1.
Interpretation
1.1
In
this agreement:
‘Administrator’
means you or, if you are signing on behalf of a company or other separate legal
entity, the person signing the Order Form or such other representative as may
be notified to us, who will be our main point of contact and from whom we may
accept instructions on your behalf.
‘Affiliate’
of any legal entity means any company controlling, controlled by, or under common
control with that legal entity.
‘Allowed
Number’ means a number: relating to a geographic area in the continental USA,
continental Canada or other destination listed in the Rate Sheet; relating to
apparatus on a mobile telephony service in the continental USA, continental Canada or other destination
listed in the Rate Sheet; toll-free numbers in the continental USA
and continental
Canada or other destination
listed in the Rate Sheet; and any other number as identified on the Rate
Sheet, but excludes all other numbers,
including excluded numbers.
‘Business Day’ means a day from Monday
to Friday, excluding any bank holiday or public holiday applying in San
Francisco, USA and ‘Business Hours’ are 09:00 to 17:00 San Francisco
time on a Business Day.
‘CallEffect
Service’ or ‘Service’ means the service marketed by us under the
trade mark CALLEFFECT, enabling communications and activity recording as set
out in the then-current service literature.
‘Charges’
means the fees and charges for the Service, including any per-minute call rate
for Allowed Numbers (‘Rate’) as set out in, and calculated in accordance
with, the rate sheet applicable to the Service (‘Rate Sheet’).
‘Confidential
Information’ means any information of a confidential nature, whether or not
identified as such in writing, disclosed by one party (‘Disclosing Party’)
to the other party (‘Recipient’), including: trade secrets; non-public,
special pricing for the Service we may agree with you; and strategic,
marketing, financial, employee or other secret information regarding a party’s
business. Confidential Information does not include information that: is in or
enters the public domain other than due to breach of this agreement or breach
of a duty of confidentiality owed to a party to this agreement; the Recipient
can demonstrate was in its possession prior to disclosure to it by the
Disclosing Party; or is provided to the Recipient by a third party who is not
under a duty of confidentiality regarding that information.
‘Customer
Content’ means any content that you or an End User uploads, records or
otherwise transmits through the Service, including voice, data, photographs,
caricatures, illustrations, designs, icons, articles, text, audio clips, and
video clips.
‘End
User’ means you and any person you allow to use the Service in accordance
with this agreement.
‘excluded number’ means: 911
in the USA and Canada and similar, non-geographic numbers for emergency
services worldwide (‘Emergency
Number’);
any premium rate service (including those in the USA and Canada beginning
1-9XX); and any directory service or other special services number, in each
case in the USA, Canada
or elsewhere.
‘Force
Majeure’ means any circumstance not within the reasonable control of a
party including any: strike, labour dispute; war; riot; act of terrorism; act
of God; breakdown or disruption to any computer or telecommunications system
(for the avoidance of doubt not including our or our suppliers’ or contractors’
computers or telecommunications systems); and governmental action.
‘Helpdesk’ means the support service
provided by us on +1 (866) 619-6846 and support@calleffect.com
or such other telephone number and email as we may notify to you.
‘Intellectual
Property Right’ or ‘IPR’ means any copyright, design right, database
right, trade mark, trade name, domain name, patent, topography right, right
protecting goodwill, Confidential Information or know-how, an application or
registration for any of the above, and rights of a similar nature or equivalent
effect worldwide.
‘Material’
means any information, documents, data or other materials provided by us to you
in any current or future medium.
‘My
Account’ means any online, secure web-page(s) (whether within the TPA, our
Website or otherwise), as may be provided to your administrator or End Users
from time to time within which you may review your account.
‘Order
Form’ means the document or form provided by us as (or a request from you for
the Service which we accept as) an order form, in hard copy or soft copy format
in any medium.
‘Our
Account’ means account number 6225229720 in the name of Ring2
Communications LLC at Wells Fargo Bank, routing number 121000248, branch
address 1266 Market St, San Francisco, CA 94102, USA.
‘Password’
means the password issued either by the TPA or us and used by you or an End
User in conjunction with a Username to access the Service and the My Account
area.
‘Ring2’,
‘us’ and ‘we’ means Ring2 Communications LLC of 400 2nd Street,
Suite 450, San Francisco, CA 94107, U.S.A, incorporated in Nevada. ‘Ring2
Group’ means us and any of our Affiliates.
‘Salesforce.com’
means salesforce.com, inc. of The Landmark @ One Market, Suite 300, San
Francisco, CA, 94105, U.S.A.
‘Software’
means any software provided or licensed by us to you under this agreement in
any current or future format.
‘Support
Hours’ means between 06:00 and 18:00 San Francisco time on a Business Day.
‘System’
means the system we use to provide the Services.
‘Territory’
means the continental United States of America and continental Canada, or as we
may otherwise notify you from time to time.
‘Third
Party Application’ or ‘TPA’ means any computer software with which
you wish to use the Service and which is owned by a third party (“Third
Party”), whether or not provided by us, including any online or
server-based computer application in conjunction with which you use the Service,
such as the customer relationship management service provided by
Salesforce.com.
‘User
Data’ means the electronic data or information submitted by you into the TPA.
‘Username’
means the username issued either by the TPA or us and used by you or an End
User in conjunction with a Password to access the Service and the My Account
area.
‘Website’
means our website(s) relating to the Service, available at www.calleffect.com
or such other website as we may provide from time to time.
‘Your
Group’ only applies if you are signing on behalf of a company or other
separate legal entity, and in that case means you and your Affiliates.
1.2
Headers
are provided for convenience only and will not affect the interpretation of
this agreement. Any schedule to this agreement is incorporated into and form
part of this agreement. In this agreement, a reference to: a ‘person’ includes
a reference to a body corporate or other legal entity, association or
partnership and that person’s successors and permitted assigns; the singular
includes the plural, the masculine includes the feminine and vice versa; ‘including’
means ‘including without limitation’; and ‘writing’ means any legible,
visible and permanent form including hand-written and printed documents,
facsimile and electronic mail communications (including printed records
thereof).
2.
Formation
of Contract
2.1
You
must first send us an Order Form requesting the Service, in hard or soft copy
format. If we accept your Order Form, this agreement will be legally binding from
the date we notify you of our acceptance. If you otherwise make any use of the
Service, this agreement will be legally binding on you from the date you first
use the Service. Together with any terms separately negotiated with us, your
Order Form and these terms and conditions form your agreement with us. In
cases of conflict, the documents will take priority in the following descending
order: first, any separately negotiated terms; then your Order Form; and last,
these terms and conditions. If we decline your request to use the Service, you
must immediately cease all use of the Service.
3.
Services
3.1
In
consideration of your payment of the Charges, and on condition that you and
your End Users are resident in the Territory, and in continued compliance with
this agreement, we will provide you and your End Users with the Service in
accordance with this agreement.
4. IPR License
4.1 Providing that you
are not in breach of this agreement, we grant you a non-exclusive,
non-sub-licensable and non-transferable license, limited for the duration and
purposes of this agreement, to allow you and your End Users to access and use
the Software and Service in accordance with this agreement. The
above
license to Software is limited to the object code and you acknowledge that you
have no right in or title to the source code of the Software.
5. IPR Ownership
5.1
You
acknowledge that all IPR in and title to the System, Software, Materials and
our Confidential Information are owned by us or our licensors and that you have
no right in the same other than the license granted in clause 4.1 for the
limited purpose of using the Service. RING2, the Ring2 logo, RING2
CONFERENCING, the RING2 CONFERENCING logo, CALLEFFECT and the CALLEFFECT Logo
are our trade marks. Nothing in this agreement grants any license, right of
use of, or title to any of the above trade marks to you or End Users.
5.2
You
will not, and you will ensure that End Users will not: copy, reverse engineer
or decompile the Software or Service; translate, modify, rent, lease,
sub-licence, distribute copies of (other than valid End Users), adapt, or
create derived works based on the Software or Materials; import or export the
Software or Service or any copy or adaptation in violation of any applicable
laws or regulations; nor use the Software or Materials for any use which is not
purely to receive the Service. This is without prejudice to any right
you may have which, under any applicable law, may not be excluded by contract
(including, if the applicable law so provides, the right to make a back-up copy
of, or decompile the Software in certain circumstances).
6. Support
6.1
At
any time, and free-of-charge, you and End Users may access the help pages in
your respective My Account area and contact the Helpdesk. However, you will
use reasonable efforts to ensure that End Users contact your Administrator or
in-house IT support team for all first-level technical support. The Helpdesk
is manned during Support Hours and we will attend to any query received outside
Support Hours as soon as reasonably practicable. We may monitor and record
any communication between you or End Users and the Helpdesk for lawful business
reasons including security, training and quality assurance.
7. Charges
7.1
We
will invoice the Charges to you monthly in arrears or as otherwise set out in
your applicable Rate Sheet. We will deliver invoices by way of email, and
reserve the right to issue invoices by post or in such other manner as may be
agreed by the parties, to the person identified in the Order Form, to your
Administrator or otherwise notified by you to us.
7.2
Our
invoices are due and payable 30 days from the date of issue and will be paid by
you in US Dollars or the currency set out in your applicable payment plan. Unless
otherwise agreed in writing by us, you will pay the Charges by way of check or
electronic funds transfer to Our Account. You will pay invoices without any
set-off or counterclaim and without any withholding or deduction unless
required by law, in which case you will provide us with any document necessary
to enable us to recover or obtain a credit for the amount withheld or deducted.
7.3 If you have
reasonable grounds to dispute any portion of an invoice, you must pay the
undisputed portion, and notify us of the grounds for disputing the remainder. Our
records of your usage will be presumed accurate unless proved otherwise. If such
a dispute is resolved against you, you will pay the relevant portion of the
invoice and interest according to clause 7.4. You waive any right to challenge
invoices not disputed within one (1) year of the date of the relevant invoice,
in accordance with this clause 7.3.
7.4 Interest will accrue
and be paid by you on any sum invoiced but not paid in accordance with this
agreement from the date it is payable until payment (whether before or after
any judgement) at the annual rate of 1% above the base rate from time to time
of the Citibank, NA. If you do not pay any part of an invoice in accordance
with this clause 7, we may, at our sole discretion, suspend the provision of
any or all of the Services or serve a notice on you under clause 21.4.2.
7.5
Charges
are calculated according to your applicable Rate Sheet. We may change the Charges
on 30 days’ notice. The new Charges will take effect on the date set out in
the relevant notice. If you do not agree to the new Charges, you may terminate
this agreement on notice to us, to take effect on the date the new Charges are
introduced.
8.
Deposit
& Minimum Spend
8.1
If
a deposit is required under your agreement and you do not pay any invoice in
accordance with clause 7, we will be entitled to apply part or all of the
deposit as payment of any outstanding invoice. No interest is payable on any
deposit. If you fail to maintain the required deposit, we may suspend any or
all Services and serve a notice to you under clause 21.4.2.
8.2
If
a minimum spend applies to your agreement and the Charges arising from your use
of the Service in question are less than the minimum spend in any calendar
month, we will invoice, and you will pay, the minimum spend in respect of such
Charges for that calendar month. If such Charges are equal to or more than the
minimum spend in any calendar month, you will pay the actual Charges.
9. Tax
9.1
All
Charges are stated exclusive of and subject to any applicable sales tax or
other tax, duty, regulatory fee or other government levy, which will be invoiced
by us and paid by you at the prevailing rate. If a party is required to make a
payment by way of indemnity or reimbursement to the other party under this
agreement, the payment will only include any sales tax incurred by the other
party to the extent that it is not available as a sales tax credit to that
party or any person treated as a member of a group with that party for sales
tax purposes. If a party is required to repay or refund all or any part of a
payment to the other party, and is entitled to issue a valid sales tax credit
note, that party will issue an appropriate sales tax credit note when it makes
the repayment or refund, which will include the sales tax paid on that part of
the original payment.
10.
Passwords
10.1
Each
of you and your End Users use your Username and Password to access the
Service. You acknowledge that it is your responsibility to ensure that you and
End Users keep your respective Passwords secret and confidential. You must
immediately notify us (if we issued the password) or the Third Party (if they
issued the Password) if a Password is compromised and we or the TPA as
appropriate will issue a replacement.
10.2
YOU
ARE LIABLE FOR, AND WILL PAY ALL CHARGES FOR, ANY USE OF THE SERVICE BY ANY
PERSON, WHETHER AN END USER OR A THIRD PARTY, USING ANY PASSWORD ISSUED TO YOU
OR AN END USER UNLESS AND UNTIL YOU NOTIFY US THAT THE PASSWORD IN QUESTION HAS
BEEN LOST OR COMPROMISED. YOUR LIABILITY FOR ANY SUCH CHARGES WILL CEASE AT
THE TIME THAT THE LOSS OR COMPROMISE OF THE PASSWORD IN QUESTION IS NOTIFIED TO
US.
11. End Users
11.1
You
will be liable for all use of the Service by End Users and will use reasonable
efforts to ensure that all End Users comply with the terms of this agreement,
including that End Users will only use the Software and Materials in accordance
with this agreement. A person may only become an End User if they are your
director, officer (including, if you are a partnership, a partner), employee,
agent, subcontractor or consultant and you have adequate contractual rights to
enforce compliance with this agreement.
11.2 You assume all
liability for provisioning End Users with the Service in accordance with any
instructions issued by us from time to time. Save
in cases of personal injury, death or fraud, we will not be liable for any loss
or damage in contract, tort or otherwise (including loss of data and loss of
profit, whether direct or indirect), suffered by you or End Users due to your
provisioning of End Users.
12.
Third
Party Applications
12.1 You acknowledge and
agree that:
12.1.1
the
Service can only be integrated with certain TPAs (as notified to you by us from
time to time) and that you are solely responsible for obtaining all required
licenses from any Third Party to lawfully use any TPA and/OR to integrate the
Service with that TPA; and
12.1.2
notwithstanding
any notice from us as to the relative interoperability with any TPA, we assume no
liability and have no liability for (1) the operation of any TPA (whether when
used in conjunction with the Service or not), nor (2) the integration of the
Service with any TPA and any fault or error that may occur in the Service, the TPA
or any other software, middleware or hardware as a result of such integration.
12.2
Without
prejudice to clause 12.1 above, you acknowledge and agree that any Third Party:
only makes available a platform for marketing and use of the Service; and
accepts and assumes no liability to you regarding the Service. You hereby
release each and any Third Party from, and waive, any claim you may have in the
past, present or future, against such Third Party regarding the Service.
13.
Data
Protection
13.1
You
acknowledge and agree that:
13.1.1
for
us to provide the Service to you, certain of the User Data submitted by you
into the TPA with which you are allowed to use the Service under this agreement
will be shared with us, outside of the TPA, in order to provide the Service to
you; and
13.1.2
the
Third Party provider of such TPA is not responsible for the privacy, security
or integrity of any User Data once transferred to us by them.
13.2
We
will keep your User Data confidential in accordance with this agreement, our
privacy policy (available at all times at our Website) and applicable privacy
laws. We
will only act as a data processor regarding personal data provided to us under this
agreement, including User Data. As such, we will only process the personal
data in accordance with this agreement and any instructions notified to us by
you. We will take appropriate technical and organisational measures against
unauthorised or unlawful processing of the personal data and against accidental
loss or destruction of, or damage to, the personal data. In relation to all
other data, we will follow our then-current privacy policy published on the
Website, which is hereby incorporated into this agreement. Your continued use
of a Service indicates your acceptance to the then-current privacy policy and
its incorporation into this agreement.
13.3
You
acknowledge that the personal data provided to us by you and End Users may be
processed for the purposes of this agreement in the USA and/or the European
Economic Area, and you consent, and warrant that you have obtained any other
necessary consent from other persons, to such processing.
14. Permitted Use
14.1
You
will not, and you will use reasonable efforts to ensure that End Users do not,
use the Service, Software or the Website to make any communication or call or
upload, record or otherwise transmit, distribute or store any Customer Content
that in whole or in part: (a) infringes any third party's copyright, patent,
trademark, trade secret or other intellectual property or proprietary rights or
rights of publicity or privacy; (b) violates any law, statute, ordinance or
regulation (including without limitation the laws and regulations governing
export control, unfair competition, anti-discrimination or false advertising);
(c) is defamatory, trade libellous or harassing; (d) is obscene, an illegal
threat, harmful to minors or child pornographic; (e) is an automated or
unsolicited communications or communication broadcast or blasting unless in
accordance with all applicable laws (f) contains any viruses, Trojan horses,
worms, time bombs, cancelbots or other computer programming routines that are
intended to (or do in fact) damage, detrimentally interfere with, surreptitiously
intercept or expropriate any system, data or personal information including
making use of the Service, using memory space, sending emails, corrupting files
and compromising or affecting authentication and security information and
procedures; (g) is materially false, misleading or inaccurate; or (h) is
otherwise contrary to this agreement.
14.2
You
will not, and you will use reasonable efforts to ensure that End Users do not:
use the Service or the Website in any way that is contrary to this agreement or
that may have a material detrimental effect on our goodwill, the System, the
Service or the Website, including their performance, accessibility, security,
or use by any other person; rent, lease, grant a security interest in, resell,
sub-license (other than to valid End Users) or otherwise transfer any rights in
the use of the Service, Software or Materials to any person; act as a service
bureau for the Service; or allow access to the Software, Service or Materials
to any person other than in accordance with this agreement.
15. Your Acknowledgements
15.1
You
acknowledge and agree that: we may access the service as you and/or an End User
to monitor and test the service (provided that we will not become a party to
any call without the express consent of each party to that call in each
instance); the performance of the service is dependent on the performance of
your and End Users’ own telephone, computer or other device, software and
internet connection and you have sole responsibility for the provision of and
use of the same, at your own cost; although toll-free numbers can be called
using certain services, we will charge for such calls according to the Rate Sheet;
AND THAT THE SERVICE ONLY SUPPORTS OR ALLOWS CALLS TO ALLOWED NUMBERS AND DO NOT
SUPPORT OR ALLOW CALLS TO ANY EXCLUDED NUMBERS, INCLUDING EMERGENCY NUMBERS.
16.
Warranties
16.1
We
warrant
that we will
provide the Service to you in
accordance with this agreement and with reasonable care and skill.
16.2
You warrant
that: you and End Users are authorized to provide any personal data that you
provide to us; any such personal data is accurate and up-to-date, and any
relevant consent has been obtained for the processing of the same by us
(including transfer within and to the USA and the European Economic Area) in
accordance with this agreement.
16.3
Each
party warrants that: the person signing this agreement has been fully authorized
to do so on that party’s behalf; and that execution of this agreement is not in
conflict with any law, article of association or any agreement to which that
party is bound.
17. Exclusion of
Warranties/Disclaimer
17.1
YOU
AGREE THAT THE SOFTWARE AND SERVICE ARE PROVIDED ON AN ‘AS IS’ BASIS. WE DO
NOT WARRANT THAT THE SOFTWARE OR SERVICE WILL BE AVAILABLE AT ALL TIMES, OR ARE
FREE OF ERRORS, VIRUSES OR OTHER POTENTIALLY HARMFUL CODE. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL CONDITIONS OR WARRANTIES THAT MAY OTHERWISE BE IMPLIED BY LAW INTO THIS AGREEMENT INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY AND FITNESS FOR PURPOSE.
18. Limitation of
Liability
18.1 Nothing in this
agreement limits or excludes our liability for fraud or for death or personal
injury due to our negligence or wilful misconduct.
18.2
SUBJECT
TO CLAUSE 18.1, OUR LIABILITY TO YOU IN CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHERWISE IS LIMITED TO THE TOTAL SUMS PAID BY YOU UNDER THIS AGREEMENT IN
THE ONE YEAR PRIOR TO YOUR NOTIFICATION TO US OF ANY CLAIM.
18.3
SUBJECT
TO CLAUSE 18.1, IN NO EVENT WILL WE BE LIABLE TO YOU IN CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY LOSS OR DAMAGE DUE TO OR CAUSED BY:
SUSPENSION OF ALL OR ANY PART OF A SERVICE UNDER CLAUSE 20; ANY ACT OR OMISSION
OF YOURS OR YOUR OFFICERS, AGENTS, SUBCONTRACTORS OR END USERS IN BREACH OF
THIS AGREEMENT; OR THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SERVICE
DUE TO FORCE MAJEURE.
18.4
IN
NO EVENT WILL WE BE LIABLE TO YOU FOR EITHER (1) ANY LOSS OF DATA OR LOSS OF
PROFIT (WHETHER DIRECT OR INDIRECT), OR (2) ANY CONSEQUENTIAL, INDIRECT OR
SPECIAL DAMAGES, EVEN IF WE HAVE PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
18.5
THE
SERVICE DOES NOT SUPPORT OR ALLOW CALLS TO EMERGENCY NUMBERS. IN NO EVENT WILL
WE BE LIABLE TO YOU FOR ANY CALL OR FAILURE TO MAKE A CALL TO ANY EMERGENCY
NUMBER.
18.6
YOU
MUST GIVE US NOTICE OF ANY CLAIM UNDER THIS AGREEMENT WITHIN ONE YEAR OF THE
CLAIM ARISING.
19.
Indemnities
19.1 You will indemnify the
Ring2 Group, and our respective officers, employees, agents and contractors
against all reasonable costs (including reasonable legal costs), damages and
losses that we and the above may suffer (including damage to the Service, the Website,
the System, a claim by a third party or otherwise) arising out of or connected
to any: act or omission by you, your officers, employees, agents, contractors
and End Users or other person using the Service with any Password issued to you
or an End User (including any operation or malfunction of your computer or
communications systems) other than in accordance with the terms of this
agreement; your breach of this agreement; and any use of the Service other than
in accordance with the terms of this agreement or any applicable law.
19.2 Subject to clause 18,
we will indemnify you against any reasonable damages and costs (including
reasonable legal costs) incurred by you as a result of a claim brought by a
third party alleging that the Software directly infringes that third party’s IPR,
provided that you: notify us of any such claim promptly in writing; give us
sole control of any defence; cooperate with us in the defence; do not settle
without our prior written approval (which will not be unreasonably withheld or
delayed); and are not in breach of any of your obligations under this
agreement. If such a claim is made, we may, at our sole discretion: change the
Software to avoid any potential infringement; obtain the rights for you to
continue using the Software; or terminate this agreement. This clause 19.2
sets out your sole remedy in relation to such third party claims.
20. Maintenance & Suspension
20.1
We
reserve the right to suspend the use of the Service by you or any End User: if
we suspect fraudulent use or other use of the Service in breach of this
agreement; for planned or emergency maintenance, or other technical,
operational and security reasons; if we believe your conduct may create liability for
us or our suppliers; or if we are obliged to comply with an order, instruction
or request of a court, government agency, emergency service organisation or
other legally competent administrative or regulatory authority. We will use
our best efforts to give you reasonable notice of any suspension, cessation or
alteration but you acknowledge that it may not always be possible to do so.
21. Term & Termination
21.1
You
may terminate this agreement without cause on one month’s notice.
21.2
We
may terminate this agreement without cause on three months’ notice.
21.3 Either party may
terminate this agreement:
21.3.1
immediately
by notice due to a material breach of this agreement by the other party which
is incapable of remedy;
21.3.2 immediately by notice
due to a material breach of this agreement by the other party which is capable
of remedy, but which that party has not remedied within one month of having
been given notice to do so;
21.3.3
immediately
by notice if, regarding this agreement, Force Majeure has continued for a
period of at least three months; and
21.3.4
immediately
by notice if the other party has a receiver or administrative receiver
appointed over it or any part of its assets, business or undertaking or passes
a resolution for winding up (other than for a bona fide scheme of
reconstruction or solvent amalgamation) or a court of competent jurisdiction
makes an order to that effect or if the other party becomes subject to an
administration order or enters into any voluntary arrangement with its
creditors or ceases or threatens to cease carrying on its business, has a
liquidator appointed, enters into liquidation, or suffers or undergoes an
analogous proceeding under any foreign law.
22. Consequences of
Termination
22.1
On
termination of this agreement: all un-invoiced Charges will become due; we will
issue an invoice to you regarding the same and you will pay the invoice
according to clause 7; all licences granted under this agreement will
immediately terminate; you will immediately cease (and ensure End Users cease)
all use of the Service, System, Materials and Software; you will immediately
return or destroy, at our sole discretion, all Materials, Software, our
Confidential Information and any copies made by you or End Users in any current
of future medium; any rights and obligations to which the parties are entitled
or subject prior to termination will continue in force; clauses 5, 7.4, 9, 17, 18,
23, 25 and 29 will continue in force; and all other rights and obligations of
the parties under this agreement will cease.
23. Confidentiality
23.1
The
Recipient will maintain the Disclosing Party’s Confidential Information in the
strictest confidence, will not make use of the Confidential Information other
than for the purpose of carrying out this agreement, and will only make such
copies of any of the Confidential Information as are reasonably necessary for
carrying out this agreement.
23.2
The
Recipient will not disclose any of the Disclosing Party’s Confidential
Information to any third party without the Disclosing Party’s prior written
consent, save that the Recipient may disclose the Confidential Information: to
those of its employees, agents or contractors who need to have access to it for
the Recipient to carry out its obligations under this agreement, provided that
the Recipient ensures that such person is bound by written obligations (in an
employment contract or otherwise) to keep the Confidential Information
confidential and to use it solely for carrying out this agreement; and in
accordance with any law or order of a court or other legally competent
authority or regulatory body, provided that the Recipient gives the Disclosing
Party as much notice of the disclosure as is reasonably practicable.
23.3
The
Recipient will, on the Disclosing Party’s request at any time, immediately
return or destroy all such documents or other material containing or embodying
the Disclosing Party’s Confidential Information, together with all copies in
any medium, and will ensure compliance with this clause by any person to whom
such information has been disclosed.
23.4
The
Recipient acknowledges that disclosure of any of the Disclosing Party’s
Confidential Information in breach of this clause may cause irreparable damage
to the Disclosing Party, that damages may not be an adequate remedy, and that
the Disclosing Party will be entitled to apply for an injunction to prevent or
minimise any threatened or actual breach of this clause 23.
24.
Access
and Audit
24.1
You
will, at your own cost and as we reasonably request from time to time, provide
us and our representatives with access to information, documents, premises and
personnel: as is necessary to determine whether the Service can be provided to
you; and, where we have reasonable grounds to suspect otherwise, for us to
confirm that your and End Users’ use of the Service is in accordance with this
agreement. If you challenge all or any part of an invoice under clause 7.3, we
will provide you with the relevant information concerning the challenged
invoice or part thereof, as you may reasonably request.
25. Entire Agreement &
Counterparts
25.1
This
agreement constitutes the entire agreement between the parties relating to its
subject matter and supersedes any prior agreements, undertakings,
representations, warranties and arrangements of any nature, relating to the
same. Each party acknowledges that it has not been induced to enter into this
agreement by any representation or warranty other than those contained in this
agreement and agrees that it has no remedy in respect of any other such
representation or warranty except in the case of fraud. For the avoidance of
doubt, this is an agreement for services and the United Nations Convention on
Contracts for the International Sale of Goods is hereby expressly excluded. Each
party acknowledges that its legal advisers have explained to it the effect of
this clause.
25.2
This
agreement may be executed in any number of counterparts, which will together
constitute one agreement. A copy of this agreement that is executed by a party
and transmitted by that party to the other party by facsimile or email will be
binding upon the signatory to the same extent as a copy hereof containing the
signatory’s original signature.
26.
Changes
26.1
The
parties may amend this agreement at any time, such amendment only to take
effect when made in writing and signed by both parties. Without prejudice to
any separately negotiated terms and your Order Form, we may change these terms
and conditions at any time by notice to you or by posting a new version of the
relevant terms on the Website. The new terms will take effect from the date of
the notice or when posted on the Website (or as otherwise specified in the new terms),
will replace and supersede all previous versions of the relevant terms, and be
incorporated into this agreement. Your continued use of the Service is your
agreement to any such new terms.
27.
Export
& Government Use
27.1
You
agree that you will not export or re-export the Software or Services in any
form in violation of any export law of any jurisdiction. You will defend,
indemnify, and hold harmless us and our suppliers from and against any
violation of such laws by you or any of your End Users.
27.2
For
the avoidance of doubt, use of the Software and Services by the United States
Government or other governmental agencies shall be as "restricted computer
software" or "limited rights data" as set forth in "Rights
in Data - General" at 48 CFR 52.227-14, or as "commercial computer
software" or "commercial computer software documentation" under
DFARS 252.227-7015, or under such other similar applicable terms and conditions
to prevent the transfer of rights in and to the technology to the government
other than as set out in this agreement.
28. Notices
28.1
Any
notice given under or in connection with this agreement must be given in
writing, in English, properly addressed and either: hand-delivered (deemed
given when delivered); sent by first class pre-paid post (deemed given two
Business Days after the date of posting, if posted within the USA, or seven
Business Days if posted from outside the USA); sent by fax (deemed given when
sent, provided no report of unsuccessful transmission is received by the
sender); or sent by email (deemed given when sent, provided no message of
non-delivery is received by the sender and the notice is given by another
method within twenty four (24) hours). Any notice delivered or sent outside
Business Hours will be deemed delivered or sent at the start of the next
Business Day.
28.2 Subject to
notification of any change, your notice details are set out in your Order Form
and our notice details are: 400 2nd Street, Suite 450, San Francisco, CA
94107, U.S.A, for delivery or posting; +1 415 947 0461 for fax; and legal@ring2.com for email.
29. Dispute Resolution
& Governing Law
29.1
If
any dispute arises in connection with this agreement, the parties will first
attempt to settle it by negotiation, failing which the parties will refer it to
mediation in New York, in accordance with the Judicial Arbitration and
Mediation Services, Inc. (‘JAMS’) applicable rules. Unless otherwise
agreed between the parties, the mediator will be nominated by JAMS. The
commencement of mediation will not prevent a party commencing or continuing
legal proceedings for interim relief, including an injunction, to protect its
Confidential Information or Intellectual Property Rights
29.2
This
agreement shall be governed by, and construed in accordance with, the laws of
the State of New York, excluding its conflict of laws principles. Any action
seeking enforcement of this agreement or any provision hereof shall be brought
exclusively in the state or federal courts located in the State of New York.
Each party hereby agrees to submit to the jurisdiction of such courts.
30. Miscellaneous
30.1
Neither
party will be in breach of this agreement or otherwise liable to the other
party as a result of any delay or failure in the performance of its obligations
under this agreement to the extent that such delay or failure is caused by Force
Majeure and the time for performance of the relevant obligation shall be
extended accordingly. Nothing in this clause exempts you from paying any
invoiced Charges due to Force Majeure and interest will continue to apply to
unpaid amounts according to clause 7.4.
30.2
Save
for our Affiliates in respect of the indemnity in clause 19.1, no person who is
not a party to this agreement will have any rights to enforce any term of this
agreement.
30.3
We
may use contractors to provide any Service to you. Such use of contractors
will not release us from any obligation or liability under this agreement. We
may assign this agreement, or any or all of our rights under this agreement, on
notice to you. You may assign this agreement in its entirety to any other person
on prior written notice to us. This agreement shall be binding upon, and shall
inure to the benefit of, the heirs, successors, assigns, and personal
representatives of each of the parties.
30.4
No
failure or delay by either party to exercise or enforce any right or benefit
under this agreement will be deemed a waiver of such right or benefit, nor
operate to prevent or limit the future exercise or enforcement of that right or
benefit. If any term or condition of this agreement is held invalid, void or
otherwise unenforceable by any court, governmental agency or authority of
competent jurisdiction, the remainder of this agreement will remain valid and
enforceable
30.5
The
parties are independent contractors and nothing in this agreement, and no
action taken by either party, will constitute or be deemed to constitute a
partnership, agency or joint venture between the parties.
30.6
Either
party may at all times state that you are (or were) our customer and a user of
the relevant Service(s), including by statements to that effect in either
party’s marketing material, press releases, brochures and websites, provided
that such statements are in good faith and not prejudicial to the other named
party.
