(Last updated on June 1, 2020)
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.
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.
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 w