writing and either transmitted via overnight courier, electronic mail, facsimile, hand delivery, certified or registered mail, postage prepaid and return receipt requested to the Parties at the addresses set forth on the Order. Notices shall be deemed to have been given when received (or delivery refused). Either Party may change its address by providing notice of such address change to the other Party in the manner set forth above.
- Independent Contractors: The Parties are independent contractors and nothing herein will be construed to any other effect. Each Party alone will determine, supervise, and manage the method, details, and means of performing its obligations. Except as agreed in writing, neither Party will act or attempt to act or represent itself, directly or by implication, as the other Party’s agent. Each Party will be solely responsible for the withholding and payment of all applicable federal, state, and local taxes for its own employees.
- Exclusivity and Competition: Nothing herein shall prohibit us from providing services similar or identical to the Services provided to you hereunder to any other entity or person.
- Severability; No Waiver: Any provision of this Agreement that is prohibited or unenforceable will be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions. No course of dealing or failure of a Party to enforce strictly any term or provision of this Agreement, or to exercise any right, obligation, or option provided hereunder, will waive such term, provision, right, obligation, or option.
- Assignment: Neither Party may assign the Agreement or any of its rights thereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, except that (a) we may assign our rights and/or obligations under the Agreement, (i) to any parent, affiliate or subsidiary, (ii) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all of its assets, or (iii) for purposes of financing; and (b) you may assign your rights and/or obligations under the Agreement, (i) to your parent, affiliates or subsidiaries, or (ii) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all of its assets, provided that any assignment by you pursuant to this exception is subject to the following conditions: (a) the proposed assignee satisfies our then current credit and deposit standards; (b) you have fully paid for all Services through the date of the assignment; (c) the proposed assignee agrees in writing to be bound by all provisions of the Agreement; and (d) the proposed assignee is not a competitor of Company. Any assignment in violation of this Section is null and void.
- Third-Party Beneficiaries: The Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to the Agreement. Notwithstanding the foregoing, our underlying service provider(s) may be third-party beneficiaries for sole purpose of enforcing any terms of the Agreement that specifically apply to such underlying service provider.
- Internal Customer Activities:
- We do not have any obligation to assist in or otherwise mediate in the event of any dispute between your representatives or you and any third party with respect to ownership or control of any account or Account Data. All information within our records regarding the ownership or control of an account or Account Data, Services ordered, and numbers assigned to an account will be definitive and controlling for purposes of administering the account. In the event of any such dispute, we may take any course of action that we deem appropriate based on the information available, which includes declining to take any course of action.
- We may access your account and related data as required to provide the Services. However, we have no obligation to access your account, Account Data or any Customer Content for any other purposes. Services do not include or consist of any investigation, review, verification, production, compilation, modification, or other similar services for any Account Data or Customer Content. Services do not include the provision of any legal, accounting, or other professional services.
- Governing Law; Venue. All matters arising out of and relating to the Agreement, any applicable Schedules and attachments, and all additional documentation shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania without regard to its choice of law principles. Any action that is or may be commenced by any Party pertaining to the Agreement and the subject matter thereof, shall be commenced in a federal or state court located in Montgomery County, Pennsylvania. The Parties hereby consent to the jurisdiction of such court, waiving objection to forum non conveniens and personal jurisdiction.
- Export Control: Any services, products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export laws and regulations. You will not use, distribute, transfer, or transmit the services, products, software, or technical information (even if incorporated into other products) except in compliance with U.S. and other applicable export regulations.
- Regulatory and Legal Changes: In the event of any change in law, regulation or industry change that would prohibit or otherwise materially interfere with our ability to provide Services under this Agreement, we may terminate the affected Services or this Agreement or otherwise modify the terms thereof.
- Laws, Regulations, Permits: Each Party will comply, at its own expense, with all applicable federal, state, county, and local laws, rules, regulations, policies and codes in performing its obligations hereunder. Each Party represents that it has or will obtain all consents, licenses, permits and certificates required to receive or perform the Services and to do business in the United States (or such other country in which a Party or its Affiliates sells or uses the Services.) If we reasonably believe that continued performance of the Services would cause any violation of any applicable law, statute, ordinance, court order or regulatory agency rules, we may cease performing the applicable Service(s) to the extent reasonably required to correct or avoid the violation. You are responsible for being informed on all legal requirements related to the Services. For clarity, you are solely responsible for compliance related to the manner in which you or your End Users choose to use the Service, including transfer and processing of content and the provision of content to any users.
- Non-Disparagement: During the Term of this Agreement and for a period of one (1) year thereafter, you agree to take no action which is intended, or would reasonably be expected, to: (i) harm us or our reputation, or (ii) lead to unwanted or unfavorable publicity for us, including, without limitation, any actions on the internet or any online forums, blogs, or Facebook or Twitter posts, or any other similar online venues (hereinafter “Online Forums”). In addition, you may not set up or in any way administer any Online Forums that relate, directly or indirectly, to us or any other of our third party providers or customers without our express prior written consent.
- Survival: The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement will survive expiration or termination, including without limitation payment obligations, warranty disclaimers, indemnities, limitations of liability, confidentiality, definitions and miscellaneous.
- Non-Solicitation: During the term of this Agreement and for a period of twelve (12) months from termination hereof, neither Party shall hire or solicit for employment any employee or contractor of the other Party without the prior written consent of the other Party prior to making an offer of employment; provided however, that nothing in this Agreement shall be deemed to prohibit: (i) any general solicitation for employment not specifically directed at employees or contractors of the other Party, or (ii) the employment of any person who has been terminated by the other Party. Notwithstanding the foregoing, nothing in this Section shall relieve either Party’s employee of any duty or obligation arising under a non-compete agreement.
- Order of Precedence: In the event of any conflict between the documents comprising this Agreement, precedence will be given to the documents in the following descending order: (i) the Order; (ii) the Use Policies; (iii) these Terms of Service; and (iv) and any other document incorporated by reference into in this Agreement which governs the Services. No preprinted or form terms on a purchase order will apply.
- Entire Agreement: This Agreement, together with any attachment(s) or executed amendments, constitutes the Parties’ entire understanding, and supersedes any prior written or oral agreements or understandings, related to the subject matter hereof. This Agreement is not enforceable unless properly executed by both Parties. The Parties’ signatures on the Order or use of the Service shall constitute execution of this Agreement. This Agreement or the Pricing Schedule may be modified only by a mutually executed amendment, except that we may change the terms and conditions of this Agreement at any time by posting the terms to our website and making you aware of the change in terms. If you do not accept the changes to the Agreement, you will have the opportunity to terminate the Services. If you do not elect to terminate the Services, such changes will become binding on you. Such amended Agreement will supersede all previously agreed to electronic and written terms of service, attachments, or other documentation.
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