Terms of Service - TALKVOX - The Best VoIP Company for Small Business

COMM SUITE LLC

TERMS OF SERVICE

These Terms of Service (“Agreement”) govern the contractual relationship between:

COMM SUITE LLC, doing business as ‘TALKVOX’, a company governed by the laws of the State of Oregon (USA), having its registered office located at 8504 SE Start Street, Portland, 97216, USA and hereinafter referred to as “TalkVox”,

AND

each customer accessing and using the UCaaS Product (defined below) and Cloud Hosting Services (defined below) hereinafter referred to as “Customer”,

Customer and TalkVox shall also hereinafter be referred to together as the “Parties” and individually as a “Party”.

WHEREAS

TalkVox is engaged in the business of providing its customers via the Internet with its unified communications-as-a-service software product/solution (“UCaaS Product”) through which Cloud Hosting Services (defined below) are delivered to such customers. The UCaaS Product and related Cloud Hosting Services are made available to Customer from the cloud, on a subscription basis, in accordance with the terms and conditions of both this Agreement and the applicable Order Form (defined below).

Customer wishes to engage TalkVox in order to access and use TalkVox’s UCaaS Product and Cloud Hosting Services (defined below) for the benefit of Customer’s business operations.

The Company agrees to provide the UCaaS Product and Cloud Hosting Services (defined below) to Customer, and Customer agrees to pay for such Cloud Hosting Services (defined below) subject to the terms and conditions of this Agreement.

Customer shall read this Agreement carefully before using the UCaaS Product and Cloud Hosting Services. Customer’s use of UCaaS Product and Cloud Hosting Services (defined below) is conditioned upon Customer’s acceptance of and compliance with this Agreement. By accessing/using UCaaS Product and Cloud Hosting Services (defined below), Customer agrees to be bound by this Agreement and accept to comply with all applicable laws and regulations. Should Customer disagree to be bound by this Agreement, in whole or in part, Customer shall (i) not be permitted/authorized to use the UCaaS Product and Cloud Hosting Services (defined below), and (ii) refrain from accessing/using UCaaS Product and Cloud Hosting Services. Customer’s continued use of UCaaS Product and Cloud Hosting Services (defined below) shall be deemed to constitute Customer’s acceptance of this Agreement.

TalkVox reserves the right, at any time and in its sole discretion, to modify or replace this Agreement. Customer shall be solely responsible for checking this Agreement periodically, to stay abreast of any changes to the Agreement. Customer’s continued use of UCaaS Product and Cloud Hosting Services (defined below) following the posting of any changes to this Agreement shall be subject to the newly modified Agreement.

CLOUD HOSTING SERVICES AND UCAAS PRODUCT LICENSE GRANT

During the Term (defined below) of this Agreement, TalkVox agrees to provide Customer, through the UCaaS Product, with:

the real-time communications-enabled business integration services which include but shall not be limited to instant messaging, presence information, voice (including IP telephony), mobility features (including extension mobility and single number reach), audio, web and video conferencing, unified messaging (integrated voicemail to e-mail) services, on a subscription basis, delivered to Customer through TalkVox’s third party-owned cloud infrastructure, in accordance with this Agreement;
session initiation protocol (SIP) trunking solutions to deliver telephone services to customers equipped with a SIP-based private branch exchange (PBX) and unified communications facility; and/or
Support Services (defined below) in relation to the services provided by TalkVox under above Section 1.1 (i) and (ii) of this Agreement,

(collectively the “Cloud Hosting Service(s)”).

TalkVox hereby grants Customer a non-exclusive, limited, non-transferable and non-sublicensable license to access and use the UCaaS Product and Cloud Hosting Services for Customer’s internal business purposes only and for the Subscription Term (defined below).

Subject to the terms and conditions of this Agreement, TalkVox shall use commercially reasonable efforts to provide Customer with access to and use of the UCaaS Product and Cloud Hosting Services as further specified/detailed under the applicable Order Form (defined below). Each Order Form shall further specify the relevant Subscription Plan, Subscription Term, Subscription Plan Fees (all defined below), and any other applicable specific terms and conditions.

Customer acknowledges and understands that TalkVox shall provide the Cloud Hosting Services to Customer in accordance with the Order Form (defined below) filled out by Customer and executed by both Parties.

Activation and Delivery of UCaaS Product and Cloud Hosting Services. Upon execution by both Parties of an Order Form (defined below), TalkVox shall use its reasonable endeavours to start providing the Cloud Hosting Services to Customer within [insert] calendar days from the Effective Date of this Agreement. The Cloud Hosting Services shall be remotely activated and hosted by TalkVox. As such, TalkVox shall provide Customer with (i) login credentials to a soft phone (for calls made on a computer, tablet or phone) or hard phone (traditional telephone); and (ii) access to a TalkVox’s web portal located at [insert] to enable Customer to access, use and track the Cloud Hosting Services that Customer has subscribed to under the applicable Order Form (defined below).

Customer acknowledges and agrees that any delivery/deadline dates specified under this Agreement or any applicable/related Order Form (defined below) are indicative estimates only. Thus, with regard to TalkVox’s performance of its obligations under this Agreement, time shall not be of the essence.

Customer acknowledges and understands that TalkVox may examine, from time to time, Customer’s use of the Cloud Hosting Services as well as the nature of the data/information that Customer is transmitting or receiving while using the Cloud Hosting Services and UCaaS Product. If such examination is necessary to (i) protect and/or safeguard the integrity, operation and functionality of TalkVox’s UCaaS Product and Cloud Hosting Services; and/or (ii) comply with judicial, regulatory or governmental orders, notices, directives or requests, as well as any and all applicable laws and regulations.

TalkVox may provide Customer with implementation services to assist Customer in installing the UCaaS Product and Cloud Hosting Services on Customer’s computer system/network. Such implementation services shall be provided by TalkVox to Customer at an additional fee.

ORDER FORM

This Agreement shall govern all orders placed by Customer to TalkVox by completing TalkVox’s order form which specifies the Cloud Hosting Services to be provided by TalkVox to Customer (“Order Form”). Customer hereby understands and agrees that once an Order Form is signed/executed by both Parties, the present Agreement shall automatically come into force and govern the provision of the Cloud Hosting Services by TalkVox to Customer.

Customer shall ensure that each Order Form submitted by the Customer to TalkVox, shall be signed by Customer’s authorised representative.

Each Order Form that is executed by the Parties, shall constitute an integral part of this Agreement. In the event of any conflict/contradiction between the terms of this Agreement and the terms of the related/applicable Order Form, the terms of this Agreement shall prevail.

SUPPORT SERVICES

TalkVox will provide Customer with reasonable support services, via telephone or email from Monday to Friday, 5AM to 8PM PST, aimed at addressing any queries and technical issues Customer may encounter or experience while using the Cloud Hosting Services (“Support Services”).

SERVICE LEVELS

TalkVox shall use commercially reasonable efforts to make the UCaaS Product and Cloud Hosting Services available to Customer at a service level of at least ninety-nine percent (99%) uptime per month (“Monthly Uptime”).

In the event that TalkVox fails to meet the Monthly Uptime during any given month, TalkVox shall award Customer a service credit in accordance with the following table:

Service Level	Service level credit percentage
Less than 99%	2% of total monthly Subscription Plan Fee (defined below)

Service level credits shall be calculated as a percentage of the monthly Subscription Plan Fees (defined below) actually paid by Customer in accordance with the applicable Order Form. Customer hereby expressly acknowledges, understands and agrees that TalkVox shall not offer service level credits if the Monthly Uptime is greater than ninety-nine percent (99%).

In order to receive a service credit, Customer shall submit a written claim via email to [insert email address] within thirty (30) calendar days of the occurrence of an incident which caused the Customer not to experience the agreed upon Monthly Uptime.

Customer’s submission of a claim for a service credit must include (i) exact dates, times and duration for each incident during which the UCaaS Product and/or Cloud Hosting Services were unavailable; (ii) applicable screenshots and documentation to corroborate Customer’s claim for a service credit; and (iii) any other information as TalkVox may request from Customer in relation to Customer’s claim, from time to time.

Upon review by TalkVox of Customer’s claim for a service credit, TalkVox shall (i) in its sole discretion, determine whether or not to accept such Customer’s request for a service credit, and in case of acceptance by TalkVox (ii) issue the service credit to Customer within ninety (90) calendar days of Customer’s request. Service credits, issued by TalkVox to Customer pursuant to Section 4.2 of this Agreement, shall(i)apply only to any future outstanding Subscription Plan Fees (defined below) owed by Customer to TalkVox under Customer’s chosen Subscription Plan (defined below), (ii) be non-transferable, and (iii) be forfeited by Customer upon termination by either Party or expiration of this Agreement.

TalkVox shall not issue any service credit to Customer in case of:

any suspension by TalkVox of this Agreement due to Customer’s failure to pay the Subscription Plan Fees (defined below);
any Customer’s failure to update the UCaaS Product to the latest available supported version;
occurrence of a force majeure event (as provided under Section 16 of this Agreement);
any third party’s actions and/or omissions;
Customer not abiding and complying with the terms and conditions of this Agreement;
any loss or damage suffered by Customer and resulting from Customer’s equipment, software or other technology and/or from third party equipment, software or other technology (other than TalkVox’s third party equipment);
any Scheduled Maintenance (defined below) carried out by TalkVox, on the UCaaS Product and/or Cloud Hosting Services; and/or
Customer’s termination of this Agreement.

MAINTENANCE TO THE UCAAS PRODUCT AND CLOUD HOSTING SERVICES

Temporary changes/modifications may be made from time to time to the UCaaS Product or to the technical specification of a Cloud Hosting Service for operational or technical reasons including to suspend, modify, change, add to or replace any part of the UCaaS Product or Cloud Hosting Services (“Scheduled Maintenance”). As such, TalkVox may from time to time carry out Scheduled Maintenance on the UCaaS Product and/or Cloud Hosting Services. During such Scheduled Maintenance periods, the Cloud Hosting Services may be unavailable to Customer, for the purposes of providing new installations, updating facilities, fixing bugs and/or general maintenance of TalkVox’s systems.

Where TalkVox needs to carry emergency maintenance or any maintenance that is not Scheduled Maintenance (“Emergency Maintenance”), to any Cloud Hosting Service(s) and/or the UCaaS Product, TalkVox may carry out such Emergency Maintenance after TalkVox first provided Customer with adequate prior notice together with a justification/explanation for the performance by TalkVox of such the Emergency Maintenance to the Cloud Hosting Service(s) and/or UCaaS Product.

Customer acknowledges and understands that the UCaaS Product and Cloud Hosting Services may be temporarily unavailable due to Scheduled Maintenance or for unscheduled Emergency Maintenance, conducted (i) by TalkVox, (ii) by TalkVox’s third party service providers, or (iii) due to other causes beyond TalkVox’s reasonable control. Where reasonably possible, TalkVox shall use reasonable efforts to provide Customer with advance written notice, by e-mail, of any Scheduled Maintenance and/or Emergency Maintenance resulting in any Cloud Hosting Services disruption.

RESPONSIBILITIES AND OBLIGATIONS OF THE CUSTOMER

Customer shall (i) conduct its business in a manner that negatively affects/impacts TalkVox and/or TalkVox’s good name, goodwill and reputation, and (ii) avoid deceptive, misleading or unethical practices, advertising or publications that are, or might be, detrimental to TalkVox, TalkVox’s provision of the Cloud Hosting Services, or the public, including other TalkVox’s customers.

When accessing and using the Cloud Hosting Services, Customer shall not:

use any material or information which is made available by TalkVox through the Cloud Hosting Services in a manner that infringes upon any copyright, trademark, patent, trade secret, or other proprietary right of TalkVox and/or any third party;
upload files that contain malicious code, cancel bots, corrupted files, or any other similar software or programs that may damage the operation of TalkVox’s Cloud Hosting Services and/or a third party’s computer or property;
download, reproduce, display, perform, and/or distribute any file posted to the Cloud Hosting Services by TalkVox that Customer knows, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed;
falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin/source of the Cloud Hosting Services or other material included in the Cloud Hosting Services and made available by TalkVox to Customer;
violate any applicable laws or regulations;
send or store infringing, obscene, threatening, abusive, defamatory, discriminatory or otherwise unlawful or tortious material, including material that violates privacy rights;
licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit the Cloud Hosting Services;
use the Cloud Hosting Services for any fraudulent or unlawful purposes, and Customer shall ensure that Customer has adequate safeguards in place to prevent any fraudulent and/or unlawful activities; and/or
attempt to breach the security and/or authentication measures of the Cloud Hosting Services.

Customer shall be solely liable for any and all actions of Customer’s employees, contractors, agents, and affiliates, who were given access by Customer to the UCaaS Product in order to use the Cloud Hosting Services.

UCaaS Product Use Restrictions. Customer shall not permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code, underlying structure, ideas, know-how or algorithms related to the UCaaS Product; (ii) modify, translate, or create derivative works based on the UCaaS Product; (iii) modify, remove or obstruct any proprietary notices or labels on the UCaaS Product; or (iv) use the UCaaS Product in any manner so as to assist or take part in the development, marketing or sale of a product potentially competitive with the UCaaS Product and Cloud Hosting Services.

Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the UCaaS Product and Cloud Hosting Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, and web servers (collectively the “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer’s account, passwords (including but not limited to administrative and user passwords), files, and for all uses of the Equipment with or without Customer’s knowledge or consent.

TALKVOX’S DUTIES AND RESPONSIBILITIES

TalkVox shall provide the Cloud Hosting Services to Customer in (i) accordance with telecommunications industry standards, and (ii) compliance with prevailing industry standards and applicable law.

TalkVox shall provide Customer with access to the UCaaS Product and Cloud Hosting Services in accordance with the terms and conditions of this Agreement. TalkVox reserves the right to deny Customer access to the UCaaS Product and Cloud Hosting Services at any time and without liability, if TalkVox deems, in its sole discretion, that such denial is necessary in order to ensure Customer’s compliance with this Agreement or to protect TalkVox’s rights, property, and interests.

SUBSCRIPTION PLANS, SUBSCRIPTION PLAN FEES, PAYMENT AND TAXES

Subscription Plans. TalkVox currently offers Customer, through the Order Form, with the choice of three (3) subscription plans, namely standard, premium and elite, tailored to meet Customer’s intended use of the UCaaS Product and Cloud Hosting Services (“Subscription Plan(s)”).

Subscription Plans are offered to Customer by TalkVox for a duration/term of at least thirty (30) days and at most thirty-six (36) months (“Subscription Term”). In accordance with the Order Form submitted by Customer to TalkVox, Customer’s preferred Subscription Term is [insert] months.

Each Subscription Plan shall (i) include restrictions and requirements that outline the scope of the Subscription Plan, and (ii) specify the applicable fee. The features of each Subscription Plan shall be further detailed on the Order Form signed by the Parties.

Subscription Plan Fees. The fees corresponding to Customer’s selected Subscription Plan (“Subscription Plan Fee(s)”) and to be paid by Customer to TalkVox in consideration of Customer’s access to and use of the UCaaS Product and Cloud Hosting Services shall be stated on the applicable Order Form.

Customer acknowledges and agrees that the Subscription Plan Fees shall be (i) quoted and payable in U.S. Dollars (USD); (ii) paid by Customer on time; and (iii) strictly non-refundable.

Customer will be billed on an monthly basis (“Billing Cycle(s)”) for the Subscription Plan Fees owed by Customer to TalkVox in accordance with this Agreement.

At the end of each Billing Cycle, Customer’s Subscription Plan will automatically renew under the exact same conditions unless (i) Customer cancels its Subscription Plan, or (ii) TalkVox cancels the Subscription Plan, in accordance with the terms of this Agreement.

Payment. Payment of Customer’s selected Subscription Plan Fees shall be made by Customer to TalkVox via (i) credit or debit card, or (ii) automated clearing house (ACH) transfer. When Customer subscribes to a paid Subscription Plan, Customer shall provide TalkVox with Customer’s full name, business name, address, postal code, telephone number, value added tax identity number, and credit or debit card details. By submitting such payment information, Customer automatically authorizes TalkVox to charge all Subscription Plan Fees to such credit or debit card.

TalkVox may at any time, in its sole discretion, modify the Subscription Plan Fees. Any Subscription Plan Fee change will become effective at the end of the then-current monthly Billing Cycle. TalkVox shall provide Customer with reasonable prior notice of at least thirty (30) calendar days prior to effectively implementing any change in Subscription Plan Fees in order to give Customer the opportunity to cancel [in accordance with Section 12 (Term, Suspension, Termination and Expiration) of this Agreement] Customer’s Subscription Plan by terminating the Agreement before such change becomes effective. Customer’s continued use of the Cloud Hosting Services after the Subscription Plan Fee change has come into effect shall constitute Customer’s agreement to pay the modified Subscription Plan Fee.

If TalkVox does not receive payment from Customer’s verified payment method on any due date, Customer shall immediately pay all amounts due to TalkVox upon request. Should TalkVox be unable to collect all such outstanding amounts, TalkVox may in its sole discretion cancel Customer’s Subscription Plan without any notice or liability to Customer.

Customer acknowledges, understands and agrees that TalkVox reserves the right to correct any errors in the Subscription Plan Fees, previously quoted by TalkVox to Customer and for which TalkVox received payment from Customer, (i) by correcting such error in the Subscription Plan Fees, or (ii) by issuing a credit note or corrected invoice to Customer.

Customer agrees to notify TalkVox of any billing queries and/or errors within thirty (30) calendar days after receipt by Customer of any invoice (submitted/sent by TalkVox to Customer hereunder and in the relevant Order Form). Should Customer not notify TalkVox of any billing queries and/or errors within such time period, this absence of notification on Customer’s part shall be deemed to constitute Customer’s waiver of Customer’s right to dispute such queries and errors following the expiration of such thirty (30) calendar day period.

TalkVox does not guarantee that the currently offered Subscription Plans will be offered indefinitely. Indeed, TalkVox reserves the right, at its sole discretion, to (i) change the Subscription Plan Fees, and (ii) alter the features and options associated with any particular Subscription Plan.

Customer acknowledges and agrees that TalkVox may, from time to time, add additional features or functionalities to the UCaaS Product and/or Cloud Hosting Services. As such, Customer’s access to and use of any additional features and functionalities to the UCaaS Product and/or Cloud Hosting Services may require the payment of additional fees by Customer.

Taxes. Unless stated otherwise, all Subscription Plan Fees, owed to TalkVox by Customer in consideration of Customer’s access to and use of the UCaaS Product and Cloud Hosting Services, shall be exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, whether disputed or not, including any value-added, sales, use or withholding taxes, assessable by any jurisdiction (“Taxes”). Customer shall be responsible for the payment of any and all Taxes (except for those based on TalkVox’s income) associated with Customer’s subscription to the Cloud Hosting Services in order to access and use the UCaaS Product. Customer hereby indemnifies and holds TalkVox harmless from the payment of any Taxes and costs associated with the collection or withholding thereof, including penalties and interest. If TalkVox is under a legal obligation to pay or collect Taxes for which Customer is responsible under this Section 8.14, the applicable amount shall be invoiced (by TalkVox) to and paid by Customer unless Customer provides TalkVox with a valid tax exemption certificate from the applicable taxing authority.

INTELLECTUAL PROPERTY

“Intellectual Property” shall mean the intellectual property of either Party, and include any developments, derivative works, deliverables, enhancements and/or modifications to any intellectual property defined as, but not limited to: the UCaaS Product and Cloud Hosting Services (in the case of TalkVox), logical database, modules, reports, documents, products, applications currently developed, or developed during the Subscription Term including any patents, trademarks, trade secrets, design, database, business process or methodologies, techniques, know-how or other intangible property. Each Party and/or its licensors own and shall retain all right, title and interest (for instance, without limitation, patent right, copyright, trademark right, trade secret right, moral right, design right, database right or any other intellectual property right or proprietary right) in and to its respective Intellectual Property.

Any use, misuse, misrepresentation or other action by a Party which infringes upon the other Party’s Intellectual Property rights shall be deemed to constitute a breach of this Agreement.

Each Party shall take the appropriate steps and precautions for the protection of the other Party’s Intellectual Property and Confidential Information (defined below). Without limiting the generality of the foregoing, each Party will: (i) keep all forms or copies of Intellectual Property secure and use its best efforts to prevent any unauthorized use and access of/to a Party’s Intellectual Property; (ii) include in any copy of any Intellectual Property the appropriate notices of ownership; or (iii) to the extent practicable and only as instructed in writing, return or destroy the other Party’s Intellectual Property. Each Party agrees that it/she/he will immediately notify the other Party of any unauthorized use of such other Party’s Intellectual Property and of any potential or pending legal action in relation to any potential or actual infringement of such other Party’s Intellectual Property rights. The Party being notified (i) may, at its option and expense, assume control of such action with the other Party providing assistance relating to such action as may be reasonably requested by a Party, and (ii) will assist in enforcing any settlement or order made in connection with the action.

TalkVox’s Intellectual Property Rights. TalkVox and its licensors shall retain all rights, title and interest in and to all of its respective Intellectual Property used by TalkVox in order to provide the UCaaS Product and Cloud Hosting Services to Customer under this Agreement. Any ideas, concepts, expertise, techniques, sequence, or organization relating to data processing developed during the Subscription Term (as defined below) by TalkVox, or jointly by TalkVox and Customer, shall be the sole and exclusive property of TalkVox.

Customer shall own all right, title and interest in and to Customer’s Equipment and data furnished to TalkVox by Customer in connection with Customer’s use of the UCaaS Product and Cloud Hosting Services. Customer’s Equipment and data shall at all times remain Customer’s sole property.

CONFIDENTIAL INFORMATION

“Confidential Information” shall mean any know-how, trade secrets, information, data, materials or other confidential and/or proprietary information disclosed by one Party to the other under this Agreement that is either: (i) conspicuously marked or otherwise identified as ‘Confidential’ or ‘Proprietary’ at the time of disclosure; or (ii) should reasonably be understood by the receiving Party to be confidential based upon the nature of the information disclosed or the circumstances of the disclosure. Confidential Information includes any:

business records and plans, user or client feedback, reviews, online accounts;
form of scientific, technical or data information, website identification, passwords, technical and business information relating to disclosing Party’s proprietary ideas, software, business or otherwise;
concepts, reports, data, knowledge, works in progress, information, trade secrets, trademarks, patentable ideas, copyrights, existing and/or contemplated products and services, development tools, specifications, software, maps, drawings, source code, object codes, flow charts, databases, inventions, website content, designs, logos, brochures, images schematics, research and development;
form of financial information, production, costs, profit and margin information, finances and financial projections, list or information about users, vendors, suppliers, business partners, business associates, customers or clients, marketing information, sales leads, strategic alliances, partners, and current or future business plans and models; and
personal identifiable information including but not limited to the name, contact details, address, date of birth, personal preferences, etc. related to any customers, employees, contractors, users or any other person whosoever.

The Parties acknowledge and agree that each Party will have access to certain trade-secrets and other non-public Confidential Information of the other during and in connection with the performance of its/his/her obligations hereunder, and hereby agrees not to disclose any Confidential Information to any third party and not to use any such Confidential Information for any purpose other than as strictly required for the purpose of performing its/his/her obligations under this Agreement. All such Confidential Information is and shall remain the exclusive property of the disclosing Party and no license shall be granted or implied with respect to such Confidential Information by reason of the other Party’s access to such Confidential Information. Each Party agrees to protect the Confidential Information of the other with the same standard of care and procedures used by such Party to protect its own Confidential Information of similar importance while at all times using the same standard of care.

Each Party shall take such sufficient precautions to enable such Party to comply with all the terms hereof and to ensure similar compliance thereof by each of their respective employees/personnel. Furthermore, each Party shall bind the Party’s respective employees/personnel to ensure and maintain complete and effective secrecy and confidentiality regarding any and all information whatsoever pertaining to the other Party and which comes to such Party’s knowledge in the course of performing its/his/her obligations under this Agreement.

Use and Compelled Disclosure of Confidential Information. A Party may use Confidential Information of the other Party: (i) to the extent reasonably necessary to exercise its/his/her rights and perform its obligations under this Agreement. Either Party may disclose the existence of this Agreement for the purposes of financing, audits, or internal processes. In the event that a Party receives a subpoena or other validly issued administrative or judicial notice requesting the disclosure of the other Party’s Confidential Information, it/she/he will, to the extent legally permissible, promptly notify the other Party and, if requested, tender to the other Party the defense of the subpoena or notice. If requested by the disclosing Party, the receiving Party will cooperate (at the expense of the requesting/disclosing Party) in opposing the subpoena or notice. Unless the subpoena or notice is timely limited, quashed or extended, the receiving Party will then be entitled to comply with the request to the extent permitted by Law.

Exclusions. Confidential Information shall not include information that was: (i) previously known to the receiving Party without an obligation not to disclose such information; (ii) independently developed by or for the receiving Party without use of the other Party’s Confidential Information; (iii) acquired by the receiving Party from a third-party which was not, to the receiving Party’s knowledge, under an obligation not to disclose such information; or (iv) is or becomes publicly available through no fault of the disclosing Party.

Each Party acknowledges that monetary damages may not be a sufficient remedy for unauthorised disclosure by such Party of any Confidential Information of the other Party and that such other Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.

The Parties’ obligations arising under this Section shall (i) survive the termination or expiration of this Agreement, and (ii) remain indefinitely in force after the termination or expiration of this Agreement.

WARRANTY AND DISCLAIMER

The CLOUD HOSTING Services PROVIDED by TalkVox UNDER THIS AGREEMENT shall be performed in a timely and PROFESSIONAL manner and shall conform to the standards generally observed in theindustry for similar services at the time such Services are rendered.

DISCLAIMER. The UCAAS PRODUCT AND CLOUD HOSTING Services PROVIDED BY TALKVOX UNDER THIS AGREEMENT, INCLUDING ANY THIRD-PARTY PRODUCTS AND SERVICES, OR OTHER ITEMS PROVIDED BY OR ON BEHALF OF TALKVOX ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. TALKVOX DOES NOT MAKE ANY OTHER REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE UCAAS PRODUCT, CLOUD HOSTING SERVICES, THIRD-PARTY PRODUCTS AND SERVICES, OR OTHER ITEMS PROVIDED BY OR ON BEHALF OF TALKVOX UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, OR NON INFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. TALKVOX DOES NOT WARRANT THAT THE UCAAS PRODUCT, CLOUD HOSTING SERVICES, THIRD-PARTY PRODUCTS AND SERVICES, OR OTHER ITEMS PROVIDED BY OR ON BEHALF OF TALKVOX UNDER THIS AGREEMENT ARE FREE FROM BUGS, ERRORS, OR DEFECTS, OR THAT THE OPERATION OF ANY OF THE FOREGOING WILL BE SECURE OR UNINTERRUPTED, NOR DOES TALKVOX MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE UCAAS PRODUCT AND CLOUD HOSTING SERVICES. CUSTOMER SHALL NOT HAVE THE RIGHT TO PASS ON ANY REPRESENTATION OR WARRANTY OF TALKVOX TO ANY THIRD-PARTY OR END USER, NOR DOES TALKVOX PROMISE TO BACKUP ANY OF CUSTOMER’S DATA. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY. TALKVOX SPECIFICALLY DISCLAIMS AND MAKES NO REPRESENTATION OR WARRANTY, ORAL OR IN WRITING, CONCERNING THE VIABILITY OR COMPLIANCE WITH APPLICABLE LAWS OF THE UCAAS PRODUCT AND CLOUD HOSTING SERVICES IN A PARTICULAR COUNTRY, TERRITORY, OR REGION.

TALKVOX AND ITS LICENSORS AND VENDORS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION THAT THE UCAAS PRODUCT AND CLOUD HOSTING SERVICES, INCLUDING THE ACCESS THERETO AND USE THEREOF, WILL BE UNINTERRUPTED, TIMELY, SECURED, ERROR FREE, THAT DATA WON’T BE LOST, THAT DEFECTS WILL BE CORRECTED, OR THAT THE UCAAS PRODUCT AND CLOUD HOSTING SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL CODE. TALKVOX AND ITS LICENSORS AND VENDORS FURTHER DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, FAILURES, INTERCEPTION, ALTERATION, LOSS, OR OTHER DAMAGES THAT CUSTOMER MAY SUFFER, THAT ARE BEYOND TALKVOX’S CONTROL.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, TALKVOX DOES NOT WARRANT, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION (I) THAT THE UCAAS PRODUCT AND CLOUD HOSTING SERVICES (OR ANY PORTION THEREOF) ARE COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, SUITABLE FOR, OR COMPATIBLE WITH, ANY OF CUSTOMER’S CONTEMPLATED ACTIVITIES, DEVICES, OPERATING SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT IT WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO CUSTOMER; AND/OR (II) REGARDING ANY CONTENT, INFORMATION, REPORTS OR RESULTS THAT CUSTOMER OBTAINS THROUGH CUSTOMER’S USE OF THE UCAAS PRODUCT AND CLOUD HOSTING SERVICES.

While TalkVox may collaborate with Customer’s third party vendors to resolve issues, TalkVox shall not be responsible or liable for the functionality or support of Customer’s business, services, operations, or any warranties provided by the third party vendors to the Customer.

Mutual Warranties. Each Party hereby represents, warrants, and covenants that: (i) it/she/he has the authority and right to enter into this Agreement, and to perform its/her/his obligations under this Agreement; (ii) no consent, approval, or withholding of objection is required from any third-party or governmental authority with respect to the entering into or the performance of this Agreement; and (iii) it/she/he shall be solely responsible for complying with all applicable Federal, state, and local laws and regulations that pertain its/his/her business operation(s) within its/his/her specific industry.

No Warranties for Third Party Service Providers. Except as expressly provided under this Agreement, TalkVox makes no warranties, representations or conditions, and assumes no liability for third party service providers or for any other materials, tangible or intangible, provided by a third-party to Customer and which may be offered or combined with or incorporated into the Cloud Hosting Services under this Agreement. Customer acknowledges that its/his/her only recourse for any error/failure/default caused by a third party service provider will be limited to the remedies that may be made available by such third party service provider to Customer.

Customer warrants and represents to TalkVox that:

Customer’s entry into and performance of this Agreement will not infringe the rights of any third party or cause Customer to be in breach of any obligations to a third party;
Customer shall not, during the Term (defined below) of this Agreement, enter into any contract or accept any obligation inconsistent or incompatible with Customer’s obligations under this Agreement; and
Customer has obtained all necessary licences or permits (if any) for the use of the Cloud Hosting Services and shall pay all Subscription Plan Fees (defined below, Taxes (defined below) and other amounts payable by Customer in connection with any use of the Cloud Hosting Services.

LIMITATION OF LIABILITY

Aggregate Liability. NEITHER PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER FOR ANY CLAIMS (INCLUDING THIRD-PARTY CLAIMS) ARISING FROM, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF LIABILITY (WHETHER IN CONTRACT OR TORT OR OTHERWISE), WILL EXCEED THE SUBSCRIPTION PLAN FEES PAID BY CUSTOMER TO TALKVOX IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM, MINUS ANY AMOUNTS PAID BY THE LIABLE PARTY DURING THAT SAME PERIOD FOR ANY PRIOR LIABILITY.

No Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INDIRECT, RELIANCE OR PUNITIVE DAMAGES, FOR ANY LOSS OF PROFITS (WHETHER DIRECT OR INDIRECT) OR REVENUE (OTHER THAN SUBSCRIPTION PLAN FEES PAYABLE UNDER THIS AGREEMENT AND THE ORDER FORM), FOR ANY BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION OR DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED OR IS REASONABLY FORESEEABLE.

TalkVox’s aggregate liability for failure to provide any part of the Cloud Hosting Services in accordance with the service levels described under Section 4 (Service Levels) shall be limited to the service credits set out in the table under Section 4.2 of this Agreement.

INDEMNIFICATION

TalkVox shall defend, indemnify and hold Customer harmless (including by paying external attorneys’ fees and costs/expenses of defense) and pay any settlement to which TalkVox consents in relation to any third party claim to the extent that such third party claim is arising from the Customer’s use of the UCaaS Product and Cloud Hosting Services infringing upon any intellectual property right of such third-party. TalkVox’s defense and payment obligations will not apply, however, if the third party’s intellectual property infringement claim relates to or arises from:

Customer’s modification of the UCaaS Product or Cloud Hosting Services other than as agreed upon by the Parties;
Customer’s failure to use corrections or enhancements to the UCaaS Product and Cloud Hosting Services as made available by TalkVox to Customer;
Customer’s use of the UCaaS Product and Cloud Hosting Services in combination with any of Customer’s or third party’s product, technology, or information not owned or developed by TalkVox;
Customer’s violation of the terms and conditions of this Agreement; or
TalkVox’s compliance with any Customer’s specifications or requirements, including, without limitation, any functional specifications provided by Customer to TalkVox.

TalkVox may, at its expense and option in case of third party’s intellectual property infringement claim: (a) TalkVox shall obtain the necessary rights from such third party, to permit Customer to continue to use the Cloud Hosting Services and UCaaS Product; (b) replace the Cloud Hosting Services and/or the UCaaS Product with a non-infringing equivalent service or product; or (c) modify the Cloud Hosting Services or UCaaS Product to make it non-infringing. As a condition of receiving any of the foregoing remedies, Customer must promptly notify TalkVox in writing of the third-party claim and provide reasonable cooperation (at Customer’s own expense) and full authority to TalkVox to defend or settle the claim or suit. TalkVox will have no obligation to pay for any settlement or compromise of such third-party claim made without TalkVox’s written consent. The remedies set out in this Section constitute Customer’s sole and exclusive remedy and TalkVox’s sole liability with respect to any infringement by TalkVox of any third party’s intellectual property right arising.

Customer shall defend, indemnify and hold TalkVox and its officers, directors, employees, and agents harmless from and against any and all third party claims, actions, liability, expenses (including reasonable attorneys’ fees), costs, or losses arising from:

Customer’s modification of the UCaaS Product or Cloud Hosting Services;
Customer’s combination, operation or use of the UCaaS Product with third-party technology;
any misuse of the UCaaS Product and Cloud Hosting Services by Customer’s employees, agents or contactors;
the acts (or any failure to act) of Customer or its employees, agents or contractors hereunder;
any breach by Customer of its/his/her obligations under this Agreement;
any breach of security, Cloud Hosting Services interruption and/or termination, that are directly related to the design, functionality, performance, or operability of the UCaaS Product and/or Cloud Hosting Services; or
any third-party claim against TalkVox for any breach of applicable data privacy laws and regulations.

TERM, SUSPENSION, TERMINATION AND EXPIRATION

This Agreement shall commence on the Effective Date of this Agreement and continue unless terminated by either Party in accordance with this Section (“Term”).

Either Party may terminate this Agreement and the applicable Subscription Plan by notifying the other Party of its intention to terminate this Agreement in writing, at least thirty (30) calendar days before the end of the Subscription Term.

Suspension. TalkVox may suspend or temporarily disable Customer’s access to and use of the UCaaS Product and Cloud Hosting Services if (i) Customer fails to make payment for the Cloud Hosting Services on time with such payment having remained unpaid upon expiration of the fifteen (15) calendar days’ prior written notice provided by TalkVox to Customer in order to request payment for such Cloud Hosting Services; (ii) TalkVox suspects Customer of partaking in any illegal activity; (iii) TalkVox reasonably believes that Customer has violated the terms of this Agreement; or (iv) requested by Law enforcement authorities or other government agencies. Customer acknowledges and agrees that TalkVox shall not be liable to Customer or any third party for any loss or damages caused to Customer or any third party as a result of the suspension by TalkVox of the UCaaS Product and Cloud Hosting Services. For the avoidance of doubt, any suspension by TalkVox of the UCaaS Product and Cloud Hosting Services shall not relieve Customer from Customer’s obligation to make payment of the Subscription Plan Fees.

Termination for Cause. Without prejudice to any other rights or remedies to which the Parties may be entitled, either Party may terminate this Agreement, upon providing at least thirty (30) calendar days written notice, without liability to the other, if:

the other Party commits a material breach of any of the terms of this Agreement and (if such breach is remediable) fails to remedy such breach within thirty (30) calendar days of the date upon which the non-breaching Party has been notified in writing of such breach;
an order is made, or a resolution is passed by any competent authority for the winding up of the other Party, or if circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other Party;
an order is made by any competent authority for the appointment of an administrator to manage the affairs, business and property of the other Party, or legal documents are filed by a third party with a court of competent jurisdiction for the appointment of an administrator of the other Party;
a receiver is appointed by an authority of competent jurisdiction, or if any other third party takes possession of or sells the other Party’s assets;
the other Party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
the other Party ceases, or threatens to cease, to trade; or
the other Party takes any similar action in any jurisdiction as a consequence of the other Party incurring debt.

Effect of Termination and Expiration. Customer acknowledges that upon the termination or expiration of this Agreement or upon the cancellation of Customer’s selected Subscription Plan, Customer shall cease to access and use the UCaaS Product and Cloud Hosting Services. Any termination or expiration of this Agreement shall not relieve Customer from Customer’s obligation to make payment of the Subscription Plan Fees owed up until and including the effective date of termination or expiration.

COMPLIANCE WITH LAWS

Each Party shall (i) comply with all laws applicable to the UCaaS Product and Cloud Hosting Services, (ii) keep records evidencing such compliance, (iii) upon the other Party’s reasonable request, provide these records of compliance to the other Party, and (iv) notify the other Party if it became aware of any non-compliance by the other Party in relation to this Agreement.

FORCE MAJEURE

Neither Party shall be liable for, or be considered to be in breach of or in default under this Agreement on account of, any delay or failure to access/use the UCaaS Product and Cloud Hosting Services as a result of any cause or condition beyond such Party’s reasonable control, including, but not limited to: fire, explosion, power blackout, terrorism, earthquake, storm, flood, wind, drought or acts of God; epidemic and pandemic, court order; act, delay or failure to act by civil, military or other governmental authority; strike, lockout, labor dispute, riot, insurrection, sabotage or war; failure, interruption or degradation of any telecommunications or transmission lines; unavailability of required parts, materials or other items; acts or omissions of Internet traffic carriers, or act, delay or failure to act by the other Party or any third-party; provided that such Party uses reasonable efforts to promptly overcome or mitigate the delay or failure to perform. If one of the causes or conditions listed in this Section delays or prevents a Party’s performance, that Party will promptly notify the other and describe the anticipated duration of the delay or prevention, as well as the steps being taken to overcome or mitigate the delay or failure to perform.

DISPUTE RESOLUTION

Should any dispute arise between the Parties as to the meaning or application of this Agreement, the rights or liabilities of the Parties or otherwise in relation to this Agreement, then (without prejudice to any other express or implied rights or powers) the dispute or claim (“Dispute“) shall be resolved as follows:

A Party must not commence arbitration proceedings (except proceedings seeking interlocutory relief) relating to a Dispute arising under this Agreement unless it has complied with this Section;
A Party claiming that a Dispute has arisen under this Agreement must give the other Party written notice of the particulars of the Dispute; and
In the event of a Dispute, between the Parties hereto, arising out of the use by Customer of the UCaaS Product and Cloud Hosting Services or in any way relating to this Agreement or any term, condition or provision herein mentioned or the construction or interpretation thereof or otherwise in relation hereto, the Parties hereto will use their reasonable best efforts to resolve any Dispute hereunder through good faith negotiations. A Party hereto must submit a written notice to the other Party, and any such Dispute that cannot be resolved within thirty (30) calendar days of receipt of such notice (or such other period to which the Parties may agree) will be submitted to an arbitrator selected by mutual agreement of the Parties. In the event that, within thirty (30) days of the written notice referred to in the preceding sentence, a single arbitrator has not been selected by mutual agreement of the Parties, a panel of arbitrators (with each Party to the Dispute being entitled to select one arbitrator and, if necessary, to prevent the possibility of deadlock, one additional arbitrator being selected by such arbitrators selected by the Parties to the Dispute) shall be selected by the Parties. Except as otherwise provided herein or as the Parties to the Dispute may otherwise agree, such arbitration will be conducted in accordance with the then existing rules of the American Arbitration Association in Portland, Oregon, USA. The decision of the arbitrator or arbitrators, or of a majority thereof, as the case may be, made in writing will be final and binding upon the Parties hereto as to the questions submitted, and the Parties will abide by and comply with such decision; provided, however, that the arbitrator or arbitrators, as the case may be, shall not be empowered to award punitive damages. Unless the decision of the arbitrator or arbitrators, as the case may be, provides for a different allocation of costs and expenses determined by the arbitrators to be equitable under the circumstances, the prevailing Party in any arbitration will be entitled to recover all reasonable fees (including but not limited to attorneys’ fees) and expenses, incurred by such prevailing Party in connection with such arbitration, from the non-prevailing Party.

GOVERNING LAW AND JURISDICTION

This Agreement, and any Dispute arising out of or in connection with the Agreement, its subject matter or its formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of the state of Oregon (USA). The Parties irrevocably submit to the exclusive jurisdiction of the American Arbitration Association in Portland, Oregon, USA to settle any Dispute which may arise out of or in connection with this Agreement (i.e. to the exclusion of the State of Oregon’s public court system).

GENERAL PROVISIONS

Non-Exclusivity. The Parties’ respective obligations under this Agreement are non-exclusive and nothing herein is intended to restrict Customer from accessing or using any other third-party’s products or services, even if such products or services are similar to the UCaaS Product and Cloud Hosting Services provided by TalkVox.

Severability. If any of the provisions or portions of this Agreement are held to be invalid under any applicable statute or rule of Law, such provisions shall be deemed to be omitted from this Agreement without in any way invalidating or impairing the other provisions of this Agreement.

No Waiver. A Party’s failure or delay in enforcing any provision of this Agreement will not operate as a waiver of the right to enforce that provision or any other provision of this Agreement at any time. A waiver of any provision of this Agreement shall be in writing, specify the provision to be waived and signed/executed by the Party agreeing to the waiver.

No Third-Party Beneficiaries. This Agreement is not intended to and shall not be construed to give any third-party any interest or rights (including, without limitation, any third-party beneficiary rights) with respect to or in connection with any term, agreement or provision contained herein or contemplated hereby.

No Assignment. Customer shall not assign or otherwise transfer to any third party, Customer’s rights and obligations under this Agreement without the prior written consent of TalkVox. Any attempt to make such an assignment without TalkVox’s consent shall be void. TalkVox’s consent shall not be unreasonably withheld.

However, this Agreement shall be binding upon and inure to the benefit of TalkVox, its affiliates, or any corporation or other entity to which TalkVox may (i) transfer all or substantially all its assets and business, or (ii) assign the rights and obligations under this Agreement, in which case references to “TalkVox” as used herein shall mean such affiliate, corporation or other entity.

No Agency, Partnership, or Employment Relationships. Customer acknowledges that TalkVox is merely a service provider. Accordingly, there is no employment, agency, joint venture, or partnership relationship between Customer and TalkVox.

Notices. Except as otherwise provided under this Agreement, any notice required or permitted to be given by Customer will be effective only if it is in writing and sent via email to [insert email address]. Any notices provided to Customer by TalkVox shall be sent to the email address provided by Customer to TalkVox, or to such other address as Customer may specify from time to time. Notices shall be deemed to be given twenty-four (24) hours after the email is sent, unless the Party sending such notice is notified that the email address is invalid.

Entire Agreement. This Agreement and any related/applicable Order Form represent the entire agreement between the Parties relating to the subject matter hereof.

Contact Information

Should you have any questions concerning this Agreement and/or any issues or concerns about the UCaaS Product and Cloud Hosting Services you may contact TalkVox at 844-TALKVOX.

Effective Date: December, 2021