8X8, Inc. Business Terms and Conditions
[Updated December 2, 2016]
Table of Contents
1. GENERAL
2. SERVICES
8. DATA PROTECTION AND SECURITY
10. USE RESTRICTIONS AND CUSTOMER RESPONSIBILITIES
11. CHANGES TO SERVICES AND TERMS
12. INTELLECTUAL PROPERTY RIGHTS AND LICENSES
13. REPRESENTATIONS AND WARRANTIES
14. INDEMNIFICATION
16. DISPUTES
17. MISCELLANEOUS
18. DEFINED TERMS
Annex 1 – USE RESTRICTIONS
Annex 2 – SERVICE-SPECIFIC TERMS
Annex 3 – FEES AND EXPENSES
Annex 4 – United Kingdom Supplement
Global Terms
[Updated December 2, 2016]
1. GENERAL
1.1. ACCEPTANCE AND APPLICATION OF TERMS.
These 8x8, Inc. Business Terms and Conditions (which, together with all annexes hereto and all other documents expressly incorporated by reference herein, are referred to throughout as the “Terms”) form part of a legally binding contract between 8x8, Inc., a Delaware corporation (“8x8”), and the individual or legal entity in whose name 8x8 agrees to provide Services (“Customer,” “you,” or “your”). These Terms, and the Customer Agreement generally, govern your acquisition and use of Services and Equipment from 8x8.
PLEASE READ THESE TERMS CAREFULLY BECAUSE THEY AFFECT THE LEGAL RIGHTS BETWEEN YOU AND 8X8 BY, AMONG OTHER THINGS, (1) LIMITING 8X8’S LIABILITY TO YOU, (2) REQUIRING ARBITRATION OF CERTAIN DISPUTES AND (3) REQUIRING PAYMENT OF EARLY TERMINATION CHARGES OR DISCONNECT FEES.
THESE TERMS ALSO INCLUDE (IN THE REGIONAL SUPPLEMENTS AND ELSEWHERE) IMPORTANT INFORMATION REGARDING YOUR ACCESS AND USE OF EMERGENCY SERVICES (i.e., 911 in the United States, 999 in the United Kingdom, etc.), INCLUDING LIMITATIONS RELATIVE TO TRADITIONAL, WIRELINE EMERGENCY SERVICES.
When you accept these Terms in conjunction with ordering Services (for example, by signing a Service Agreement or Service Order that references these Terms, or clicking a box adjacent to an acknowledgement), or when you access or use the Services after you are notified that these Terms apply to the Services, you agree to be bound by these Terms. If the individual who accepts these Terms is acting on behalf of a corporation, company, partnership, organization, association or other legal entity, then that individuals hereby represents and warrants to 8x8 that he or she has the authority to bind such entity. IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE WITH THESE TERMS, THEN YOU SHOULD NOT ACCEPT THESE TERMS AND YOU SHOULD NOT ACCESS OR USE, OR AUTHORIZE ANYONE TO ACCESS OR USE, THE SERVICES.
These Terms shall amend and restate, supersede and replace in their entirety any earlier versions of the 8x8, Inc. “Business Terms and Conditions” previously applicable to your Services, effective as of the date indicated in the introductory note above.
1.2 SERVICE ORDERS AND SERVICE AGREEMENTS.
Customer may order Services or Equipment from time to time by entering into Service Orders with 8x8. Each Service Order will be subject to these Terms and, if Customer enters into a Service Agreement with 8x8, any additional and/or modified terms as the Service Agreement may specify. When Customer enters into its first Service Order or Service Agreement with 8x8, Customer establishes a Customer Agreement with 8x8 that has the term (the “Initial Term”) specified in that first Service Order or in the Service Agreement, as applicable, or 36 months if no term is specified. All subsequent Service Orders shall be subject to and coterminous with (i.e., have the same expiration date as) the Customer Agreement. Upon their effectiveness, such Service Orders shall be deemed to amend and become part of the Customer Agreement.
1.3 REGIONAL SUPPLEMENTS; OTHER ANNEXES.
The numbered provisions of this document, together with Annex 1 (Use Restrictions), Annex 2 (Service-Specific Terms) and Annex 3 (Fees and Charges), are referred to collectively as the “Global Terms.” The Global Terms apply to all customers of 8x8, Inc., regardless of location. Annex 4 (Regional Supplements) consists of several sets of additional terms and conditions, each of which is referred to as a “Regional Supplement.” Each Regional Supplement applies only to Services (if any) provided to a Customer Location in the country or region indicated.
The Regional Supplements and each of the other Annexes are available at https://www.8x8.com/terms-and-conditions and, to the extent not included as attachments to these Global Terms, are incorporated by reference herein.
2. SERVICES.
2.1 GENERAL.
8x8 shall, itself or through one or more of its Affiliates, vendors, subcontractors or other service-providers (each, an “8x8 Partner”), provide the Services ordered by Customer from time to time in accordance with the terms and subject to the conditions of the Customer Agreement.
2.2 SUBSCRIPTION SERVICES.
2.2.1 General. 8x8 hereby grants Customer the non-exclusive, non-transferable (except as provided herein) right to access and use the Subscription Services ordered by Customer from time to time, together with all related components of the 8x8 Platform, during the term of the applicable Service Order, for Customer’s own internal business purposes, subject to the terms and conditions of the Customer Agreement.
2.2.2 User Limits. Customer’s use of Subscription Services is subject to limitations on the number of Agents authorized to use the Services. Unless the Customer Agreement provides otherwise: (a) a specified quantity of Subscription Services in a Service Order limits the number of Agents and corresponding account logins to the specified quantity; (b) an Agent’s login credentials may be used only by the designated Agent until his or her account is reassigned; and (c) an Agent’s account login may be reassigned to a new individual only when replacing a previously authorized Agent who will no longer use the Services. Customer may designate as Agents only individuals over whom Customer has sufficient control (contractual or otherwise) to ensure compliance with these Terms, such as employees and consultants.
2.2.3 Customer Requirements. Customer shall be responsible for ensuring that its Internet connection, any local network equipment, hardware and software used in connection with the Services, and all related configurations (collectively, “Environment”), adhere to the minimum standards and technical requirements specified in applicable Documentation. Customer agrees to: (a) grant 8x8 access to Customer’s personnel, facilities and other resources under Customer’s control as 8x8 may reasonably request in order to perform its obligations under the Customer Agreement; (b) allow 8x8, upon reasonable request and subject to compliance with Customer’s security policies, to conduct an initial assessment of Customer’s network; and (c) make any adjustments to Customer’s Environment that 8x8 reasonably determines necessary to satisfy the minimum technical prerequisites specified in the applicable Documentation.
2.3 IMPLEMENTATION SERVICES.
8x8 shall use commercially reasonable efforts to perform the Implementation Services ordered by Customer as promptly as practicable following Customer’s placement of an order or (if applicable) in accordance with the schedule specified in the Customer Agreement. Implementation Services shall be provided remotely unless Customer’s Support Plan provides for on-site deployment.
2.4 PROFESSIONAL SERVICES.
From time to time, Customer may request, and 8x8 may agree to perform, work beyond the scope of the Implementation Services and/or Support Services to be provided by 8x8 under the Customer Agreement. The fees for such additional services (“Professional Services”) shall be based on 8x8’s standard time, material and travel rates, unless the parties agree otherwise in writing. Professional Services shall be subject to these Terms and such other terms as the parties may agree in a Statement of Work (“SOW”). Customer acknowledges that Professional Services are performed on a reasonable efforts basis, and that 8x8 cannot guarantee a particular outcome or result.
2.5 TECHNICAL SUPPORT.
8x8 provides technical support for Services to its customers via telephone, e-mail and web chat. Support shall be available during 8x8’s regular business hours, unless otherwise specified in the applicable Support Plan. Customer is entitled to basic Support Services for all Subscription Services free of charge. 8x8 may charge Customer (at Professional Service rates) for its time and expenses in investigating and attempting to remedy service issues that are (a) related to Unsupported Services or (b) reasonably diagnosed as problems with Customer’s Environment rather than the Services.
2.6 UNSUPPORTED SERVICES.
Notwithstanding anything the contrary herein, neither 8x8 nor any of its designated Affiliates shall be required to provide technical support for, and 8x8 disclaims all service level commitments, representations and warranties as to the performance of, Services that are either (a) used for a purpose or in a manner inconsistent with the Documentation (for example, as part of an alarm or paging system), (b) used with Unsupported Devices or with supported equipment that does not comply with Section 6.5; or (c) accessed in an Environment for which the Customer has waived a network assessment or failed to make requested adjustments under Section 2.2.3 above (the Services described in clauses (a) through (c) are referred to collectively as “Unsupported Services”).
3. BILLING AND PAYMENT.
3.1 GENERAL.
8x8 or a designated Affiliate shall bill Customer, and Customer shall pay when invoiced, all fees, charges, Taxes and other amounts in respect to Services and Equipment in accordance with this Section 3.
3.2 BILLING.
Unless the Customer Agreement provides otherwise: (a) monthly Service Fees shall be billed in advance of each month’s Service, and toll and other usage charges shall be billed in arrears; (b) billing of Service Fees and other monthly recurring charges shall commence on the date that is seven days after Customer’s order of Subscription Services, or on the date 8x8 provisions such Services, whichever is earlier; (c) fees for Implementation and Professional Services and other one-time Service charges shall be billed upon order of the Services; and (d) shipping and related charges shall be billed upon shipment of the Equipment. Service Fees for any additional Subscription Services added during a calendar month shall be pro-rated based on the number of days billed during that month.
FOR AVOIDANCE OF DOUBT, UNLESS THE SERVICE AGREEMENT EXPRESSLY STATES OTHERWISE, BILLING WILL COMMENCE WITHIN SEVEN DAYS OF ORDER. The initial provisioning process, which creates Customer’s unique account and enables Customer to log-in and access the Services, is generally completed within this seven-day period.
3.3 PAYMENT AND CREDIT TERMS.
Unless the Customer Agreement provides otherwise, all amounts due and payable under the Customer Agreement shall be payable via charge to the credit card account provided by Customer, and payment is due 15 days from the invoice date (Net 15). All Services provided to Customer on credit shall be subject to 8x8’s review and approval of Customer’s credit, and 8x8, in its reasonable discretion, may discontinue or limit Customer’s credit at any time, require a deposit or bank guarantee, or place a limit on the amount of charges that Customer can incur before making payment. By providing credit card account information to 8x8, Customer authorizes 8x8 to charge that account for all amounts due and payable hereunder in respect of the Services and Equipment ordered by Customer, and Customer agrees to notify 8x8 promptly of any change to such information. Unpaid balances are subject to a late payment charge that accrues from the due date at the rate of 1.5% per month or the maximum amount permitted by applicable law, whichever is less.
3.4 TAXES.
Customer is responsible for paying all taxes, levies, imports, duties, charges, fees or similar governmental assessments, including value-added tax (“VAT”), sales, use, withholding, public utility or universal service taxes or fees, and emergency services surcharges (i.e., 911, E911, 999, etc.) assessed or assessable by any governmental, fiscal or other authority relating to the sale and provision of Services to Customer and Customer’s use of Services (collectively, “Taxes”), other than those assessable against 8x8 based solely on its income. 8x8 shall invoice Customer for all such Taxes that 8x8 reasonably believes it has a legal obligation to collect and remit (or in respect of any obligations that 8x8 is permitted to pass on to its customers, as in the case of universal service fund contributions and similar Taxes) under applicable Law, and Customer shall pay all Taxes so invoiced. Any Taxes set forth in a quote or Service Order shall be calculated by 8x8 in good faith based on the service address or addresses provided by Customer, but shall be non-binding estimates only. If Customer asserts an exemption from any Taxes, Customer shall deliver to 8x8 a valid tax exemption certificate authorized by the appropriate taxing authority, and Customer shall be liable for any Taxes assessed prior to such delivery. In no event shall Customer make any deduction to any amount payable under the Customer Agreement for or on account of any Taxes and withholdings of any nature imposed by any governmental, fiscal or other authority, except as required by law. If Customer is required by Law to make any such deduction, it will (a) first notify 8x8 of such obligation, (b) furnish 8x8 with receipts evidencing remittance of the money, and (c) pay such additional amounts as are necessary to ensure receipt by 8x8 of the full amount that 8x8 would have received but for the deduction. Customer acknowledges that 8x8 may not invoice or charge value-added, goods and services or similar Taxes in certain jurisdictions that permit reverse charge of such Taxes (including Australia, for example). Customer shall account for and remit any such Taxes on Services and Equipment in such jurisdictions.
3.5 DISPUTED CHARGES.
Customer agrees to pay all charges due and payable under the Customer Agreement without counter-claim, set-off or deduction, other than amounts disputed in accordance with this Section 3.5. To dispute a charge, Customer shall provide notice by email to claims@8x8.com within thirty (30) days of the charge, setting forth the amount in dispute and the basis of the dispute in reasonable detail. Failure to so dispute a charge within such 30-day period shall constitute an irrevocable waiver of Customer’s right to dispute the charge. The parties shall attempt to resolve the dispute in good faith for a period of 30 days from the notice, in accordance with the procedures for Claims under Section 16.2. If any charges remain in dispute at the end of the 30-day period, Customer shall pay the full amount due within 10 days, otherwise 8x8 may exercise any available remedies for breach (without regard to any further notice requirement or opportunity for cure under these Terms, which shall be deemed waived).
3.6 THIRD-PARTY SERVICES.
8x8 may offer to bill and collect payment for services (such as broadband, MPLS, etc.) provided to Customer by a third-party provider pursuant to a separate service contract between Customer and such third-party (“Third-Party Services”). Customer authorizes 8x8 to bill, collect and remit to the Third-Party Service provider any amounts chargeable for Third-Party Services in accordance with the procedures applicable to Services under this Section 3. Customer acknowledges that: (a) 8x8 makes no representations or warranties regarding, and shall have no responsibility or liability whatsoever for, Third-Party Services; (b) 8x8 shall not be deemed a reseller of Third-Party Services; and (c) Customer shall look solely to the Third-Party Service provider for any remedies relating thereto.
3.7 SERVICE FEE RATES; PRICING CHANGES.
When 8x8 and Customer enter into a Service Order for Customer’s initial order of Subscription Services in a country, the Service Fee rates specified in that Service Order establish the pricing for those Subscription Services in that country, and those rates shall not be increased for the duration of the then-current Term. Subject to the foregoing, 8x8 may increase Service Fee rates during any Renewal Term, but no more than five percent (5%) above the rates in effect at the end of the preceding Term, unless (a) 8x8 gives Customer notice of such increase at least 60 days prior to the commencement of that Renewal Term or (b) Customer materially reduces its quantity of Subscription Services. 8x8 may increase Service Fees for a customer on Month-to-Month Service at any time, up to the then-applicable list prices. Except as provided in this Section 3.7, the rates and pricing for Services and Equipment ordered in a Service Order shall not constitute a commitment of 8x8 to offer such rates and pricing for future orders.
3.8 MISCELLANEOUS.
Unless otherwise provided in the Customer Agreement or prohibited by applicable Law:
3.8.1 Refund Policy. All prepaid fees and other payments by Customer under these Terms are non-refundable and non-creditable.
3.8.2 Reactivation Fee. 8x8 may charge Customer a fee in order to reactivate Customer’s account following Customer’s termination of Services or 8x8’s termination or suspension of Services due to Customer’s breach.
3.8.3 Promotions. From time to time, 8x8 may offer promotional rates or discounts for Services. Any promotion or discount codes must be provided to 8x8 at the time Services are ordered. Promotions and discounts may not be used cumulatively or applied retroactively, and may be changed or discontinued by 8x8 at any time in its sole discretion. In no event shall promotional pricing be guaranteed for a term longer than the term for which Customer has ordered the Services. Any promotional shipping rates (e.g. free shipping) provided in a Service Order shall only apply to the units of Equipment ordered in that Service Order.
4. TERM AND RENEWAL
4.1 INITIAL TERM.
The Customer Agreement shall become effective upon effectiveness of the initial Service Order or Service Agreement, as applicable, and shall remain in effect through the last day of the Initial Term, subject to automatic renewal or continuation under Section 4.2, and unless terminated sooner under Section 5.1.
4.2 RENEWAL.
At the end of the Initial Term and each Renewal Term (as defined below), the Customer Agreement (including all Service Orders then in effect) shall be renewed automatically and continue in effect for an additional term of twelve (12) months (each, a “Renewal Term“), unless (a) either party gives notice of its election to terminate the Customer Agreement or any of the Services thereunder or (b) Customer gives notice of its election to continue the Services on a month-to-month basis (i.e. for automatically renewing, successive, one-month terms) at the list price for such Services (“Month-to-Month Service”), with notice in each case given at least 30 days prior to the end of the Term. Service Fee rates are subject to increase after the Initial Term as provided in Section 3.7.
Notwithstanding the foregoing, if the parties have entered into non-coterminous Service Orders, the renewal provisions of this Section 4.2 shall be applied separately to each set of coterminous Service Orders.
5. TERMINATION AND SUSPENSION
5.1 TERMINATION.
Except as other provided in the Customer Agreement or prohibited by law, a party may terminate the Customer Agreement or any or all Services thereunder by giving notice to the other party as follows:
5.1.1 Month-To-Month Service. If Customer is on Month-to-Month Service, either party may terminate the Customer Agreement or any Services thereunder at any time. The termination shall be effective on the last day of the next calendar month after the notice was given, or such later date as may be specified in the notice.
5.1.2 Material Breach. Either party may terminate the Customer Agreement and all Services thereunder in the event of a material breach by the other party, provided such breach (if capable of cure) is not cured within 30 days’ notice thereof by the non-breaching party. For avoidance of doubt, a material breach hereunder shall include (a) Customer’s failure to make timely payment hereunder (subject to Section 3.5 above) and (b) Customer’s breach of any representation or covenant under Section 10.2 or 10.3.
5.1.3 Bankruptcy, etc. Either party may terminate immediately the Customer Agreement and all Services thereunder if (i) the other party dissolves or becomes insolvent or bankrupt, (ii) the other party makes any assignment for the benefit of creditors or (iii) any bankruptcy, reorganization, insolvency or similar proceedings is instituted by or against the other party and not dismissed within 30 days.
5.1.4 Compliance with Law. 8x8 may terminate Services provided to a Customer Location if 8x8 determines, in good faith, such termination is necessary to comply with a court order or other Law applicable to Services at that Customer Location, provided 8x8 shall refund any unused prepaid Service Fees in respect of the terminated Services.
5.1.5 For Convenience. Customer may terminate the Customer Agreement or any Services thereunder, for any reason or for no reason, at any time during the Initial Term or a Renewal Term by giving 30 days’ written notice, provided Customer shall be liable for any early termination charges under Section 5.2 below.
5.2 EARLY TERMINATION AND RELATED CHARGES.
5.2.1 General. All payment obligations under the Customer Agreement are non-cancellable, and quantities ordered cannot be decreased during the relevant Term, except as expressly provided in this Section 5 or elsewhere in the Customer Agreement.
5.2.2 Early Termination Charges. If the Customer Agreement and/or any of the Services ordered thereunder are cancelled or terminated by Customer for convenience, or by 8x8 due to Customer’s breach, before the end of the Initial Term or then-current Renewal Term (as applicable), Customer shall pay 8x8 immediately upon termination an early termination charge equal to the monthly recurring charges associated with the terminated Service(s) (including Service Fees and applicable Taxes, but excluding any Regulatory Fees), multiplied by the number of months then remaining in the terminated Term. Any reduction in the number of lines, seats or other units of Service or downgrading of Services (for example, to a Service Plan with a reduced monthly Service Fee base rate) shall be treated as a termination of Service for purposes of this paragraph, and the early termination charge shall be calculated based on the reduction in monthly recurring charges attributable to such reduction or downgrading. CUSTOMER ACKNOWLEDGES THAT THE SERVICE FEE RATES OFFERED TO CUSTOMER ARE BASED UPON CUSTOMER’S AGREEMENT TO PAY EARLY TERMINATION CHARGES HEREUNDER AND WOULD HAVE BEEN SUBSTANTIALLY HIGHER ABSENT SUCH AGREEMENT.
5.2.3 Disconnect Fees and Other Charges. The early termination charges in this Section 5.2 shall not apply to any Services that are subject to promotional terms that expressly waive, in writing, early termination charges or provide for disconnect fees to be paid in lieu of such charges. If such terms apply, Customer shall pay the disconnect fees set forth in Annex 3 (Fees and Charges) to these Terms in lieu of any early termination charges that would otherwise apply. Notwithstanding anything to the contrary herein, upon early termination of Services, Customer shall also be liable for payment in full of the unpaid balance under an 8x8 Extended Payment Plan or similar financing arrangement as provided in Annex 3 (Fees and Charges).
5.3 SUSPENSION OF SERVICE.
Without limiting 8x8’s rights or remedies hereunder, 8x8 may suspend some or all Services if 8x8 determines, in its reasonable judgement, that the Services are being used (a) in a fraudulent or illegal manner or (b) in a manner that is likely to (i) disrupt or compromise the integrity or security of the 8x8 Platform, the network of 8x8 or any 8x8 Partner, or the privacy of any 8x8 customers or (ii) cause imminent and material damage to 8x8 or any 8x8 Partner, but only for as long as reasonably necessary to mitigate the risk of such harm. 8x8 shall notify Customer in advance of such suspension, if practicable, and otherwise promptly thereafter. Suspension of Services shall not release Customer from its obligations under the Customer Agreement; provided, Customer shall receive credit for the full suspension period if Customer is determined not to have breached the Customer Agreement.
6. EQUIPMENT AND SHIPPING
6.1 GENERAL; SHIPPING.
Customer may order Equipment from 8x8 from time to time for use with the Services by entering into Service Orders with 8x8. Customer shall pay all shipping and related charges unless otherwise stated in a Service Agreement. All Equipment shipments are 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 deemed the importer of Equipment for all purposes, and shall be liable for any applicable customs, import/export duties, clearance charges and other Taxes (including VAT), in connection with international shipments. 8x8 may refer Customer to a local or regional Equipment vendor for Customer Locations outside the Primary Market.
6.2 WARRANTY AND RETURNS.
8x8 shall pass through to Customer a 12-month warranty on Equipment (or, if applicable any extended warranty procured by 8x8), if permitted by the manufacturer. 8x8 will replace defective Equipment covered by warranty at no charge and will pay the return shipping costs, provided Customer returns Equipment in its original packaging or equivalent and obtains a return authorization number from 8x8 prior to returning Equipment.
6.3 LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT.
During the Term, Customer shall not modify the Equipment in any manner without the express written consent of 8x8 and shall only use the Equipment in connection with the Services. Customer shall be responsible for all lost, stolen or broken equipment (except to the extent covered by warranty) and shall promptly notify 8x8 of any such loss or theft and cooperate with 8x8 as reasonably requested to prevent unauthorized use of lost or stolen Equipment.
6.4 EQUIPMENT LEASING COMPANIES.
8x8 may refer Customer to one or more unaffiliated companies that have agreed to provide Equipment leasing options to 8x8 customers (a “Leasing Company”). The terms of any such leasing arrangement shall be governed solely by Customer’s contract with the Leasing Company. 8x8 does not endorse, guarantee the services of, or have control over such Leasing Companies and disclaims all liability in connection with their services. The use of any financial information, Personal Data and other information disclosed to or collected by Leasing Companies is governed by such Leasing Company’s own privacy policies and not by 8x8’s Privacy Policy.
6.5 UNSUPPORTED DEVICES, ETC.
Customer shall be responsible for ensuring that any Equipment acquired from a third-party vendor is in reasonable working condition and configured in accordance with 8x8’s technical requirements. Customer shall not access or use the Services with any equipment or devices other than supported Equipment, without 8x8’s consent. 8x8 shall have no liability whatsoever for Customer’s access or use of the Services with any equipment or device that is not supported by 8x8 (an “Unsupported Device”), even if 8x8 has consented to Customer’s use of such device. See www.8x8.com/CommunicationsSolutions/Equipment for a list of supported equipment.
7. CONFIDENTIALITY
7.1 DEFINITION.
Either party may, directly or through an Affiliate, vendor, subcontractor or other 8x8 Partner or advisor, or any workforce member or agent of the foregoing (collectively, “Representatives”), disclose or otherwise make available to the other party or its Representatives (collectively, the “Recipient”) information concerning the disclosing party or its Representatives (collectively, the “Discloser”) which the Discloser indicates is confidential or proprietary, or which, by its nature, would reasonably be expected to be confidential or proprietary (collectively, “Confidential Information”), including, for example, trade secrets, technical information, pricing data and product plans, but excluding Customer Data (which is addressed in Section 8 below, applicable provisions of the Regional Supplements and the Privacy Policy). In addition, the pricing and other terms of the Customer Agreement shall be deemed the Confidential Information of each party. Notwithstanding the foregoing, Confidential Information shall not include any information that the Recipient can demonstrate (x) is already or later becomes disclosed to the general public other than through the fault or negligence of Recipient or (y) is lawfully obtained by Recipient from a third party which has the right to transfer or disclose it.
7.2 OBLIGATIONS.
The Recipient agrees: (a) to keep the Discloser’s Confidential Information confidential and disclose it only (i) to its Representatives to whom such disclosure is reasonably necessary to accomplish the purpose for which the Confidential Information was disclosed to the Recipient and who are bound to reasonable confidentiality obligations with respect to such Confidential Information, (ii) in response to a judicial order or other lawful process, as and to the extent required by such order or process or (iii) as approved in writing by the Discloser; (b) not to use Discloser’s Confidential Information except for the purpose(s) for which the Confidential Information was disclosed or as approved in writing by the Discloser; and (c) to protect the confidentiality of the Discloser’s Confidential Information with the same degree of care as Recipient uses to protect its own Confidential Information of like kind, but in no event less than reasonable care. Each party shall use reasonable efforts to ensure that its Representatives observe these obligations as if they were parties to the Customer Agreement.
7.3 SURVIVAL.
Each party’s obligations under this Section 7 shall survive any termination or expiration of the Customer Agreement and remain in effect for three (3) years thereafter or, in the case of trade secrets, as long as permitted by applicable Law. The parties agree that, in the event this Section 7 conflicts or is inconsistent with a non-disclosure or confidentiality agreement (an “NDA”) previously entered into by the parties, this Section 7 shall govern as to disclosures from and after the effective date of the Customer Agreement.
8. DATA PROTECTION AND SECURITY
8.1 PRIVACY POLICY.
Customer acknowledges that it has read and understood 8x8’s Privacy Policy Covering Customers (available at www.8x8.com/terms-and-conditions/privacy-policy) (the “Privacy Policy”).
8.2 GENERAL.
8x8 shall maintain commercially reasonable administrative, physical and technical safeguards designed to protect the confidentiality and integrity of Customer Data. To the extent any Customer Data includes Personal Data, 8x8 shall comply with any applicable data protection Laws and any other specific requirements set out in the relevant Regional Supplements.
8.3 CUSTOMER DATA.
8.3.1 Limited License. Customer grants 8x8 a non-exclusive and non-transferable (except as provided herein) license and right to access Customer’s account(s) and to collect, process, transfer, use, modify, reproduce, store, record, transmit, distribute, display, view, print, translate and disclose Customer Data (which may include Personal Data of Agents, other users of the Services and other third parties), subject to the limitations and conditions set forth in the Privacy Policy and solely for the purposes set forth therein.
8.3.2 Permitted Uses. Without limiting Section 8.3.1 above, Customer acknowledges and agrees that 8x8 may, subject to the terms and conditions of the Privacy Policy: (a) disclose and transfer Customer Data to an 8x8 Affiliate or other 8x8 Partner as and to the extent necessary to provide Services to Customer; (b) disclose Customer Data to courts, government agencies and other Third Parties as and to the extent required by Law, including in response to subpoenas, court orders and other legal process; (c) collect and aggregate Customer Data with data from other customers, and use and disclose Customer Data in anonymized form, including for the purpose of (i) compliance with reporting requirements under applicable Laws, (ii) quality control and assurance or (iii) improving the Services and developing new services; and (d) collect, use and disclose Customer Data to third parties when 8x8 determines, in its reasonable judgement, that such disclosure is necessary to protect the safety of an Agent or another individual, to investigate suspected fraud, or to trace debtors.
8.4 CUSTOMER RESPONSIBILITIES.
Customer shall use all reasonable efforts to prevent unauthorized access to and use of Services and agrees to notify 8x8 promptly of any such unauthorized access or use or other breach of security relating to its account. Among other safeguards, 8x8 recommends that Customer instruct its Agents to (a) choose robust password combinations, change their passwords regularly and not disclose their passwords except to authorized 8x8 Support agents, and (b) perform a “log off” / exit of their accounts at the end of each session.
8.5 DATA STORAGE.
Customer acknowledges that the Services are not intended and should not be used for long-term data storage. Customer is encouraged to back-up regularly any Customer Data that it wishes to retain and use other than in connection with the Services. 8x8 shall not be responsible for any Customer Data exported from the Services, including without limitation via third-party integrations, or storage on devices or external media or accounts. 8x8 reserves right to periodically purge Customer Data from its servers, subject to any data retention requirements under applicable Laws or the Customer Agreement.
8.6 INTERNET.
Customer acknowledges that its use of the Services requires the transmission of electronic data over the Internet and various other networks that are not owned or operated by, or otherwise under the control of, 8x8, and that 8x8 cannot ensure that such transmissions will not be accessed by unauthorized parties. Except as expressly provided in the Customer Agreement, 8x8 shall not be not responsible or liable for any delay, loss, alteration or interception of Customer Data in the course of its transmission through and between networks not owned and/or operated by 8x8.
9. SERVICE LIMITATIONS
9.1 AVAILABILITY.
8x8 shall use commercially reasonable efforts to make the Services available continuously and without interruption at all times during the Term, other than during scheduled maintenance and repair, and to minimize the loss of data in Customer’s communications. However, Customer acknowledges and agrees that the Services will not be uninterrupted, error-free or available 100% of the time. 8x8 shall have no obligation to provide credit allowances for interruption of the Services except as expressly provided in the Customer Agreement.
9.2 QUALITY OF SERVICE.
IP-based communications have inherent limitations relative to analog and other traditional communications methods. While 8x8’s Services have been engineered to address and manage these limitations, 8x8 cannot guarantee that all communications transmitted to or from the 8x8 Platform (including voice, facsimile and text messages) will be delivered without loss of data or at all. Customer acknowledges and understands that call quality depends not only on the specification and availability of the Broadband service to which Customer is connected but also on the telecommunications network to which the other parties are connected.
9.3 ALARM SIGNALS; CRITICAL SAFETY APPLICATIONS.
CUSTOMER UNDERSTANDS THAT THE SERVICES ARE NOT AUTHORIZED OR INTENDED TO BE USED TO CARRY ALARM SIGNALS OR FOR USE IN ANY HIGH-RISK, CRITICAL SAFETY OR OTHER APPLICATIONS WHERE ANY FAILURE, INTERRUPTION OR MALFUNCTION MAY REASONABLY BE ANTICIPATED TO RESULT IN BODILY INJURY, LOSS OF LIFE OR CATASTROPHIC DAMAGE TO PROPERTY.
9.4 USE OUTSIDE THE PRIMARY MARKET.
Although 8x8 sells Services primarily to customers domiciled in the Primary Market, 8x8’s Services are nomadic by nature and may be accessible through an Internet connection virtually anywhere a broadband connection is available. Regulation of IP-based telephony services varies significantly from jurisdiction to jurisdiction. For example, some countries have prohibited IP-based telephony services that interconnect with the local PSTN, and others require the user to obtain a specific consent or license. In addition, internet service providers (ISPs) in some countries may impose contractual restrictions on the use of their services for IP-based telephony. Methods of enforcement range from number blocking and suspension of internet service to fines and criminal penalties. Before ordering Services for use in a jurisdiction outside the Primary Market, Customer is urged to consult with counsel for advice regarding its proposed use of the Services in that jurisdiction. Customer shall be solely responsible and liable for any violation of local Laws or breach of third-party contract terms resulting from Customer’s use of the Services outside the Primary Market, regardless of whether 8x8 has consented to such use.
9.5 EMERGENCY SERVICES.
8x8 supports access to emergency numbers for traditional fax and voice service plans in the United States, United Kingdom, Canada, Australia and other jurisdictions, as and to the extent provided in the Regional Supplements. The use of emergency numbers with 8x8’s Services is subject to limitations when compared to traditional wireline services. PLEASE SEE THE REGIONAL SUPPLEMENTS FOR IMPORTANT INFORMATION CONCERNING ANY EMERGENCY SERVICES PROVIDED IN YOUR SERVICE PLAN, AS WELL AS PROVISIONS THAT LIMIT 8X8’S LIABILITY IN CONNECTION WITH THESE SERVICES. 8X8 RECOMMENDS THAT CUSTOMER AND ITS AGENTS ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESSING EMERGENCY SERVICES OTHER THAN THROUGH 8X8’S SERVICE.
9.6 NON-8X8 APPLICATIONS.
9.6.1 Continued Interoperability. Certain Services may contain features designed to interoperate with Non-8x8 Applications. 8x8 cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit or other compensation. Any custom work performed by 8x8 to enable interoperation with a Non-8x8 Application shall be charged as Professional Services and undertaken on a commercially reasonable efforts basis.
9.6.2 No Warranty or Liability. Unless the Customer Agreement provides otherwise: (a) 8x8 does not warrant and is not responsible for any aspect of Non-8x8 Applications, regardless of whether they are designated by 8x8 as “certified,” “approved” or “recommended”; (b) Customer’s procurement and use of Non-8x8 Applications is solely between Customer and the applicable third-party provider; and (c) 8x8 shall not be required to provide support for Non-8x8 Applications. If Customer installs or enables Non-8x8 Applications or services for use with a Subscription Service, Customer agrees that 8x8 may allow the third-party providers to access Customer Data as required for the interoperation of such Non-8x8 Applications with the Subscription Service, and 8x8 shall not be responsible for any disclosure, modification or deletion of Customer Data resulting therefrom.
9.7 CUSTOMIZATIONS.
8x8 may agree or refuse, in its sole discretion, any Customer requests for custom modifications or additions to the Services or other aspects of the 8x8 Platform (“Customizations”) for Customer’s benefit. Any Customization work performed by 8x8 shall be charged as Professional Services and shall be undertaken on a reasonable efforts basis. Customer acknowledges that (a) 8x8 does not provide support for Customizations under standard Support Plans; (b) a Customization may adversely impact other aspects of the Services, or their overall functionality or security; and (c) future upgrades and modifications to the 8x8 Platform may impair the functionality of a Customization.
9.8 BETA SERVICES.
From time to time, 8x8 may make available, to some or all of its customers, new or modified Services, or features or functionalities of existing Services, which are designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a similar description (“Beta Services”), prior to their general release. Beta Services are intended for evaluation purposes only and not for production use, are not supported by 8x8, and may be subject to additional terms. Beta Services are not considered “Services” under the Customer Agreement for purposes of any representations, warranties, commitments or agreements of 8x8; however, all restrictions and limitations applicable to Customer’s use of Services shall apply to Beta Services. 8x8 may discontinue Beta Services at any time in its sole discretion and may never make them generally available. 8x8 will have no liability for any harm or damage arising out Customer’s use of a Beta Service.
10. USE RESTRICTIONS AND CUSTOMER RESPONSIBILITIES
10.1 CUSTOMER ACCOUNTABILITY FOR USE OF SERVICES.
Customer shall be responsible and liable for all access and use of the Services by Customer’s Agents or otherwise through Customer’s account (“Customer Use”), other than unauthorized activities and charges resulting from the gross negligence or wilful misconduct of 8x8 or an 8x8 Partner. Customer understands and acknowledges that the right of its Agents to access and use the Services shall be subject to each Agent’s acceptance of 8x8’s standard Service Terms of Use (“TOU”), as amended from time to time (available at https://www.8x8.com/terms-and-conditions).
10.2 COMPLIANCE WITH LAW.
Customer agrees to comply with all applicable United States and other international, national, state, provincial and local laws, regulations, codes, ordinances, treaties, conventions, and court and administrative orders and rulings (collectively, “Laws”) in relation to its access and use of the Services and the 8x8 Platform generally. Customer shall be solely responsible for familiarizing itself with such Laws and shall not treat or rely on any statements, communications or materials provided by 8x8 or its Representatives as legal advice.
Without limiting the foregoing:
(a) Import and Export. Customer shall comply with all export and import Laws of the United States and other jurisdictions applicable to its use of the 8x8 Platform and to its use and transport of Equipment. Customer shall not access or use any Service in a United States embargoed country. Customer represents and warrants that it is not named on any United States government denied-party list.
(b) Telemarketing, Etc. Many jurisdictions have Laws (such as the U.S. Telephone Consumer Protection Act of 1991, for example) that significantly restrict telephone solicitations (i.e., telemarketing) and the use of automatic dialing systems, artificial or pre-recorded voice messages, SMS text messages and facsimile communications. Customer agrees that Customer is solely responsible for (i) ensuring its use of the Services complies with all such Laws, (ii) obtaining any required consents from the parties to be contacted and for (iii) maintaining an internal “do not call” list to prevent contacting parties that do not wish to receive further communications from Customer. CUSTOMER IS URGED TO SEEK THE ADVICE OF COUNSEL PRIOR TO PURCHASING OR USING OF THE SERVICES FOR MARKETING OR SOLICITATION PURPOSES.
(c) Voice Recording and Call Monitoring. Many jurisdictions require advance notice or consent for electronic voice recording and/or third-party call monitoring (a feature of Barge-Monitor-Whisper, for example). Certain Services allow Customer to use pre-recorded call monitoring and recording notification messages (which are intended to comply with notice requirements under applicable United States state laws), although Customer remains solely responsible for compliance with all applicable Laws.
10.3 OTHER USE RESTRICTIONS.
Customer agrees to comply, and to cause its Agents and other users of the Services through its account, to comply with the provisions of Annex 1 (Use Restrictions) to these Terms
10.4 UNLIMITED PLANS.
8x8’s Service Plans that offer unlimited minutes of PSTN calls, unlimited faxing or unlimited Text Messages are for reasonable business use only. Any use in violation of Section 10.3 above shall be presumed to be an unreasonable business use.
10.5 CUSTOMER CONTENT.
Customer acknowledges that 8x8’s role with respect to the content of communications and data transmitted, received and/or stored by Customer through the 8x8 Platform (“Content”) is that of a passive conduit. As such, Customer acknowledges that neither 8x8 nor any 8x8 Partner shall be responsible for Content and shall have no involvement in determining, drafting, editing, or creating Content or in determining the recipients of such communications or the numbers to which they are sent.
10.6 REGISTRATION INFORMATION.
Customer shall ensure that all of its account and registration information (collectively, “<