Atmosphere® CPaaS terms of service
By signing up for CPaaS, you acknowledge that you have the authority to bind your company (“you”, “your”, and “Customer”) to these Terms of Service (“Terms”) with IntelePeer LLC (“we,” “us,” “our,” and “IntelePeer”), that you have reviewed the Terms, and that you agree to these Terms on behalf of your company, to obtain the IntelePeer Communications Platform as a Service (“CPaaS” and “Services”) for your company. These Terms will govern the Customer’s use of the IntelePeer CPaaS, unless the Customer and IntelePeer (collectively “Parties”) have executed a separate written agreement which expressly governs the purchase of CPaaS from IntelePeer. IntelePeer or Customer may authorize any entity, which controls, is controlled by, or is under common control with such Party (“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. IF YOU DO NOT AGREE FOR YOUR COMPANY TO BE BOUND BY THESE TERMS, YOU SHOULD NOT SIGN UP FOR OR USE THE INTELEPEER SERVICES. IF YOU ARE NOT AN AUTHORIZED SIGNATORY OF YOUR COMPANY, YOU SHOULD NOT SIGN UP FOR OR USE THE INTELEPEER SERVICES.
All notices will be sent to the addresses below in writing:
155 Bovet Road, Suite 405
San Mateo, CA 94402
Fax No: 650-403-0796
Legal Notice Email: email@example.com
Customer agrees to maintain accurate contact information in the Customer Portal for all business notifications. The Parties agree that any service of process delivered by hand or sent by registered or certified mail, courier service or 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. CPaaS SERVICE DESCRIPTION
IntelePeer will use commercially reasonable efforts, consistent with industry standards, to 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 these Terms (“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.
2.1 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.
2.2 Components. Atmosphere® CPaaS includes utilization of any of the following components where available, pursuant to these terms:
2.2.1 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.
2.2.2 Atmosphere® Engage, which is a multichannel campaign management application enabling Customer to schedule, distribute and report on multi-channel communications campaigns with their contacts.
2.2.3 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 real-time and 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.
2.2.4 Atmosphere® CPaaS Telephone numbers, of which Customer can obtain in-country Long Code telephone or toll-free numbers for each subscription purchased.
2.2.5 Atmosphere® Programmable Voice, which allows Customer to support in-country and international calls within Atmosphere® CPaaS in-country or internationally, provided that the Customer adheres to the terms set forth at www.intelepeer.com/products/documentation/programmable-voice as modified from time to time without notice.
2.2.6 Atmosphere® Messaging, which allows Customer to send text messaging in-country or internationally using, where available, 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.
2.2.7 Integration Support, which allows retrieving and sending data through web-based APIs to access any publicly-accessible RESTful web service to support communications workflow execution.
2.2.8 Atmosphere® CPaaS APIs, which support certain account management, workflow management, messaging status updates, and messaging and call delivery records.
2.2.9 Chat Applications, which allows Customer to transmit and receive messages using the WhatsApp application pursuant to these Terms, as long as Customer and its users comply with the terms at www.whatsapp.com/legal/business-solution-terms/, which Customer will execute directly with WhatsApp.
2.3 Customer Responsibilities.
2.3.1 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® CPaaS. IntelePeer may disclose information in our systems, including Customer Information (as defined in Section 2.4.2), 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.
2.3.2 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) the configuration and security of Customer’s applications, integrations, systems, and implementations 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.
2.3.4 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 these Terms; (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 is: (a) about individuals without their explicit consent or under false pretenses, (b) that includes governmental identification numbers, credit card information, security credentials, 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 infringes in any third party’s Intellectual Property Rights (as defined herein), or (d) is otherwise in violation of these Terms; 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.
2.3.5 Customer may access and use the Atmosphere® CPaaS, 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.
2.3.6 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 these Terms or applicable law.
2.3.7 Customer acknowledges that IntelePeer relies on Customer’s adherence to the terms of this Section 2.3 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 2.3 will constitute a material breach of these Terms for which IntelePeer may immediately terminate the Service without advanced notice, notwithstanding anything herein to the contrary.
2.3.8 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 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 these Terms, and irrevocably erase the software including without limitation any archival copies.
2.4 Service Restrictions.
2.4.1 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 pursuant to these Terms; and (ii) suspend, without notice or liability, its performance in whole or in part under these Terms, including without limitation blocking the transmission of any data or content, which might be in violation of these Terms, for any unlawful or fraudulent purpose, or in a potentially disruptive or harmful way to IntelePeer’s network or systems. Notwithstanding the foregoing, IntelePeer will use commercially reasonable efforts to provide advance written notice of suspension, and resume the Services upon resolution of the issue triggering the situation.
2.4.2 In order to utilize the functionalities of Atmosphere® CPaaS, Customer may load, update and delete 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, 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”). 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 Engage for no longer than one (1) year; (iii) real-time Insights analytics for three (3) days, hourly Insights analytics for fourteen (14) days, and daily Insights analytics for ninety (90) days; 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. IntelePeer will have no liability associated with any Customer Information beyond its obligations pursuant to applicable law and the explicit terms of these Terms.
2.4.3 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.
2.4.4 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.
2.4.5 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 these Terms. 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.
2.5 Fair Usage Policy. IntelePeer provides Atmosphere® CPaaS under these Terms 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. 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”). IntelePeer will 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.
3.1 These Terms will apply to any Atmosphere® CPaaS in use by Customer, until terminated by either Party pursuant to these Terms.
3.2 If your Atmosphere® CPaaS account remains inactive for over one hundred and twenty (120) consecutive calendar days, IntelePeer reserves the right, in its sole and reasonable discretion and without additional notice, to permanently deactivate the account and delete any information Customer loaded into the platform, including any contact information or content.
3.3 Events of Termination. Each Party will have the right to immediately terminate these Terms without liability if the other Party: (i) fails to cure a material breach of these Terms after expiration of all applicable notice and cure periods, which will be thirty (30) days after written notice if not otherwise set forth herein; or (ii) ceases to be actively engaged in business or becomes financially incapable of fulfilling its obligations under these Terms. Termination under this Section will be a nonexclusive remedy for breach without prejudice to any other right or remedy of such Party, and will have no effect on Customer’s payment obligations for Services rendered.
3.4 Customer’s Material Breach. Upon any uncured material breach by Customer or failure by Customer to make undisputed payments within five (5) business days of written notice of non-payment, IntelePeer will have the additional option to immediately: (i) suspend the Services without liability; (ii) cease accepting or processing orders for the Services; (iii) cease generating call detail information for Customer; (iv) enforce any security interest or assurance provided by Customer; and (v) pursue such other appropriate legal or equitable remedy or relief. IntelePeer will have no liability associated with suspension of Services under any term of these Terms.
3.5 Survival. The rights and obligations, which by their nature should survive these Terms, will survive termination or expiration of these Terms. These Sections would include without limitation Sections 4, 6, 7, 8, and 9.
4. RATES, CREDIT AND BILLING TERMS
4.1 Rates. IntelePeer will provide on the IntelePeer website the rates for the various packages available for Atmosphere® CPaaS (“Rates”), along with any applicable methodology for calculating those Rates (“Rating Methodology”). If IntelePeer issues any change in Rates, Customer’s use of the Services after the effectiveness of the revised Rates will be deemed acceptance by Customer of the changes to the Rates.
4.2 Credit. From time to time as may be warranted by initiation of Services, increased volume of business, payment history, or any other reason, IntelePeer may, at its sole discretion, conduct a credit review of Customer to verify creditworthiness and establish or modify the credit limit, or require some form of additional security, from Customer to purchase Services.
4.3 Billing Terms. Upon acceptance of these Terms, IntelePeer will invoice Customer for any applicable Monthly Platform Fee for the initial month, and then on the monthly anniversary date of each subsequent month (“Invoice Date”) for the upcoming month’s Monthly Platform 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.
4.4 Payment Terms. Customer will make payments through a third-party payment provider in US dollars for all charges owing on its account immediately upon Invoice Date. For all credit card payments, Customer agrees to (i) authorize IntelePeer to debit its account on any open balances, until the earlier of the termination of these Terms or the cancellation of the authorization by Customer in writing to firstname.lastname@example.org; (ii) not dispute any resulting authorized payment with the credit card company as long as the transaction corresponds with the terms of this Section; and (iii) hold IntelePeer harmless for any claims associated with the credit card transaction provided pursuant to the terms agreed upon with the independent third party payment provider.
4.5 Late Payments. IntelePeer reserves the right to impose a late payment charge on amounts not paid on or before the Due Date, in the amount of one and one-half percent (1.5%) per month compounded monthly, or the maximum rate allowable by law, whichever is less.
4.6 Disputed Invoices. Customer will provide written notice to email@example.com of any disputed charge, including sufficient detail and documentation reasonably requested by IntelePeer to efficiently resolve the dispute (“Dispute Notice”), within sixty (60) days of the Invoice Date (“Dispute Period”), unless a longer Dispute Period is required by applicable law. The Dispute Notice will not relieve Customer of its obligation to pay all undisputed amounts by the Due Date, and will not affect the termination or suspension rights of IntelePeer. If Customer does not provide the Dispute Notice within the Dispute Period, Customer will be deemed to have consented to the amounts charged on the invoice, and to have waived any right to dispute the invoice.
4.7 Taxes. Customer will pay all sales, use, excise, value-added, withholding, and any and all similar taxes (along with any corresponding penalties and interest), as well as all regulatory surcharges, customs and duties assessed from any domestic or international jurisdiction due or payable upon the provision, sale or use of Services under these Terms (“Taxes”). All payments to be made by the Customer to IntelePeer hereunder shall be made free and clear of, and without deduction for or on account of, Taxes unless Customer is required to make such a payment subject to the deduction or withholding of Taxes, in which case the sum payable by such Customer (in respect of which such deduction or withholding is required to be made) shall be increased to the extent necessary to ensure that IntelePeer receives a sum net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made or required to be made. In no event will IntelePeer be liable for any claims arising from, or in connection with, Customer’s failure to pay any taxes owed by Customer in any jurisdiction. Where taxes are based upon the location receiving the benefit of Services, Customer has the ongoing obligation to notify IntelePeer of locations if different than the Customer’s business address provided during the onboarding process, or if the location changes.
4.8 Third Party Charges. Notwithstanding Section 4.1, any changes in pass-through fees or surcharges from any underlying telecommunications carriers or messaging providers will be effective immediately. In addition to Section 4.7, Customer agrees that IntelePeer may pass through any Taxes from our underlying telecommunications carriers or messaging providers, including without limitation federal, state, provincial 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.
5. WARRANTY DISCLAIMER.
IntelePeer will only provide Atmosphere® CPaaS expressly on the condition that Customer uses the Atmosphere® CPaaS in accordance with these Terms 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. INTELEPEER DOES NOT WARRANT THAT USE OF SERVICES OR ACCESS TO ATMOSPHERE® PLATFORMS OR SYSTEMS WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, EACH PARTY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS 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. 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 WILL BE ENFORCED ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.1 IntelePeer agrees to indemnify, defend and hold harmless the Customer 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) based on any third party claim which alleges, in whole or in part, that Atmosphere® CPaaS infringes, misappropriates or violates any patents, trademarks, copyrights or other intellectual property rights of persons, firms or entities who are not parties to these Terms.
6.2 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) based on 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 these Terms; (ii) the inability to use Atmosphere® CPaaS for emergency services; or (iii) any activities related to the Applications or Customer Information.
6.3 Exclusions. IntelePeer will have no obligations with respect to infringement of intellectual property to the extent any claim arises from Customer: (i) using Services 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 the Services.
6.4 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.
6.5 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 EXCEPT FOR LATE FEES PROVIDED FOR IN SECTION 4, 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 TOTAL LIABILITY. 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 THE AMOUNT OF PAYMENTS ACTUALLY RECEIVED BY INTELEPEER FOR SERVICES DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE EVENT FROM WHICH LIABILITY AROSE, OR FIFTY THOUSAND US DOLLARS ($50,000.00), WHICHEVER AMOUNT IS LESS.
7.3 THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. 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 THE SERVICES.
8. PROPRIETARY RIGHTS
This Agreement and all information exchanged between the Parties in performance of this Agreement will be subject to the IntelePeer Proprietary Policy at www.intelepeer.com/terms/proprietary-policy/, which IntelePeer reserves the right to amend from time to time. 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 to use, access and configure 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 these Terms. 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 Customer Information, its Applications, and its workflows 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 be 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. For avoidance of doubt, the aforementioned modifications and improvements include any customization performed under a Statement of Work, unless the Statement of Work expressly allocates ownership of Intellectual Property Rights otherwise.
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 or a class action lawsuit. The Parties agree that these Terms will not be governed by the United Nations Convention on Contracts for International Sale of Goods.
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 Services 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 Changes to Terms.
9.7.1 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.
9.7.2 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 resulting in changes to these Terms, 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. Except as otherwise set forth in this Section, any other waiver or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of the Parties.
9.8 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.
9.9 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 the Services or associated software, and represents that Customer is not, and will immediately discontinue use of the Services and software were it to be, on any government exclusion list or under the control of or agent for any entity on such list.
9.10 Disputes. Except for Disputed Invoices in Section 4, 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. The Parties agree to provide written notice of any dispute with sufficient detail and documentation regarding the nature and timing of the dispute to efficiently resolve the dispute. If the Parties cannot reach a resolution within thirty (30) days using commercially reasonable efforts, the dispute will be escalated to a representative from each Party at the Director level or above for an additional thirty (30) days. If the Parties cannot resolve a dispute through this informal dispute resolution after sixty (60) days, 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) IntelePeer seeks to collect any amounts due from Customer subject to the deemed consent set forth in Section 4.6; (ii) 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 (iii) 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 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.
9.12 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. If either Party extends any right or obligation under these Terms to any Affiliate, the rights and obligations of the Parties will inure to Affiliates and may be directly enforced by or against such Affiliates. Except as otherwise set forth in this Agreement, any waiver or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the Parties. Electronic signatures will constitute an original signed document as applicable. The Parties agree to read any other Atmosphere® CPaaS document together with these Terms to avoid inconsistent interpretations. However, in the event of irreconcilable conflicts between the terms of these Terms and any other document, these Terms will govern. This Agreement has been reviewed and executed by the Parties in English, so (i) this English language version of this Agreement will be controlling in all respects, notwithstanding any translation of this Agreement made for convenience or any other purpose whatsoever; and (ii) the Parties agree that all performance of this Agreement will be conducted in English.
For Customers located in the United States, the following will be added to Section 4.7:
Unless Customer provides IntelePeer with sufficient written documentation, including, but not limited to, tax exemption certificates, and copies of receipts of any such foreign taxes paid, Customer will be responsible for paying all applicable Taxes.
For Customers located in France, the following will be added to Section 4.3:
Any invoice will be settled by Customer within the earlier of forty-five (45) days from the end of the month or sixty (60) days of the Invoice Date from the date of its issuance by IntelePeer. Any late payment of an invoice will give rise automatically and without prior notice, to interests for late payment at the rate of the higher between, three times the French legal interest rate, and the European Central Bank refinancing rate plus 10 percentage points. In addition, a 40 Euros fixed indemnity for debt recovery as set forth in Article L. 441‑6 of the French Code of Commerce may be applied to the Customer.
For Customers located in the United Kingdom, the following will be deemed to amend these Terms:
The following will be deemed added to the end of Section 7.1:
Nothing in these Terms excludes the liability of IntelePeer for death or personal injury caused by IntelePeer’s negligence; or for fraud or fraudulent misrepresentation.
The following will be deemed added as Section 9.13:
9.13 Third Party Rights. These Terms do not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assignees).