1. TERMS AND CONDITIONS. These terms and conditions (“Terms and Conditions”) are an integral part of the agreement (“Agreement”) between 8x8, Inc. (“8x8”) and a Customer (“Customer”) of the 8x8 services. Any 8x8 services or products (collectively, the “Services”) provided by 8x8 to Customer shall be governed by the terms and conditions herein. By purchasing the Services, CUSTOMER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. They affect the legal rights between Customer and 8x8 by, among other things, requiring (1) MANDATORY ARBITRATION OF DISPUTES; (2) charging an EARLY DISCONNECTION FEE; and (3) LIMITING 8x8’s LIABILITY UNDER THE AGREEMENT.
2. MANDATORY ARBITRATION.
2.1. Arbitration Procedures. PLEASE READ THIS PROVISION CAREFULLY. EXCEPT AS SET FORTH BELOW, CUSTOMER AND 8x8 WILL ARBITRATE ANY DISPUTES OR CLAIMS IN ANY WAY RELATED TO OR ARISING OUT OF THE AGREEMENT, ANY BREACH OF THE AGREEMENT, OR THE PROVISION OF SERVICES OR PRODUCTS TO CUSTOMER, INCLUDING ANY BILLING DISPUTES (collectively, “CLAIMS”). CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION ADMINISTERED BY AMERICAN ARBITRATION ASSOCIATION (“AAA”). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services or Products provided or billed to Customer if Claims are asserted against 8x8 in the same proceeding. ARBITRATION WILL BE CONDUCTED UNDER THE AAA’S PUBLISHED COMMERCIAL ARBITRATION RULES. Customer and 8x8 agree to bear their own fees, costs, and expenses, including those for any attorneys, experts, and witnesses. Ttehe place of arbitration shall be in Santa Clara County, California U.S.A. The language of the arbitration shall be English.
2.2. PREFILING NOTICE OF CLAIM. BEFORE INSTITUTING ARBITRATION OR SUIT, CUSTOMER WILL PROVIDE 8x8 WITH AN OPPORTUNITY TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO 8x8 AT THE ADDRESS OR EMAIL ADDRESS BELOW. IF 8x8 IS NOT ABLE TO RESOLVE THE CLAIM WITHIN 30 DAYS OF RECEIPT OF NOTICE, THEN CUSTOMER OR 8x8 MAY INITIATE ARBITRATION OR SUIT AS DESCRIBED IN SECTION 2.1. All claim notices should be sent to: Director of Customer Service 8x8, Inc. 675 Creekside Way, Campbell, CA 95008 -or- firstname.lastname@example.org. CUSTOMER WILL NOT DEMAND ARBITRATION OR FILE SUIT UNLESS CUSTOMER FOLLOWS THE FOREGOING PROCEDURES IN THIS SECTION 2.2 AND THIS SECTION 2.2 MAY BE PLEADED AS A FULL AND COMPLETE BAR AND DEFENSE TO, AND MAY BE USED AS A BASIS FOR AN INJUNCTION AGAINST, ANY ARBITRATION, ACTION, SUIT, OR OTHER PROCEEDING INSTITUTED IN BREACH OF THIS SECTION.
2.3. TIME LIMITATION. Customer agrees that regardless of any streatute or law to the contrary, any suit or arbitration arising out of or related to use of the Services or the Agreement must be filed within one (1) year after the earlier of (a) when such claim or cause of action arose or (b) termination of Services to Customer or be forever barred.
2.4. PERSONAL JURISDICTION. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 2, Customer and 8x8 agree to submit to the personal and exclusive jurisdiction of the state and federal courts within Santa Clara County, California, and waive any objection as to venue or inconvenient forum in such courts.
3. DEFINITIONS. The following terms shall have the meanings set forth below.
3.1 “Agent” means a Customer employee or contractor who may use the Services, the total number of Agents being the maximum number of personnel who may use the Services at any one time.
3.2 “Customer Data” means any data, information or other materials of any nature whatsoever provided to 8x8 by Customer in the course of implementing or using the Services.
3.3 “Documentation” means user manuals and other documentation relating to the Services, which are made available to Customer by 8x8, in the form of recorded documentation on optical or magnetic media, accessible via the Internet or in the form of printed media.
3.4 “Implementation Services” means the services selected by Customer, as indicated on the Service Order, to be provided by 8x8 in connection with the set up and implementation of the Services. As part of the Implementation Services, Customer will receive limited training in the set up and activation of the Services during the hours from 5:00am to 6:00pm PT Monday through Friday.
3.5 “Initial Payment” means the initial payment set forth in the Service Order consisting of the fees for Implementation Services and the Service Fees for the first month.
3.6 “Login” means each separate, named individual login account within a Customer account.
3.7 “Professional Services” means work 8x8 will perform for Customer as specified in individual statement(s) of work (“Statement(s) of Work”) to be executed by the parties from time to time on the terms and conditions specified in the Agreement.
3.8 “Service Fee” or “Service Fees” means the monthly or annual fees set forth in the Service Order to be paid by Customer to 8x8 as consideration for 8x8 provision to Customer of the Services.
3.9 “Service Order” means the document executed by Customer and 8x8, containing (i) a price and quantity of Services, and Implementation Services to be provided to Customer by 8x8 under the Agreement, along with associated telecommunications fees; (ii) the Services to be provided; and (iii) such other options provided on the Service Order as Customer may elect to apply to the Services.
3.10 “Service Plan” means the monthly or annual subscription plan a Customer agrees to in the Service Order.
3.11 “Service Order Addendum” means a Service Order agreed to by Customer subsequent to the initial Service Order.
3.12 “Services” means the products or services that are being provided to Customer as described in the Service Order, including any Additional Services set forth in a Service Order Addendum accepted by 8x8.
3.13 “Software” means any proprietary software (including any documentation relating to such software) owned by, licensed by, or which 8x8 has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used in or used to provide the Services.
4. 8x8 PRODUCTS AND SERVICES.
During the Initial Term or Renewal Term of this Agreement, 8x8 will provide the Services, set forth in the Service Order, including telephone and other equipment (collectively, “Equipment”) subject to the terms and conditions herein. 8x8 hereby grants Customer access to the Services for use by the number of Agents and Logins set forth in the Service Order, for Customer’s own internal business purposes, which shall be deemed to include activities Customer may perform on behalf of its own customers. 8x8 grants Customer the right to use the Documentation in connection with its use of the Services.
4.1. CONDITIONS. Customer acknowledges and agrees that 8x8’s obligations to provide the Services are expressly conditioned upon (i) Customer’s payment of the fees for Professional Services and all Service Fees as and when due, and (ii) Customer’s satisfaction of the technical requirements set forth in the Documentation for the Services made available to Customer by 8x8, as the same may be updated by 8x8 from time to time.
4.2. ADDITIONAL SERVICES. At Customer’s option, the number of Services may be increased at any time during the Initial Term or Renewal Term (any such increase, “Additional Services”) by agreeing to a Service Order Addendum, signed by Customer and setting forth the specific Additional Services desired. Each Service Order Addendum shall be subject to 8x8’s acceptance, which shall be deemed given if 8x8 thereafter provides the Additional Services. Upon acceptance by 8x8, such Service Order Addendum shall be deemed an amendment to the Agreement, subject to all of the terms and conditions herein, and the Service Fees shall be increased to reflect the Additional Services, subject to the same pricing and payment terms as are set forth in the Service Order. Additional Services shall be provided for a term that is coterminous with the Initial Term or Renewal Term of the Agreement.
4.3. IMPLEMENTATION SERVICES. 8x8 will use commercially reasonable efforts to perform the Implementation Services covered in the Initial Payment.
4.4. ADDITIONAL PROFESSIONAL SERVICES. If Customer requests Professional Services, such as support services not provided under this Agreement, training, or other consulting services, 8x8 may (but has no obligation to) provide such Professional Services or recommend appropriate outside consultants. If 8x8 agrees to provide such additional Professional Services at Customer‘s request, fees for such Professional Services may be provided pursuant to a fixed fee or 8x8 ‘s standard time and material rates. Such additional Professional Services will be provided pursuant to an addendum and the other terms and conditions of this Agreement, and may be described in an agreed-upon statement of work.
5.1. INITIAL TERM. The initial term of this Agreement (“Initial Term”) begins on the date that Customer enters into the Agreement and continues in force and effect for the duration of the service period as defined by the Service Order or Agreement.
5.2. RENEWAL. Except as set forth in Section 5.3, at the end of the Initial Term, the Agreement is automatically renewed for an additional one year period (a “Renewal Term”), and shall be renewed at the end of each Renewal Term for an additional one-year Renewal Term, unless Customer provides 8x8, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, notification of intention to cancel the service.
5.3. MONTH-TO-MONTH RENEWAL. Instead of renewal under Section 5.2 or cancelation, a Customer shall have the option, upon expiration of the Initial Term or any Renewal Term, to renew the Agreement on a month-to-month basis at the then-current rates offered for the Services. Customer will be converted to a month-to-month basis if Customer provides to 8x8, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, notification of intention to convert to month-to-month service.
6.1. TERMINATION FOR CONVENIENCE. Either party may terminate the Agreement upon thirty (30) days notice of termination. In accordance with section 10.7, disconnection fees may apply. If Customer transfers or ports their phone number to a service provider other than 8x8, Customer must contact 8x8 to cancel the Services provided to Customer by 8x8.
6.2. IMMEDIATE TERMINATION. 8x8 shall be entitled, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, Customer’s breach of the Agreement, Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer that adversely affects the Services, 8x8, 8x8’s network or other Customer’s use of the Services. 8x8 shall be entitled to determine, at its sole discretion, what constitutes misuse of the Services and Customer agrees that 8x8’s determination is final and binding on Customer. 8x8 may require, and if required, Customer shall pay, an activation fee as a condition to changing or resuming a terminated or suspended account.
6.3 EFFECT OF TERMINATION ON FEES. Upon termination of this Agreement for any reason, Customer shall be responsible for the full monthly Service Fee for the month in which termination occurs. Expiration or termination of the Agreement does not alleviate Customer of responsibility for paying all unpaid, accrued charges due hereunder.
7. 911 & SERVICE LIMITATIONS. The Federal Communications Commission (“FCC”) and Canadian Radio-television and Telecommunications Commission (“CRTC”) require that 8x8 provide E911 Service to all Customers who use 8x8 Services within the United States and Canada. Sections 7.1-7.7 apply to all Customers who use 8x8 Services within the United States. Section 7.8 applies to all Customers.
7.1 911 ACKNOWLEDGEMENT AND WARNING LABELS. CUSTOMER ACKNOWLEDGES THAT 8X8’S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL WIRELINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 7 AND CUSTOMER AGREES TO NOTIFY ANY POTENTIAL USER OR AGENT OF THE SERVICES, WHO MAY PLACE CALLS USING CUSTOMER’S SERVICES, OF THE 911 LIMITATIONS DESCRIBED HEREIN. 8X8 WILL PROVIDE CUSTOMER WITH WARNING LABELS REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY DIALING. CUSTOMER AGREES TO PLACE A LABEL ON AND/OR NEAR EACH TELEPHONE OR OTHER CUSTOMER PREMISE EQUIPMENT ON WHICH THE SERVICES MAY BE UTILIZED. IF ADDITIONAL LABELS ARE REQUIRED, CUSTOMER MAY REQUEST THEM FROM 8X8. 8X8 WILL PROVIDE CUSTOMER WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND REQUEST ACKNOWLEDGMENTS FROM CUSTOMER. CUSTOMER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT 8X8 HAS ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH 8X8 E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. 8X8 ADVISES CUSTOMER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
7.2. ELECTRICAL POWER. CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
7.3. INTERNET ACCESS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
7.4. NON-VOICE SYSTEMS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. 8X8 WILL NOT BE LIABILE FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
7.5. E911 SERVICE. 8X8 E911 SERVICE IS A MANDATORY COMPONENT OF ALL INBOUND/OUTBOUND TRADITIONAL FAX AND VOICE SERVICE PLANS. E911 SERVICE IS NOT OFFERED ON VIRTUAL NUMBERS,