8x8 ContactNow
Terms and Conditions
[Updated May 3, 2017]
These 8x8 ContactNow terms and conditions (“Terms”), together with the Service Specific Terms and all other documents referenced herein (collectively, the “Agreement”), govern the access to and use of the 8x8 ContactNow Services (“Services”) by you, or others on your behalf, and is a legally binding contract entered into and agreed 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”).
PLEASE READ THIS AGREEMENT CAREFULLY BECAUSE IT AFFECTS 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) COMPLIANCE WITH LAW. Many jurisdictions have Laws (e.g., the U.S. Telephone Consumer Protection Act) that significantly restrict telephone solicitations (i.e., telemarketing) and the use of automatic dialing systems, artificial or pre-recorded voice messages, text messages and facsimile communications. CUSTOMER IS SOLELY RESPONSIBLE FOR (I) ENSURING ITS USE OF THE SERVICES COMPLIES WITH ALL SUCH LAWS, (II) OBTAINING AND MAINTAINING ALL NECESSARY LICENSES, PERMITS AND APPROVALS REQUIRED BY ANY AND ALL GOVERNMENTAL AUTHORITIES TO PERMIT CUSTOMER TO RECEIVE AND USE THE SERVICES, (III) OBTAINING ANY AND ALL REQUIRED CONSENTS FROM THE PARTIES TO BE CONTACTED USING THE SERVICES AND (IV) MAINTAINING AN INTERNAL “DO NOT CALL” LIST TO PREVENT CONTACTING PARTIES THAT DO NOT WISH TO RECEIVE FURTHER COMMUNICATIONS FROM CUSTOMER. THIS AGREEMENT ALSO INCLUDES IMPORTANT INFORMATION REGARDING YOUR ACCESS AND USE OF EMERGENCY SERVICES (i.e., 911 in the United States, 999 in the United Kingdom, etc.).
When you accept this Agreement in conjunction with ordering Services (for example, by clicking a box adjacent to an acknowledgement) or when you access or use the Services, you agree to be bound by this Agreement. If you are acting on behalf of a corporation, company, partnership, organization, association or other legal entity, then you hereby represent and warrant to 8x8 that you have the authority to bind such entity to this Agreement. IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE WITH THIS AGREEMENT, THEN DO NOT ACCEPT THIS AGREEMENT AND DO NOT ACCESS OR USE, OR AUTHORIZE ANYONE TO ACCESS OR USE, THE SERVICES.
1. APPLICATION OF TERMS.
These Terms and Annex 1 contain the general terms and conditions governing the provision of Services to Customer regardless of location. Additional Service Specific Terms that supplement these Terms (a) are contained in applicable Editions and Documentation, including without limitation volume, technical, formatting and logistical requirements and applicable pricing, fees and charges; and (b) may be contained in an Order. The Service Specific 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 subject to the terms of this Agreement.
2.2 Customer License. Subject to Customer’s compliance with the terms of the Agreement, 8x8 hereby grants Customer the non-exclusive, non-transferable (except as provided herein) right to access and use the Services ordered by Customer from time to time, together with all related components of the 8x8 Platform, during the Term, for Customer’s own internal business purposes.
2.3 User Limits. Customer’s use of the Services is subject to limitations on the number of Agents authorized to use the Services per the Edition and applicable Order for Services. Unless the Agreement expressly provides otherwise, a specified quantity of Services in an Order for Monthly Services limits the number of Agents and corresponding account logins to the specified quantity. Customer may designate as Agents only individuals over whom Customer has sufficient control (contractual or otherwise) to ensure compliance with the Agreement, such as employees and consultants.
2.4 Customer Requirements. Customer shall be solely responsible for ensuring that its Internet connection, its underlying telephony system (whether separately provided by 8x8 or a third-party telephony provider), any local network equipment, hardware and software or other equipment and devices (including without limitation telephones) 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 understands and agrees that (a) its ability to use the Services may require Customer to make necessary adjustments, modifications or changes to its Environment in order to satisfy the minimum technical prerequisites specified in the applicable Documentation; and (b) its failure or inability to make such adjustments, modifications or changes to its Environment may limit, interrupt or prohibit its accessibility to or use of the Services.
2.5 Technical Support. In accordance with the applicable Edition, 8x8 provides technical support for Services to its customers via e-mail, web-chat and, if applicable, telephone. Support shall be available during 8x8’s regular business hours, unless otherwise specified in the applicable Edition. Only basic technical support for Services, excluding Customizations, is included the applicable Edition. 8x8 may charge Customer (at then current professional service rates) for its time and expenses in investigating and attempting to remedy service issues that are (a) related to Customizations or (b) reasonably diagnosed as problems with Customer’s Environment rather than the Services.
2.6 Edition Upgrades and Downgrades. While Customer may from time to time elect to change the Edition to which it is subscribed, all Services subscribed to by Customer at any one period in time must be under the same Edition, e.g., Customer may not have some Agents on Standard Edition and other Agents on Pro Edition at the same time. If Customer elects to upgrade Editions (for example, from Pro to Ultimate), such change (including the pro-rated Service Fee, other related charges, and features, such as call recording retention periods) will take effect immediately after Customer submits an Order for such upgrade. If Customer elects to downgrade Editions (for example, from Ultimate to Pro), such change (including the Service Fee, other related charges, and features, such as call recording retention periods) will take effect at the beginning of the next calendar month after Customer submits an Order for such downgrade. With respect to call recording storage, unless this Agreement is terminated, call recordings will continue to be stored in accordance with the terms of the Edition applicable to the Service subscribed to by Customer at the time such call recordings were made.
3. ORDERING.
3.1 Registration. Customer must register for the Services. Once Customer registers for the Services, 8x8 will notify Customer via email of the account login information to enable Customer to access the Services (“Registration Confirmation”). Upon receipt of the Registration Confirmation, Customer may access its account to order Services. 8x8 may in its sole discretion decline any application to register for the Services.
3.2 Orders. To use the Services, Customer must submit an Order and payment for the Services. An Order shall be deemed accepted, and shall become effective and legally binding on both parties, as of the date that (a) a representative of Customer manifests its assent in the manner indicated by the Order document (for example, “click to accept”); and (b) all upfront Customer payments of applicable Service Fees, charges, Pre-Payments, and Taxes for the Services have been received in full by 8x8 in cleared funds (“Order Date”).
4. TERM.
The “Term” of the Agreement shall begin upon the Effective Date and, unless terminated earlier under these Terms, shall continue: (a) for Monthly Services, month-to-month and automatically renew unless and until Customer terminates the Services; or (b) for Standard Services, until the Pre-Payment Balance falls to zero or below and remains at zero or below for 60 days.
5. CHARGING AND PRICING.
5.1 General. 8x8 or a designated Affiliate shall charge Customer, and Customer shall pay, all fees, charges, Taxes, Pre-Payments and other amounts in respect to Services in accordance with this Section 5.
5.2 Billing. Unless otherwise provided in the Agreement, all amounts due and payable under the Agreement shall be payable via charge to the credit card account information provided by Customer (“Payment Method”). In the event of any change to its Payment Method, including without limitation card expiration or other basis for invalidity, Customer agrees to promptly update such information. Unless otherwise provided in the Agreement, by ordering the Services and providing its Payment Method, Customer authorizes 8x8 to charge its Payment Method for: (a) the monthly Service Fees and other monthly recurring charges at the then-current rate; (b) the Pre-Payment; and (c) any other toll and usage charges, fees for one-time Service charges, and Taxes incurred in connection with Customer’s order and use of the Services. Customer acknowledges that (d) the amounts charged each time to its Payment Method may vary from time to time for reasons that may include, but not be limited to, varying usage and/or changing or adding of Services, and (e) amounts may be charged at any time in one or more charges. 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. 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.
5.3 Monthly Services.
5.3.1 Charges for Monthly Services. For Monthly Services, unless otherwise provided in the Agreement, (a) monthly Service Fees shall be charged and paid for in advance of each month’s Service; (b) charging of Service Fees and other monthly recurring charges shall commence on the Order Date for the applicable Order and thereafter recur on the first of every month; (c) fees for one-time Service charges (including optional Pre-Payments) shall be charged on the Order Date for the applicable Order. Service Fees for Services added during a calendar month shall be pro-rated based on the number of days billed during that month.
5.3.2 Expiration of Included Minutes. If Customer fails to use all its monthly allotment of minutes included in its Monthly Services (“Included Minutes”) in the calendar month in which they were ordered (“Unused Minutes”), such Unused Minutes will expire as of 11:59pm Pacific Time on the last day of the calendar month in which they were ordered.
5.4 Standard Services.
5.4.1 Mandatory Pre-Payment Balance. For Standard Services, Customer will make an initial Pre-Payment to 8x8 of the amount specified on the Order. The initial Pre-Payment will be held by 8x8 on Customer’s behalf as the first Pre-Payment Balance.
5.4.2 Charges for Standard Services. 8x8 will deduct from the Pre-Payment Balance all amounts (including, without limitation, fees, toll and other usage charges, and Taxes) due and payable by Customer for usage of the Standard Services as they are incurred.
5.4.3 Minimum Amount. Unless otherwise set by Customer in its account, when Customer’s Pre-Payment Balance falls below the Minimum Amount, 8x8 shall automatically charge the Payment Method a preset amount of funds to bring Customer’s Pre-Payment Balance above the Minimum Amount.
5.4.4 Forfeiture of Pre-Payment Balance. If Customer maintains a Pre-Payment Balance for Standard Services above zero and fails to use such Service in any material respect, as determined in 8x8’s sole discretion, for a period of 12 consecutive months, such existing Pre-Payment Balance will be forfeited and retained by 8x8. If Customer wishes to use the Services after forfeiture of any Pre-Payment Balance under this Section, Customer must make a new Pre-Payment to use Standard Services.
5.5 Taxes. Customer is responsible for paying all Taxes, other than those assessable against 8x8 based solely on its income. 8x8 shall charge 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) under applicable Law, and Customer shall pay all Taxes so charged. 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. 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 in such jurisdictions.
5.6 Overages Charges. In accordance with the applicable Edition, Customer may have an allotment of Included Minutes for each month. If Customer uses all Included Minutes in any given month, Customer’s Services will be immediately suspended for the remaining days in the calendar month unless (a) Customer has made an optional Pre-Payment to 8x8, in which case 8x8 will deduct overage fees against such Pre-Payment Balance for usage in excess of the Included Minutes; or (b) Customer otherwise orders additional Services containing additional Included Minutes.
5.7 Rates. All fees and charges will be calculated in accordance with the rates published on the Website for an applicable Edition or, if applicable, the rates set out in an Order. All calls will be recorded and charged in seconds and will be rounded up to the nearest second. If the computed charge for a call includes a fraction of a single unit of the smallest denomination of currency, the fraction is rounded up to the nearest whole unit of the smallest denomination of applicable currency. When Customer attempts to make an outbound call, charges may apply regardless of whether the party on the other line answers the call. Each leg of a call using the Services, however created, is charged independently, e.g., if a call is transferred from an Agent to another Agent or a third party, an additional call leg is created and per minute charges are applied to the whole duration of each call leg. If Customer elects to use the “Agent on Demand” feature, where Agents are called from the 8x8 Platform to connect, the applicable per minute rate will apply to such calls. All call charges payable under the Agreement will be calculated by reference to data recorded or logged by 8x8 and not by reference to data recorded or logged by Customer. 8x8 may change the rates, fees and other charges for the Services at any time by publishing them to the Website. The rates and pricing for Services ordered in an Order shall not constitute a commitment of 8x8 to offer such rates and pricing for future orders.
5.8 Disputed Charges. Customer agrees to pay all charges due and payable under the Agreement without counter-claim, set-off or deduction. To dispute a charge, Customer shall provide notice by email to [email protected] within 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.
5.9 Refund Policy. All prepaid fees and other payments by Customer under this Agreement are non-refundable and non-creditable.
5.10 Reactivation Fee. 8x8 may charge Customer a fee to reactivate Customer’s account following Customer’s termination of Services or 8x8’s termination or suspension of Services due to Customer’s breach.
5.11 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.
6. DATA PROTECTION.
6.1 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”).
6.2 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 region under Section 30.
6.3 Customer Data.
6.3.1 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.
6.3.2 Permitted Uses. Without limiting Section 6.3.1 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 or inquiry; (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; (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; or (e) collect, use and disclose Customer Data, including but not limited to Customer’s name and company details, to third parties contacted by Customer using the Services in the event such contacted party so requests.
6.4 Data Storage. 8x8 retains Customer Data for as long as required (a) for the purposes of billing; (b) pursuant to other legitimate business; (c) under applicable Laws; or (d) pursuant to the terms of this Agreement, including the applicable Edition for Services provided to Customer. Subject to the foregoing, 8x8 otherwise reserves right to periodically, and at 8x8’s sole discretion, purge Customer Data from its servers. 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 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.
6.5 Internet. Customer acknowledges that (a) 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 (b) 8x8 cannot ensure that such transmissions will not be accessed by unauthorized parties. Except as expressly provided in the 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.
7. SERVICE LIMITATIONS.
7.1 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 (a) the Services will not be uninterrupted, error-free or available 100% of the time; (b) call quality depends on the specification and availability of the Broadband service to which Customer is connected, as well as the telecommunications network to which the other parties are connected; and (c) 8x8 cannot guarantee that all communications transmitted to or from the 8x8 Platform will be delivered without loss of data or at all. 8x8 shall have no obligation to provide credit allowances for interruption of the Services except as expressly provided in the Agreement.
7.2 Critical Safety Applications. CUSTOMER UNDERSTANDS THAT THE SERVICES ARE NOT AUTHORIZED OR INTENDED TO BE USED FOR USE IN ANY HIGH-RISK, CRITICAL SAFETY OR OTHER APPLICATIONS WHERE FAILURE, INTERRUPTION OR MALFUNCTION MAY REASONABLY BE ANTICIPATED TO RESULT IN BODILY INJURY, LOSS OF LIFE OR CATASTROPHIC DAMAGE TO PROPERTY.
7.4 Emergency Services.
Customer acknowledges and agrees that the Services are an ‘over-the-top’ call-routing software solution that is integrated with, and is dependent upon, Customer’s underlying telephony system (whether separately provided by 8x8 or a third-party telephony provider). AS SUCH, CALLS TO EMERGENCY SERVICES CANNOT BE MADE WITHIN THE SERVICES AND CUSTOMER MUST ENSURE THAT CALLS TO EMERGENCY SERVICES ARE SECURED THROUGH CUSTOMER’S UNDERLYING TELEPHONY PROVIDER. Customer is solely responsible for making sure its Agents and any other users of the Services are aware that calls may not be made to emergency services through the Service. 8X8 RECOMMENDS THAT CUSTOMER AND ITS AGENTS ALWAYS HAVE AN ALTERNATIVE MEANS OF CALLING EMERGENCY SERVICES.
7.5 Non-8x8 Applications.
7.5.1 Continued Interoperability. The Services may contain features designed to interoperate with Non-8x8 Applications. 8x8 cannot guarantee the continued availability of such features and may cease providing them without entitling Customer to any refund, credit or other compensation.
7.5.2 No Warranty or Liability. Unless the 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 provide support for Non-8x8 Applications. If Customer installs or enables Non-8x8 Applications or services for use with the Services, 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 Services, and 8x8 shall not be responsible for any disclosure, modification or deletion of Customer Data resulting therefrom.
7.6 Customizations. Any Customer requests for custom modifications or additions to the Services or other aspects of the 8x8 Platform (“Customizations”) for Customer’s benefit are subject to an agreed upon SOW for professional services to be undertaken on a reasonable efforts basis. Customer acknowledges that (a) a Customization may adversely impact other aspects of the Service, or its overall functionality or security; and (b) future upgrades and modifications to the 8x8 Platform may impair the functionality of a Customization.
8. USE RESTRICTIONS AND CUSTOMER RESPONSIBILITIES.
8.1 Customer Accountability for Use of Services. Customer shall be responsible and liable for all access, orders 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 willful misconduct of 8x8 or an 8x8 Partner. Customer shall use all reasonable efforts to prevent unauthorized access to and use of the 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. 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 these Terms, as amended from time to time.
8.2 Compliance with Law. Customer agrees to comply with all applicable 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) Telemarketing, Etc. Many jurisdictions have Laws (e.g., the U.S. Telephone Consumer Protection Act of 1991) that significantly restrict telephone solicitations (i.e., telemarketing) and the use of automatic dialing systems, artificial or pre-recorded voice messages, 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 AND MAINTAINING ALL NECESSARY LICENSES, PERMITS AND APPROVALS REQUIRED BY ANY AND ALL GOVERNMENTAL AUTHORITIES TO PERMIT CUSTOMER TO RECEIVE AND USE THE SERVICES, (III) OBTAINING ANY AND ALL REQUIRED CONSENTS FROM THE PARTIES TO BE CONTACTED USING THE SERVICES AND (IV) 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 THE SERVICES FOR RESTRICTED PURPOSES.
(b) Voice Recording and Call Monitoring. Many jurisdictions require advance notice or consent for electronic voice recording and/or third-party call monitoring. 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.
(c) 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. Customer shall not access or use any Services in a United States embargoed country. Customer represents and warrants that it is not named on any United States government denied-party list.
8.3 Investigations.
8.3.1 Cooperation with Investigations. 8x8 in its sole discretion may require Customer to take primary responsibility for any formal or informal inquiries from or investigations by a regulatory body or other third party (“Investigation”) into any actual or alleged actions or omissions that would constitute a breach of this Agreement by Customer or any of its Agents, Affiliates, partners or customers, including without limitation in relation to the access to or use of the Services. Customer agrees, at its own cost, to accept full responsibility for any such Investigation and actual or alleged action or omission, and to timely provide all requested information to the regulatory body or third party conducting the Investigation and 8x8. If Customer defaults in complying with its obligations under this Section 8.3, Customer agrees that 8x8 may act in the name and on behalf of Customer to provide all requested information (to the extent under 8x8’s reasonable control) to the regulatory body or third party conducting the Investigation. Customer acknowledges and agrees that (a) 8x8 shall not incur any liability arising from or in connection with 8x8’s provision of information requested pursuant to an Investigation; (b) 8x8 shall charge Customer (at then current professional service rates) for its time and expenses incurred in providing information in response to such Investigation. The sum charged pursuant to (b) will, if applicable, first be deducted from Customer’s Pre-Payment Balance or if a Pre-Payment Balance is not sufficient or Customer does not have a Pre-Payment Balance, be invoiced to Customer for payment within 7 days from the date of the invoice.
8.3.2 Notification. Customer shall promptly notify 8x8 of any claims, obligations, agreements or court orders against Customer or any of its Agents, Affiliates, partners or customers or to which Customer or any of its Agents, Affiliates, partners or customers is a party that arises out of, relates to, or affects any part of the Services or other facts that call into question Customer’s ability to comply with the Agreement.
8.4 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.
8.5 Unlimited Features. Editions that offer Unlimited Features are for reasonable business use only. In the event of Customer’s unreasonable business use of such Unlimited Features, 8x8 may in its sole discretion (a) place reasonable limitations or restrictions on Customer’s use of such Unlimited Features; and (b) suspend or terminate the Services provided to Customer.
8.6 Customer Content. Customer acknowledges that 8x8’s role with respect to Customer’s 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. Without limiting the foregoing, Customer shall be solely responsible for the accuracy, quality and legality of all Content and the means by which Customer acquired such Content. Upon 8x8’s request, Customer shall, within a reasonable period of time after such request, provide to 8x8 copies of any Content that Customer uploaded to or transmitted using the Services.
8.7 Registration Information. Customer shall ensure that all its account and registration information (collectively, “Registration Information”) – including, for example, Customer’s legal name, address, email address, telephone number and payment information, and the service address and other registration information of its Agents – is accurate, current and complete at all times during the Term. Customer agrees to promptly notify 8x8 of any changes in Registration Information and to verify such information upon reasonable request from 8x8. Without limiting the foregoing, Customer shall be responsible for the accuracy, quality and legality of all Personal Data included in the Registration Information and the means by which Customer acquired such Personal Data.
8.8 No Storage of Protected Health Information. The Services are not designed, intended or approved for the collection, transmission or storage of “protected health information,” as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), regulations promulgated under HIPAA, or any other similar Law. Customer represents and warrants that it will not use the Services, or allow the Services to be used, for such purpose. 8X8 EXPRESSLY DISCLAIMS ANY REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE SERVICE COMPLIES OR WILL COMPLY WITH HIPAA OR ANY OTHER SIMILAR LAW OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA OR ANY OTHER SIMILAR LAW. 8x8 does not agree to act as the “business associate” or “subcontractor” (as those terms are defined under HIPAA), or any similar role under HIPAA or any other similar Law, of Customer or any other party with respect to the Services. In no event shall any Business Associate Agreement or similar agreement apply to the Agreement, the Services ordered thereunder (or 8x8’s provision thereof) or any information collected, transmitted or stored through or with respect to such Services. For avoidance of doubt, any such agreement relating to the order of other products or services from 8x8 (e.g., 8x8 Virtual Office or 8x8 Virtual Contact Center) shall be deemed not to apply to the Agreement or the Services ordered thereunder (or 8x8’s provision thereof).
9. INTELLECTUAL PROPERTY RIGHTS AND LICENSES.
9.1 Intellectual Property Rights. Subject only to limited rights to access and use the Service as expressly stated herein, all rights, title and interest in and to the 8x8 Platform, including Intellectual Property Rights, will remain with 8x8 and/or its Affiliates and belong exclusively to 8x8 and/or its Affiliates. To the maximum extent permitted by Law, 8x8 shall own all Intellectual Property Rights in and to all software code, Service configuration designs and other work product produced or developed by 8x8 in the course of providing Services hereunder to Customer (including Customizations and other deliverables under professional services), except to the extent (a) such work product embodies Customer’s pre-existing intellectual property (including without limitation Content) or (b) the parties expressly agree otherwise in the Agreement.
9.2 Software. 8x8 may from time to time make available software applications for download and use by its customers with the Services (“Software”). 8x8 grants Customer and its Agents a limited, non-exclusive, non-transferable license to use such Software during the Term solely with Customer’s use of the Services.
9.3 Use of Feedback. Customer hereby assigns to 8x8 all right, title and interest (including Intellectual Property Rights) in and to any new feature improvement, suggestion, enhancement request, recommendation, correction, idea or other feedback that Customer may provide to 8x8 relating to the Services or 8x8’s operations (collectively, “Feedback”). Customer agrees that 8x8 shall be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever without compensation to Customer.
10. REPRESENTATIONS AND WARRANTIES.
10.1 8x8 Representation and Warranties. 8x8 (a) represents and warrants to Customer that 8x8 has the power and authority to enter into and perform its obligations under the Agreement, (b) warrants that the Services shall substantially conform to the Documentation and (c) warrants that the Services shall perform to any agreed upon service levels. For avoidance of doubt, the foregoing representations and warranties do not apply to any free trial or beta Services.
10.2 Exclusive Remedy. Unless other provided in the Agreement, Customer’s sole and exclusive remedy for breach of the warranties in clauses (b) and (c) of Section 10.1 is repair, replacement, credit or refund, to be determined at the election of 8x8.
10.3 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.1, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, 8X8 MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES IN RELATION TO THE SERVICES, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, 8X8 DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR AVAILABLE 100% OF THE TIME, OR THAT ALL ATTEMPTED VOICE, FAX, TEXT AND OTHER COMMUNICATIONS WILL BE DELIVERED.
10.4 Customer Representations and Warranties. Without limiting any other provision of these Terms, Customer represents and warrants to 8x8 that (a) Customer has the power and authority to enter into and perform its obligations under the Agreement, (b) Customer is not relying upon any statements, commitments, representations or warranties other than those expressly set forth in the Agreement, (c) Customer is a bona fide business and is procuring the Services for its own internal business use only, (d) Customer has obtained all third-party consents, licenses, authorizations and/or permits required in connection with its proposed use of the Services, (e) Customer has not received or been offered any bribe, kickback or illegal or improper payment, gift or thing of value from any of 8x8’s employees or agents in connection with the Agreement or the Services and (f) Customer’s purchases are not contingent on the delivery of any future functionality or features, except otherwise expressly provided in the Agreement.
11. INDEMNIFICATION.
11.1 By Customer. Customer agrees to defend 8x8, its Affiliates and their respective Representatives from and against any action, claim, demand, suit, investigation, inquiry or proceeding (collectively, “Claims”) threatened or brought against 8x8 or any of its Affiliates or their respective Representatives by any third party that arises out of or results from (a) Content transmitted, received, submitted and/or stored on the 8x8 Platform or (b) any actual or alleged (i) Customer Use in violation of applicable Laws or breach of any third-party contract terms to which Customer is subject or (ii) actions or omissions that would constitute a material breach of the Agreement (including any breach of Section 8 (Use Restrictions and Customer Responsibilities) of these Terms), without regard to any notice or cure right hereunder. Customer agrees to indemnify and hold harmless 8x8, its Affiliates and their Representatives against any damages, attorneys’ fees, defense costs and other losses (collectively, “Losses”) payable by 8x8 pursuant to the adjudication or settlement of, or otherwise incurred by 8x8 in connection with, any such Claims.
11.2 By 8x8. 8x8 agrees to defend Customer, any Affiliate of Customer that has ordered Services under the Agreement, and their respective Representatives from and against any Claims threatened or brought against Customer, such Affiliate or their Representatives by any third party alleging that the Services, when used in accordance with the Documentation, infringe or misappropriate any patent, trademark or copyright enforceable under the laws of the United States, Canada, Australia, United Kingdom or the European Community. 8x8 agrees to indemnify and hold harmless Customer, such Affiliate and/or such Representatives against any Losses payable by them pursuant to the adjudication or settlement of, or otherwise incurred by Customer in connection with, any such Claims.
Notwithstanding the foregoing, 8x8’s obligations hereunder shall not apply to infringement Claims that are based upon: (a) the combination, operation or use of the Services with any third-party product, device, service or software not sold or provided to Customer by 8x8; (b) the alteration or modification of the Services by any person other than 8x8’s agents and authorized subcontractors; or (c) 8x8’s alteration or modification of the Services at Customer’s request. If such a Claim of infringement is brought or threatened, 8x8 shall, at its sole option and expense, either: (i) to procure a license that will protect Customer against such Claim without cost to Customer; (ii) to modify or replace the portions of the Service as needed to avoid infringement without impairing functionality; or (iii) if neither (i) nor (ii) is commercially feasible, terminate the Agreement and refund any prepaid Service Fees or Pre-Payment Balance. The rights and remedies granted Customer under this Section 11.2 state 8x8’s entire liability, and Customer’s exclusive remedy, with respect to any infringement Claim.
11.3 Procedure. An indemnified party shall (a) provide the indemnifying party prompt written notice of such Claim as soon as the indemnified party becomes aware of the Claim, (b) permit the indemnifying party to have sole and exclusive control over the defense and settlement of any such Claim, if the indemnifying party so elects, and (c) provide reasonable assistance to the indemnifying party in connection therewith; provided, the indemnifying party shall not enter into any settlement agreement that would result in any payment or other obligation, or restriction on the business of, the indemnified party without its prior written consent.
12. LIMITATIONS OF LIABILITY.
12.1 Exclusion of Consequential Damages. EXCEPT AS EXPRESSLY CONTEMPLATED BY SECTION 11, TO THE MAXIMUM EXTENT SUCH DAMAGES CAN BE EXCLUDED UNDER APPLICABLE LAW, NEITHER 8X8, ITS AFFILIATES OR ANY OTHER 8X8 PARTNERS, NOR ANY OF THEIR REPRESENTATIVES, SHALL BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR COVER DAMAGES, LOSS OF PROFITS, REVENUES OR GOODWILL, LOSS OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, OR DELAY IN PERFORMANCE, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, FROM OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES PROVIDED THEREUNDER, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF 8X8 AND ITS AFFILIATES UNDER THE AGREEMENT, OR ARISING OUT OF THE SERVICES PROVIDED THEREUNDER, TO ANY AND ALL PERSONS, WHETHER SUCH LIABILITY ARISES FROM A CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY OR OTHERWISE, SHALL IN NO CASE EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER AND ITS AFFILIATES TO 8X8 AND ITS AFFILIATES FOR THE SERVICES PROVIDED HEREUNDER DURING THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION SHALL APPLY (A) ON A CUMULATIVE BASIS (RATHER THAN PER INCIDENT), (B) REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) REGARDLESS OF WHETHER THE LIMITED REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
12.3 Reliance on Limitations. Customer acknowledges and agrees that the essential purpose of Sections 12.1 and 12.2 is to allocate the risks under the Agreement between the parties and to limit 8x8’s potential liability in light of the agreed-upon pricing for the Services, which would have been substantially higher if 8x8 were to assume the risk of Customer’s incidental or consequential damages, or other types of losses listed in Section 12.1, or the risk of liability in excess of the limit described above. 8x8 relied on these limitations when offering to provide the Services to Customer.
13. SUSPENSION AND TERMINATION RIGHTS.
13.1 Suspension of Service. Without limiting 8x8’s rights or remedies hereunder, 8x8 may suspend some or all of the Services if (a) 8x8 determines, in its reasonable judgement, that the Services are being used (i) in a fraudulent or illegal manner or (ii) in a manner that is likely to (1) 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 (2) 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; (b) for Standard Services, at any time the amount of the Pre-Payment Balance falls to zero or below; or (c) at any time, 8x8 is unable to charge Customer’s Payment Method for any amounts due and payable under the Agreement. 8x8 shall notify Customer in advance of such suspension under (a), if practicable, and otherwise promptly thereafter. Suspension of Services shall not release Customer from its obligations under the Agreement; provided, Customer shall receive credit for the suspended services that is pro-rated for the suspension period if Customer is determined not to have breached the Agreement.
13.2 Termination. Except as otherwise provided in the Agreement or prohibited by law, the Agreement or any or all Services thereunder may be terminated as follows:
13.2.1 For Convenience. Customer may terminate the Agreement or any Services thereunder, for any reason or for no reason, upon providing at least 30 days prior written notice to 8x8. Any reduction in the number of Agents or other units of Monthly Service shall be treated as a termination of Service for convenience under this Section 13.2.1.
13.2.2 Material Breach. Either party may terminate the 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, without limitation, (a) Customer’s failure to make timely payment hereunder and (b) Customer’s breach of any representation or covenant under Section 8.2 or 8.4.
13.2.3 Bankruptcy, etc. Either party may terminate immediately the 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.
13.2.4 Compliance with Law. 8x8 may terminate Services provided to Customer if 8x8 determines, in good faith, such termination is necessary to comply with a court order, request from law enforcement or other regulatory body, or other Law applicable to Services provided to Customer, provided 8x8 shall refund any unused prepaid Service Fees in respect of the terminated Services unless 8x8 is required to terminate such services due to Customer’s actions or omissions.
13.2.5 With Respect to Standard Services Only.
(a) Pre-Payment Balance. Unless otherwise agreed by 8x8, 8x8 may terminate immediately the Agreement and all Standard Services thereunder if Customer’s Pre-Payment Balance falls to zero or below and remains in such state for a period 60 days or more.
(b) Non-Material Use. 8x8 may terminate immediately the Agreement and all Standard Services thereunder if Customer fails to use the Standard Services in any material respect, as determined in 8x8’s sole discretion, for a period of 12 consecutive months, as provided under Section 5.4.4.
13.3 Effect of Termination.
13.3.1 Other Rights or Remedies. Any termination of this Agreement is without prejudice to any other rights or remedies any Party may be entitled to under this Agreement or at law. It does not affect any accrued rights or liabilities of any Party nor any provision which is expressly or by implication intended to come into force on, or continue in force after, termination.
13.3.2 Customer Data. Upon termination of this Agreement, howsoever caused, Customer shall for a period of 60 days from the effective date of the termination have access to the Services in order to export and retrieve its Customer Data. Notwithstanding anything else to the contrary in this Agreement, after such 60-day period, 8x8 shall have no obligation to maintain or provide any Customer Data and shall have the right (but not the obligation) to delete all elements of the Services and Customer Data, including without limitation call or message recordings, without 8x8 incurring any liability whatsoever. If Customer requests access to Customer Data after the 60-day period and if such data has not been deleted, 8x8 may make a charge for providing such access.
13.3.3 Fees and Charges. In the case of termination of this Agreement or the Services (a) by Customer for any reason other than a material breach of 8x8 pursuant Section 13.2.2; or (b) by 8x8 for any reason except as expressly provided under Section 13.2.4, Customer shall remain liable to pay 8x8 for all amounts incurred and payable through the effective termination date. Customer acknowledges and agrees that any Pre-Payment Balance shall be retained by 8x8.
13.3.4 Survival. Sections 11, 12, 13, 14, 16, and 26 shall survive the expiration or termination of the Agreement, along with applicable provisions governing payment obligations and any other provision that by its terms would reasonably be expected to survive.
14. CONFIDENTIALITY.
14.1 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 6 above, applicable provisions of Section 30 and the Privacy Policy). In addition, the pricing and other terms of the 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.
14.2 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 Agreement.
14.3 Survival. Each party’s obligations under this Section 14 shall survive any termination or expiration of the Agreement and remain in effect for 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 14 conflicts or is inconsistent with a non-disclosure or confidentiality agreement (an “NDA”) previously entered into by the parties, this Section 14 shall govern as to disclosures from and after the effective date of the Agreement.
15. CHANGES TO SERVICES AND TERMS.
15.1 Service Change. 8x8 may perform upgrades and make other modifications to the Services (each, a “Service Change”) from time to time, as long as such Service Changes do not materially reduce the overall functionality or security of the Service. 8x8 will use commercially reasonable efforts to notify Customer in advance any such Service Change.
15.2 Change In Terms. 8x8 may amend or make modifications to these Terms from time to time by posting notice of such changes to www.8x8.com/terms-and-conditions/contactnow, which changes shall be effective 30 days after posting.
16. DISPUTE RESOLUTION.
16.1 General. The provisions of this Section 16 shall apply to any and all Claims that either party may intend to assert against the other party, its Affiliates or any of their respective Representatives, other than (a) an injunction to prevent the disclosure or use of its Confidential Information, or a provisional remedy related to intellectual property infringement or misappropriation Claims, (b) disputes regarding Personal Data that are governed by procedures specified in the Privacy Policy, (c) Claims of 8x8 relating to Customer’s non-payment of undisputed charges and (d) Claims that the other party is required to defend under Section 11 (all other Claims are referred to as “Covered Claims”). For the avoidance of doubt, 8x8 remains responsible for the actions and omissions of its Affiliates and Representatives.
16.2 Prefiling Notice of Claim. Before either party initiates an arbitration, court or other action, suit or proceeding (a “Proceeding”) against the other party in respect of any Covered Claim, and subject to applicable procedures in any relevant region under Section 30, such party agrees to send a written notice describing in sufficient detail the specific issues in dispute (and referencing the specific portions of the Agreement which are allegedly being breached, if applicable) and to work with the other party diligently and in good faith to attempt to resolve the dispute. Any such notice directed to 8x8 shall be sent to [email protected] Within 30 days of such notice, the parties shall cooperate to ensure knowledgeable executives of each party hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the dispute. If the parties fail to resolve the dispute within 30 days of such notice, either party may thereafter initiate a Proceeding in accordance with these Terms (and without satisfying any further notice or cure period hereunder). NEITHER PARTY SHALL COMMENCE A PROCEEDING UNLESS AND UNTIL IT HAS COMPLIED WITH THIS SECTION 16.2, AND THIS SECTION 16.2 MAY BE PLEADED AS A FULL AND COMPLETE BAR AND DEFENSE TO, AND MAY BE USED AS A BASIS FOR AN INJUNCTION AGAINST, ANY PROCEEDING INSTITUTED IN BREACH OF THIS SECTION.
16.3 Time Limitation. Customer agrees that regardless of any statute or law to the contrary, any litigation or arbitration arising out of or related to use of the Services or the Agreement must be initiated through the filing of a complaint no later than 1 year after the earlier of (a) the date such claim or cause of action arose or (b) termination of the Agreement, or be forever barred.
16.4 Mandatory Arbitration (U.S. Claims).
16.4.1 General. IF CUSTOMER IS DOMICILED IN THE UNITED STATES, OR THE COVERED CLAIMS RELATE TO SERVICES PROVIDED IN THE UNITED STATES, CUSTOMER AND 8X8 AGREE TO ARBITRATE ANY AND ALL SUCH COVERED CLAIMS IN ACCORDANCE WITH THIS SECTION 16.4. PLEASE READ THIS PROVISION CAREFULLY. This Section 16.4 shall not apply if Customer is domiciled outside the United States and Services are provided outside of the United States.
16.4.2 Administration; Venue. CLAIMS SUBJECT TO THIS SECTION 16.4 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 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. The place of arbitration shall be Santa Clara County, California U.S.A. The language of the arbitration shall be English.
17. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL).
Except as otherwise expressly provided in the Agreement, neither party shall be considered in breach of the Agreement as the result of any failure or delay in the performance of such party’s obligations hereunder that is caused by or results from events beyond such party’s reasonable control, including, for example, acts of God (including fire, flood, hurricane, earthquake and tsunami), riot, war, terrorism, government actions and intervention, embargoes, strikes, destruction of facilities, late or failed delivery by suppliers, unavailability of power or Internet services, or network or carrier issues (“Force Majeure Event”); provided, the foregoing shall not apply to either party’s payment obligations hereunder or the actions of Customer’s own clients or accounts for whom Customer shall remain responsible.
18. NO AGENCY.
Neither Party is authorized to act as an agent for, or legal representative of, the other Party, and neither Party shall have the authority to assume or create any obligation on behalf of, in the name of, or binding upon the other Party. No provisions of this Agreement will be considered to constitute a joint venture, partnership or agency between the Parties or to merge the assets, liabilities and undertaking of the Parties.
19. ASSIGNMENT; BINDING EFFECT.
This Agreement shall be binding upon the heirs, successors, and permitted assigns of 8x8 and Customer. Customer shall not assign the Agreement or delegate its obligations thereunder without 8x8’s prior written consent, except that no such consent shall be required in connection with a bona fide sale of Customer or substantially all of its assets to a third party as long as 8x8 receives notice at least 10 days prior to such an assignment. If Customer proposes to assign its rights or delegate its obligations under the Agreement to an Affiliate, Customer shall provide such information and documentation concerning the Affiliate as 8x8 may reasonably request, and Customer shall remain jointly liable for the obligations of such Affiliate. For avoidance of doubt, 8x8 may assign its rights and delegate its obligations under the Agreement, in part or in full, to one or Affiliates, and/or subcontract with such Affiliates, for the performance or delivery of Services.
20. SEVERABILITY.
If any provision of the Agreement is deemed illegal, invalid or unenforceable in whole or in part under applicable Law, the Agreement shall be deemed amended as and to the extent necessary to render its terms valid, enforceable under applicable Law, and, insofar as possible, consistent with the original intent of the parties.
21. NOTICES.
Except as expressly stated otherwise in the Agreement, any notice to be given under these Terms may be provided by e-mail, and each party hereby consents to receiving notice by e-mail. Either party may change its designated notice address by giving notice to the other party. 8x8 recommends that Customer’s designated email address for notice be a group address (such as [email protected]) so that notices are reviewed promptly and not missed due to the absence or departure of one individual. Notices shall be deemed effective (a) upon personal delivery, (b) on the fifth business day after it is sent by regular mail, or (c) on the day it is sent by e-mail, if delivered on a business day before 5 pm Pacific Time, and otherwise on the next business day. Customer’s address for notice shall be the e-mail address specified by Customer in connection with its initial registration for the Services. 8x8’s e-mail address for notice is: (1) [email protected] for billing disputes under Section 5.8, notice of breach under Section 13 and notice of Claims under Section 16; and (2) [email protected] for all other notices under these Terms. 8x8’s physical address for notice is 8x8, Inc., 2125 O’Nel Drive, San Jose, CA 95131, Attn: Customer Service.
22. PUBLICITY AND USE OF CUSTOMER NAME.
The Client acknowledges and agrees that 8x8 may refer to the provision of the Services by 8x8 by using the name and logo of Customer in any promotional or advertising material, statement, document, press release without the prior written consent of Customer.
23. ENTIRE AGREEMENT.
These Terms (including all materials incorporated by reference herein) and the other documents comprising the Agreement, together with any Documentation, toll rates and/or tariffs posted on the Website that apply to Customer’s Edition(s), constitute the entire agreement between the parties with respect to the Services and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services.
24. OBJECTION TO CUSTOMER TERMS.
These Terms shall not be modified or superseded by the terms of any purchase order or similar document delivered by Customer to 8x8 in connection with its order or use of Services unless the Agreement states otherwise. 8X8 HEREBY OBJECTS TO ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY PURCHASE ORDER OR SIMILAR DOCUMENT ISSUED BY CUSTOMER AT ANY TIME.
25. WAIVER.
The failure of either party to exercise or enforce any right or remedy under the Agreement shall not constitute a waiver of such right or remedy, except as expressly provided herein. Except as provided in Sections 5.8 and 15, no waiver or amendment to any provision of the Agreement shall be enforceable against a party unless it is in writing and otherwise conforms to the requirements of these Terms.
26. GOVERNING LAW; EXCLUSIVE JURISDICTION.
The Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its choice or conflicts of law rules. Subject to Section 16, Customer and 8x8 agree to submit to the jurisdiction of the state and federal courts within Santa Clara County, California (which jurisdiction shall be exclusive if Customer is domiciled in the United States), and waive any objection as to venue or inconvenient forum in such courts.
27. NO THIRD-PARTY BENEFICIARIES.
Except as expressly stated herein, the Agreement is intended for the sole benefit of, and shall only be enforceable by, each party and its permitted assigns. Without limiting the foregoing, 8x8 shall have no obligation or liability hereunder to any Agent or other end user of the Services that is not a direct customer of 8x8.
28. INTERPRETATIONS.
The headings in the Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of the Agreement. The word “include” and its variants shall be interpreted as if followed by the words “without limitation.” The word “person” shall mean an individual or a corporation, company, partnership, organization, association or other legal entity. References to an 8x8 web address (URL) shall be deemed to include (a) any subpages that are accessible through one or a series of clearly-labelled hyperlinks and (b) such successor sites as may be designated by 8x8.
29. NUMBER PORTING.
Where Customer is provided with a telephone number (including a code) as part of the Service (an “8x8 Number”), that 8x8 Number will belong to 8x8, and Customer will have no right to sell, dispose, port out or transfer that 8x8 Number. 8x8 reserves the right to change, cancel or move the 8x8 Number in 8x8’s sole discretion and at any time without liability or obligation to Customer. Upon termination of the Services, 8x8 shall remove the 8x8 Number from Customer’s account and Customer will have no right to further use, access, or port out the 8x8 Number.
30. REGION-SPECIFIC TERMS.
30.1 United States.
30.1.2 Customer Proprietary Network Information. As 8x8 provides Services to Customer, 8x8 develops information about the quantity, technical configuration, type and destination of Services Customer uses, and other information found on Customer’s bill (“Customer Proprietary Network Information” or “CPNI”). Under United States federal law, Customer has a right, and 8x8 has a duty, to protect the confidentiality of CPNI. The Privacy Policy includes information about 8x8’s CPNI and other data practices and is available at https://www.8x8.com/terms-and-conditions/privacy-policy.
31. DEFINITIONS.
In this Agreement:
“8x8 Platform” means the Services and any software applications, functionalities, APIs, tools, interfaces and Documentation provided by 8x8 in connection therewith.
“Affiliates” means, with respect to a person or entity, any entity that directly or indirectly controls, is controlled by, or is under common control with such person or entity.
“Agent” means an individual authorized to use a Service through Customer’s account (as an agent, administrator or otherwise), as identified through a unique login.
“Law” means all present and future United States and other international, national, state, provincial and local laws, regulations, codes, ordinances, treaties, conventions, and court and administrative orders and rulings applicable to this Agreement and the provision, receipt, and use of the Services.
“Content” means the content of communications and data transmitted, received, submitted and/or stored by Customer through the 8x8 Platform.
“Customer Data” means any of the following data and information provided by Customer or collected or obtained in connection with Customer’s acquisition or use of the 8x8 Platform: (a) Content; (b) Registration Information; (c) information stored in customer relationship management (CRM), support, billing and similar records and databases used by 8x8 or its Affiliates or subcontractors; (d) call detail and similar records; (e) other data concerning Customer’s usage of the 8x8 Platform; or (f) call recordings.
“Documentation” means user manuals and technical documentation relating to the Services, which 8x8 makes available to its customers from time to time (whether by posting to the Website, support.8x8.com, sending in electronic form or otherwise), but in all cases excluding marketing and promotional materials.
“Effective Date” means the date on which 8x8 confirms Customer’s registration for the Services by providing to Customer the Registration Confirmation as set out in Section 3.1.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Minimum Amount” means the minimum Pre-Payment Balance amount threshold, as set forth in an Order or as otherwise set by Customer in its account from time to time, below which an automatic charge for a preset amount will be made to the Payment Method in order to augment the Customer’s Pre-Payment Balance.
“Monthly Services” means Services that are billed on month-to-month renewal terms based on the applicable Edition.
“Non-8x8 Applications” means online Web-based applications or services and offline software products that interoperate with the Services, but are not sold or provided by 8x8.
“Order” means an electronic order for any of the Services placed by Customer or, if 8x8 has expressly agreed to accept such, a Service Order or Service Agreement.
“Service Agreement” means a written framework contract between Customer and 8x8 setting forth the terms and conditions pursuant to which Customer may order Services from time to time.
“Service Order” means a written order for Services substantially in the form provided by 8x8 from time to time.
“Parties” means 8x8 and Customer.
“Personal Data” means any information relating to an identified or identifiable natural person (the “data subject”), where an identifiable person is one who can be identified, directly or indirectly, in particular, by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity; and includes “personal data” within the meaning of any relevant region under Section 30.
“Standard Services” means Services that, based on the applicable Edition, (a) require Customer to maintain a Pre-Payment Balance in order to use the Services; and (b) are not set on a month-to-month renewal term.
“Pre-Payment” means an advance payment made from Customer to 8x8, which will be held by 8x8 and applied to Customer’s use of the Services in accordance with Section 5.
“Pre-Payment Balance” means the balance of Customer’s Pre-Payments held by 8x8.
“Representatives” means, with respect to a Party, such Party’s Affiliate, vendor, subcontractor or other partner or advisor, or any workforce member or agent of the foregoing.
“Services” means the ContactNow service, including Monthly Services and Standard Services, that is hosted by or on behalf of 8x8 and accessed by customers over Internet Protocol (IP) and/or voice networks.
“Service Fee” means the base monthly recurring fee that 8x8 charges Customer for access to and use of Monthly Services (exclusive of Taxes and usage charges).
“Edition” means the packaged service plan, including the pricing, rates, features, functionality, services and billing terms associated therewith (as set forth on the Website), applicable to the Services ordered by Customer.
“Service Specific Terms” means the terms and conditions specific to a particular Service, including Documentation and Edition, as published by 8x8 from time to time or set out in an Order for such Services.
“Taxes” means all taxes, levies, imports, duties, charges, fees or similar governmental assessments, including value-added tax (“VAT”), sales, use, withholding, public utility taxes or fees, 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 the Services.
“Unlimited Features” means unlimited plans, features or functionality, including without limitation unlimited minutes, calling destinations, text messages, and data storage, included in an applicable Edition.
“Website” means the website located at www.8x8.com or such successor site as designated by 8x8.
Annex 1
Use Restrictions
[Updated May 3, 2017]
This Annex is part of the 8x8 ContactNow Terms and Conditions.
Without limiting any other provision of the Agreement, in connection with Your use of the Services and the 8x8 Platform, You represent, warrant and covenant as follows:
(a) You shall use the Services solely for your own internal business use and only in accordance with the Service Specific Terms;
(b) You shall promptly install all upgrades, bug fixes, patches and other corrections relating to the Services that 8x8 makes available from time to time;
(c) You shall comply with the Mobile Marketing Association Guidelines and any applicable network/wireless carrier requirements, conditions or codes of practice in connection with Your use of text and SMS services;
(d) You shall not take any action or omission that would reasonably be expected to (i) disrupt or compromise the integrity or security of the 8x8 Platform, any network of an 8x8 Partner or vendor, or the privacy of any other 8x8 customer or (ii) cause imminent and material damage to 8x8 or any of 8x8’s partners, vendors or other customers;
(e) You shall not use or access the Services or any portion of the 8x8 Platform under your control:
(i) for any fraudulent, criminal, defamatory, harassing or tortious purpose, or to participate in or promote any illegal activity;
(ii) to breach, violate or infringe intellectual property, privacy or other rights, or misappropriate the property of, any third party;
(iii) to transmit or store any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware or similar programs or materials;
(iv) to transmit misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value; or
(v) to transmit or broadcast unsolicited, or “junk” or “spam,” marketing or promotional materials or messages through pre-recorded voice messages, SMS, facsimile or other means, in breach of any applicable Laws; or
(vi) to transmit or broadcast any content that is obscene, indecent, libelous, pornographic, seditious, threatening, unlawful, harmful, vulgar, liable to incite racial hatred, discriminatory, menacing, blasphemous or which is racially, ethnically or otherwise objectionable, defamatory, false, inaccurate, abusive or otherwise offensive;
(vii) to obtain or attempt to obtain services by any means with intent to avoid payment;
(viii) to commit arbitrage;
(f) You shall not inspect, possess, use, copy, reverse engineer, or attempt to discover the source code of the 8x8 Platform, or any component thereof, or use the 8x8 Platform, or any component thereof to create any program or other component, except as expressly permitted by applicable Laws;
(g) You shall not attempt to hack or gain unauthorized access to any network, environment, or system of 8x8 or any of 8x8’s partners, vendors or other customers;
(h) You shall not sell, resell, license, sublicense, distribute, offer, combine, alter, incorporate rent or lease any Service, or otherwise make any Service available to any third party;
(i) You shall not access any Service to build a competitive product or for the primary purpose of monitoring its availability, performance or functionality, or for benchmarking or competitive purposes; or
(j) You shall not trunk or forward extensions or numbers associated with the Services to a private branch exchange or key system or to other numbers that can process multiple calls simultaneously.