BY SIGNING UP FOR THIS CPAAS EVALUATION AGREEMENT (“AGREEMENT”), YOU ARE AGREEING TO ALL TERMS SET FORTH IN THIS AGREEMENT ON BEHALF OF THE ENTITY YOU HAVE IDENTIFIED IN THIS WEBPAGE (“COMPANY”) TO CREATE AN ACCOUNT FOR THE EVALUATION OF TRIAL SERVICES FROM INTELEPEER LLC (“INTELEPEER”).
YOUR AGREEMENT TO THESE TERMS WILL BE DEEMED TO BE AN AGREEMENT BETWEEN INTELEPEER AND COMPANY, INCLUDING ANY ENTITY THAT 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 (“AFFILIATES”) (COLLECTIVELY “PARTIES”). YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THE COMPANY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
PLEASE REVIEW THESE TERMS CAREFULLY. YOUR ACCEPTANCE OF THESE TERMS BECOMES A BINDING LEGAL CONTRACT BETWEEN YOUR COMPANY AND INTELEPEER. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, OR IF YOU ARE NOT AN AUTHORIZED SIGNATORY OF YOUR COMPANY, YOU ARE NOT AUTHORIZED TO USE THE INTELEPEER SERVICES OR PORTAL IN ANY MANNER, OR DOWNLOAD, INSTALL, OR USE ANY INTELEPEER APPLICATIONS OR SERVICES.
1. EVALUATION PERIOD.
1.1 IntelePeer may choose to allow Company to evaluate its CPaaS under this Agreement (“Evaluation”) for a period of thirty (30) days (“Evaluation Period”) pursuant to the terms of this Agreement. The Evaluation will be at no charge up to fifteen dollars ($15.00) of usage for messaging and voice traffic. If Company’s usage during the Evaluation Period exceeds five thousand dollars ($5,000), Company agrees that at any time IntelePeer may discontinue the Evaluation immediately without notice.
1.2 The Evaluation is limited to enabling any one (1) telephone number on IntelePeer’s CPaaS platform, to allow its users to utilize the platform for the exchange of communications, including without limitation messaging and voice traffic, for purposes of evaluation only and should not be used for commercial purposes. Under no circumstances will the Evaluation include carriage of any emergency services traffic, or porting of any telephone number or toll-free telephone RESPORG number.
1.3 IntelePeer disclaims any warranties, liabilities or indemnifications for any services provided during the Evaluation Period. For avoidance of doubt, IntelePeer will have and retain sole ownership of any intellectual property rights in any materials, information, ideas, concepts, feedback, reports and know-how presented or used by Company related to the Services, all of which will be considered Confidential Information.
2. INTELLECTUAL PROPERTY RIGHTS.
2.1 Definition. For this Agreement, “Intellectual Property Rights” means any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights; (v) intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, not otherwise described in subsections (i), (ii), (iii), (iv) or (vi) of this Section; and (vi) registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing). For this Agreement, the “application programming interface” or “API” means the interface and related sample code, specifications, instructions and other documentation made available by IntelePeer to Company for the purpose of enabling the IntelePeer technology, systems, software and solutions for this Evaluation.
2.2 No patent, copyright, trademark or other Intellectual Property Right is granted or otherwise transferred by this Agreement or any disclosure hereunder, except as expressly set forth in this Agreement. There are no implied licenses under this Agreement.
2.3 Ownership. No patent, copyright, trademark or other Intellectual Property Right is granted or otherwise transferred by this Agreement or any disclosure hereunder, except as expressly set forth in this Agreement. There are no implied licenses under this Agreement. The Parties acknowledge that, as between the Parties, and except for the rights expressly granted in this Agreement, all rights, title, and interest in the Intellectual Property Rights belonging to the respective Party held at the Effective Date (“Owning Party”), along with any subsequent modifications, improvements, inventions, discoveries and all associated Intellectual Property Rights will remain the property of that Owning Party. If either Party provides the Owning Party any suggestions, ideas, feedback, reports, error identifications or other information related to the Owning Party’s Intellectual Property Rights for the services within the scope of this Agreement (“Feedback”), the Party providing such Feedback hereby grants to the Owning Party a non-exclusive, worldwide, perpetual, irrevocable, non-terminable, royalty-free right and license, including the right to grant and authorize sublicenses, to use and otherwise exploit the Feedback for all purposes, and acknowledges that it is not entitled to any compensation of any kind under any circumstances for such Feedback. As between the Company and IntelePeer, Company only owns, and reserves all right, title and interest in, the Intellectual Property Rights of certain information from Atmosphere® CPaaS related to Company, its customers or users, which may consist of individual’s name, contact information, business information, contact lists, traffic logs and routing information, associated metadata, and the content of communications sent through or integrated with our Services, such as audio recordings, message bodies, and call recording transcriptions, its Applications, and its workflows built into Atmosphere® Smartflows (“Company Property”); provided that Company acknowledges that other customers or users of Atmosphere® CPaaS may independently develop materials that could be substantially similar to Company Property which will not constitute infringements of Company’s Intellectual Property Rights. Company grants IntelePeer a non-exclusive, non-sublicensable, limited license in such Intellectual Property Rights to use for the sole purpose of providing, supporting and enhancing Atmosphere® CPaaS in accordance with this Agreement.
2.4 Unless otherwise approved in advance and in writing by the other Party, neither Party will: (i) copy, rent, lease, sell, transfer, assign, sublicense, dissemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the Intellectual Property Rights, APIs, systems, servers or networks of the other Party; (ii) propagate any virus, worms, Trojan horses, defects, malware or other programming of a destructive nature intended to damage any system or data; (iv) disable or circumvent any security device, mechanism, protocol or procedure for, or otherwise interfere with or disrupt, the intellectual property, APIs, systems, servers or networks of the other Party; (v) use the intellectual property, APIs, systems, servers or networks of the other Party in any manner or for any purpose that may infringe on any Intellectual Property Rights; or (vi) allow any of its users or customers to undertake any such activities set forth in subsections (i)-(vi). Any violation of this Section will constitute a material breach of the Agreement for which the non-breaching Party may immediately terminate the Service without advance notice or liability.
3. CONFIDENTIAL INFORMATION.
3.1 Definition. The term “Confidential Information” will include any confidential and proprietary information of either Party or end users in any form, including but not limited to discussions, documents, papers, drawings, diagrams, discs, technology, procedures, systems data and other information of a confidential nature pertaining to, generated or disclosed by either Party in writing, electronically, computerized, orally or otherwise, which is (i) designated “Confidential,” or a comparable legend, in written, graphic, machine readable or other tangible form, including but not limited to this Agreement, its terms, or any other agreement executed by the Parties; or (ii) other information without such designation, which by its nature the receiving Party should reasonably know is confidential, including but not limited to all financial details, investment plans, subscriber related data, price specifications, schemes, tariffs, technological configurations, know-how, software programs, techniques, scientific data and information relating to business, investments, trade secrets, transactions or affairs, services being rendered, plans for business investments or for improving services and discussions on future services, analysis, compilations, studies, summaries, extracts or other documentation.
3.2 Affiliates. The terms “receiving Party” and “disclosing Party” include each Party’s corporate affiliates that disclose or receive Confidential Information. The rights and obligations of the Parties hereto will therefore also inure to such affiliates and may be directly enforced by or against such affiliates.
3.3 Use and Disclosure Restrictions On Confidential Information. With respect to any Confidential Information disclosed under this Agreement, the receiving Party agrees that it will: (i) copy, store, record, transmit, display, view, print, and use the Confidential Information only for the purpose of evaluating and conducting business opportunities with the disclosing Party and in furtherance of any such opportunity which the Parties mutually agree to explore; (ii) hold the Confidential Information in confidence, exercising a degree of care but no less than a reasonable degree of care used by such Party to protect its own proprietary or confidential information; (iii) restrict disclosure of the Confidential Information to employees, representatives and agents of the receiving Party and its Affiliates with a “need to know” who have signed a written confidentiality agreement with the receiving Party containing terms no less restrictive than the terms this Agreement and not disclose it to any other person or entity without the prior written consent of the disclosing Party; (iv) advise those employees, representatives and agents who access the Confidential Information of their obligations; and (v) copy the Confidential Information only as necessary for those employees, representatives and agents, and ensure that all confidentiality notices are reproduced in full on such copies. For purposes of this Section, a representative will include any potential acquirers, merger partners, investors and their representative, attorneys, auditors, accountants and investment bankers, provided that such disclosure is conducted solely in connection with a review for due diligence or audit and that such disclosures are made in confidence.
3.4 Exceptions to Confidential Information Obligations. Confidential Information does not include information which the receiving Party can document: (i) is or becomes available to the public through no breach of any confidentiality obligations; (ii) was previously known by the receiving Party without any obligation to hold it in confidence and through no breach of any confidentiality obligations; (iii) is received from a third party free to disclose such information without restriction; (iv) is independently developed by the receiving Party without the use of or access to confidential or proprietary information of the disclosing Party; or (v) is approved for release by written authorization of the disclosing Party, but only to the extent of such authorization. The disclosing Party also expressly authorizes the receiving Party to disclose Confidential Information of the disclosing Party in response to (a) a traceback request from the Industry Traceback Group on suspected illegal robocalling activity; or (b) a valid order or requirement of a court or other governmental body as is required by law or regulation, provided that the Party subject to such order or requirement gives reasonable notice to the other Party, as allowed by law, to contest such order or requirement at its own expense.
3.5 Ownership. All Confidential Information remains the property of the disclosing Party. Each Party retains the right, in its sole discretion, to determine whether to disclose its Confidential Information to the other Party, and disclosure of information of any nature will not obligate the disclosing Party to disclose any further information. Upon written request, the receiving Party will return to the disclosing Party all Confidential Information received in tangible form, or will destroy all such Confidential Information and certify in writing to the disclosing Party that all such information has been destroyed; provided that the receiving Party may retain copies of such materials to the extent required by applicable law or internal document retention purposes.
4. ASSIGNMENT. This Agreement may be assigned by either Party upon fifteen (15) days’ prior written notice to the other Party. No assignment will relieve either Party of its obligations with respect to Confidential Information disclosed under this Agreement prior to the assignment. Any assignment in violation of this Section will be void. This Agreement will be binding upon the Parties’ respective successors and permitted assigns.
5. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its conflicts of laws principles. The Parties consent exclusively to the jurisdiction and venue of any competent court in the Northern District of California for any legal action arising under this Agreement, and expressly waive any right to a jury trial. If any provision of this Agreement is unenforceable, the remaining provisions will remain in full force and effect.
6. RELATIONSHIP OF PARTIES. Neither this Agreement nor any discussions or disclosures hereunder will be deemed a commitment to any business relationship, contract, or future dealing with the other Party, nor will either Party be prevented from conducting similar discussions or performing similar work, so long as such discussions or work do not violate this Agreement. If the Parties intend to enter into a business relationship, the Parties will execute a separate definitive services agreement.
7. NOTICES. All notices will be sent to the addresses below in writing:
155 Bovet Road, Suite 405
San Mateo, CA 94402
Legal Notice Email: firstname.lastname@example.org
Company agrees to maintain accurate contact information in the Customer Portal for all business notifications.
8. TERM AND TERMINATION. This Agreement will commence on the Effective Date and continue for a term of one (1) year unless (i) terminated by either Party upon thirty (30) days prior written notice to the other; or (ii) expressly superseded by the confidentiality terms of a subsequent services agreement.
9. REMEDIES FOR BREACH. The Parties agree that an impending or existing breach of this Agreement may cause the disclosing Party irreparable injury for which it would have no adequate remedy at law, and that the disclosing Party will be entitled to seek equitable relief including immediate injunctive relief prohibiting such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or equity. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR REVENUE, LOST SALES, BUSINESS INTERRUPTION, OR COST OF SUBSTITUTED FACILITIES, EQUIPMENT OR SERVICES, OR ANY AMOUNT PREVIOUSLY EXPENDED IN CONNECTION WITH THIS AGREEMENT, 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. IN NO EVENT WILL INTELEPEER’S AGGREGATE LIABILITY FOR CLAIMS, ACTIONS, LIABILITIES OR EXPENSES ARISING FROM, OR IN CONNECTION WITH, THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS ($500.00).
10. AMENDMENT. No amendment, modification, or waiver of the terms or provisions of this Agreement will be valid or binding on the Parties unless made in writing and executed on behalf of each Party by its duly authorized representative. The waiver by either Party of a breach of any provision of this Agreement will not operate as or be construed as a waiver of any subsequent breach of this Agreement.
11. SURVIVAL. The rights and obligations under this Agreement, which by their nature should survive the Agreement, will survive termination, expiration or assignment of this Agreement.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding between the Parties with respect to the subject matter hereof, and will bind each Party with respect to all Confidential Information received by it prior to the expiration of this Agreement. No intellectual property rights are licensed, granted or transferred, except for the right to use in accordance with this Agreement. No warranties of any kind are given with respect to any Confidential Information disclosed under this Agreement, except that the disclosing Party warrants its authority to make the disclosures hereunder.