By downloading the IntelePeer client software application(s) (“SmartCommunicator”) from this third party marketplace (“Marketplace”) to use in conjunction with the IntelePeer Voice Services and Communications Platform as a Service, you acknowledge that you have the authority to bind your company (“you”, “your”, and “Customer”) to these Terms of Service (“Terms”) with IntelePeer Cloud Communications, LLC (“we,” “us,” “our,” and “IntelePeer”), and agree to review and accept these Terms on behalf of your company, to use SmartCommunicator for your company. These Terms will govern the Customer’s activation of the SmartCommunicator. IntelePeer or Customer may authorize any entity, which controls, is controlled by, or is under common control with, such Party, including, but not limited to, having the ability to elect a majority of the governing body (“Affiliate”), to perform obligations or exercise rights under these Terms, provided that the Party remains liable for the satisfaction of all obligations under these Terms. PLEASE REVIEW THESE TERMS CAREFULLY. YOUR ACCEPTANCE OF THESE TERMS BECOME A BINDING LEGAL CONTRACT BETWEEN YOUR COMPANY AND INTELEPEER WITH RESPECT TO YOUR ACTIVATION OF SMARTCOMMUNICATOR. IF YOU DO NOT AGREE FOR YOUR COMPANY TO BE BOUND BY THESE TERMS, YOU SHOULD NOT DOWNLOAD OR USE SMARTCOMMUNICATOR.
All notices will be sent in writing to IntelePeer at firstname.lastname@example.org and to customer at the email provided in the Marketplace when downloading SmartCommunicator. Customer agrees to also maintain accurate contact information with IntelePeer for all notifications. The Parties agree that any service of process delivered by electronic mail to a Party’s address set forth above will be effective service of process for any action, suit or proceeding brought against such Party in any such action, suit or proceeding.
2.1 IntelePeer grants Customer a non-exclusive, non-transferable, non-sublicensable, limited, revocable license to use SmartCommunicator for the purpose of obtaining access to utilize the multi-channel communications services offered by IntelePeer under a separate services agreement, provided that Customer complies with these Terms. References to Third Party Marketplace Application(s) include any associated software, automation, analytics, application programming interfaces (“APIs”), programs, features, functions, bots, instructions, code samples, technical support, technical documentation, and any modifications or enhancements to the foregoing, in connection with the use of Third Party Marketplace Application(s).
2.2 IntelePeer may make additions, changes or updates to SmartCommunicator along with any associated specifications, security, technical configurations, and features, without additional notice, to reflect changes in, among other things laws, regulations, rules, technology, industry practices, patterns of use and availability of third party offerings, provided that such changes do not materially reduce the level of performance, functionality, or availability of SmartCommunicator. IntelePeer will use commercially reasonable efforts to avoid making changes to SmartCommunicator which are not backwards compatible, and to provide Customer written notice prior to implementing any changes which are not backwards compatible.
2.3 Customer Responsibilities. Customer acknowledges that IntelePeer relies on Customer’s adherence to these Terms as an essential basis of the bargain between the Parties as to the offering of SmartCommunicator to Customer, and that any violation these Terms will constitute a material breach for which IntelePeer may immediately terminate SmartCommunicator without advanced notice, notwithstanding anything in the Terms to the contrary. Customer agrees to obtain and retain all documentation sufficient to demonstrate the compliance set forth in these Terms, and to provide such documentation to IntelePeer upon written request.
2.3.1 Customer is solely responsible for: (i) any and all use of SmartCommunicator, including without limitation whatever content is communicated; (ii) exercising all reasonable precautions to prevent unauthorized access to or use of SmartCommunicator; (iii) obtaining affirmative consent from any third party for IntelePeer, and its subprocessors, to access and use all information from the Customer as necessary to provide SmartCommunicator and ensure quality control; and (iv) all acts or omissions that otherwise occur on the Customer account.
2.3.2 Customer warrants that, in its configuration and use of Third Party Marketplace Application(s), Customer: (i) has reviewed and will comply with these Terms; (ii) will be solely responsible for compliance with all applicable international, federal, state, provincial or local laws, rules and regulations in connection with any requirements governing interactions of the Customer with third parties in any jurisdiction, including without limitation, any information security or privacy protections such as the Health Insurance Portability & Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act of 2009 (“HIPAA”), the California Consumer Privacy Act (“CCPA”), the European Union General Data Protection Regulation 2016/679 (“EU GDPR”), and accompanying regulations; (iii) will adhere to any applicable industry standards, policies and guidelines (“Industry Guidelines”) around content, advertising and campaign materials (“Content Standards”); (iv) will only access and use SmartCommunicator only to the extent authorized and for no other purpose; and (v) will refrain from use, collection, disclosure or storage of information which: (a) is about individuals without their explicit consent or under false pretenses, (b) includes governmental identification numbers, credit card information, security credentials, demographics about the user(s), personal health information of any kind, or any other sensitive information of any kind, (c) contains material that is obscene, profane, libelous, or defamatory, or (d) is otherwise in violation of this Terms.
2.3.3 After cancellation of SmartCommunicator, Customer will have thirty (30) days to obtain copies of any stored information at that time, otherwise IntelePeer will delete such information pursuant to its record retention requirements without additional notice. If Customer has obtained copies of any software for the performance of the Third Party Marketplace Applications, Customer must discontinue use upon termination of this Terms, and irrevocably erase the software including without limitation any archival copies.
3. TERM AND CANCELLATION
3.1 Customer may cancel its Third Party Marketplace Application(s) at any time without liability. Such cancellation has no effect on the terms agreed upon by the Parties in an executed services agreement to enable services over SmartCommunicator.
3.2 Upon violation of these Terms or inactivity for over ninety (90) consecutive calendar days, IntelePeer reserves the right, in its sole and reasonable discretion and without additional notice, to immediately suspend the availability of SmartCommunicator and permanently delete any information Customer may have provided to IntelePeer while downloading the Third Party Marketplace Application, without any additional notice or liability.
3.3 IntelePeer may discontinue offering SmartCommunicator upon sixty (60) days’ written notice to any Customer actively using SmartCommunicator in the three (3) months prior to the notice.
3.4 Survival. The rights and obligations, which by their nature should survive these Terms, will survive termination or expiration of these Terms.
4. PAYMENT TERMS. IntelePeer makes SmartCommunicator available at the charge agreed to by the Parties in the Order Form.
5. WARRANTY DISCLAIMER. IntelePeer will only provide Third Party Marketplace Application(s) expressly on the condition that Customer uses SmartCommunicator in accordance with these Terms and any product documentation provided. IntelePeer cannot guarantee the delivery, accuracy, content, efficacy, reliability, security, timeliness, or completeness of SmartCommunicator or the associated performance. INTELEPEER DOES NOT WARRANT THAT USE OF THIRD PARTY MARKETPLACE APPLICATION(S) OR ACCESS TO INTELEPEER PLATFORMS OR SYSTEMS WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, INTELEPEER DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, SERVICES OR SOFTWARE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THIRD PARTY MARKETPLACE APPLICATION(S) WILL BE FOR INTELEPEER TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR SMARTCOMMUNICATOR. ALL SUCH DISCLAIMERS OF WARRANTY WILL BE ENFORCED ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.1 Each Party will indemnify, defend and hold harmless the other Party and its officers, directors, employees and agents, from and against any and all loss, damages finally awarded, settlement, costs or expense (including reasonable attorney’s fees and court costs) resulting from or arising out of any third party claim which arises from a material breach by the indemnifying Party of any obligation, representation or warranty under these Terms; or from an allegation of infringement, misappropriation or violation of any third party intellectual property rights not subject to the these Terms.
6.2 Exclusions. IntelePeer will have no obligations with respect to infringement of intellectual property to the extent any claim arises from Customer: (i) using Third Party Marketplace Application(s) in combination with data, products, programs, services or equipment not authorized by IntelePeer in writing; (ii) not complying with specifications or directions provided by IntelePeer; or (iii) failing to use replacement technology or services provided by IntelePeer to avoid an infringement claim. Customer agrees that any indemnification obligations of IntelePeer do not extend to any Open Source software used as part of SmartCommunicator.
6.3 Notice and Assistance. Each Party will provide prompt written notice of any claim for which the other Party may have an indemnification obligation pursuant to Section 6, and will provide the other Party with reasonable assistance in defending such claim. The indemnifying Party will be liable to the indemnified Party for any costs or attorneys’ fees incurred by indemnified Party to establish or enforce these rights to indemnification under this Section 6.
6.4 Sole Remedy. THE FOREGOING ARE INTELEPEER’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
7. LIMITATIONS OF LIABILITY
7.1 NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE, LOST SALES, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, COST OF SUBSTITUTED FACILITIES, EQUIPMENT OR SERVICES, OR ANY AMOUNT PREVIOUSLY EXPENDED IN CONNECTION WITH THESE TERMS, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, NEGLIGENCE OR TORT, INCLUDING STRICT LIABILITY, EVEN IF THE HARMED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF ANY REMEDY UNDER THESE TERMS IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
7.2 INTELEPEER WILL HAVE NO LIABILITY ASSOCIATED WITH ANY INFORMATION PROVIDED BY CUSTOMER UNDER THESE TERMS BEYOND ITS OBLIGATIONS PURSUANT TO APPLICABLE LAW AND THE EXPLICIT TERMS OF THIS TERMS. IN NO EVENT WILL INTELEPEER’S AGGREGATE LIABILITY TO CUSTOMER FOR CLAIMS, ACTIONS, LIABILITIES OR EXPENSES ARISING FROM, OR IN CONNECTION WITH, THESE TERMS EXCEED FIVE HUNDRED DOLLARS ($500.00).
7.3 ALL LIMITATIONS OF LIABILITY WILL ONLY BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND WILL NOT APPLY TO ANY CLAIMS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR ARISING FROM DEATH OR PERSONAL INJURY IN CONNECTION WITH CUSTOMER’S USE OF SMARTCOMMUNICATOR.
7.4 To the extent applicable law permits, Customer releases IntelePeer from any claims or liability related to the responsibilities not expressly set forth in these Terms, and waives California Civil Code Section 1542, or similar provision in any jurisdiction.
8. PROPRIETARY RIGHTS. These Terms and all information exchanged between the Parties in performance of these Terms will be subject to the IntelePeer Proprietary Policy at www.intelepeer.ai/terms/proprietary-policy/, which IntelePeer reserves the right to amend from time to time. For the purposes of the Policy, the term “Agreement” includes these “Terms”.
9. GENERAL PROVISIONS
9.1 Governing Law. These Terms will be governed by and construed in accordance with the laws of California without reference or application of conflict of law rules. The Parties consent exclusively and irrevocably to the jurisdiction and venue of any competent court in the Northern District of California for any legal action arising under these Terms, and expressly waive any right to a jury trial. If any provision of these Terms is unenforceable, the remaining provisions will remain in full force and effect.
9.2 Assignment. Customer may not assign these Terms without prior written consent of IntelePeer, which will not be unreasonably withheld, except that Customer may assign these Terms pursuant to any sale or transfer of substantially all of the business, subject to IntelePeer approving the credit of any surviving entity. These Terms will bind and inure to the benefit of the Parties and their respective successor and assigns. Any attempt to assign these Terms, without such consent, will be null and void.
9.3 Force Majeure. Except for Customer’s obligation to pay for Third Party Marketplace Application(s) rendered under these Terms, neither Party will be responsible for any failure or delay in its performance under these Terms, in whole or in part, due to causes beyond its reasonable control, including but not limited to: acts of God, fire, explosion, vandalism, earthquake or other natural occurrences; any law, order, regulation, action or request of any government entity; any civil or military authority; or any national emergencies, riots, or wars.
9.4 Attorneys’ Fees and Costs. In the event of any litigation or arbitration related to these Terms, the prevailing party shall be entitled to all reasonable and documented attorneys’ fees, costs, and expenses relating to the matter regardless of whether these Terms or any relevant provision is held to be invalid.
9.5 Severability. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permissible and the remaining provisions of these Terms will remain in full force and effect, if the essential provisions of these Terms for each party remain valid, legal, and enforceable.
9.6 Waiver. The failure by either Party to enforce any provision of these Terms will not constitute a waiver of future enforcement of any provision in these Terms.
9.7 Applicable Law. Each Party will perform its obligations and assert its rights under these Terms in accordance with all applicable laws and regulations. Each Party is solely responsible for obtaining all licenses, approvals and regulatory authorities necessary for its use or provision of any service associated with these Terms.
9.8 Export and Import Regulations. Customer acknowledges that applicable laws and regulations of the United States and other foreign countries may restrict the export and re-export of certain commodities and technical data of United States origin, including associated software, and represents that Customer is not, and will immediately discontinue use of SmartCommunicator were it to be, on any government exclusion list, under the control of or agent for any entity on such list, or located in any jurisdiction in which the provision of the Atmosphere® Marketplace or any Applications or other components is prohibited under any applicable laws.
9.9 Allocation of Risks. The Parties acknowledge and agree that each Party has entered into these Terms in reliance on the limitations, disclaimers and indemnifications set forth herein, that such limitations, disclaimers and indemnifications reflect an allocation of risk between the Parties and form an essential basis of the bargain between the Customer and IntelePeer.
9.10 Disputes. If Party does not report a dispute within one (1) year of when the disputed activity occurred, such Party is deemed to have waived all rights associated with the dispute; provided that this limitation does not change any right to enforce against any repeated or continuing activity being disputed. If the Parties cannot resolve a dispute through informal dispute resolution, a Party may submit the dispute for binding arbitration with a sole arbitrator in accordance with the rules established by the American Arbitration Association (“AAA”). The Parties agree that the only circumstances in which a dispute will not be subject first to arbitration are where: (i) a Party makes a good faith determination that a breach of these Terms by the other Party is such that a temporary restraining order or other injunctive relief is the only appropriate and adequate remedy; or (ii) a Party seeks to exercise the right to enforce the judgment. The Parties agree to conduct all arbitrations in San Francisco, California, unless the Parties mutually agree otherwise. The Parties agree that the arbitrator will be knowledgeable about the subject matter of the Dispute, will control the scheduling so as to process the matter expeditiously, and will only have the authority to make decisions permitted by the terms of these Terms, including without limitation any limitations of liability of the Parties. The decision of the arbitrator will be final and binding on all parties, may only be appealed for mistakes of law, and will be entered in any court having jurisdiction for rendering of judgment.
9.11 Entire Agreement. These Terms constitute the complete understanding and agreement of the Parties and supersedes all prior or contemporaneous agreements, communications or understandings, oral or written, relating to the subject matter in these Terms. The rights and obligations of the Parties will inure to Affiliates and may be directly enforced by or against such Affiliates. Electronic signatures or acceptance will constitute an original signed document as applicable. The Parties agree to read any other Third Party Marketplace Application(s) document together with these Terms to avoid inconsistent interpretations. However, in the event of irreconcilable conflicts between the provisions of these Terms and any other document, these Terms will govern with respect to SmartCommunicator. Except as otherwise set forth in these Terms, any waiver or amendment of any provision of these Terms will be valid and binding only if in writing and signed by duly authorized representatives of the Parties.