PLEASE READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY OPENPHONE TECHNOLOGIES, INC. (“OpenPhone”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH OPENPHONE WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA OPENPHONE’S STANDARD ONLINE PROCESS (INCLUDING WITHOUT LIMITATION IN CONNECTION WITH ANY FREE TRIAL (AS DEFINED BELOW)) AND WHICH IS ACCEPTED BY OPENPHONE SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. TO THE EXTENT THESE TERMS CONFLICT WITH ANY ORDER FORM, SUCH ORDER FORM SHALL GOVERN.
Order Forms; Access to the Service; Free Trial. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), OpenPhone grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the OpenPhone product(s) and/or service(s) specified in an Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) only for Customer’s internal business purposes as provided herein and only in accordance with user documentation provided by OpenPhone for such Service (the “Documentation”).
Free Trial. OpenPhone may make the Service available to Customer on a trial basis free of charge (“Free Trial”), which will commence upon the date of Customer’s first use of the Service and shall continue for the trial period specified on the applicable Order Form or, if not specified thereon, otherwise communicated to the Customer in writing (email to suffice) (each, a “Trial Period”). Notwithstanding anything to the contrary in this Agreement, (i) the Service under the Free Trial is provided “AS-IS”, without warranty of any kind, (ii) Customer’s access to the Service may be limited, (iii) OpenPhone shall not have any obligation to provide any support for the Service (including without limitation pursuant to Section 3 (Support & Maintenance)), and (iv) OpenPhone shall have no obligations under Section 11 (Indemnification) or liability of any kind with respect to the Service for the Free Trial (unless such exclusion of liability is not enforceable under applicable law, in which case OpenPhone’s liability with respect to the Service provided during the Free Trial shall not exceed $100.00). OpenPhone will notify Customer before any Services Customer is then using begin carrying a fee. If Customer does not cancel its account prior to the end of a Trial Period, Customer shall be responsible for all applicable fees in accordance with Section 6. Customer shall be fully liable under this Agreement to OpenPhone for any damages arising out of Customer’s use of the Service under the Free Trial, any breach by Customer of this Agreement and any of Customer’s indemnification obligations hereunder. In the event of a conflict between this Section 2 and any other portion of this Agreement, this Section 2 shall control. Either party may terminate the applicable Order Form without cause during the Trial Period immediately upon notice to the other party.
Support & Maintenance. Subject to Customer’s payment of all applicable fees, OpenPhone will use commercially reasonable efforts to provide support and maintenance for the Services.
Service Updates. From time to time, OpenPhone may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that OpenPhone shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that OpenPhone may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that OpenPhone shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.
Ownership; Feedback. As between the parties, OpenPhone retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by OpenPhone for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to OpenPhone with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for OpenPhone notwithstanding anything else. OpenPhone acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to OpenPhone a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair OpenPhone’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
Fees; Payment. Customer shall pay OpenPhone the fees for the Service as set forth in each Order Form (“Fees”). Please see OpenPhone’s Billing Policy, which is incorporated herein by reference, for additional details on how billing works. Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Customer shall pay a late fee of past due invoices at the lesser of 1.5% per month or the maximum amount permitted by applicable law. Customer shall be responsible for all taxes associated with Service (excluding taxes based on OpenPhone’s net income). Unless otherwise expressly agreed upon by the parties in accordance with the Cancellation and Refund Policy (which is incorporated herein by reference), all Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then (i) OpenPhone shall invoice Customer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at OpenPhone’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with the section entitled “Term; Termination”, below, such renewal shall include the additional fees for such excess users and usage.
Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any OpenPhone product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (viii) bypass any measures OpenPhone may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (ix) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Service (or any information, data or content made available through the Service), whether through use of manual or automated means; (x) use the Service in a manner that is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable; (xi) jeopardize the security of any Customer OpenPhone account or anyone else’s account (such as allowing someone else to log in to the Services as you); (xii) attempt, in any manner, to obtain the password, account, or other security information from any other user; (xiii) violate the security of any computer network, or cracks any passwords or security encryption codes; or (xiv) run Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while Customer is not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure). Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer (a) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), (b) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights, and (c) shall use the Service in accordance with OpenPhone’s Fair Use Policy, which is available at openphone.com/fair-use and which is incorporated herein by reference.
Messaging Policy. OpenPhone treats all messaging transmitted via the Service as Application-to-Person (“A2P”) messaging. All A2P messages originating from OpenPhone are subject to this Messaging Policy. Customer is responsible for any person to which it provides the ability to send messages through OpenPhone.
Consent/Opt-in Requirements. Prior to sending the first message to each recipient, Customer must obtain consent from the recipient to communicate with them. Customer must make clear to the recipient that he/she is agreeing to receive the type of messages Customer plans to send. If Customer does not send the initial message to the recipient within a reasonable period after receiving consent, then Customer must reconfirm consent in the first message sent to that recipient. Consent is limited to the specific use or campaign to which the recipient has consented, and Customer may not send additional messages about other uses or campaigns unless Customer has received consent from the recipient for such additional messages. Customer must keep a record of each consent, such as a copy of the document or form that the message recipient signed, or a timestamp of when the customer completed a sign-up flow.
Periodic Messages and Ongoing Consent. If Customer intends to send messages to a recipient on an ongoing basis, Customer must confirm the recipient’s consent by offering him/her a clear reminder of how to unsubscribe from those messages using standard opt-out language (defined below). Customer must comply with the recipient’s preferences on frequency of contact.
Identifying Customer as the Sender. Every message Customer sends must clearly identify as the sender the party that obtained the consent/opt-in from the recipient, except in follow-up messages of an ongoing conversation.
Opt-out Requirements. The initial message Customer sends to a recipient must include the following language: “Reply STOP to unsubscribe” or the equivalent using another standard opt-out keyword, such as STOPALL, UNSUBSCRIBE, CANCEL, END or QUIT. Customer must provide recipients with the ability to revoke consent at any time by replying with a standard opt-out keyword. When an individual opts out, Customer may deliver one final message to confirm that the opt-out has been processed, but any subsequent messages are prohibited.
OpenPhone Messaging. As part of the Service, Customer may receive communications through the Service, including messages that OpenPhone sends Customer (for example, via email or SMS). By signing up for the Service and providing OpenPhone with Customer’s wireless number, Customer confirms that Customer wants OpenPhone to send Customer information regarding Customer’s account or transactions with OpenPhone or that OpenPhone thinks may be of interest to Customer, which may include OpenPhone using automated dialing technology to text Customer at the wireless number Customer provided, and Customer agrees to receive communications from OpenPhone, and Customer represents and warrants that each person Customer registers for the Service or for whom Customer provides a wireless phone number has consented to receive communications from OpenPhone. Customer agrees to indemnify and hold OpenPhone harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to Customer’s breach of the foregoing.
Third Party Services.
Term; Termination. This Agreement shall commence upon the Order Form Start Date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the Order Form Start Date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (y) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. Customer may terminate this Agreement and cancel its subscription at any time in accordance with the “Canceling Your OpenPhone Subscription” section of OpenPhone’s Cancellation and Refund Policy. Except for Customer’s missed payments (which shall be resolved in accordance with the “Missed/Failed Payment” section of the Cancellation and Refund Policy), OpenPhone is free to terminate (or suspend access to) Customer’s use of the Services or Customer’s account for any reason in OpenPhone’s discretion, including Customer’s breach of this Agreement. OpenPhone has the sole right to decide whether Customer is in violation of any of the restrictions set forth in these Terms. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. In the case of expiration or termination of this Agreement, upon request by Customer made before, or within thirty (30) days after, the effective date of expiration or termination, OpenPhone may make available to Customer a complete download of all Customer Data in a file or database format in OpenPhone’s discretion. For clarity, any services provided by OpenPhone to Customer, including the data export set out above, and any assistance in exporting the Customer Data, shall be billable at OpenPhone’s standard rates then in effect.
Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) in the case of Customer as Indemnitor, the Customer Data or Customer’s use of the Service infringes, violates, or misappropriates any third party intellectual property or proprietary right or violates any applicable law, or (ii) in the case of OpenPhone as Indemnitor, the Service infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of OpenPhone do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by OpenPhone (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by OpenPhone, (iv) combined with other products, processes or materials not provided by OpenPhone (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Service is not strictly in accordance herewith.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 12, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF SECTION 7 (RESTRICTIONS), IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO OPENPHONE HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
Miscellaneous. This Agreement represents the entire agreement between Customer and OpenPhone with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and OpenPhone with respect thereto. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in San Francisco, California in English and in accordance with the JAMS Streamlined Arbitration Rules & Procedures then in effect. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that a permanent injunction and damages shall only be awarded by the arbitrator(s). In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; pandemics; epidemics; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) OpenPhone may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. Customer agrees to allow OpenPhone to use and display Customer’s name and logo on OpenPhone’s website and in OpenPhone’s promotional materials to identify Customer as a customer. If any provision of this Agreement is held to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. Except as expressly set forth in the Apple Application terms set forth in Section 9(b), Customer and OpenPhone agree there are no third-party beneficiaries intended under this Agreement.
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