8x8 No Fee SaaS Service Terms
(Last updated on November 8, 2019)
1. AGREEMENT AND CONFLICT
THESE TERMS SHOULD BE READ CAREFULLY, AS THEY (a) AFFECT THE PARTIES‘ LEGAL RIGHTS BY, AMONG OTHER THINGS, LIMITING 8x8’S LIABILITY UNDER THE AGREEMENT AND REQUIRING ARBITRATION OF CERTAIN DISPUTES AND (b) PERMIT 8x8 TO CHANGE THESE TERMS.
On the first occasion that the legal entity(-ies) accessing, using, initiating, or administering the SaaS Services, or overseeing or directing such any of the foregoing (“Customer”) performs any of the following acts, such entity(-ies) thereby enter into a legally-binding contract with 8x8, Inc. (“8x8”), a Delaware corporation, that applies to and governs all sale, provision, acquisition, and/or use of Ordered SaaS Services (the “Agreement”): (a) entering into an agreement, order, or other electronic or other documentation that incorporates these 8x8 No Fee SaaS Service Terms or otherwise agreeing to or accepting these 8x8 No Fee SaaS Service Terms or (b) accessing or using any SaaS Services after being notified that these 8x8 No Fee SaaS Service Terms apply to such SaaS Services or to such accessing or use thereof.
The Agreement shall consist of These 8x8 No Fee SaaS Service Terms and all content expressly incorporated herein (these “Terms”) and all other documentation entered into by or on behalf of Customer and 8x8 or its Affiliate in respect of Customer’s acquisition and/or use of Ordered SaaS Services.
The individual who agrees to or accepts these Terms represents and warrants to 8x8 that he or she has the authority to bind Customer to the Agreement and enter into the Agreement on Customer‘s behalf. IF SUCH INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE TO THESE TERMS, THEN HE/SHE SHOULD NOT ACCEPT THESE TERMS OR ORDER, ACCESS, OR USE THE SaaS SERVICES OR AUTHORIZE OR PERMIT ANY OTHER PERSON TO DO SO.
These Terms apply with respect to all SaaS Services ordered or provided – or used or accessed by or on behalf of Customer or its Agents or users – under the Agreement, including without limitation all Agents, users, log-ins, accounts, sub-accounts, etc. related to such SaaS Services (“Ordered SaaS Services”). In the event of any conflict among the components of these Terms, the following order of precedence shall apply: (1) the 8x8 No Fee SaaS Regional Terms included at the end hereof (the “Regional Terms”) (which are incorporated herein), (2) the 8x8 Virtual Office and Virtual Contact Center Use Policy (available at www.8x8.com/terms-and-conditions/use-policy) (the “Use Policy”) (which is incorporated herein), and (3) the other components of these Terms.
2. 8x8 DATA PROTECTION COMMITMENT
8x8 shall, during the Effective Period, implement and maintain commercially reasonable administrative, physical, and technical safeguards to protect the content of all communications transmitted, received, and/or stored through any Ordered SaaS Services (Customer’s “Content”) from unauthorized access and use. Customer shall remain the owner of its Content. The Parties acknowledge and agree that (a) 8x8’s and its Affiliates’ role with respect to Customer’s Content, if any, shall be that of a passive conduit and (b) neither 8x8 nor any of its Affiliates or vendors, subcontractors, or other service-providers (each, a “Partner” of 8x8) shall be responsible for or have any involvement in determining or creating such Content or determining the recipients or destinations of any communications through Ordered SaaS Services.
3. NO SERVICE FEES
Without limiting 8x8’s rights and Customer’s obligations or liabilities under the Agreement, 8x8 shall not charge any Service Fees or Regulatory Fees, or any Taxes related to the foregoing, for the Ordered SaaS Services. Notwithstanding the foregoing, 8x8 may (in accordance with the such separate agreement) charge, and Customer may be liable for, such amounts where Customer enters into a separate agreement with 8x8 or its Affiliate to upgrade the Ordered SaaS Services and/or to replace them with different versions, tiers, editions, etc. thereof or with different services or offerings.
4. CUSTOMER USE OF SaaS SERVICES
Customer accepts and agrees to the Use Policy and shall fulfill all of its obligations, representations, warranties, and covenants thereunder. Customer shall be responsible for the accuracy and legality of all account, Agent, user, and registration information (including without limitation Customer’s legal name, Customer/user contact information, and any personal data included therein) (“Registration Information”) and the means of its acquisition.
5. SERVICE AVAILABILITY, CHANGES, AND SUPPORT
Customer acknowledges and agrees that the Ordered SaaS Services are provided as-is and without support, and 8x8 makes no commitment or guarantee – and shall have no obligation relating to – (a) the availability/unavailability, uptime/downtime, performance, reliability, functionality, or other operation/inoperation of the Ordered SaaS Services (including without limitation any integration or other feature thereof the SaaS Services designed to interoperate with any third-party offering (“Integration Features”)), (b) the maintenance or continued provision or support of any particular element, aspect, property, feature, functionality, or component thereof (including without limitation any Integration Feature), or (c) the technical or other support of the Ordered SaaS Services; of any element, aspect, property, feature, functionality, or component of the Ordered SaaS Services (including without limitation any Integration Feature); or of Customer or the Agents or users in the accessing or use of the foregoing. Without limiting generality of the foregoing, 8x8 may – in its sole discretion, at any time, with or without notice or notification to Customer or any other party, for any reason (or no reason), and without any obligation or liability to Customer or any other party – suspend, deactivate, terminate, discontinue, eliminate, retire, phase out, apply limits to, impose restrictions or conditions on, change, modify, and/or update the Ordered SaaS Services (in whole or in part) or any Agent, log-in, user, or other element, aspect, property, feature, functionality, or component thereof (including without limitation any Integration Feature).
6. SaaS SERVICES LIMITATIONS
Without limiting the generality of Section 5 (Availability, Changes, and Support) in any way, Customer acknowledges and agrees that (a) the Ordered SaaS Services will not be uninterrupted, error-free, or available one-hundred percent (100%) of the time (e.g., they may be unavailable during periods of planned or unplanned downtime and communications may not always be delivered to their intended destination or without loss of data), (b) a single log-in is provided for each Agent, and such log-in is provided solely for use by that single Agent, (c) data transmitted or stored through the SaaS Services may be exported by or on behalf of Customer, Agents, or other users therefrom in a variety of ways (including without limitation via third-party integrations, other features that interoperate with third-party offerings, or local or external download), (d) the SaaS Services are not intended to and should not be used for back-up or long-term storage of data, and (e) 8x8 shall not be responsible for any such exported data or any loss of such stored data. Use of 8x8 mobile applications may utilize underlying third-party cellular and/or data services and thus may use such services’ allotted units and/or result in usage or other charges associated with such third-party services.
7. THIRD-PARTY OFFERINGS AND INTEGRATIONS
Customer’s relationship and dealings (including without limitation any collection or use of data) with providers of non-8x8 offerings that interoperate with the SaaS Services (e.g., third-party applications for which SaaS Services integrations are available) or that are used in connection with the SaaS Services (“Providers”) shall in each case be governed by Customer’s agreement with the applicable Provider and shall be outside the scope of the Agreement. In no event shall 8x8 be liable or responsible (a) under any such agreement or for any act or omission of any Provider or any operation of its offering (e.g., any accessing, modification, or deletion of data), regardless of whether 8x8 endorses, refers Customer to, approves of Customer’s use of, or agrees to bill and/or collect behalf of such Provider or designates any such offering as “certified,” “approved,” “recommended,” etc. or (b) for supporting any such third-party offering.
8. SUBCONTRACTING
8x8 may, in each case in its sole discretion, subcontract for the performance of 8x8’s obligations under the Agreement, provided that 8x8 shall remain responsible under the Agreement for performance of such obligations and for such subcontractors’ actions or omissions in performing such obligations.
9. CHANGE IN TERMS
8x8 may change, amend, add to, or replace these Terms in any manner and at any time, by updating the web page on which the applicable component of these Terms resides or by otherwise notifying Customer of such change, amendment, addition, or replacement. Any such change, addition, or replacement shall be effective on the date of such update of such applicable web page (or on the date of such notification, where such notification is used by 8x8 in lieu of such update), or on such later date specified by 8x8.
10. GENERAL REPRESENTATIONS AND WARRANTIES; WARRANTY DISCLAIMER
Each Party represents and warrants that it is a bona fide business, has the power and authority to enter into and perform its obligations under the Agreement, and is not relying upon any statements, commitments, representations, or warranties other than those expressly set forth in the Agreement. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED BY 8x8 IN THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, 8X8 MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES IN RELATION TO THE ORDERED SaaS SERVICES AND/OR THE AGREEMENT OR ANY OTHER PRODUCTS OR OFFERINGS ORDERED AND/OR PROVIDED THEREUNDER, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE.
11. RIGHTS IN AND TO THE SERVICES AND FEEDBACK
To the maximum extent permitted by law, all intellectual property and other rights, title, and interest in or to the Documentation or the SaaS Services and related software, applications, functionalities, APIs, tools, and interfaces (the “8x8 Platform”) – and all configuration designs, code, deliverables, and other work product produced or developed by 8x8 or its Affiliates or Partners in the course of performing under the Agreement (except to the extent such work product embodies Customer’s pre-existing intellectual property) – shall remain with, and belong exclusively to, 8x8, its Affiliates, and/or their licensors. Customer hereby assigns to 8x8 all intellectual property and other rights, title, and interest in or to any improvement, enhancement, recommendation, correction, or other feedback that Customer may provide to 8x8 or its Affiliates relating to their operations or the SaaS Services or any other 8x8 product or offering, and agrees that 8x8 shall be free to use, license, assign, and exploit any ideas, concepts, know-how, or techniques contained therein for any purpose without restriction or compensation.
12. TERM AND TERMINATION
The Agreement shall become effective on the date that the Parties enter into the Agreement and continue in full force and effect through the date of final termination by 8x8 of all Ordered SaaS Services (including without limitation final termination and final closure by 8x8 of all Agents, users, log-ins, accounts, sub-accounts, etc. related thereto and final termination by 8x8 of Customer’s and all Agents’, users’, and log-ins’ ability to access and/or use any portion or feature of any Ordered SaaS Services) (the “Effective Period”). For clarity, in no event shall termination of the Agreement relieve Customer of any obligation or liability incurred by Customer, or negate or otherwise affect any right accrued by 8x8, under the Agreement prior to such termination.
13. INDEMNIFICATION
Customer shall (i) defend 8x8, its Affiliates, and their personnel (collectively, the “8x8 Parties”) from and against any action, claim, demand, suit, investigation, inquiry, or proceeding (each a “Claim”) threatened or brought against any of them by any third party that arises out of or results from Customer’s Content or any actual or alleged breach of the Agreement by Customer and (ii) indemnify and hold harmless the 8x8 Parties against any damages, attorneys’ fees, defense costs, and other losses (collectively, “Losses”) payable by any of them pursuant to the adjudication or settlement of any such Claim. Customer shall not enter into any settlement agreement that would result in any payment or other obligation, or restriction on the business of, 8x8 without 8x8’s prior written consent.
14. EXCLUSIONS AND LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (a) NONE OF THE 8x8 PARTIES SHALL BE LIABLE UNDER THE AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR COVER DAMAGES; LOSS OF PROFITS, REVENUES, OR GOODWILL; OR LOSS OR INTERRUPTION OF BUSINESS, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE AND (b) THE MAXIMUM LIABILITY OF THE 8x8 PARTIES UNDER THE AGREEMENT, WHETHER ARISING FROM A THEORY OR CLAIM OF BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL IN NO CASE EXCEED $100.00 (USD). THE FOREGOING EXCLUSION AND LIMITATION SHALL APPLY REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND ON A CUMULATIVE (RATHER THAN PER-INCIDENT) BASIS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TERMS OF THE AGREEMENT ARE BASED ON THE FOREGOING EXCLUSION AND LIMITATION.
15. DISPUTE RESOLUTION
15.1. Pre-Filing Notice. Each Party shall, before initiating an arbitration, court or other action, suit, or proceeding against the other Party, its Affiliate, or their personnel in respect of any Covered Claim (each a “Proceeding”), provide written notice to the other Party describing in reasonable detail its contentions and the specific provisions of the Agreement, if any, allegedly breached. The Parties shall work diligently and in good faith for thirty (30) days following such notice to attempt to resolve the dispute, including without limitation by ensuring that knowledgeable executives of each Party hold at least one meeting (in person or by video- or tele-conference) to such end. If the Parties fail to resolve the dispute within such thirty- (30-) day period, either Party may thereafter initiate the Proceeding in accordance with these Terms (and without satisfying any further notice or cure period under the Agreement). FAILURE TO COMPLY WITH THIS SECTION 15.1 (PRE-FILING NOTICE) 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 CONTRAVENTION THEREOF.
15.2. Mandatory Arbitration. (IF CUSTOMER IS DOMICILED IN THE US, THIS SECTION 15.2 (MANDATORY ARBITRATION) SHALL APPLY TO ALL COVERED CLAIMS; OTHERWISE, IT SHALL APPLY TO ONLY COVERED CLAIMS RELATING TO SERVICES PROVIDED IN THE US.) COVERED CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION ADMINISTERED BY AMERICAN ARBITRATION ASSOCIATION (“AAA“). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to services provided or billed to Customer if Claims are asserted against 8x8 in the same proceeding. Arbitration will be conducted under 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. The language of the arbitration shall be English.
16. MISCELLANEOUS
16.1. Notices Except as expressly provided otherwise in the Agreement, any notice to be provided thereunder shall be provided as follows: (a) to Customer – via email to any email address provided by Customerin connection with the Ordered SaaS Services or via personal service, overnight courier, or US certified mail (return receipt requested and postage prepaid) (collectively, “Delivery”) to any postal address provided by Customer in connection with the Ordered SaaS Services and (b) to 8x8 – via email to [email protected](for notices of Claims or termination) or [email protected](for all other notices) or via Delivery to “8x8, Inc., Attn: Customer Service, 2125 O’Nel Drive, San Jose, CA 95131”. Either Party may change any of its designated notice addresses via notice to the other Party. Notices shall be deemed effective and received as follows: (i) via Email – the first business day after the date sent (without any undeliverable notification being returned), (ii) via Personal Service – the first business day after the date delivered to the noticed Party, (iii) via Overnight Courier – the first business day after the date delivered to the overnight courier, and (iv) via US Certified Mail – the fifth (5th) day after the date sent.
16.2. Governing Law; Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of California, without regard to its choice or conflicts of law rules. The Parties 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 US), and waive any objection as to venue or inconvenient forum in such courts.
16.3. Force Majeure. Neither Party shall be considered in breach of, or have any liability under, the Agreement as the result of any failure or delay in such Party’s performance thereunder caused by events beyond such Party’s reasonable control, including without limitation act of God; fire, flood, hurricane, earthquake, tsunami, or other natural disaster; riot; war; terrorism; government action or intervention; embargo; strike; destruction of facilities; late or failed delivery by suppliers; unavailability of power or Internet services; or network or carrier issues, provided that the foregoing shall not apply to either Party’s payment obligations under the Agreement.
16.4. Entire Agreement; Amendment. The documents comprising the Agreement constitute the entire agreement between the Parties in respect of the Ordered Products and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to thereto. The Agreement may not be amended, except via both Parties’ execution of a written amendment thereto or as otherwise expressly provided in these Terms. In no event shall the terms of any purchase order or similar document delivered by or on behalf of Customer or its Affiliate to 8x8 or its Affiliate in connection with the Agreement (to which 8x8 hereby objects) become part of, apply to, or modify or supersede the Agreement’s terms.
16.5. 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, to the greatest extent possible, consistent with the Parties’ original intent.
16.6. Waiver. Except to the extent expressly otherwise provided in the Agreement, (a) either Party’s failure to exercise or enforce any right or remedy under the Agreement shall not constitute a waiver of such right or remedy and (b) no waiver of any right or remedy shall be enforceable against a Party unless in writing and otherwise conforming with these Terms.
16.7. Assignment; Binding Effect. The Agreement shall be binding upon the Parties’ heirs, successors, and permitted assigns. Customer may not assign the Agreement or assign its rights or delegate its obligations thereunder, in whole or in part, except with 8x8’s prior express written consent.
16.8. No Third-Party Beneficiaries. Except as expressly stated in the Agreement, 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 Ordered SaaS Services.
16.9. Document Execution/Acceptance. Use of DocuSign, or any other widely-used method of verifiable electronic signature and delivery, shall be a valid method of execution and/or delivery of all documents under the Agreement. Any document or other content related to or proposed for addition to the Agreement that is prepared by 8x8 and sent to Customer for acceptance via completion of an electronic 8x8 process shall be deemed accepted and entered into by Customer upon Customer’s completion of such process.
16.10. Interpretation. The headings in the documents comprising the Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of thereof. References in the Agreement to a 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 the owner or controller of the web site.
16.11. Survival. Sections 13 (Indemnification), 14 (Exclusions and Limitations of Liability), and 15 (Dispute Resolution) shall survive termination or expiration of the Agreement, as shall any other provision that by its nature is intended to so survive.
16.12. Definitions. When used in these Terms, the following capitalized terms shall have the following meanings:
“Affiliate” – an entity that directly/indirectly controls or is controlled by or under common control with the applicable person.
“Agent” – an individual authorized to use, administer, or perform actions with respect to Ordered SaaS Services through Customer’s account (as an agent, administrator, or otherwise), as identified through a unique log-in.
“Covered Claim” – a Claim that one Party intends to assert against the other Party, its Affiliates, or any of their personnel, other than (a) provisional remedies related to Claims related to infringement or misappropriation of intellectual property and (b) Claims that the other Party is expressly required to defend under the Agreement.
"Customer Parties" - Customer, its Affiliates, and their personnel.
“Documentation” – user manuals and technical documentation related to the SaaS Services posted to www.8x8.com or otherwise made available by 8x8 to its customers from time to time, but excluding marketing or promotional materials.
“Ordered Equipment” – all equipment ordered or provided under the Agreement.
“Ordered Products” – the Ordered SaaS Services and all other services, products, or offerings ordered or provided under the Agreement.
“Party” – each of 8x8 and Customer (together, the “Parties”).
"Primary Market" the United States ("US"), the United Kingdom, Australia and Canada.
“Regulatory Fees” – monthly fees (which are not Service Fees, Taxes, or government-imposed charges), including Emergency Services Fees (or E911 Service Fee in the US) and Regulatory Recovery Fees (in the US), charged by 8x8 or its Affiliate for each number (including without limitation toll free and virtual numbers) associated with telephony Ordered SaaS Services, to offset costs incurred by 8x8 and its Affiliates in complying with inquiries from, and obligations imposed on them by, regulatory bodies and/or governmental agencies.
“SaaS Services” – the software-as-a-service offerings (such as the no-fee version of 8x8 Video Meetings) offered by 8x8 or its Affiliate, (including all components thereof) to which these 8x8 No Fee SaaS Service Terms apply, as indicated in the applicable agreement, order, or other electronic or other documentation of 8x8 or its Affiliate or as otherwise notified to Customer by 8x8 or its Affiliate.
“Service Fees” – base recurring fees for SaaS Services.
“Services” – the Ordered SaaS Services and any other services offered by 8x8 or its Affiliate that are relevant to the Agreement.
8x8 No Fee SaaS Regional Terms
Capitalized terms used and not defined in these 8x8 No Fee SaaS Regional Terms (these “Regional Terms”) shall have the meanings assigned to them in the 8x8 No Fee SaaS Service Terms.
Sections EU-6 (B2B Contract; List Pricing) and EU-7 (Payment and Dispute Resolution for Spanish Customers) of the United Kingdom and Europe Supplement to 8x8 Virtual Office and Virtual Contact Centre Regional Terms (available at https://www.8x8.com/order-terms/europe-supplement) (the “UK/Europe Supplement”) shall be made a part of, and incorporated in, these Regional Terms to the extent that (a) Ordered SaaS Services are provided to a Customer location (as identified by a physical address specified in the Agreement) (each a “Customer Location”) in the United Kingdom (the “UK”) or Europe (in which case such Sections shall apply solely with respect to those Ordered SaaS Services that are provided to a Customer Location in the UK or Europe) or (b) Customer is an a UK or European entity.
Section EU-8 (Data Protection and Security) of the UK/Europe Supplement and the Data Protection Appendix included at the end of the UK/Europe Supplement shall be made a part of, and incorporated in, these Regional Terms to the extent that (i) Ordered SaaS Services are provided to a Customer Location in the UK or Europe (in which case such Section and such Data Protection Appendix shall apply solely with respect to those Ordered SaaS Services that are provided to a Customer Location in the UK or Europe) or (ii) the EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”) applies to the Ordered SaaS Services (in which case such Section and such Data Protection Appendix shall apply solely with respect to those Ordered SaaS Services to which the GDPR applies). For avoidance of doubt, 8x8 Video Meetings SaaS Services shall be considered to be the video conferencing elements of 8x8 Virtual Office for purposes of such Sections and such Data Protection Appendix.
By entering into the Agreement, Customer expressly agrees and approves of the following Sections of the No Fee SaaS Service Terms: 5 (Service Availability, Changes, and Support), 6 (SaaS Services Limitations), 7 (Third-Party Offerings and Integrations), 9 (Change in Terms), 10 (General Representations and Warranties; Warranty Disclaimer), 12 (Term and Termination), 13 (Indemnification), 14 (Exclusions and Limitations of Liability), 15 (Dispute Resolution), 16.2. (Governing Law; Jurisdiction), and 16.3. (Force Majeure).