By using and registering on the service website (the "Website") and using the Services as provided therein, You (hereinafter referred to as "You", "Your" or "Yourself") represent that You have read and agree to the terms and conditions set forth herein or on the Website (the "Agreement"). This Agreement constitutes a legal and binding contract between You and GENBAND. This Agreement will remain in effect throughout Your use of the Services and will continue after it expires, is cancels or is terminated. You may not use the Service or register on the Website if (a) You are not of legal age to form a binding contract with us, or (b) You are a person barred from receiving or using the Services under the laws of the United States or other countries including the country in which You are a resident or from which You use the Services. The terms and conditions set forth herein may be amended in our sole and absolute discretion from time to time, and such amended terms and conditions shall be effective immediately upon posting to the Website. Your continued use of the Service after such posting will constitute acceptance by You of such amendments. It is Your responsibility to review these Terms frequently and remain informed about any changes to them, so we encourage You to visit this page often.
"Affiliate" means with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where "control" means ownership of fifty percent (50%) or more of the outstanding voting securities (but only as long as such person or entity meets these requirements).
"Confidential Information" means this Agreement, the Genband Technology, the Service, Documentation, GENBAND pricing information, and any other information disclosed by GENBAND to You in connection with this Agreement that You acting reasonably, would consider as confidential including any information of which unauthorized disclosure could be detrimental to the interests of GENBAND whether or not such information is identified as Confidential Information by the GENBAND.
"Customer Data" means any files, recordings, sound, music, graphics, images, code or other content provided or submitted by You or Your End Users to or through the Service including but not limited to information pertaining to You or Your End Users' IP address, username, password, name, email address and Personal Data. In no event will Customer Data include Genband Technology, GENBAND Intellectual Property Rights, Documentation or other Confidential Information.
"Documentation" means the online manuals, Service Description and help GENBAND provide for use in connection with the Service.
"End User" means a customer of Yours, to whom You provide a license for use of the features, applications, data or other outputs that You generate through Your use of the Service in Your ordinary course of business.
"GENBAND" means Genband U.S. L.L.C. if You are located within the United States, Canada, Anguilla, Antigua, Aruba, Bahamas, Barbados, Bermuda, British Virgin Islands, Cayman Islands, Curacao, Dominica, Dominican Republic, Grenada, Haiti, Jamaica, Montserrat, Puerto Rico, St. Kitts, St. Lucia, St. Maarten, St. Vincent (& the Grenadines), Trinidad, and Turks & Caicos or Genband Ireland Ltd. if You are located within any other territory or country.
"Genband Technology" means GENBAND's proprietary software (in all forms including source code and executable forms) and other owned GENBAND technology provided via the Service, including any enhancements, modifications, and derivative works to any of the foregoing.
"Intellectual Property Rights" means worldwide patents, inventions (whether patented or not), copyrights, trademarks, service marks, trade names, domain name rights, know-how, Confidential Information, trade secret rights, moral rights and all other intellectual property rights and similar forms of protection.
"Open Source Software" means source code subject to the terms of public, free and open source licenses, including, but not limited to, the GNU General Public License and the GNU Lesser General Public License. The GNU General Public License and the GNU Lesser General Public License can be viewed at http://www.gnu.org/licenses/gpl.html and http://www.gnu.org/licenses/lgpl.html, respectively.
"Order" means Your request for Services as submitted through the Website which identifies the Service(s) to be provided by GENBAND and the fees associated therewith. Any and all GENBAND accepted Orders are deemed incorporated herein by this reference.
"Output" means the features, applications, data or other outputs that You generate or obtain through Your use of the Service.
"Personal Data" means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.
"Pre-Existing IPR" of a party means any proprietary or Intellectual Property Rights of such party, or its third party licensors, that is conceived, created, or developed (i) prior to use of the Service or Website, or (ii) is entirely unrelated to any Services provided by GENBAND under this Agreement and, with respect to You, does not include any portion or derivative work of Genband Technology or GENBAND Intellectual Property Rights.
"Service(s)" means, the service platform, the Website, any services as described on the Website including any associated Software Development Kits ("SDKs") and/or any ancillary products or services provided to You by GENBAND.
"Service Term(s)" means the time period beginning with the first payment in full of an Order, if applicable, or beginning with your acceptance of the Terms if no charges are due, during which You may use the Service.
"Support Services" means the support services, if any, offered by GENBAND and if paid in full by You as specified in the Support Services on the Website.
PROVISION OF SERVICE AND GENBAND TECHNOLOGY
Access Right; License Grant. Subject to payment of any applicable fees, You shall be granted license (the "License") to use the Services as set forth in this Agreement. The Services are licensed on a subscription basis and not sold. The License shall be a non-exclusive, non-sublicensable, revocable, limited term, nontransferable right to access and use the Service including its SDKs listed on the Website to create Output, as allowed by the Service during the Service Term, solely for Your internal business purposes and to provide services to Your End Users as set forth in Section 2.3 (End User Rights). GENBAND reserves all rights not expressly granted hereunder. GENBAND may create and maintain administrative, support, system, and maintenance accounts within the Service, all with data access for GENBAND and its assigned agents and/or other service providers, in order to deliver the Service.
Access and License Restrictions. Except as expressly set forth in this Agreement as permitted during the Service Term, You will not (i) license, sublicense, grant access or use, sell, transfer, assign, distribute, rent, lease, time share or otherwise commercially exploit the Service or Genband Technology to any third party; (ii) modify or create derivative works based on the Service or Genband Technology and to the extent any such derivative works are permitted to be created as set forth herein, such derivative works are owned solely by GENBAND and You agree to and do hereby assign all rights, title and interest in and to any such derivative works and all associated Intellectual Property Rights to GENBAND and You are not licensed to use any such derivative works absent a written agreement from GENBAND granting such license; (iii) create Internet "links" to the Service or "frame" or "mirror" any content provided in connection therewith; (iv) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Service or the Genband Technology in whole or in part, except as and only to the extent this restriction is prohibited by law; (v) copy any features, functions or graphics of the Service or Genband Technology; (vi) remove or obscure any proprietary or other notice contained in the Service or Genband Technology; or (vii) disclose or publish performance benchmark results for the Service or Genband Technology. User accounts and subscriptions cannot be shared or used by more than one individual.
End User Rights. You may, subject to the terms of this Agreement, grant to Your End Users a limited, non-exclusive, non-sublicensable, nontransferable, revocable license to use the Outputs for such End Users' internal business purposes, provided that (i) such license restricts End Users’ use to that which is solely in conjunction with GENBAND products and services that such End Users are licensed or otherwise authorized to use in their telecommunications networks, and (ii) such End Users agree to be bound contractually by and comply with the terms of (a) this Agreement and (b) any additional terms that GENBAND may notify You of in writing or in Documentation with respect to any unique requirements of any Genband Technology. You shall be solely responsible for the acts, errors or omissions of Your End Users.
YOUR RESPONSIBILITIES AND USE LIMITATIONS.
It is Your responsibility, and GENBAND shall have no responsibility, to ensure that You have the right to use the Service in compliance with the laws where it is located, as well as where End Users are located. You represent and warrant that You and Your agents, employees, representatives, consultants or subcontractors are not persons or entities appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which GENBAND is prohibited from doing business. You further represent that the Service shall not be used for or in connection with nuclear activities, the development of biological or chemical weapons, missiles, unmanned aerial vehicles, to support terrorist activities, organized crime or in any other way that would violate U.S. export controls or economic sanctions laws. You agree to promptly notify GENBAND and cease use of the Service if You discover that any of the foregoing conditions apply. You will be responsible and liable for any and all access to and use of the Service by any person logging in under a user ID registered under Your account or providing and/or receiving Customer Data or other information through the Service. You acknowledge that Your access information, including user IDs and passwords, will be Your "key" to the Service and, accordingly, You will be responsible for maintaining the confidentiality and security of such access information (including each user ID and password). You will: (i) notify GENBAND immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) immediately terminate access to the Service for any person or entity who You suspect or know has committed a security breach; (iii) report to GENBAND immediately and use reasonable efforts to stop immediately any copying or distribution of Genband Technology that is known or suspected by You or Your End Users; and (iv) not impersonate another GENBAND authorized user or provide false identity information to gain access to or use the Service.
Customer Data. You grant GENBAND and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, non-transferable (except as provided under an authorized assignment), sublicensable, limited right and license to host, cache, copy, process, store, display and retrieve information associated with the Customer Data for the purpose of and in conjunction with Your use of the Service. You warrant that You have obtained express consent from Your End Users to transfer Customer Data to GENBAND and to process the Customer Data as contemplated by the Service. You agree that GENBAND may transfer Customer Data to the United States and/or another country outside the European Economic Area as well as outside other countries deemed to have adequate data protection laws. GENBAND is a data processor (or sub-processor) acting on Your behalf and You appoint and authorize GENBAND and its Affiliates and subsidiaries (and their successors and assigns, contractors and business partners) to transfer to, store and process Customer Data in any country where GENBAND uses facilities in connection with the Service in order to provide the Service to You. You acknowledge and agree that GENBAND may, in performing its obligations pursuant to this Agreement, be dependent upon or use Customer Data, material and other information furnished by You without any independent investigation or verification thereof, and that GENBAND shall be entitled to rely upon the accuracy and completeness of such information. You acknowledge and agree that GENBAND is not responsible in any manner for Customer Data, including any loss, damage or liability arising from the loss of Customer Data, and You assume all risk related to the transmission of Customer Data to the Service. You will be fully responsible for the Customer Data and will indemnify, defend and hold harmless GENBAND against any claims, losses, and damages with respect to any third party claims of infringement pertaining to such Customer Data in accordance with the provisions of Section 12 (Indemnification) below. In addition to its other rights and remedies, GENBAND may remove Customer Data from the Service at any time if GENBAND in its sole discretion determines that You have violated this Agreement.
Back Ups and Security. GENBAND will not have any obligation to provide You or End Users with any backup of Customer Data or Output nor will GENBAND be responsible for storing or maintaining any such data. You agree to monitor the created, inputted or generated Customer Data and Output, and to create backups for both archival and emergency recovery purposes on a regular basis. GENBAND shall have no obligation to You or End Users with respect to creating any backup copies of such information. As applicable, You shall instruct End Users on the methods for making and using such Customer Data backups and ensure that End Users understand that neither GENBAND nor You shall have any obligation to create or recover lost Customer Data. You acknowledge that Your use of, or connection to, the Internet provides the opportunity for unauthorized third parties to illegally gain access to the Service and Customer Data. GENBAND cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet, or otherwise, or that any security precautions that GENBAND takes will be adequate or sufficient.
INTELLECTUAL PROPERTY RIGHTS. Except as espressly set forth in Section 3 (Your Responsibilities and Use Limitations) above, as between GENBAND and You, You own all Customer Data. GENBAND and/or its licensors own and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the Service, the Genband Technology, including without limitation the SDKs and APIs, the Documentation, Confidential Information and any related suggestions, inventions, concepts, designs, ideas, enhancement requests, and feedback associated therewith. You acknowledge that the GENBAND name, the GENBAND logo, and the product names associated with the Service are trademarks of GENBAND or third parties, and no license to such marks is granted herein. You acknowledge and agree that (i) access to the Service by You is licensed, not sold and You acquire no ownership or other interest (other than the license rights expressly stated herein) in or to the Service, and (ii) the Service is offered as an on-line, hosted solution, and that You have no right to obtain a copy of the Service or the Genband Technology itself. You acknowledge and agree that any Output, or Intellectual Property Rights created by You using the Service is wholly owned by GENBAND. To the extent You incorporate into the Output any of Your Pre-Existing IPR into the Output, You shall continue to own such Pre-Existing IPR and grant to GENBAND a royalty-free, irrevocable, sublicensable, worldwide, non-exclusive, perpetual right to (i) use, copy, modify, translate, compile, configure, create, and prepare derivative works of Your Pre-Existing IPR and to use, distribute and display Your Pre-Existing IPR, with full rights to authorize others to do the same, and (ii) exploit, make maintain, support, sell, offer for sale, test, make improvements to, distribute and import and export such Output without limitation. You represent and warrant that You have all rights and licenses necessary to grant such aforementioned rights. You shall indemnify, defend and hold harmless GENBAND against any claims, losses, and damages including reasonable attorney's fees arising out of any third party claims of infringement with respect to such Output, Customer Data or GENBAND's use of any of Your Pre-Existing IPR in accordance with the provisions of Section 12 (Indemnification) below. You shall not assert any action or claim nor demand to restrict or interfere with GENBAND's or any of its customers' use of the Outputs, or Your Pre-Existing IPR as granted herein. Nothing in this Agreement shall grant to You or Your End Users any rights or license to use any Pre-Existing IPR, Intellectual Property Rights and/or Confidential Information of GENBAND, except as expressly set forth in this Agreement.
FEEDBACK. Notwithstanding anything to the contrary contained herein, You agree that GENBAND shall exclusively own and may, in its sole discretion without incurring any fees or costs to You use or incorporate into the Services any suggestions, inventions, concepts, designs, ideas, enhancement requests, feedback, recommendations provided by You or End Users relating to the Services.
SUBCONTRACTORS. You may engage one or more contractors to assist You with Your creation of Output as permitted herein, provided that: (a) You provide GENBAND with at least thirty (30) days' prior notice of the identity of each such subcontractor, (b) GENBAND shall have the right to reject any such subcontractor at its sole discretion including without limitation if GENBAND reasonably determines that such subcontractor (i) has breached the terms and conditions set forth in this Agreement, or (ii) is or may be a competitor of GENBAND, in which case such subcontractor shall not be permitted access to the Service or the SDKs, (c) any approved subcontractor is bound by the same or similar obligations of confidentiality as set forth herein, (d) You ensure that such subcontractors comply with the terms and conditions of this Agreement, and (e) You shall be solely responsible for the acts errors or omissions of such subcontractors.
EQUIPMENT. You are responsible for obtaining and maintaining any equipment and ancillary services (including the payment of any additional fees therefore) needed to connect to, access or otherwise use the Service (and, to the extent applicable, the Genband Technology), including, without limitation, video-enabled devices, video communication services, modems, hardware, servers, software, operating systems, networking, web servers, internet and telephone service (collectively, "Equipment").
THIRD PARTY PROVIDERS.
Third-Party Products and Services. GENBAND may provide or include in the Service or Genband Technology certain software and/or services owned by third parties, including any Open Source Software. You acknowledge and agree that the terms relating to third-party products may be subject to additional terms and conditions required by such third party and You will abide by such terms as either (i) provided to You by GENBAND or (ii) solely between You and the applicable third-party provider. To the extent that the terms of this Agreement differ from the open source licenses governing the Open Source Software, these terms are offered by GENBAND alone and not by any other party. These terms do not replace or alter your rights or obligations under the open source licenses with respect to the Open Source Software. GENBAND does not warrant or support third-party products or services, or Open Source Software and expressly disclaims any warranty obligations to the fullest extent allowed by law as set forth in Section 11. (Warranty Disclaimer).
Third Party Applications. If You install or enable any third party applications for use in connection with the Services, You acknowledge and agree that GENBAND may allow the applicable third party to access the Customer Data as required for the interoperation of such third party applications with the Services. GENBAND will not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access.
ORDERING AND PAYMENT.
Orders. You may order Services pursuant to this Agreement by registering and submitting an Order along with payment as provided on the Website. By submitting an Order and payment You hereby authorize GENBAND to charge your card each month in the amount of the fees set forth on the Website or any accrued late payment interest charges for the duration of Your Service Term. All Orders are governed by the terms and conditions of this Agreement.
Fees; Invoicing; Payment. Use of the Service is contingent upon Your payment of all fees. Fees are (i) quoted and payable in United States dollars (ii) may be based on services purchased, data volume used or on the number of users, and (iii) are fully earned and non-refundable for any reason. The number of subscriptions purchased cannot be decreased during the relevant Service Term. Fees are based on monthly periods that begin on the Service Term start date and each monthly anniversary thereof; therefore, fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Service Term. GENBAND reserves the right to increase prices at any time. Such increase will not impact the prices for the current month. All amounts payable will be made without setoff or counterclaim.
Audit Rights. GENBAND shall have the right to inspect Your books and records with respect to Your compliance with Your obligations set forth in this Agreement and provide related information to third-party beneficiaries as applicable. Each month You will monitor the number of End Users in Your records versus the End User subscription fees paid to GENBAND. GENBAND retains the right to audit use of the Service by You and Your End Users. In the event that usage is found to be greater than the usage for which fees are paid, GENBAND will invoice You accordingly and You shall pay for such use. Invoicing disputes must be identified in writing within 21 days of invoice receipt. Payments of any disputed amount are due and payable upon resolution. All other amounts remain due within 30 days.
Taxes. All amounts payable are exclusive of VAT, sales, use, withholding, custom charges, duties, excise or other applicable taxes, unless otherwise stated. Such Taxes will be invoiced in addition to the price, if applicable. In the event that Buyer provides Supplier with a valid, duly executed exemption certificate, Supplier will exempt Buyer from Taxes in accordance with the law, effective on the date Supplier receives the exemption certificate. All Taxes shall be the financial responsibility of the Party obligated to pay such Taxes as determined by the applicable law and neither Party is or shall be liable at any time for any of the other Party's Taxes incurred in connection with or related to amounts paid under this Agreement. If either Party is audited by a taxing authority or other governmental entity the other Party agrees to reasonably cooperate with the Party being audited in order to respond to any audit inquiries in a proper and timely manner so that the audit and/or any resulting controversy may be resolved expeditiously.
Effect of Nonpayment. GENBAND may, suspend or terminate Your access to the Service if You fail to maintain Your payment obligations as set forth herein. Payments not paid in full each month may incur a service charge of one and one-half percent (1.5%) per week on any outstanding balance, or the maximum legal rate allowed by law, plus all collection costs. You will continue to be charged for Services during any period of suspension. Upon termination of this Agreement, You will pay the balance due on Your account. GENBAND reserves the right to impose a reconnection fee if Your account is suspended for nonpayment and You request Service reactivation. Regardless of any suspension or reconnection, following any late payment, GENBAND retains the right to modify charges and fees for purchases and/or renewals and other Services as deemed necessary.
TERM AND TERMINATION.
Term. This Agreement commences upon Your use of the Service ("Effective Date") and will continue for so long as You use the Service.
Termination by GENBAND. If You breach any provision of this Agreement, GENBAND has the right to terminate Your use of the Service, any Order, this Agreement or remove any Customer Data contained within the Service.
Termination by You. If You wish to terminate Your subscription You may do so upon written notice to GENBAND no later than fifteen (15) days before the end of the then-current month. If You do not provide notice of termination as set forth in this Section, You will be charged, and will be obligated to pay, Service fees for the following month.
Effect of Termination; Survival. Upon the expiration or termination any Service Term: (a) any amounts (including expenses) owed to GENBAND for fees applicable to the duration of the terminated Service Term, will be immediately due and payable; (b) all subscriptions and rights to use granted under this Agreement and GENBAND's obligation to provide the Service and Genband Technology, and Your and Your End User's right to access the foregoing, will terminate; (c) You shall delete any Output, code or other developments created by You using the Service; and (d) Sections 4 (Intellectual Property Rights), 12 (Indemnification), 13 (Limitation of Liability), 14 (Confidentiality), 19 (Notice), 20 (General) will survive. GENBAND's termination rights hereunder shall be in addition to and not in lieu of any equitable remedies available to GENBAND.
NO WARRANTY. Warranty Disclaimer. THE SERVICE IS PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. GENBAND, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON‑INFRINGEMENT. GENBAND MAKES NO WARRANTIES ABOUT THE QUALITY, PERFORMANCE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE SOFTWARE, HARDWARE, MATERIALS, AND/OR ANY OTHER INFORMATION OR SERVICES PROVIDED WITH OR AS A PART OF THE EQUIPMENT OR OTHERWISE PROVIDED DURING THE COURSE OF THE AGREEMENT. GENBAND'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, PERSONAL COMPUTERS, AND ELECTRONIC COMMUNICATIONS. GENBAND IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. YOU ACKNOWLEDGE THAT (A) THE OPERATION OF THE SERVICE WILL NOT BE UNINTERRUPTED OR ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (B) THE SERVICE MAY BE VULNERABLE TO FRAUD OR UNAUTHORIZED USE; (C) THE FEATURES OR FUNCTIONALITIES OF THE SERVICE MAY NOT BE AVAILABLE AT ANY TIME IN THE FUTURE OR AFTER THE TERM OF THIS AGREEMENT: AND (D) THE SERVICE MAY NOT MEET YOUR REQUIREMENTS. GENBAND DOES NOT GUARANTEE THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE SERVICE, AND IS NOT AND WILL NOT BE RESPONSIBLE FOR LOSS OF INFORMATION, DELAYS IN RECEIVING OR TRANSMITTING INFORMATION, OR ERRORS IN INFORMATION COMMUNICATION, WHETHER OR NOT CAUSED BY THE SERVICE. IN ADDITION, GENBAND RESERVES THE RIGHT TO UPGRADE, CHANGE, ADD, OR MODIFY SOFTWARE AND/OR SERVICES WITH OR WITHOUT NOTICE, AND WITHOUT PENALTY. YOU ACKNOWLEDGE AND AGREE THAT YOUR PURCHASES HEREUNDER ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR DEPENDENT ON ANY STATEMENTS MADE BY GENBAND REGARDING FUTURE FUNCTIONALITY OR FEATURES. THE SERVICES MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR SCHEDULED MAINTENANCE OR FOR UNSCHEDULED EMERGENCY MAINTENANCE BY GENBAND OR THIRD PARTIES, OR BECAUSE OF OTHER CAUSES BEYOND GENBAND'S REASONABLE CONTROL. GENBAND WILL USE COMMERCIAL REASONABLE EFFORTS TO PROVIDE YOU WITH ADVANCE NOTICE OF ANY SCHEDULED MAINTENANCE WHICH WOULD AFFECT YOUR USE OF THE SERVICE. GENBAND SHALL HAVE NO WARRANTY OBLIGATIONS IF YOU COMBINE THE SERVICE WITH ANY OF YOUR PRODUCTS OR THIRD PARTY PRODUCTS OR MODIFY THE SERVICE IN ANY WAY WITHOUT GENBAND'S EXPRESS WRITTEN CONSENT. GENBAND RESERVES THE RIGHT FROM TIME TO TIME, IN ITS SOLE DISCRETION AND WITHOUT LIABILITY TO YOU, TO: (I) CHANGE, UPDATE OR TERMINATE THE VERSION OR TYPE OF GENBAND TECHNOLOGY AND/OR APPLICATIONS PROVIDED VIA THE SERVICE; OR (II) CEASE PROVIDING THE SERVICES UPON 30 DAYS NOTICE.
INDEMNIFICATION. YOU WILL INDEMNIFY AND HOLD GENBAND, ITS EMPLOYEES, OFFICERS, DIRECTORS AND REPRESENTATIVES AND LICENSORS HARMLESS FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES, JUDGMENTS, PENALTIES, FINES AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COSTS) ARISING OUT OF OR IN CONNECTION WITH: (I) ANY CLAIM ALLEGING THAT YOUR DATA INFRINGES THE RIGHTS OF, OR HAS CAUSED HARM TO, A THIRD PARTY; (II) ANY CLAIM ARISING OUT OF YOUR OR YOUR END USERS' INABILITY TO USE THE SERVICE TO CONTACT EMERGENCY SERVICES; (III) A CLAIM ARISING OUT OF OR RELATING TO YOUR USE OF ANY THIRD PARTY APPLICATIONS OR SERVICES AS DESCRIBED IN SECTION 8 (THIRD PARTY PROVIDERS); (IV) A CLAIM, WHICH IF TRUE, WOULD CONSTITUTE A VIOLATION BY YOU OF YOUR REPRESENTATIONS AND WARRANTIES, OR ANY CLAIM ARISING OUT OF THE WARRANTY DISCLAIMERS SET FORTH IN SECTION 11 (WARRANTY) ABOVE; OR (V) A CLAIM ARISING FROM THE BREACH BY YOU OR YOUR END USERS OF THIS AGREEMENT, (INCLUDING ANY CLAIM BASED ON OR RELATED TO ANY ACTIONS GENBAND MAY TAKE WITH RESPECT TO LIMITING OR CLOSING ANY OF SUCH PARTIES' ACCOUNTS DUE TO SUCH BREACH).
LIMITATION OF LIABILITY. EXCEPT FOR THE EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, OR USE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY ACKNOWLEDGES THAT ITS INDEMNIFICATION OBLIGATIONS ARE A DIRECT, RATHER THAN AN INDIRECT OBLIGATION OWED TO THE OTHER PARTY AND, ACCORDINGLY, THE FOREGOING DISCLAIMER WILL NOT BE CONSTRUED TO LIMIT EITHER PARTY'S OBLIGATION TO PAY AMOUNTS TO THIRD PARTIES PURSUANT TO SUCH PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER. EXCEPT FOR A BREACH OF SECTIONS 2 (PROVISION OF SERVICE AND GENBAND TECHNOLOGY), 3 (YOUR RESPONSIBILITIES AND USE LIMITATIONS), 4 (INTELLECTUAL PROPERTY RIGHTS), OR 14 (CONFIDENTIALITY) (COLLECTIVELY, THE "EXCLUDED CLAIMS"), IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU FOR THE APPLICABLE MONTHLY FEE RELATING TO THE CLAIM. IN THOSE STATES AND JURISDICTIONS THAT DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, GENBAND'S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW.
CONFIDENTIALITY. You may not disclose, or permit to be disclosed, Confidential Information to any third party without GENBAND's prior written consent, except that Customer may disclose Confidential Information solely to Your employees and/or subcontractors who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. You agree to exercise due care in protecting Confidential Information from unauthorized use and disclosure, and in any case will protect the Confidential Information to the same extent that You protect Your own confidential information, but in no event less than reasonable care.
U.S. GOVERNMENT. Services and documentation related thereto acquired with United States Government funds or intended for use within or for any United States federal agency are provided with restricted rights in accordance with Federal Acquisition Regulation 52.227.19 or as set forth in the particular department or agency regulations or rules of particular contract which provides GENBAND equivalent or greater protection.
EXPORT AND TRADE COMPLIANCE.
You acknowledge that the Services may be subject to import and export controls laws and regulations of the United States and other foreign governments. You shall comply with such laws and regulations and agree to obtain all required U.S. or foreign government authorizations or licenses prior to exporting, re-exporting or transferring Services. You shall not divert, re-route, or otherwise deliver Services to destinations subject to embargoes or sanctions under US law or any known person or entity on a restricted or denied party list.
You shall maintain a record of exports, re-exports, sales, re-sales, transfers, and re-transfers of Service undertaken by You for a period of five years from the import dates or the period required by applicable laws or regulations, whichever is longer. You agree to permit audits by or on behalf of the government officials as may be required under the applicable laws and regulations. If You export or re-export any Products to countries outside the United States, then prior to doing so, You shall notify GENBAND and GENBAND shall provide You an End User Certificate and Enhanced Proliferation Control Initiative ("EUC EPCI") document which You shall review, execute and provide to GENBAND.
You hereby agree that neither Yourself, nor any of Your directors, shareholders, officers, employees, agents, subcontractors or other third parties performing services for or on Your behalf will make or have made or offered, or caused to be made or offered, any payment, loan, gift of money or anything of value or other advantage, directly or indirectly to: (a) any official or employee of any government, or any agency or instrumentality thereof; (b) any political party or official thereof or any candidate for political office; (c) any individual who holds any legislative, administrative or judicial position, exercises a public function, or is an official or agent of a public international organisation; or (d) any other person, under circumstances in which such person, its directors, employees or agents know, or have reason to know, that all or any portion of such money or thing of value or other advantage will be offered or given, directly or indirectly, to any person named in clauses (a), (b) or (c) above to influence a decision or to gain any advantage for itself, its directors, employees or agents, or affiliates, or directors, employees or agents or their affiliates or other third parties performing services for or on Your behalf, in connection with any transaction relating to this Agreement which could result in a violation of any applicable corrupt practices law or regulation, order, decree or directive having the force of law and relating to bribery, kick-backs, or similar business practices. Any breach of this clause shall be considered an irrevocable breach of this Agreement and shall be cause for immediate termination of the Agreement.
TRADEMARKS AND BRANDING. Unless approved by GENBAND in writing, neither You nor any End User shall use GENBAND’s trademarks, service marks, logos, brands or references to same in its marketing, sales, distribution and representations to third parties. You shall useYour own non-conflicting trademarks, logos, brands and other representations ("Marks") in relation to its delivery of Services and You shall ensure that such Marks do not present the Services or GENBAND's role in the provision of such Services negatively or in a derogatory manner. You and End User shall cease use of such Marks immediately if GENBAND notifies You of GENBAND's objection to the use of such Marks for the foregoing reasons.
Notices to You. Within thirty (30) days following the commencement of the Service, Customer agrees to add Genband.com and any other GENBAND-specified Service-related email domain(s) to Customer's whitelist, in order to facilitate the transmission and receipt of Service-related emails. GENBAND may, from time to time, provide Customer notices concerning its use of the Service on the Service portal. Such notices include but are not limited to planned downtime, unplanned downtime or account notifications. Customer acknowledges that such notices may be the sole and exclusive notice Customer receives from GENBAND regarding the Service and that GENBAND shall have no liability to Customer for such notices.
Notices to Genband. Notices to GENBAND will be sent by first-class mail or prepaid post, and will be deemed given 72 hours after mailing. Customer's notices will be addressed to GENBAND US LLC Attn: Chief Legal Officer, 2801 Network Blvd., Suite 300, Frisco Texas 75034 USA.
GENERAL. Neither party hereto may assign its rights or obligations hereunder without first obtaining the written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, a party may assign any or all of its rights or obligations by written notice but without the prior written consent of the other party to (i) an entity that controls or is controlled by, or is under common control with such party, or (ii) any entity that acquires a majority of the party's stock or substantially all of the party's assets to which this Agreement relates, provided any such entity agrees to be bound by and perform in accordance with this Agreement as if it were an original party. Any purported assignment in violation of this covenant shall be null and void. This Agreement will be governed by the under the laws of the State of Texas without regard to principles of conflict of laws and as if this Agreement were applicable between parties domiciled within the State of Texas. All disputes, claims or controversies arising out of or related to this Agreement will be brought exclusively in the federal or state courts of Texas and each party irrevocably submits to the personal jurisdiction and venue of, and agrees to service of process issued or authorized by, any such court in any such action or proceeding. NEITHER THE UNITED NATIONS CONVENTION OF CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS NOR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT WILL APPLY TO THIS AGREEMENT. Except as provided in Sections 11 (Warranty) and 12 (Indemnification), the parties' rights and remedies hereunder are cumulative. You acknowledge that the Service and Genband Technology contain GENBAND's valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to GENBAND for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy in addition to its other remedies provided herein or at law. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between You and GENBAND as a result of this Agreement or use of the Service. If You are a branch agency or instrumentality of the United States Government, the following provision applies. The Genband Technology and Documentation are comprised of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 22.7202-3. The failure of GENBAND to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless in writing. No modification hereof will be effective unless in writing and signed by both parties. If any provision or provisions of this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Non-performance of either party shall be excused, and the nonperforming party shall have no liability to the other party, except for payment obligations, to the extent that performance is rendered impossible by strike, war, fire, flood, governmental acts or orders or restrictions, acts of terrorism or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming party.Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. As used in this Agreement, the word "including" means "including but not limited to." This Agreement comprises the entire agreement between You and GENBAND and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding its subject matter.