Vopial Terms of Service
Vopial provides services and solutions
intended solely for business use, pursuant to the terms and conditions set
forth in this Agreement and on the condition that customer accepts and complies
with this Agreement. By electronically signing this Agreement, Customer
a)
accepts this agreement and agrees that
Customer is legally bound by its terms;
b)
represents and warrants that:
i.
its representative is 18 years of age or
of legal age to enter into a binding agreement;
ii.
has the right, power, and authority to
enter into this agreement on behalf of the corporation, governmental
organization, or other legal entity, and to bind such organization to these
terms.
If Customer does not agree to the terms
of this agreement, neither Customer nor its End Users may download, install, or
use the services or equipment.
The Parties agree as follows:
1. Definitions
Capitalized
terms not defined have the meaning given to them
in Attachment
A.
2. Ordering and
Term
A.
Ordering Services
Customer
may order Services by submitting electronically an Order in the format provided
by Vopial on the Vopial website or, for subsequent orders, via the
Administrative Portal. The Order will identify the Services requested by
Customer together with: (i) the price for each
Service; (ii) scheduled Start Date; (iii) and products leased, licensed or sold
to Customer, if any.
An
Order will become binding when it is executed by the Customer and accepted by
Vopial. Vopial may accept an Order by commencing performance of the requested
Services. The Services will begin on the Start Date, as identified in the
applicable Order. Customer may purchase additional Services, software, and
equipment through Orders via the Administrative Portal.
B.
Services
The
following are the Services provided by Vopial (not all Services are available
in all locations) and the descriptions are incorporated into and form a part of
this Agreement:
Vopial
MVP, Avaya Cloud Office by Vopial, Rainbow Office by Vopial, and Unify Office
by Vopial described at https://www.Vopial.com
Any SOWs,
as defined in the Professional Services Agreement, may be
C.
Term of this Agreement
The
Term of this Agreement will commence on the Effective Date and continue until
the last Order Form is terminated or expires, unless terminated earlier in
accordance with its terms.
D.
Services Term and Automatic Renewal
The
Services term will begin on the Start Date of the initial Order and continue
for the initial term set forth in the initial Order (Initial Term). Upon
expiration of the Initial Term, recurring Services will automatically renew for
successive periods of the same length as the Initial Term (each a Renewal
Term) unless either Party gives notice of non-renewal at least thirty (30)
days before the expiration of the Initial Term or the then-current Renewal
Term. The term of any recurring Services added to the Account after the initial
Order is submitted will start on the Start Date of the subsequent Order, will
run conterminously with the then-current term of any pre-existing Services, and
will be billed on the same billing cycles as the pre-existing Services.
3. Invoicing and
Payment
A.
Prices and Charges
All
prices are identified in US dollars on the website or Administrative Portal.
Additional charges may result if Customer activates additional features,
exceeds usage thresholds, or purchases additional Services or equipment.
Customer will be liable for all charges resulting from use of the Services on
its Account.
Recurring
charges for the Services begin on the Start Date, and will continue for the
Term. Recurring charges (such as charges for Digital Lines, product licenses,
minute bundles, and equipment rental fees) will, once incurred, remain in
effect for the Initial Term (as described in an Order Form) or the then-current
Renewal Term. Vopial will provide notice of any proposed increase in such
charges no later than thirty (30) days before the end of the Initial Term or
then-current Renewal Term, and any such increase will be effective on the first
day of the next Renewal Term. Administrative Fees that Vopial is entitled to
pass on to its customers as a surcharge pursuant to applicable Law may be
increased on thirty (30) days written notice.
Outbound
calling rates will be applied based on the rate in effect at the time of use.
Customer may locate the currently effective rates in the Administrative Portal.
B.
Billing and Payment
All
Services and equipment must be purchased via valid credit or debit card at the
time of purchase. By providing a valid credit or debit card, Customer is
expressly authorizing all Services and equipment charges and fees to be charged
to such payment card, including recurring payments billed on a monthly or
annual basis. In addition, Customers supplied credit card shall be used for
any in-month purchases of additional services and products, or where Customer has
exceeded usage or threshold limits, or any overage charges. Recurring charges
are billed in advance in the frequency set forth in the Order Form, and
usage-based and one-time charges are billed monthly in arrears. Credit and
debit card payments are subject to the approval of the card issuer, and Vopial
will not be liable in any way if a card issuer refuses to accept a credit or
debit card for any reason. Customer is responsible for any credit card
chargeback or similar fees for refused or rejected payments that Vopial is
entitled to charge under this Agreement. If the payment card associated with
Customers Account is declined or fails for any reason, Vopial will send
Customer a notice using the contact information associated with Customers
Account. Vopial may continue to attempt charging Customers payment card for
outstanding charges and additional fees along with any other rights and
remedies available to Vopial under this Agreement, at law or in equity.
Unless
otherwise stated at the time of purchase or on the invoice, payment is due in
full, without deduction or set-off, within thirty (30) days of the date on the
invoice. Any payment not made when due will be subject to a late payment fee
equivalent to the lesser of (i) one and a half
percent (1.5%) per month; or (ii) the highest rate allowed by Law. Vopials
acceptance of late or partial payments (regardless of how they are marked or
designated (including without limitation as Paid in Full, Accord and
Satisfaction, or similarly)) will not waive, limit, or prejudice in any way
Vopials rights to collect any amount due. Vopial may terminate the Services
and this Agreement for non-payment if any fees or charges are not paid within
thirty (30) days of the due date.
C.
Taxes
All
rates, fees, and charges are exclusive of applicable Taxes, for which Customer
is solely responsible. Taxes may vary based on jurisdiction and the Services
provided. Taxes, access fees, universal service or other recovery fees, or
similar charges will be adjusted on the date in which those increases become
effective as mandated by competent authority. If any withholding tax is levied
on the payments, then Customer must increase the sums paid to Vopial so that
the amount received by Vopial after the withholding tax is deducted is the full
amount Vopial would have received if no withholding or deduction had been made.
D.
Billing Disputes
If
a customer reasonably and in good faith disputes any portion of Vopials
charges, it must provide written notice to Vopial within thirty (30) days of
the invoice date, identifying the reason for the dispute and the amount being
disputed. Customers dispute as to any portion of the invoice will not excuse
Customers obligation to timely pay the undisputed portion of the invoice. Upon
resolution, Customer must pay any unpaid amounts within thirty (30) days. Any
amounts that are found to be in error resulting in an overpayment by the
Customer will be applied as a billing credit against future charges. Customer
will be reimbursed any outstanding billing credits at the expiration or
termination of this Agreement.
4. Provision of
the Service
A.
General
Terms
Vopial
will provide the Services as described in the relevant Service Attachment.
Vopial may enhance, replace, and/or change the features of the Services, but it
will not materially reduce the core features, functions, or security of the
Services during the Term without Customers consent.
B.
Customer Care
i.
Customer must provide all first-tier
support to Customers End Users. Vopial may require Customers Helpdesk support
personnel to complete a series of training courses on Vopials Services. Such
training will be provided online by Vopial at no cost.
ii.
Vopial will make second-tier remote
support available to Customers Helpdesk personnel and/or Account
Administrators via the Vopial Customer Care Center, which will be available
24/7, to attempt to resolve technical issues with, and answer questions
regarding the use of the Services. Onsite and implementation services are not
included in the Vopial Customer Care support.
iii.
Customer may open a case with Vopial
Customer Care at https://Vopial.com/contact/ Any
individual contacting Customer Care on behalf of Customer must be authorized to
do so on behalf of the Account and will be required to follow Vopials
authentication protocol.
C.
Subcontracting
Vopial
may provide any of the Services hereunder through any of its Affiliates or
subcontractors, provided that Vopial will bear the same degree of
responsibility for acts and omissions for those subcontractors acting on
Vopials behalf in the performance of its obligations under this Agreement as
it would bear if such acts and omissions were performed by Vopial directly.
5. Use of the
Service
A.
Service Requirements
The
Services are dependent upon Customers maintenance of sufficient Internet
access, networks and power as set forth in Vopials Technical Sufficiency
Criteria. Vopial will not be responsible for any deficiencies in the provision
of the Services if Customers network does not meet Vopials Technical
Sufficiency Criteria.
B.
Use
Policies
Customer
and its End Users may use the Services only in compliance with this Agreement,
applicable Law, and the Use Policies referenced below, which are incorporated
into and form part of this Agreement. Customer may not use, or permit the use
of the Services to interfere with the use of Vopials Services by others, or
with the operation of the Vopial Network. Customer may not resell the Services.
Customer must ensure that its End Users comply with the Use Policies. Any
breach of this Section 5B (Use Policies) will be deemed a material breach of
this Agreement.
Vopial
may update the Use Policies from time to time and will provide notice to
Customer at the email address on file with the Account. Such updates will
become effective thirty (30) days after such notice to Customer.
6. Termination
A. Termination for Cause
Either Party may
terminate this Agreement and any Services purchased hereunder in whole or part
by giving written notice to the other Party if the other Party:
i.
breaches any material term of this
Agreement and fails to cure such breach within thirty (30) days after receipt
of such notice;
ii.
at the written recommendation of a
government or regulatory agency following a change in either applicable Law or
the Services; or
iii.
to the extent permitted by law upon the
commencement by or against the other Party of insolvency, receivership or
bankruptcy proceedings or any other proceedings or an assignment for the
benefit of creditors.
B.
Effect of Termination
i.
If Customer terminates the Services, a
portion of the Services, or this Agreement in its entirety due to Vopials material
breach under Section 6(A) (Termination for Cause), Customer will not be liable
for any fees or charges for terminated Services for any period subsequent to
the effective date of such termination (except those arising from continued
usage before the Services are disconnected), and Vopial will provide Customer a
pro-rata refund of all any prepaid and unused fees or charges paid by Customer
for terminated Services.
ii.
If this Agreement or any Services are
terminated for any reason other than as a result of a material breach by Vopial
or as set forth in Section 14(K) (Regulatory and Legal Changes) the Customer
must, to the extent permitted by applicable Law and without limiting any other
right or remedy of Vopial, pay within thirty (30) days of such termination all
amounts that have accrued prior to such termination, as well as all sums
remaining unpaid for the Services for the remainder of the then-current Term
plus related Taxes and fees.
7. Intellectual
Property
A.
Limited License
i.
Subject to, and conditional upon
Customers compliance with, the terms of this Agreement, Vopial grants to
Customer and its End User, a limited, personal, revocable, non-exclusive,
non-transferable (other than as permitted under this Agreement),
non-sublicensable license to use any software provided or made available by
Vopial to the Customer as part of the Services (Software) to the extent
reasonably required to use the Services as permitted by this Agreement, only
for the duration that Customer is entitled to use the Services and subject to
the Customer being current on its payment obligations.
ii.
Customer will not, and will not allow its
End Users to:
- Sublicense,
resell, distribute or assign its right under the license granted under
this Agreement to any other person or entity;
- modify,
adapt or create derivative works of the Software or any associated
documentation;
- reverse
engineer, decompile, decrypt, disassemble or otherwise attempt to derive
the source code for the Software;
- use
the Software for infringement analysis, benchmarking, or for any purpose
other than as necessary to use the Services Customer is authorized to
use;
- create
any competing Software or Services; or
- remove
any copyright or other proprietary or confidential notices on any
Software or Services.
B.
IP Rights
i.
Vopials Rights
Except
as expressly provided in this Agreement, the limited license granted to
Customer under Section 7(A) (Limited License) does not convey any ownership or
other rights or licenses, express or implied, in the Services, any related materials,
or in any Intellectual Property and no IP Rights or other rights or licenses
are granted, transferred, or assigned to Customer, any End User, or any other
party by implication, estoppel, or otherwise. All rights not expressly granted
herein are reserved and retained by Vopial and its licensors. The Software and
Services may comprise or incorporate services, software, technology or products
developed or provided by third parties, including open-source software or code.
Customer acknowledges that misuse of Vopial Services may violate third-party IP
Rights.
ii.
Customer Rights
As
between Vopial and Customer, Customer retains title to all IP Rights that are
owned by the Customer or its suppliers. To the extent reasonably required or
desirable for the provision of the Services, Customer grants to Vopial a
limited, personal, non-exclusive, royalty-free, license to use Customers IP
Rights in the same. Customer must provide (and is solely responsible for
providing) all required notices and obtaining all licenses, consents,
authorizations or other approvals related to the use, reproduction,
transmission, or receipt of any Customer Content that includes personal or
Confidential Information or incorporates any third-party IP rights.
C.
Use of Marks
Neither
Party may use or display the other Partys trademarks, service mark or logos in
any manner without such Partys prior written consent.
8. Confidentiality
A.
Restrictions on Use or Disclosures by
Either Party
During
the Term of this Agreement and for at least one (1) year thereafter, the
Receiving Party shall hold the Disclosing Partys Confidential Information in
confidence, shall use such Confidential Information only for the purpose of
fulfilling its obligations under this Agreement, and shall use at least as great
a standard of care in protecting the Confidential Information as it uses to
protect its own Confidential Information.
Each
Party may disclose Confidential Information only to those of its employees,
agents or subcontractors who have a need to it in order to perform or exercise
such Partys rights or obligations under this Agreement and who are required to
protect it against unauthorized disclosure in a manner no less protective than
required under this Agreement. Each Party may disclose the other Partys Confidential
Information in any legal proceeding or to a governmental entity as required by
Law.
These
restrictions on the use or disclosure of Confidential Information do not apply
to any information which is independently developed by the Receiving Party or
lawfully received free of restriction from another source having the right to
so furnish such information; after it has become generally available to the
public without breach of this Agreement by the Receiving Party; which at the
time of disclosure was already known to the Receiving Party, without
restriction as evidenced by documentation in such Party’s possession; or which
the Disclosing Party confirms in writing is free of such restrictions.
Upon
termination of this Agreement, the Receiving Party will promptly delete,
destroy or, at the Disclosing Partys request, return to the Disclosing Party,
all Disclosing Partys Confidential Information in its possession, including
deleting or rendering unusable all electronic files and data that contain
Confidential Information, and upon request will provide the Disclosing Party
with certification of compliance with this subsection.
9. Data
Protection
A. Data
Privacy
Vopial respects
Customers privacy and will only use the information provided by Customer to Vopial
or collected in the provision of the Services. Vopial may update the Vopial
Data Processing Addendum from time to time and will provide notice of any
material updates to the Customer as required by applicable Laws at the email
address on file with the Account. Such updates will be effective thirty (30)
days after such notice to Customer.
B.
Data Security
Vopial
will take commercially reasonable precautions, including, without limitation,
technical (e.g., firewalls and data encryption), administrative and physical
measures, to help safeguard Customers Account, Account Data, and Customer
Content against unauthorized use, disclosure, or modification.
Customer
must protect all End Points using industry-standard security measures. Customer
is solely responsible to keep all user identifications and passwords secure.
Customer must monitor use of the Services for possible unlawful or fraudulent
use. Customer must notify Vopial immediately if Customer becomes aware or has
reason to believe that the Services are being used fraudulently or without
authorization by any End User or third party. Failure to notify Vopial may
result in the suspension or termination of the Services and additional charges
to Customer resulting from such use. Vopial will not be liable for any charges
resulting from unauthorized use of Customers Account.
C.
Software Changes
Vopial
may from time-to-time push software updates and patches directly to Customers
device(s) for installation and Customer will not prevent Vopial from doing so.
Customer must implement promptly all fixes, updates, upgrades and replacements
of software and third-party software that may be provided by Vopial. Vopial
will not be liable for inoperability of the Services or any other Services
failures due to failure of Customer to timely implement the required changes.
10. Limitation of
liability
A.
Excluded damages
To
the fullest extent permitted by law, in no event will either party or its
affiliates be liable for (1) indirect, incidental, consequential, exemplary,
reputational, special or punitive damages of any kind; (2) costs of
procurement, cover, or substitute goods or services; (3) loss of use, loss or
corruption of data; or (4) loss of business opportunities, profits, goodwill,
or savings, whether in any of the foregoing, arising under contract, warranty,
tort (including negligence or strict liability), or any other theory of
liability, even if such party has been informed in advance of such damages or
such damages could have been reasonably foreseen. Neither party will be liable
for actions reasonably taken to comply with law.
B.
Direct damages
Except
as set forth herein, the total cumulative liability of the parties under this
agreement will not exceed the amounts paid or payable under this agreement
during the previous six (6) months. Limitations under this section 10(b)
(direct damages) will not apply to:
i)
customer payment obligations;
ii)
either partys liability for infringement
of the other partys ip rights;
iii)
either partys liability resulting from
gross negligence, fraud, or willful or criminal misconduct; or
iv)
customers liability resulting from use
of the services in breach of the acceptable use policy or emergency services
policy.
Nothing
in this agreement shall limit or exclude any liability which may not be
restricted, limited or excluded pursuant to applicable law.
C.
Survival
The
limitations of liability contained in this Section 10 (Limitation of Liability)
will survive termination or expiration of this Agreement and apply in any and
all circumstances (except as expressly set forth above), including without
limitation in the event of any failure of the essential purpose of any limited
warranty or available remedy provided herein.
11. Indemnification
A.
Indemnification Obligations
Customer
agrees to indemnify and defend Vopial and its Affiliates at Customers expense,
from and against any and all third-party claims, arising out of or in
connection with: i) material violation of applicable
Law by the Customer or its End Users in connection with the use of the
Services; ii) use of the Services in a manner not authorized by this Agreement;
iii) failure to promptly install any updates of any software or firmware or
accept or use modified or replacement items provided by or on behalf of Vopial,
or iv) claims relating to Customer Content. Further, Customer will indemnify
and hold harmless Vopial against all damages, costs, and legal fees finally
awarded against Vopial by a court of competent jurisdiction in connection with
such third-party claim or agreed to in a written settlement agreement approved
in writing by the Customer.
B.
Defense and Indemnification Procedures
Any
Party seeking defense or indemnification (the Indemnified Party) must
provide the Party from which it seeks such indemnification or defense (the Indemnifying
Party) with the following: (a) prompt written notice of the third-party
claim, (b) sole control over the defense and settlement of the third-party
claim, and (c) reasonable information, cooperation, and assistance in
connection with the defense and settlement of the third-party claim. The
Indemnified Partys failure to comply with the foregoing obligations will not
relieve the Indemnifying Party of its defense or indemnification obligations
under this Section (Indemnification), except to the extent that the
Indemnifying Party is prejudiced by such failure. The Indemnified Party will
have the right to participate at its own expense in the defense of such
third-party claim, including any related settlement negotiations. No such claim
may be settled or compromised by the Indemnifying Party without the Indemnified
Partys express written consent (which such consent may not be unreasonably
withheld, conditioned, or delayed), unless such settlement or compromise
includes a full and complete release of all claims and actions against the
Indemnified Party by each party bringing such third-party claim.
12. Warranties
A.
Vopial Warranty
Vopial
will provide the Services using a commercially reasonable level of skill and
care, in material compliance with all applicable Laws and otherwise subject to
the terms of this Agreement. To the extent permitted by Law, Vopial shall pass
through to Customer any and all warranties Vopial receives in connection with
equipment provided to Customer.
B.
Customer Warranty
Customers
and its End Users use of the Services must at all times comply with all applicable
Laws and this Agreement.
C.
Disclaimer of Warranties
Except
as specifically set forth in this agreement and to the fullest extent permitted
by law, the services are provided as is and as available, and Vopial makes
no other warranties, express or implied, including but not limited to the
implied warranties of merchantability, non-infringement, quiet enjoyment, and
fitness for a particular purpose and any warranties arising from a course of
dealing or usage in trade, together with similar warranties, whether arising
under any law or otherwise. To the extent that Vopial cannot disclaim any such
warranty as a matter of applicable law, the scope and duration of such will be
limited to the fullest extent permitted by law.
13. Dispute
Resolution
A.
Good Faith Attempt to Settle Disputes
In
the event of any dispute or claim arising out of or relating to the Agreement
(a Dispute), each Party will appoint a duly authorized representative which
will confer with the other Party before either Party brings legal action, to
make a reasonable and good faith effort to settle or otherwise resolve such
Dispute.
B.
Venue
In
the event that the Parties are unable to resolve a Dispute, any related action,
lawsuit, or proceeding must be brought in and adjudicated exclusively by state
or federal courts located in the United States of America. Each Party hereby
consents to and agrees to submit to the exclusive venue and personal
jurisdiction of such courts with respect to any such actions or lawsuits and
irrevocably waives any right that it might have to assert that either forum is
not convenient or that any such courts lack jurisdiction.
C.
Equitable Relief
Any
breach of either Partys IP Rights will cause that Party irreparable harm for
which monetary damages will be inadequate and such Party may, in addition to
other remedies available at Law or in equity, obtain injunctive relief without
the necessity of posting a bond or other security, proof of damages, or similar
requirement, in additional to any other relief to which such Party may be
entitled under applicable Law.
D.
Limitations
Except
for actions for non-payment or liability arising from Section 11
(Indemnification), no claim, suit, action or proceeding relating to this
Agreement may be brought by either Party more than two (2) years after the
cause of action has accrued. Any actions, lawsuits, or proceedings must be
conducted solely on an individual basis and the Parties expressly waive any
right to bring any action, lawsuit or proceeding as a class or collective
action, private attorney general action or in any other capacity acting in a
representative capacity.
14.
Miscellaneous
A.
Relationship of the Parties
Vopial
and Customer are independent contractors and this Agreement will not establish
any relationship of partnership, joint venture, employment, franchise or agency
between Vopial and Customer.
B.
Assignment
Neither
Party may assign the Agreement or any portion thereof without the other Partys
prior written consent (which such consent may not be unreasonably withheld or
delayed), however either Party may assign the Agreement and all of that Partys
rights and obligations thereunder without consent (a) to an Affiliate; (b) to
the Partys successor or surviving entity in connection with a merger,
acquisition, consolidation, sale of all or substantially all of its assets used
in connection with the provision of Services under this Agreement; or (c) as
part of the transfer or disposition of more than fifty percent (50%) of a
Partys voting control or assets. This Agreement will bind and inure to the
benefit of the Parties, and their permitted assigns and successors.
C.
Notices
Except
where otherwise expressly stated in the Agreement, all notices or other
communications must be in English and are deemed to have been fully given when
made in writing and delivered in person, upon delivered email or five days
after deposit with a reputable overnight courier service, and addressed as
follows:
to Vopial
at Vopial, Inc.,
with
a copy to [email protected], and to
Customer at either the physical address or email address associated with the
Customer Account. Customer acknowledges and agrees that all electronic notices
have the full force and effect of paper notices.
The
addresses to which notices may be given by either Party may be changed upon
written notice given to the other Party pursuant to this Section 14C (Notices)
or by Customer in the Administrative Portal.
D.
Force Majeure
Excluding
either Partys payment obligations under the Agreement, neither Party will be
responsible or liable for any failure to perform or delay in performing to the
extent resulting from a Force Majeure Event. The suspension of obligations
under this Section 14D (Force Majeure) may under no circumstances be a cause of
liability for failure to perform the obligation in question, nor induce the
payment of damages or penalties for late payment.
E.
Third-Party Beneficiaries
Vopial
and Customer agree that there will be no third-party beneficiaries to this
Agreement.
F.
Internal Customer Activities
Vopial
does not have any obligation to assist in or otherwise mediate in the event of
any dispute between Customer representatives or Customer and any third party
with respect to ownership or control of any Account or Account Data. All
information within Vopials records regarding the ownership or control of an
Account or Account Data, Services ordered, and numbers assigned to an Account
will be definitive and controlling for purposes of administering the Account.
In the event of any such dispute, Vopial may take any course of action that it
deems appropriate based on the information available, which include declining
to take any course of action.
Vopial
may access your Account and related data as required to provide the Services.
However, Vopial has no obligation to access your Account, Account Data or any
Customer Content for any other purposes. Services do not include or consist of
any investigation, review, verification, production, compilation, modification,
or other similar services for any Account Data or Customer Content. Services do
not include the provision of any legal, accounting or other professional
services.
G.
Headings, Interpretation
The
headings, section titles, and captions used in the Agreement are for
convenience of reference only and will have no legal effect. All defined terms
include related grammatical forms, and, whenever the context may require, the
singular form of nouns and pronouns include the plural, and vice versa. The
Parties agree that this Agreement will be deemed to have been jointly and equally
drafted by them, and that the provisions of this Agreement therefore should not
be construed against a Party or Parties on the grounds that the Party or
Parties drafted or was more responsible for drafting the provision(s).
H.
Governing Law
The
Agreement is governed by the Laws of the United State of America, excluding its
choice of Law rules. The United Nations Convention on Contracts for the
International Sale of Goods does not apply to this Agreement or Customers use
of the products or Services.
I.
Anti-Bribery
Each
Party represents that in the execution of this Agreement and in the performance
of its obligations under this Agreement it has complied and will comply with
all applicable anti-bribery Laws and regulations, including, without
limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and
similar applicable Laws.
J.
Export Control
Any
services, products, software, and technical information (including, but not
limited to, services and training) provided pursuant to the Agreement may be
subject to U.S. export Laws and regulations. Customer will not use distribute,
transfer, or transmit the services, products, software, or technical
information (even if incorporated into other products) except in compliance
with U.S. and other applicable export regulations.
K.
Regulatory and Legal Changes
In
the event of any change in Law, regulation or industry change that would
prohibit or otherwise materially interfere with Vopials ability to provide
Services under this Agreement, Vopial may terminate the affected Services or
this Agreement or otherwise modify the terms thereof.
L.
Entire Agreement
The
Agreement, together with any exhibits, Orders, and Service Attachments, each of
which is expressly incorporated into this Agreement with this reference, constitutes
the entire agreement between the Parties and supersedes and replaces any and
all prior or contemporaneous understandings, proposals, representations,
marketing materials, statements, or agreements, whether oral, written, or
otherwise, regarding such subject.
M. Order
of Precedence
In
the event of any conflict between the documents comprising this Agreement,
precedence will be given to the documents in the following descending order: (i) the applicable Order Form; (ii) the applicable Service
Attachments; (iii) the main body of this Agreement; (iv) Use Policies and Data
Processing Addendum; and (v) and any other document expressly referred to in
this Agreement which governs the Services. However, with respect to data
processing, the Data Processing Addendum shall take precedence over any
inconsistent terms in any of the documents listed in the previous sentence.
N.
Amendments
Except
as otherwise provided, this Agreement may only be modified by a written
amendment (provided electronically or otherwise) executed by authorized
representatives of both Parties. In no event will handwritten changes to any
terms or conditions, including in the applicable Order, be effective.
Notwithstanding the foregoing, Vopial may update this Agreement or any of its
Equipment, Use Policies and Data Privacy Policies from time to time and will
provide notice to Customer at the email address on file with the Account. Such
updates will become effective thirty (30) days after such notice to Customer.
In the event that any such update would be of material detriment to Customer
and is not required by Law, Customer must inform Vopial of its objection within
ten (10) days of receiving the notice provided under this provision. If the
Parties, negotiating in good faith cannot reach agreement within thirty (30)
days, either Party may terminate the portion of the Services affected by the
change without penalty by written notice to the other Party. Any use of the
Services after the effective date will be deemed Customers acceptance of the
change.
O.
Severability and Waiver
In
the event any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, such provision(s) will be
stricken and the remainder of this Agreement will remain legal, valid and binding.
The failure by either Party to exercise or enforce any right conferred by this
Agreement will not be deemed to be a waiver of any such right or to operate so
as to bar the exercise or enforcement of any such or other right on any later
occasion. Except as otherwise expressly stated in this Agreement, all rights
and remedies stated in the Agreement are cumulative and in addition to any
other rights and remedies available under the Agreement, at Law, or in equity.
P.
Publicity
Notwithstanding
anything to the contrary in this Agreement, Vopial may identify Customer as a
customer (including use of any Customer logo or trademark) and may refer to
this Agreement during its earnings calls and in connection with its business
deals, press releases, and marketing and/or promotional materials.
Q.
Execution
Each
Party represents and warrants that: (a) it possesses the legal right and
capacity to enter into the Agreement and to perform all of its obligations
thereunder; (b) the individual executing an Electronic Signature regarding the
Agreement on that Partys behalf has full power and authority to execute and
deliver the same; and (c) the Agreement will be a binding obligation of that
Party.
R.
Electronic Signature and Counterparts
This
Agreement may be executed electronically and in separate counterparts each of
which when taken together will constitute one in the same original. Each Party
agrees that an Electronic Signature, whether digital or encrypted, is intended
to authenticate this Agreement and to have the same force and effect as manual
signatures.
S.
Survival
The
rights and obligations of either Party that by their nature would continue
beyond the expiration or termination of this Agreement or an Order will survive
expiration or termination of this Agreement or the Order, including without
limitation payment obligations, warranty disclaimers, indemnities, limitations
of liability, definitions and miscellaneous.
Attachment A – Definitions
Definitions. Capitalized terms used in
this Agreement but otherwise not defined have the following meaning:
- Account means
the numbered account established with Vopial and associated with Customer
and the Services provided to Customer under this Agreement. For billing
and convenience purposes, multiple services, Digital Lines, or End Users
may be included in a single billing account, and/or a single Customer may
have multiple billing accounts encompassing different geographic
locations, business units, or other designations as requested by Customer
and accepted by Vopial.
- Account Administrator means the person(s) who have been granted
authority by Customer to set up, amend, or otherwise control settings
and/or make additional purchases for the Account via the Administrative
Portal. Account Administrators may have varying levels of Account rights,
skills, or permissions.
- Account Data means:
any business contact information provided with the Account;
Vopial-generated logs of calling or other metadata developed or collected
in the provision of the Services; configuration data; and records of
Digital Lines and any Services purchased under this Agreement.
- Administrative Fees means any administrative recovery fees,
911 cost recovery fees and the like separately charged by Vopial to
Customer.
- Administrative Portal means the online administrative portal
through which Account Administrators control settings and/or make
additional purchases for the Account.
- Affiliate(s) means
a person or entity that is controlled by a Party hereto, controls a Party
hereto, or is under common control with a Party hereto, and control
means beneficial ownership of greater than fifty percent (50%) of an
entitys then-outstanding voting securities or ownership interests.
- Confidential Information means any information disclosed by or on
behalf of the Disclosing Party) to the Receiving Party that should
reasonably be considered as confidential given the nature of the
information and the circumstances surrounding its disclosure.
- Customer Content means the content of calls, facsimiles,
SMS messages, voicemails, voice recordings, shared files, conferences or
other communications transmitted or stored through the Services.
- Digital Line means
a phone number assigned to an End User or a specifically designated
location (e.g., conference room) and the associated voice service for
inbound and outbound calling that permits an End User generally to make
and receive calls to and from the public switched telephone network as
well as to and from other extensions within the same Account.
- Disclosing Party means the Party disclosing Confidential
Information or on whose behalf Confidential Information is disclosed by
such Partys agents, including but not limited to, its Affiliates,
officers, directors, employees and attorneys.
- Dispute has
the meaning set forth in Section 13(A) (Good Faith Attempt to Settle
Disputes).
- Effective Date means the date of execution of the initial
Order.
- Electronic Signature means an
electronic sound, symbol, or process, including clicking a digital button
to accept, attached to or logically associated with a contract or other
record and executed or adopted by a person with the intent to sign the
record.
- End Point means
an application or device through which any End-User might access and/or
use any of the Services, including without limitation IP Desk Phones,
Desktop Clients, Web Clients, Mobile Applications, and Software
Integrations.
- End User means
an individual user to whom Customer makes the Services available, and may
be a natural person, and may include but is not limited to Customers
employees, consultants, clients, external users, invitees, contractors and
agents.
- Force Majeure Event means any event or circumstance that are
beyond that Partys control, which are considered without limitation as force
majeure: any act of God; national emergency; third-party
telecommunications networks; riot; war; terrorism; governmental act or
direction; change in Laws; fiber, cable, or wire cut; Sub-processor
failure; power outage or reduction; rebellion; revolution; insurrection;
earthquake; storm; hurricane; flood, fire, or other natural disaster;
strike or labor disturbance; or other cause, whether similar or dissimilar
to the foregoing, not resulting from the actions or inactions of such
Party.
- Helpdesk means
first-tier support provided to End Users by Customer.
- Indemnifying Party and Indemnified Party have the meanings set forth in Section
11(B) (Defense and Indemnification Procedures).
- Initial Term has
the meaning set forth in Section 2(E) (Services Term and Automatic
Renewal).
- Intellectual Property Rights or IP Rights means all
common law and statutory rights (whether registered or unregistered, or
recorded or unrecorded, regardless of method) arising out of or associated
with: (a) patents and patent applications, inventions, industrial designs,
discoveries, business methods, and processes; (b) copyrights and copyright
registrations, and moral rights; (c) the protection of trade and
industrial secrets and Confidential Information; (d) other proprietary
rights relating to intangible property; (e) trademarks, trade names and
service marks; (f) a persons name, likeness, voice, photograph or
signature, including without limitation rights of personality, privacy,
and publicity; (g) analogous rights to those set forth above; and (h)
divisions, continuations, continuations-in-part, renewals, reissuances and
extensions of the foregoing (as applicable).
- Law means
any law, statute, regulation, rule, ordinance, administrative guidance,
treaty or convention, or court or administrative order or ruling of any
governing Federal, State, local or non-U.S. governmental body with
jurisdiction over the Services.
- Order(s) or Order
Form(s) means a request or order for Services describing the
type and quantity of Services required by Customer and submitted and
accepted by the Parties in accordance with Section 2(A) (Ordering
Services). The Order may be presented and executed on the Vopial website
or via the Administrative Portal.
- Receiving Party means the Party or its agents, including,
but not limited to its Affiliates, officers, directors, employees and
attorneys receiving Confidential Information.
- Renewal Term has
the meaning set forth in Section 2(E) (Services Term).
- Vopial Customer Care means Vopials Customer support
operations, available at https://Vopial.com/contact.
- Vopial Network means the network and supporting
facilities between and among the Vopial points of presence (PoP(s)), up to and including the interconnection
point between the Vopials network and facilities, and the public
Internet, private IP networks, and the Public Switched Telephone Network
(PSTN). The Vopial Network does not include the public Internet, a customers
own private network, or the PSTN.
- Service(s) means
all services provided under this Agreement and set forth in one or more
Order(s).
- Service Attachment means documents appended to the Agreement
containing additional terms for equipment and Services.
- Start Date means
the date so identified in the relevant Order or the date on which Customer
orders Services via the website or the Administrative Portal.
- Taxes means
any and all federal, state, local, municipal, foreign and other taxes and
fees charged or collected from Customers, including but not limited to any
Universal Service Fund, TRS and 911 taxes and fees.
- Term means
the Initial Term plus any Renewal Terms.
- Use Policy refers
to any of the policies identified in Section 5B (Use Policies).