8x8 Virtual Office and Virtual Contact Center Service Terms for 8x8 Reseller Customers
Last Updated: November 30, 2018
THESE TERMS SHOULD BE READ CAREFULLY, AS THEY AFFECT THE PARTIES‘ LEGAL RIGHTS BY, AMONG OTHER THINGS, LIMITING RESELLER’S LIABILITY UNDER THE AGREEMENT
1.1. Applicability and Scope. These 8x8 Virtual Office and Virtual Contact Center Service Terms for 8x8 Reseller Customers and all content expressly incorporated herein (these “Terms”) apply to those customers of a reseller of 8x8, Inc. (“8x8”) that have agreed to or accepted these 8x8 Virtual Office and Virtual Contact Center Service Terms for 8x8 Reseller Customers in connection with ordering 8x8 Virtual Office and/or 8x8 Virtual Contact Center services (such services (whether stand-alone, included in 8x8 Editions or 8x8 X Series, or otherwise bundled with other services), including all components thereof, the “8x8 SaaS Services”) from or through such reseller. For such customers, these Terms apply with respect to all 8x8 SaaS Services and Project Services (together, “Services”) and Equipment ordered or provided under the Agreement (as defined below) (such Equipment, “Ordered Equipment”; such Services and equipment, together, “Ordered Products”). The 8x8 Virtual Office and Virtual Contact Center Regional Terms for 8x8 Reseller Customers included at the end hereof (the “Regional Terms”) are a part of, and incorporated in, these Terms.
1.2. The Agreement. On the first occasion that the legal entity in whose name Reseller agrees to provide Services (“Customer”) performs any of the following acts, such entity thereby enters into a legally-binding contract with Reseller that shall govern all ordering, acquisition, accessing, and use of Ordered Products (the “Agreement”): (a) entering into an order or other document that incorporates these 8x8 Virtual Office and Virtual Contact Center Service Terms for 8x8 Reseller Customers or otherwise agreeing to or accepting these 8x8 Virtual Office and Virtual Contact Center Service Terms for 8x8 Reseller Customers or (b) accessing or using any 8x8 SaaS Services after being notified that these 8x8 Virtual Office and Virtual Contact Center Service Terms for 8x8 Reseller Customers apply to such 8x8 SaaS Services or to such accessing or use thereof. The Agreement shall include all terms and conditions between Customer and Reseller (each a “Party” and together as the “Parties”) related to the ordering, acquisition, accessing, or use of Ordered Products (including without limitation these Terms) and all orders of 8x8 SaaS Services and/or Equipment entered into or placed by or on behalf of Customer, each of which shall be subject to these Terms. For avoidance of doubt, any transaction, dealing, or relationship between the Parties – and any terms, conditions, documents, materials, or other content agreed to or entered into by, or otherwise applicable to, Customer and Reseller – that are unrelated to the Ordered Products or the ordering, acquisition, accessing, or use thereof (e.g., Customer’s ordering from Reseller goods or services other than the Services or Equipment) (each such transaction, document, etc., an “Extraneous Agreement”) shall be outside of the scope of the Agreement, and these Terms shall not govern or apply to any such Extraneous Agreement.
The individual who agrees to or accepts these Terms represents and warrants to Reseller that he or she has the authority to bind Customer to the Agreement and enter into the Agreement on Customer‘s behalf. IF SUCH INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE TO THESE TERMS, THEN HE/SHE SHOULD NOT ACCEPT THESE TERMS, ENTER INTO ANY ORDER, OR ORDER, ACCESS, OR USE THE 8x8 SaaS SERVICES OR AUTHORIZE OR PERMIT ANY OTHER PERSON TO DO SO.
1.3. Conflict. In respect of the Ordered Products and other matters within the scope of this Agreement, the Agreement shall take precedence and control in the event of any conflict or inconsistency with any Extraneous Agreement. In the event of any conflict between these Terms and any other component of the Agreement, these Terms shall take precedence and control.
1.4. Relationships Among Reseller, Customer, and 8x8. As a supplier of Reseller with respect to the 8x8 SaaS Services and Equipment, 8x8 and/or its Affiliates may make available, provide, maintain, support, administer, and/or implement the Ordered Products and/or perform billing, collection, or other functions with respect to the Ordered Products and/or the Agreement. Consequently, certain components or aspects of the 8x8 SaaS Services (including without limitation certain software applications available for download and/or for use in connection therewith) and/or Equipment may include the branding of 8x8 or its Affiliates, and certain provisions of these Terms or other components of the Agreement may refer or relate to 8x8, its Affiliates, or the products or services offered by them. Customer and Reseller acknowledge and agree that notwithstanding the foregoing, (a) neither 8x8 nor any of its Affiliates are the service provider under the Agreement or otherwise in respect of any Ordered Products; rather, in entering into the Agreement, Customer is entering into a contract solely and exclusively with the non-8x8 entity(ies) from/through which it orders the Ordered Products (“Reseller”), and the Agreement is solely between Customer and Reseller and (b) in no event shall 8x8 or any of its Affiliates, by virtue of these Terms or the Agreement, or Customer’s ordering, acquisition, accessing, or use of Ordered Products, (i) be or be deemed to be a party to the Agreement or (ii) have any obligation, liability, or responsibility to Customer or any other party (nor shall Customer or any other party have any right or remedy that may be enforced or asserted against 8x8 or any of its Affiliates by virtue of or under these Terms or the Agreement). Accordingly, Customer agrees that it shall look solely to Reseller for the fulfillment of any and all obligations owed to Customer, its Affiliates, and/or other related parties under the Agreement and shall not seek to enforce the Agreement or assert or enforce their rights or remedies thereunder against 8x8 or its Affiliates.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER HEREBY RELEASES, DISCHARGES, AND HOLDS HARMLESS 8x8, ITS AFFILIATES, AND THEIR RESPECTIVE PERSONNEL AND PARTNERS (OTHER THAN RESELLER) FROM AND AGAINST ANY AND ALL CLAIMS AND/OR LIABILITY UNDER OR WITH RESPECT TO THE AGREEMENT AND/OR THE ORDERED PRODUCTS.
1.5. Applicability Throughout the Access Period. Customer agrees and acknowledges that the restrictions and requirements applicable to Customer under these Terms are intended to apply throughout the entire Effective Period and all other periods during which the 8x8 SaaS Services ordered under the Agreement (“Ordered 8x8 SaaS Services”) are available, even if any such periods are subsequent to termination or expiration of the Agreement (the Effective Period and all such other periods, collectively, the “Access Period”). Accordingly, Customer agrees that it shall comply with such restrictions and requirements for the entire Access Period, and its obligations related to such restrictions and requirements shall survive any termination or expiration of the Agreement and continue to apply during any such periods.
2. 8x8 SaaS SERVICES
2.1. Ordering 8x8 SaaS Services. Customer may order 8x8 SaaS Services under the Agreement, in each case by entering into a written order prepared by or on behalf of Reseller for the same with Reseller pursuant to the Agreement (“Orders”). Orders shall be:
(a) deemed entered into by, and shall become effective and legally binding on, the Parties upon (i) execution by Customer (or execution by both Parties if the Parties have agreed in writing that the foregoing shall be required for Orders to be effective) or (ii) completion by Customer of an electronic “click-through” or “click to accept” process of Reseller or its Partner and
(b) coterminous with the Agreement (i.e., shall terminate, renew, and/or expire at the same time as the Agreement, in accordance with Sections 11 (Term and Renewal) and 12 (Termination)).
Upon placement of an Order, the applicable Ordered 8x8 SaaS Services shall be provisioned, a tenant and account shall be automatically created for Customer, and Customer’s designated administrator shall receive email instructions and credentials necessary to access such Ordered 8x8 SaaS Services, assign lines and/or seats to individual users, and otherwise enable Customer to access and use such Ordered 8x8 SaaS Services (“Provisioning”).
2.2. Reseller Responsibilities With Respect to 8x8 SaaS Services
2.2.1. 8x8 SaaS Services Availability. Reseller shall, itself or through one or more of its vendors, subcontractors, wholesalers, suppliers, or other service-providers (each, a “Partner” of Reseller) or Affiliates, make the Ordered 8x8 SaaS Services (which shall substantially conform to the applicable Documentation) available to Customer during the Effective Period as set forth in, and subject to the terms and conditions of, these Terms).
2.2.2. Support of 8x8 SaaS Services. Reseller shall provide standard support for Ordered 8x8 SaaS Services during Reseller’s regular business hours (or such other hours agreed to in writing by the Parties) via those particular telephone numbers, email addresses, web chat interfaces, and/or other support channels expressly specified by Reseller for such purpose (the “Approved Support Channels”).
2.2.3. 8x8 SaaS Services Pricing Commitment. Except to the extent otherwise expressly agreed in writing by the Parties, (a) the Service Fee rates for Ordered 8x8 SaaS Services shall be as set forth in the applicable Order, and, during the Initial Term, Reseller may not increase any such rates, (b) after the Initial Term, Reseller may, at any time, increase such rates up to – but not in excess of – the then-current list price for the applicable Ordered 8x8 SaaS Services, (c) when Customer orders Ordered 8x8 SaaS Services for the first time in a country, such order shall establish the Service Fee rates that Reseller must offer for future Orders of the same Ordered 8x8 SaaS Services in that country, provided that such established rates shall increase in parallel with any rate increases under the immediately preceding clause (b), and (d) the initial Regulatory Fee rates for Ordered 8x8 SaaS Services shall be as set forth in the applicable Order.
2.2.4. Changes to Ordered 8x8 SaaS Services. Reseller may not change Ordered 8x8 SaaS Services in any way that materially reduces their overall functionality or security (based on customary usage in the United States (“US”), the United Kingdom, Australia, and Canada (the “Primary Market”)), except with Customer’s written approval. Reseller may, however, make other changes or perform upgrades to Ordered 8x8 SaaS Services, provided that Reseller shall provide advance notification to Customer of any such change or upgrade if reasonably practicable or otherwise promptly thereafter.
2.2.5. Content and Data Protection. Reseller shall implement and maintain commercially reasonable administrative, physical, and technical safeguards to protect the content of all communications transmitted, received, and/or stored through any Ordered 8x8 SaaS Services (Customer’s “Content”) from unauthorized access and use. Customer shall remain the owner of its Content. The Parties acknowledge and agree that (a) Reseller’s and its Affiliates’ and Partners’ role with respect to Customer’s Content, if any, shall be that of a passive conduit and (b) neither Reseller nor any of its Affiliates or Partners shall be responsible for or have any involvement in determining or creating such Content or determining the recipients or destinations of any communications through Ordered 8x8 SaaS Services.
2.3. Customer Responsibilities With Respect to 8x8 SaaS Services
2.3.1. Customer Subscription Commitment. AS A MATERIAL COMMITMENT UPON WHICH PRICING AND OTHER TERMS OF THE AGREEMENT ARE BASED, CUSTOMER SHALL BE OBLIGATED TO PAY (IN ACCORDANCE WITH SECTION 7 (BILLING AND PAYMENT)) ALL SERVICE FEES, REGULATORY FEES, AND TAXES RELATED TO ORDERED 8x8 SaaS SERVICES FOR THE ENTIRE PERIOD BEGINNING ON THE EFFECTIVE DATE OF CUSTOMER’S FIRST ORDER AND CONTINUING FOR THE NUMBER OF MONTHS IDENTIFIED THEREIN AS THE “TERM,” “INITIAL TERM,” OR SIMILAR PERIOD (OR, WHERE NO SUCH PERIOD IS SO IDENTIFIED, FOR THIRTY-SIX (36) MONTHS) THEREAFTER) (THE “INITIAL TERM”) AND EACH RENEWAL TERM (CUSTOMER’S “SUBSCRIPTION COMMITMENT”), provided that Customer may reduce in quantity or downgrade (e.g., to a tier with a lower Service Fee rate) Ordered 8x8 SaaS Services for the next renewal term by providing notice of the same to Reseller at least sixty (60) days before the start of such renewal term (“Reduce” or a “Reduction”).
2.3.2. Usage. Customer shall be responsible for, and shall pay in accordance with Section 7 (Billing and Payment), any applicable usage charges of the sort set forth at the time of such usage at www.8x8.com/terms-and-conditions/usage.
2.3.3. Utilization of Approved Support Channels. In seeking technical and other support for Ordered Products in connection with the Agreement (or support related to the Agreement or Customer’s relationship with Reseller in connection therewith), Customer agrees to solely and exclusively utilize the Approved Support Channels. Without limiting the generality of the foregoing, Customer agrees not to contact 8x8 or any of its Affiliates directly in connection with seeking such support or otherwise in relation to the Agreement or the Ordered Products, except to the extent that a number, address, interface, or other channel of 8x8 or its Affiliate is an Approved Support Channel. Customer acknowledges and agrees that where 8x8 or its Affiliate is involved in providing such support, 8x8 and/or its Affiliate will not provide support for any services or products other than the Ordered 8x8 SaaS Services or Ordered Equipment.
2.3.4. Use Policy Compliance. Customer accepts and agrees to the 8x8 Virtual Office and Virtual Contact Center Use Policy (available at https://www.8x8.com/terms-and-conditions/use-policy) (the “Use Policy”) (which is incorporated herein) and shall fulfill all of its obligations, representations, warranties, and covenants thereunder. For avoidance of doubt, references in the Use Policy to “8x8”, the “8x8 Parties”, “SaaS Services”, and “Ordered SaaS Services” shall respectively be deemed for purposes of these Terms to refer to Reseller, the Reseller Parties, 8x8 SaaS Services, and Ordered 8x8 SaaS Services. Customer shall provide to 8x8 (in addition to Reseller) any notice that Customer is obligated to provide to Reseller under the Use Policy.
2.3.5. Registration Information. Customer shall be responsible for the accuracy and legality of all account, Agent, and registration information (including without limitation Customer’s legal name and payment information, Customer/Agent contact information, and any personal data included therein) (“Registration Information”) and the means of its acquisition.
2.3.6. Network Requirements. Customer shall be responsible for ensuring that all aspects of the applicable network environment(s) adhere to the applicable standards and requirements specified in the Documentation and are configured appropriately to its proposed use of Ordered 8x8 SaaS Services.
2.4. 8x8 SaaS Services Limitations. Customer acknowledges and agrees that (a) the Ordered 8x8 SaaS Services will not be uninterrupted, error-free, or available one-hundred percent (100%) of the time (e.g., they may be unavailable during periods of planned or unplanned downtime and communications may not always be delivered to their intended destination or without loss of data), (b) a single log-in is provided for each 8x8 Virtual Office extension, and, except with respect to conference and other extensions specifically designed for conference or multi-party use (“Conference Extensions”), such log-in and extension is provided solely for use by a single Agent, (c) data transmitted or stored through the 8x8 SaaS Services may be exported therefrom by or on behalf of Customer, Agents, or other users in a variety of ways (including without limitation via third-party integrations, other features that interoperate with third-party offerings, or local or external download), (d) the 8x8 SaaS Services are not intended to and should not be used for back-up or long-term storage of data, and (e) Reseller shall not be responsible for any such exported data or any loss of such stored data. Use of 8x8 mobile applications may utilize underlying third-party cellular and/or data services and thus may use such services’ allotted units and/or result in usage or other charges associated with such third-party services.
2.5. Third-Party Offerings and Integrations. Customer’s relationship and dealings (including without limitation any collection or use of data) with providers of third-party offerings that interoperate with the 8x8 SaaS Services (e.g., third-party applications for which 8x8 SaaS Services integrations are available) or that are used in connection with the 8x8 SaaS Services (e.g., broadband, MPLS, and equipment leasing services) (“Providers”) shall in each case be governed by Customer’s agreement with the applicable Provider and shall be outside the scope of the Agreement. In no event shall Reseller be liable or responsible under any such agreement (unless Reseller has agreed in writing to be a party to such agreement). Except to the extent otherwise expressly agreed in writing by the Parties, Reseller shall have no liability or responsibility (a) for any act or omission of any Provider or any operation of its offering (e.g., any accessing, modification, or deletion of data), regardless of whether Reseller, 8x8, or their Affiliates endorse, refer Customer to, approve of Customer’s use of, or agree to bill and/or collect on behalf of such Provider or designate any such offering as “certified,” “approved,” “recommended,” etc., (b) for supporting any such third-party offering, or (c) (except as expressly set forth in an SOW) for ensuring the continued availability or operation of any such offering or any 8x8 SaaS Services integrations or other features designed to interoperate therewith, which such integrations or features may be discontinued at any time.
2.6. Suspension and Restriction. In addition to Reseller’s other rights and remedies under the Agreement, Reseller may (a) suspend some or all of the Ordered 8x8 SaaS Services where Reseller or its Partner reasonably determines that such suspension is necessary to avoid actual or likely harm or damages to, or liability for, any party or where Customer has breached the Agreement and/or (b) place reasonable limitations or restrictions on the use of any Ordered 8x8 SaaS Services that are being used in violation of the Use Policy. Reseller shall notify Customer of any such suspension in advance thereof if reasonably practicable or promptly thereafter if such advance notification is not reasonably practicable. Except to the extent otherwise expressly agreed in writing by the Parties, none of the foregoing actions by Reseller or its Partners shall relieve Customer of any of its obligations under the Agreement, except that (except to the extent otherwise expressly agreed in writing by the Parties) Customer shall not be liable for any fees for any suspended Ordered 8x8 SaaS Services for the period of such suspension if not due to Customer’s breach of the Agreement.
3. EQUIPMENT The provisions of Sections 3.2 (Equipment Pricing) through 3.4 (Customer Responsibilities With Respect to Equipment) shall not apply to the extent otherwise expressly agreed in writing by the Parties.
3.1. Ordering Equipment. To the extent that Reseller offers to resell to Customer equipment that Reseller has purchased from 8x8 for resale thereof (such resold equipment, “Equipment”), Customer may order such Equipment from Reseller, in each case by entering into an Order. The pricing for Ordered Equipment shall be as set forth in the Order under which it was ordered. Customer shall be deemed the importer of Ordered Equipment for all purposes.
3.2. Equipment Pricing. Equipment-related pricing, discounts, and promotions (e.g., free shipping) provided in an Order shall apply solely to the particular equipment ordered under that Order, and Reseller makes no commitment and shall have no obligation with respect to future pricing for or availability of equipment.
3.3. Reseller Responsibilities With Respect to Equipment. Reseller shall, itself or through its Affiliates or Partners, provide the Ordered Equipment to Customer and pass through to Customer a twelve- (12-) month warranty (or an extended warranty if permitted by the manufacturer) therefor. Customer may return any defective Ordered Equipment covered by warranty by obtaining a return authorization number from Reseller and thereafter returning the Ordered Equipment in its original packaging or equivalent to the address specified by Reseller, in which case Reseller shall replace the Ordered Equipment at no charge and pay the reasonable associated shipping costs.
3.4. Customer Responsibilities With Respect to Equipment. Customer shall, in accordance with Section 7 (Billing and Payment), pay for all Ordered Equipment at the pricing set forth in the applicable Order and for all shipping and related charges. All shipments of Ordered Equipment shall be F.C.A.(free carrier), and title and risk of loss or damage shall pass to Customer upon delivery to the carrier. Customer shall be responsible for all lost, stolen, or broken equipment (except to the extent covered by warranty), and for ensuring that any externally-acquired equipment used with Ordered 8x8 SaaS Services is in reasonable working condition and configured in accordance with 8x8’s and Reseller’s technical requirements.
4. PROJECT SERVICES. The provisions of this Section 4 (Project Services) shall not apply to the extent otherwise expressly agreed in writing by the Parties. Reseller may from time to time, in each case in its sole discretion, offer to perform work for Customer related to the configuration or customization of Ordered 8x8 SaaS Services, network assessments, Agent training, or similar work or services (“Project Services”). Customer may order Project Services under the Agreement (“Ordered Project Services”), in each case by entering into (via execution or completion by Customer of an electronic “click-through” or “click to accept” process of Reseller or its Partner) an Order and/or a written statement of work or similar document for the same with Reseller (an “SOW”). Reseller shall, itself or through its Affiliates or Partners, perform the Ordered Project Services in a professional and workmanlike manner, with reasonable skill and care, and in accordance with the terms of the applicable SOW (which shall set forth the other terms related to the Ordered Project Services ordered thereunder), provided that Customer’s sole and exclusive remedies for Reseller’s breach of this sentence shall be as set forth in the applicable SOW. Customer shall pay all fees and other amounts set forth in the applicable Order and/or SOW for Ordered Project Services, in accordance with Section 7 (Billing and Payment) and any other terms set forth in such SOW. Customer acknowledges and agrees that Reseller makes no commitment and shall have no obligation with respect to future pricing for or availability of Project Services.
5. ORDERS AND PARTY AFFILIATES; RESELLER SUBCONTRACTING Reseller may, in each case in its sole discretion, (a) permit an Affiliate of Customer to order Ordered Products, in which case, with respect to such orders, (i) references to “Customer” in the Agreement shall be deemed to include such Customer Affiliate (as well as Customer) and (ii) Customer shall remain fully, including jointly and severally, liable under the Agreement, (b) except to the extent otherwise expressly agreed in writing by the Parties, designate a Reseller Affiliate to enter into one or more Orders or SOWs with Customer, in which case, with respect to such Orders or SOWs, (1) the Agreement’s references to “Reseller” shall include such Reseller Affiliate (as well as Reseller) (provided that the Reseller Affiliate shall be deemed to be the service provider under such Orders or SOWs) and (2) Reseller shall remain fully, including jointly and severally, liable under the Agreement, and/or (c) subcontract for the performance of Reseller’s obligations under the Agreement, provided that Reseller shall remain responsible for performance of such obligations and for such subcontractors’ actions or omissions of in performing such obligations.
6. TAXES The provisions of this Section 6 (Taxes) shall not apply to the extent otherwise expressly agreed in writing by the Parties. Customer shall be liable and responsible for, and shall pay in accordance with Section 7 (Billing and Payment), all taxes, levies, imports, exports, customs, duties, charges, fees or similar governmental assessments, including value-added tax, sales, use, withholding, public utility, or universal service taxes or fees, and emergency services surcharges (i.e., 911, E911, 999, etc.) that Reseller or its Partner reasonably believes to be assessed or assessable by any governmental, fiscal, or other authority, or recoverable by Reseller or its Partners, in respect of Ordered Products, other than those assessable against Reseller based solely on its income (collectively, “Taxes”). Any Taxes set forth in the Agreement or any quote shall be solely non-binding estimates. Any such estimates set forth in a quote or Order shall be calculated by or on behalf of Reseller in good faith based on the service address(es) provided by Customer. In order to assert an exemption from any Tax, Customer must deliver to Reseller a valid tax exemption certificate authorized by the appropriate taxing authority, in which case Customer shall still be liable for any Taxes assessed prior to such delivery. To the extent required by Law, Customer may deduct amounts from its payment of Billed Amounts for or on account of any Tax and/or withholding imposed by any governmental or fiscal authority, provided that Customer shall (a) provide notice of such requirement to Reseller at least thirty (30) days prior to making the deduction, (b) furnish Reseller with receipts evidencing remittance of the deducted amounts, and (c) pay such additional amounts to Reseller, as applicable, as are necessary to ensure receipt by Reseller of the full amount that it would have received but for the deduction. Customer acknowledges and agrees that Reseller may not charge value-added, goods and services, or similar Taxes in certain jurisdictions (such as Australia) that permit reverse charge of such Taxes. Reseller shall account for and remit any such Taxes on Ordered Products in such jurisdictions.
7. BILLING AND PAYMENT The provisions of this Section 7 (Billing and Payment) shall not apply to the extent otherwise expressly agreed in writing by the Parties.
7.1. Billing of Billed Amounts. Service Fees and other monthly-recurring charges shall start to be billed as of the effective date of the applicable Order. Except to the extent otherwise expressly agreed in writing by the Parties, such amounts shall be billed monthly, at or near the beginning of the applicable calendar month, provided that when Ordered 8x8 SaaS Services are ordered, Reseller may bill the first thirty (30) days of such amounts for such Ordered 8x8 SaaS Services at or near the time of order. One-time Services charges, including Project Services fees, shall be incurred on the effective date of the applicable Order. Equipment-related charges shall be incurred upon shipment of the Equipment.
7.2. Payment of Billed Amounts. Except as set forth in this Section 7.2 (Payment of Billed Amounts) and Section 6 (Taxes), Customer shall pay all amounts billed to Customer by or on behalf of Reseller in respect of Ordered Products (“Billed Amounts”) without counter-claim, set-off, withholding, or deduction of any sort. If Customer believes in good faith that a Billed Amount was not actually incurred under the Agreement (i.e., was overbilled), then Customer may dispute such Billed Amount by providing notice to Reseller within thirty (30) days of the date of the first posting of the Billed Amount in the relevant account (where payment is not By Invoice) or the date of the first invoice in which the Billed Amount was invoiced (where payment is By Invoice), which such notice must specify the particular Billed Amount(s) in dispute and the basis of the dispute in reasonable detail. Failure to so dispute a Billed Amount within such period shall constitute a complete and irrevocable waiver of Customer’s right to dispute such Billed Amount. If payment of a Billed Amount is By Invoice and Customer disputes such Billed Amount in good faith in accordance with this Section 7.2 (Payment of Billed Amounts), then Customer may, at its option, either (a) pay such Billed Amount expressly under protest or (b) withhold payment of such Billed Amount, in which case such Billed Amount, if (and only if) actually incurred under the Agreement (i.e., not actually overbilled), shall not become due until ten (10) days after Reseller’s determination of the same (if such due date is later than the original due date for such amount). Delinquent Billed Amounts shall, beginning upon delinquency, accrue interest at the rate of the lesser of one-point-five percent (1.5%) per month or the maximum rate permitted by applicable law. All payments to Reseller or its Affiliate shall be non-refundable and non-creditable.
7.3. Up-Front Payment. At all times during the Effective Period other than those periods for which payment of all Billed Amounts is By Invoice, Customer shall maintain on file with Reseller complete, accurate, and up-to-date information for at least one valid, working credit card or Customer account (sufficient to permit ACH withdrawals). Payment of all Billed Amounts – other than those for which Reseller has agreed to payment By Invoice – shall be by charge to such credit card(s) or by ACH withdrawal from such account(s), at or near time of billing, and Customer hereby authorizes Reseller to make such charges or withdrawals. Where payment is by such charge or withdrawal, (a) Reseller shall post a statement of the Billed Amounts in the relevant account at or near the time of the first attempted charge or withdrawal and shall thereafter make commercially reasonable efforts to notify Customer by email and/or telephone if the charge or withdrawal is not successful and (b) Billed Amounts shall be due within fourteen (14) days of such posting.
7.4. Payment by Invoice. To the extent agreed by Reseller, Customer may pay Billed Amounts by invoice, in which case payment of those Billed Amounts shall be (a) made by credit card, check, ACH, or wire transfer and (b) due within thirty (30) days of invoice date (Net 30) (payment “By Invoice”). Each such agreement shall be within Reseller’s sole discretion, but, once entered into, may not be revoked by Reseller, except upon the occurrence of event(s) that, in Reseller’s reasonable discretion, put Customer’s creditworthiness or solvency into question (which such events shall include without limitation Customer’s default on any of its financial obligations or a Solvency Event with respect to Customer or any entity that owns or controls it).
8. CHANGE IN TERMS The provisions of these Terms may not be changed or amended in any way, except as follows:
(a) The Parties may amend the provisions of these Terms as they apply to the Agreement by agreeing to do so in a written, legally-binding (on both Parties) amendment or similar document executed by both Parties that specifies the applicable amendments to these Terms and includes an express representation by Reseller that 8x8 has been notified and has expressly approved of such amendments as they apply to the Agreement. Any other attempt by Reseller and/or Customer to change or amend these Terms shall be deemed null and void, and the purported change(s) or amendment(s) in question shall not apply to the Agreement. For clarity, where the Parties agree to such different or additional terms as expressly permitted by these Terms (e.g., where a provision of these Terms is qualified by “Except to the extent otherwise expressly agreed in writing by the Parties ...”), such different or additional terms shall not be considered to be “amendments” to these Terms for purposes of this clause (a).
(b) 8x8 may change or update these Terms as follows:
(i) 8x8 may not change or update these Terms in any manner that would materially reduce Customer’s rights or benefits, or materially increase Customer’s obligations or liability, under the Agreement (a “Material Change”) (i.e., any such change shall not apply to the Agreement), except where Reseller or 8x8 provides Customer with at least thirty (30) days’ advance notice of, and opportunity to object to, such change by 8x8. During such notice period, Customer shall have the right to object to such change by providing notice of such objection to both Reseller and 8x8. Where Customer provides a such notice of objection to both Reseller and 8x8 before the end of the applicable notice period, the change shall not take effect (i.e., shall not apply to the Agreement) during the then-current Initial Term or renewal term (each a “Term”), but shall take effect (i.e., shall begin applying to the Agreement) if and when the Agreement renews (i.e., on the first day of the Agreement’s next renewal term, if any). Where Customer fails to object to such a change by providing such a notice of objection to both Reseller and 8x8 before the end of the applicable notice period, the change shall take effect at the end of such notice period.
(ii) 8x8 may make changes or updates to these Terms that are not Material Changes by posting such changes to https://ww.8x8.com/reseller-order-terms/vo-vcc-service-terms or this web page, which changes shall be effective upon such posting. For avoidance of doubt, the mere addition of Regional Terms for a new country or region shall not constitute a Material Change.
9. GENERAL REPRESENTATIONS AND WARRANTIES; WARRANTY DISCLAIMER Each Party represents and warrants that it is a bona fide business, has the power and authority to enter into and perform its obligations under the Agreement, and is not relying upon any statements, commitments, representations, or warranties other than those expressly set forth in the Agreement. Customer represents and warrants that its orders or purchases are not contingent on the delivery of any future functionality or feature. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED BY RESELLER IN THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, RESELLER MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES IN RELATION TO THE SERVICES, EQUIPMENT, AND/OR THE AGREEMENT, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE.
10. RIGHTS IN AND TO THE SERVICES AND FEEDBACK To the maximum extent permitted by Law, all intellectual property and other rights, title, and interest in or to the Documentation or the Services and related software, applications, functionalities, APIs, tools, and interfaces (the “8x8 Platform”) – and all configuration designs, code, deliverables, and other work product produced or developed by Reseller, 8x8, or their Affiliates or Partners in the course of performing under the Agreement (except to the extent such work product embodies Customer’s pre-existing intellectual property) – shall remain with, and belong exclusively to, Reseller, 8x8, their Affiliates, and/or their licensors. Customer hereby assigns to Reseller all intellectual property and other rights, title, and interest in or to any improvement, enhancement, recommendation, correction, or other feedback that Customer may provide to Reseller, 8x8, or their Affiliates relating to their operations or the Services or Equipment, and agrees that such parties shall be free to use, license, assign, and exploit any ideas, concepts, know-how, or techniques contained therein for any purpose without restriction or compensation.
11. TERM AND RENEWAL The Agreement shall become effective on the date that the Parties enter into the Agreement and continue in full force and effect until the earlier of (a) the date terminated in accordance with Section 12.1 (Exclusive Termination Rights) and (b) the date of expiration as set forth in the next sentence (the “Effective Period”). At the end of each Term, the Agreement, if not earlier terminated in accordance with these Terms, shall:
(i) expire if either Party has elected not to renew the Agreement via notice to the other Party (and, in the case of Customer’s non-renewal, notice to 8x8) at least thirty (30) days prior to the end of such Term;
(ii) continue on a month-to-month basis (i.e., automatically renew for successive one- (1-) calendar month renewal terms) if Customer has so elected via notice to Reseller and 8x8 at least thirty (30) days prior to the end of such Term; or
(iii) automatically renew for a twelve- (12-) month renewal term if neither of the foregoing applies.
12.1. Exclusive Termination Rights. The Agreement may be terminated:
(a) by either Party with thirty (30) days’ notice to the other Party (and, in the case of termination by Customer, notice to 8x8) in the event of the other Party’s material breach of the Agreement (which shall include without limitation any Customer payment delinquency or Customer breach of the Use Policy) and, if such breach is reasonably capable of cure, failure to cure such breach within such notice period, provided that such cure requirement shall not apply with respect to a Customer payment delinquency where there has already been such a delinquency;
(b) immediately by either Party upon notice to the other Party where the other Party experiences a Solvency Event;
(c) by Reseller with thirty (30) days’ notice to Customer in the event that any 8x8 SaaS Services become subject to an actual or threatened Claim of infringement (an “Infringement Claim”) and avoidance of the alleged infringement via procurement of a license or modification or replacement of the applicable 8x8 SaaS Services (either or both of which may be exercised by Reseller, at its sole option and expense, in the event of any Infringement Claim) is not commercially feasible;
(d) by Reseller with thirty (30) days’ notice to Customer in the event that Customer objects to any change to these Terms proposed or made by 8x8 under Section 8 (Change in Terms); or
(e) by Reseller with thirty (30) days’ notice to Customer in the event that Reseller determines in good faith that such termination is necessary to comply with a law, regulation, or court or administrative order or ruling.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 12 (TERMINATION) STATES THE PARTIES’ SOLE AND EXCLUSIVE RIGHTS TO TERMINATE THE AGREEMENT, AND THE AGREEMENT MAY NOT OTHERWISE BE TERMINATED BY EITHER PARTY.
12.2. Effect of Termination. Upon any termination of the Agreement for any reason, subject to any continuing Customer financial obligations under the Agreement, all Orders and SOWs shall immediately terminate. In the event that the Agreement is terminated by Customer under and in accordance with clause (a) or (b) – or by Reseller under clause (c), (d), or (e) – of Section 12.1 (Exclusive Termination Rights), Customer shall be relieved of its Subscription Commitment for any post-termination period, and, except to the extent otherwise expressly agreed in writing by the Parties, Reseller shall refund any amounts un-used and pre-paid for Ordered 8x8 SaaS Services for any such period. For clarity, (a) no other termination of the Agreement shall relieve Customer of such commitment (which shall survive any such termination) or entitle Customer to any refund and (b) in no event shall termination or expiration of the Agreement relieve Customer of its obligation to pay any amount incurred thereunder prior to such termination or expiration.
13. INDEMNIFICATION Except to the extent otherwise expressly agreed in writing by the Parties, Reseller shall (a) defend Customer, its Affiliates, and their personnel (collectively, the “Customer Parties”) from and against any Indemnified IP Claim threatened or brought against any of them by any third party and (b) indemnify and hold harmless the Customer Parties against any damages, attorneys’ fees, defense costs, and other losses (collectively, “Losses”) payable by them pursuant to the adjudication or settlement of any Indemnified IP Claim. Customer shall (i) d