Atmosphere® Communications Platform as a Service Attachment

ATMOSPHERE® COMMUNICATIONS PLATFORM AS A SERVICE

This Attachment is expressly incorporated into the ­­­­­­­­­­­­­­­­­­­IntelePeer Master Services Agreement and the IntelePeer Terms of Service entered into by IntelePeer and Customer (the “Agreement”).  For purposes of this Attachment, IntelePeer LLC is the Affiliate providing the Services under the terms of this Attachment, and hereafter referred to as “IntelePeer”.

1.     Service Description. IntelePeer will make available to Customer the Atmosphere® Communications Platform as a Service, which is a cloud computing Software-as-a-Service that allows the Customer to use the software platform to support the orchestration of multi-channel communications, to trigger further additional applications and workflows, and to capture metrics for business intelligence, pursuant to the terms and conditions set forth in this Agreement (“Atmosphere® CPaaS”). References to Atmosphere® CPaaS include any associated automation, analytics, application programming interfaces (“APIs”), routing for messaging, voice and video communications, programs, features, functions, bots, report formats, instructions, code samples, any markup language, the IntelePeer website, account portal, technical support, support and technical documentation, software, and any updates to the foregoing, in connection with the use of Atmosphere® CPaaS.

1.1 Enablement. IntelePeer will grant Customer access to use Atmosphere® CPaaS to develop and integrate applications, implementations and services to interface with the Atmosphere® CPaaS (“Applications”), and to provide the functionalities of the Atmosphere® CPaaS to its users in connection with the use of its Applications.  Customer will order Atmosphere® CPaaS by expressly authorizing and enabling the Atmosphere® CPaaS in the IntelePeer Customer Portal, or any supporting APIs. 

1.2       Components. Atmosphere® CPaaS includes utilization of any of the following components where available, pursuant to the terms of this Attachment:

1.2.1       Atmosphere SmartFlows®, which is an intuitive drag-and-drop visual designer solution to enable Customer to create, design and manage omni-channel communication workflows integrated with business processes to control customer communications experience across voice, messaging, social media channels and third-party business applications.

1.2.2       Atmosphere Engage®, which is a multichannel campaign management application enabling Customer to schedule, distribute and report on multi-channel communications campaigns with their contacts.

1.2.3       Atmosphere Insights®, which gives the Customer access to a web-based portal to track all interactions across its campaigns for various CPaaS components by creating time-aggregated customizable data analytics to monitor performance, results and feedback, including filters by location, time, and caller/calling party, and to establish preferences for automatic multi-channel notifications to desired users for changes in designated data fields. 

1.2.4       Atmosphere® CPaaS Voice, which allows Customer’s in-country and international voice calls using Atmosphere® Inbound Voice Services, Atmosphere® Outbound Voice Services, Atmosphere® Toll Free Services, Atmosphere® International Inbound Services or otherwise, which traverse the Atmosphere® CPaaS platform.

1.2.5       Atmosphere® CPaaS Messaging – SMS, which allows Customer to send text messaging in-country or internationally using Long Code telephone or toll free numbers, Alpha-Numeric Codes, or Short Codes from the CPaaS platform, provided that Customer adheres to the terms set forth at www.intelepeer.com/products/documentation/sms/messaging as modified from time to time without notice.

1.2.6       Atmosphere® CPaaS Web Service, which allows retrieving and sending data through web-based APIs to access any publicly-accessible RESTful web service to support communications workflow execution.

1.2.7       Atmosphere® CPaaS APIs, which support account management, workflow management, messaging status updates, and messaging and call delivery records.

1.2.8       Atmosphere® CPaaS Messaging – WhatsApp, which allows Customer to transmit and receive messages using the WhatsApp application pursuant to this Agreement, as long as Customer, its users and its Applications comply with the terms at www.whatsapp.com/legal/business-solution-terms/, which Customer and its third-party Applications providers will execute directly with WhatsApp.

1.2.9       Atmosphere® CPaaS Messaging – Facebook, which allows Customer to transmit and receive messages using the Facebook Messenger application pursuant to this Agreement, as long as Customer, its users and its Applications comply with the Terms of Service (www.facebook.com/legal/terms) and the Facebook Commercial Terms (www.facebook.com/legal/commercial_terms), which Customer and its third-party Applications providers will execute directly with Facebook.

1.2.10     Atmosphere® CPaaS Intelligent Assistant, which is artificial intelligence (“AI”) software used by Customer to perform chatbot functionality within CPaaS, provided Customer agrees to third party terms for the underlying chatbot.

1.2.11     Atmosphere® CPaaS Natural Language Processing (“NLP”) – Voice, which Customer may use for conversational AI capabilities such as speech recognition in a voice call.

1.2.12     Atmosphere® CPaaS Natural Language Processing (“NLP”) – Text, which Customer may use for conversational AI capabilities such as sentiment and tone analysis, language detection and translation, and intelligent assistant over text channels.

1.3       Intellectual Property Rights.  In addition to the Intellectual Property Rights defined in the IntelePeer Proprietary Policy incorporated by reference into the Agreement, IntelePeer grants Customer a non-exclusive, non-transferable, non-sublicensable, limited license to use the associated IntelePeer APIs and supporting documentation associated with Atmosphere® CPaaS, as well as third party software in machine-readable object code form only for Atmosphere Insights®, for the sole purpose of using the Atmosphere® CPaaS in accordance with this Agreement.  As between the Customer and IntelePeer, Customer only owns, and reserves all right, title and interest in, the Intellectual Property Rights of certain information from Atmosphere® CPaaS related to Customer, its customers or users, which may consist of individual’s name, contact information, business information, billing records, contact lists, traffic logs and routing information, campaign engagement history, associated metadata, and the content of communications sent through or integrated with our Services, such as audio recordings, message bodies, and call recording transcriptions (“Customer Information”), its Applications, and any workflows Customer built into Atmosphere Smartflows® (“Customer Property”); provided that Customer acknowledges that other customers or users of Atmosphere® CPaaS may independently develop materials that could be substantially similar to Customer Property which will not constitute infringements of Customer’s Intellectual Property Rights. Customer grants IntelePeer a non-exclusive, non-sublicensable, limited license in those Intellectual Property Rights to use for the sole purpose of providing, supporting and enhancing Atmosphere® CPaaS in accordance with this Agreement.   

1.4       Restrictions.  

1.4.1       To protect our network and systems for Atmosphere® CPaaS, IntelePeer reserves the right, but is under no obligation, to: (i) monitor the Customer’s use of the Atmosphere® CPaaS under this Attachment; and (ii) suspend, without notice or liability, its performance in whole or in part under this Agreement, including without limitation blocking the transmission of any data or content, which might be in violation of this Agreement, without notice or liability.

1.4.2       In order to utilize the functionalities of Atmosphere® CPaaS, Customer may load, update and delete its Customer Information.  For content transmitted via Atmosphere® CPaaS, IntelePeer will retain: (i) any content of the communications in their entirety, along with any transcription materials, for thirty (30) days from successful processing to assist with addressing any support or technical issues; (ii) any contact engagement history from Atmosphere Engage® for no longer than one (1) year; (iii) Atmosphere Insights® analytics for sixty (60) days for any Atmosphere® Inbound Voice Services, Outbound Voice Services and International Inbound Services call records, and for three (3) years for any platform usage records for Atmosphere® CPaaS; and (iv) the records for application detail, call detail, and message detail for no longer than three (3) years (“CPaaS Retention Schedule”).  Notwithstanding the CPaaS Retention Schedule, Customer will be solely responsible for retaining any content or any detail records necessary to ensure its compliance with all applicable laws.  If your Atmosphere® CPaaS account remains inactive for over one hundred and twenty (120) days, IntelePeer reserves the right, in its sole and reasonable discretion and without additional notice, to permanently delete any information Customer loaded into the platform, including any contact information or content.  IntelePeer will have no liability associated with any Customer Information beyond its obligations pursuant to applicable law and the explicit terms of this Agreement.

1.4.3       IntelePeer will have no responsibility or liability associated with: (i) any external APIs or their performance; (ii) any damage to Customer’s systems, or additional costs resulting, directly or indirectly, from any defects in Customer’s Applications or workflow configurations;  (iii) the storage of Customer Information or access to such Customer Information; or (iv) any action or inaction of a downstream communications carrier that transmits any of the calls or messages generated via Atmosphere® CPaaS (“Carrier”), including without limitation any modification, suspension or discontinuance of the Carrier’s services, which impacts the Atmosphere® CPaaS.

1.4.4       ATMOSPHERE® CPAAS IS NOT INTENDED TO SUPPORT OR TRANSMIT ANY COMMUNICATIONS OR CONTACT WITH EMERGENCY SERVICES, AND HAVE NOT BEEN ENABLED OR TESTED FOR SUCH PURPOSES. UNDER NO CIRCUMSTANCES WILL INTELEPEER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS ARISING FROM OR RELATING TO THE INABILITY TO USE OUR SERVICES TO CONTACT EMERGENCY SERVICES.

1.4.5       Phone numbers used in association with Atmosphere® CPaaS are subject to rules and restrictions imposed by local, federal, or national governmental entities and telecommunications carriers.  Customer acknowledges and agrees that IntelePeer is the “customer of record” for all phone numbers, for which IntelePeer has given Customer the right to use on the Atmosphere® CPaaS platform.  As the customer of record, IntelePeer has certain rights and obligations with respect to porting the numbers, and may use the phone numbers subject to the terms of the Agreement.  Unless otherwise required by law, IntelePeer reserves the right, in its sole discretion, to refuse to allow Customer to port away any phone number, and to require Customer to have its account in good standing prior to such porting.  In order to comply with applicable rules and restrictions, IntelePeer also reserves the right, in its sole discretion, to reclaim, without liability, any phone number associated with the Customer account to return the number to the relevant numbering plan, if Customer does not have adequate usage of that phone number or the phone number is otherwise deemed unutilized or underutilized pursuant to the rules and restrictions.  If such reclamation occurs for any number on an account that is not otherwise suspended, IntelePeer will use commercially reasonable efforts to: (i) to work with telecommunication carriers to prevent the reclamation of any phone numbers; and (ii) provide Customer written notice prior to any reclamation, to the extent allowed by the applicable legal requirements.  IntelePeer will not provide any notice for reclamation of any numbers associated with a suspended account.  For avoidance of doubt, the rights of IntelePeer set forth in this Section do not apply to any toll free routing only numbers over which Customer has RESPORG control, or any Customer-provided Short Codes.

1.5       Warranty Disclaimer. IntelePeer will only provide Atmosphere® CPaaS expressly on the condition that Customer uses the Atmosphere® CPaaS in accordance with this Agreement and any product documentation provided.  Due to the conditions set forth in Section 3, IntelePeer cannot guarantee (i) the delivery, accuracy, content, efficacy, reliability, security, timeliness, or completeness of the Atmosphere® CPaaS or its performance; or (ii) the confidential protection of any content or information that must be shared with Carriers for the provisioning of Atmosphere Messaging®.  UNDER NO CIRCUMSTANCES WILL INTELEPEER BE RESPONSIBLE FOR THE CUSTOMER’S USE OF ATMOSPHERE® CPAAS, INCLUDING WITHOUT LIMITATION FOR ITS INAPPROPRIATE, FRAUDULENT, OR INACCURATE CONTENT, CONTENT CORRUPTION, BREACH OF PRIVACY, DATA SECURITY, OR THIRD PARTY LICENSES ASSOCIATED WITH SUCH USAGE.  CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF ATMOSPHERE® CPAAS WILL BE FOR INTELEPEER TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE ASSOCIATED PLATFORM OR SERVICES.  ALL SUCH DISCLAIMERS OF WARRANTY WILL BE ENFORCED ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

1.6       Changes. 

1.6.1       IntelePeer may make additions, changes or updates to the Atmosphere® CPaaS Services and associated specifications (including without limitation infrastructure, security, technical configurations, application features, etc.), 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, security or availability of the Atmosphere® CPaaS.  IntelePeer will use commercially reasonable efforts to avoid making changes to Atmosphere® CPaaS that are not backwards compatible, and to provide Customer written notice prior to implementing any changes which are not backwards compatible. 

1.6.2       IntelePeer will determine, in its sole discretion, whether access to such new features, functionality or enhancements will require an additional fee, to be added via notice to the Rate Notification Email.  For any revisions for which IntelePeer notifies Customer, IntelePeer will use commercially reasonable efforts to provide prior written notice to Customer’s Legal Notice Email of such revised terms, which will supersede all prior versions.  All notices provided under this Section will be provided no less than thirty (30) days in advance of the change becoming effective.  Customer’s continued use or access of our Atmosphere® CPaaS after such written notice constitutes acceptance by Customer of the revisions and any associated fees.

2.0 Rates.

2.1       IntelePeer will provide Rates of the packages for Atmosphere® CPaaS, as outlined on IntelePeer’s website or in Customer’s IntelePeer Solution Summary or Quote, for Customer to purchase various components individually, or collectively as a license.  Any Rates for customization of Insights will be agreed upon in a Statement of Work.

2.2       IntelePeer will invoice Customer upon execution of this Attachment for any applicable Monthly License Fee for the current month and for the upcoming month, and then on the first day of each month (“Invoice Date”) for the upcoming month’s Monthly License Fee in advance, as well as any previous month’s transactional, non-recurring or overage charges, for any month in which Customer has an active account for Atmosphere® CPaaS. 

2.3       Third Party Charges. Notwithstanding Section 4.1 of the Agreement, any changes in pass-through fees or surcharges from any underlying telecommunications carriers or messaging providers will be effective immediately.  In addition to the Taxes Section in the Agreement, Customer agrees that IntelePeer may pass through any Taxes from our underlying telecommunications carriers or messaging providers, including without limitation federal, state and local taxes, fees and surcharges, sales and use taxes, utility user’s fees, excise taxes, VAT, business and occupations taxes, emergency services taxes, franchise fees and universal service fund fees, or other similar exactions, imposed on IntelePeer with respect to your Services.

3.0. Customer Responsibilities       

3.1 Customer will execute the Data Processing Addendum if Customer uses or makes available any personal data protected by the EU General Data Protection Regulation for processing performed for the purposes of provisioning, maintaining, monitoring and improving Atmosphere® IntelePeer may disclose information in our systems, including Customer Information, if required by law or other contractual requirement, or by circumstances to protect the security or integrity of our Services, network, customers or the public’s health and safety.

3.2       Customer is solely responsible for: (i) any and all use of Atmosphere® CPaaS under its account, including without limitation whatever content is communicated via Customer’s use of the Services; (ii) any Applications, integrations, systems, and implementations whether provided by Customer or a third-party, which are enabled in Customer’s presence on Atmosphere® CPaaS, including with respect to its configuration, security and the protection of the data integrity, including for any Customer Information; (iii) exercising all reasonable precautions to prevent unauthorized access to or use of the Atmosphere® CPaaS; (iv) ensuring that any requests Customer makes to the Atmosphere® CPaaS are compatible with the then-current Atmosphere® CPaaS; (v) obtaining affirmative consent from its customers and users for IntelePeer, its subprocessors and any Carriers, to access and use all Customer Information as necessary to provide Services and ensure quality control; (vi) complying with all system safety controls for Atmosphere® CPaaS; (vii) avoiding use of any false identities, forged email addresses or headers, or fake phone numbers, or other attempts to maliciously mislead others as to the identity of the sender or the origin of a communication by Customer; (viii) making frequent backup copies of any Customer Information stored in the platform; (ix) informing users of any fees or charges from IntelePeer, Carriers or otherwise, which users may incur in connection with messages transmitted using Atmosphere Messaging®; (x) all acts or omissions that otherwise occur on the Customer account; and (xi) obtaining and retaining all documentation sufficient to demonstrate the compliance set forth in this Agreement, and providing such to IntelePeer upon written request. To the extent applicable law permits, Customer releases IntelePeer from any claims or liability related to the responsibilities set forth in this Section, and waives California Civil Code Section 1542, or similar provision in any jurisdiction.

3.3       Customer warrants that, in its configuration and use of Atmosphere® CPaaS, Customer: (i) has reviewed the Restrictions of the Service and will comply with the terms of this Attachment; (ii) will be solely responsible for compliance with all legal requirements applicable in connection with the privacy protections or information security, including without limitation, the Telephone Consumer Protection Act (“TCPA”), the Do-Not-Call Implementation Act, the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act, the Health Insurance Portability & Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act of 2009 and accompanying regulations (collectively “HIPAA”), the European Union General Data Protection Regulation 2016/679 (“EU GDPR”), the Canadian Anti-Spam Law (“CASL”), and any similar international, federal, state, provincial or local laws or regulations governing interactions with third parties in any jurisdiction to the extent applicable; (iii) will adhere to any applicable industry standards, policies and applicable guidelines, including without limitation those published by the Cellular Telecommunications Industry Association (“CTIA”), Mobile Marketing Association (“MMA”), the US Common Short Code Administrator, the Canadian Common Short Code Application Guidelines, or any other generally recognized industry associations (“Industry Guidelines”) and to the carrier standards around content, advertising and campaign materials (“Content Standards”); (iv) 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 Application’s 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 Agreement; and (v) will obtain and retain all documentation sufficient to demonstrate the compliance set forth in this Section, and providing such to IntelePeer upon written request.

3.4       For Atmosphere® CPaaS, Customer agrees to indemnify, defend and hold harmless IntelePeer, its affiliated companies, owners, officers, directors, employees, and agents from and against any and all liabilities, damages, costs and expenses (including all legal and professional fees) arising out of or relating to any third party claim related, in whole or in part, to: (i) any failure of Customer or its users to adhere to the terms of this Attachment; (ii) the inability to use Atmosphere® CPaaS for emergency services; or (iii) any activities related to the Applications or Customer Information.

3.5       Customer may access and use the Atmosphere® CPaaS, Atmosphere Insights® portal or any associated software only to the extent of authorizations obtained by Customer. Any unauthorized use, including for any purpose other than for which authorization was granted or for use after the expiration of the Services, may affect the Atmosphere® CPaaS performance and may result in service suspension and additional fees.  

3.6       Customer acknowledges that IntelePeer may from time to time provide you with information in its supporting documentation on best practices and applicable law as a convenience, which does not constitute legal advice and is neither warranted or guaranteed that compliance with this information suffices for compliance with Customer’s obligations under this Agreement or applicable law.

3.7       Customer acknowledges that IntelePeer relies on Customer’s adherence to the terms of this Section 3 as an essential basis of the bargain between the Parties as to the offering of the Atmosphere® CPaaS to Customer, and that any violation of this Section 3 will constitute a material breach of the Agreement for which IntelePeer may immediately terminate the Service without advanced notice, notwithstanding anything in the Agreement to the contrary.

3.8       After termination of Service, Customer will have thirty (30) days to obtain copies of any information stored on the Atmosphere® CPaaS at that time, otherwise IntelePeer will delete such information pursuant to its record retention requirements without additional notice. For Atmosphere Insights®, the only information available for download will be a copy of the current dashboards and reports.  If Customer has obtained copies of any software for the performance of Atmosphere® CPaaS, Customer must discontinue use upon termination of this Agreement, and irrevocably erase the software including without limitation any archival copies.       

4.0       Fair Usage Policy

4.1 IntelePeer provides Atmosphere® CPaaS under this Agreement conditioned upon compliance at all times with the Fair Usage Policy set forth in this Section, which is designed to prevent fraud and abuse of its Atmosphere® CPaaS.

4.2       The Atmosphere® CPaaS is intended to be used internally for general purpose enterprise unified communications usage only.  IntelePeer strictly prohibits any use of the Atmosphere® CPaas, or any of its components, inconsistent with this purpose, including without limitation reselling the Atmosphere® CPaaS under any circumstances (“Prohibited Use”).

4.3       IntelePeer may monitor usage of the Services and notify Customer of any usage that appears to be a Prohibited Use, and reserves the right to take any unusual activity into account in making its determination.  If Customer does not correct the Prohibited Use by the end of the billing cycle following the notification by IntelePeer, or if Prohibited Use appears in any subsequent billing cycles, IntelePeer reserves the right, in its sole discretion and without any additional notice, to adjust the amounts invoiced to Customer for any affected billing cycles to reflect the appropriate pricing for such Prohibited Use or terminate the Services.