Restcomm MASTER AGREEMENT
This Restcomm Master Agreement, including all referenced appendices and documents, is between “Telestax” and the purchaser or user of services who accepts the terms of this Agreement (“Client”). The effective date of this Agreement (“Effective Date”) is the earlier of the date that Client signs or accepts this Agreement or the date that Client uses Telestax’s services.
1. Purpose of Agreement.
This Agreement establishes a framework that will enable Telestax to provide Services to Client. The services that Telestax will provide to Client are described in the Appendixes to this agreement, or Order Forms. The parties agree that the terms of this Agreement will govern all purchases and use by Client of Services unless otherwise agreed by the parties in writing.
Telestax and Client agree that Affiliates of Client may acquire Services from Telestax by entering an Order Form with Telestax that incorporates the terms and conditions of this Agreement. The parties acknowledge that adjustments to the terms of this Agreement may be made in a particular Order Form (for example, to address disparate tax and/or legal regimes in other geographic regions). “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where “control” is the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
2. Obligations of the Parties
2.1. On-Site Obligations.
If Telestax personnel are working on Client’s premises (a) Client will provide a safe and secure working environment for Telestax personnel, and (b) Telestax will comply with all reasonable workplace safety and security standards and policies, applicable to Client’s employees, of which Telestax is notified in writing by Client in advance.
2.2. Changes to Work and Delays.
Changes to the Services will be made only through a written change order signed by both parties. In the event that (a) Client fails to timely fulfill its obligations under an Order Form, and this failure adversely impacts the provision of Services, or (b) events outside of either party’s reasonable control cause a delay in or otherwise affect Telestax’s ability to perform its obligations under an Order Form, Telestax will be entitled to appropriate relief, including adjusting the timing of its delivery of applicable Services.
Client may provide Telestax access to Client’s personal data and Client’s information, systems, and software (“Client Information”), and resources such as workspace, network access, and telephone connections as reasonably required by Telestax in order to provide the Services. Client understands and agrees that (a) the completeness, accuracy of, and extent of access to, any Client Information provided to Telestax may affect Telestax’s ability to provide Services, (b) it is necessary for Telestax to process Client’s data in order to perform this contract, and (c) if reasonable access to Client Information is not provided, Telestax will be relieved from providing any Services dependent upon such access. Client will obtain any third-party consents necessary to grant Telestax access to the Client Information that is subject to the proprietary rights of, or controlled by, any third-party, or which is subject to any other form of restriction upon disclosure. Client will ensure such third-party consents that Client obtains will be in compliance with the GDPR.
3.1. Fees and Expenses.
Fees for the Services (the “Fees”) will be identified in an Order Form and are (a) due upon Telestax’s acceptance of an Order Form or, for renewal of Services, at the start of the renewal term, and (b) payable in accordance with Section 3.2. Fees are stated in United States Dollars, unless otherwise indicated, and must be paid in United States Dollars if the amount is payable to Telestax and, unless otherwise specified in writing, do not include out-of-pocket expenses or shipping costs. Client will reimburse Telestax for all reasonable expenses Telestax incurs in connection with the performance of Services. Client agrees to pay Telestax the applicable Fees for each Unit. “Unit” is the measurement of Service usage defined in the applicable Order Form. For the Services provided pursuant to this Agreement, Client shall pay Telestax per the pricing and provisions set forth in the relevant Appendix (es). Telestax, in its sole discretion, may amend the Appendix (es) from time to time. Such amendments shall become effective fourteen (14) days after Telestax gives written notice of the amendments to Client. Any renewal of Subscription Services will be at the same price per Unit listed in the applicable Order Form. “Subscription Services” mean fee-bearing subscriptions for a defined period of time for a certain scope of Services.
3.2.1. Invoices schedule
Invoices will be issued on a monthly basis. Unless otherwise specified in an Order Form, Client will pay Fees and expenses, if any, no later than thirty (30) days from the date of each invoice. Client will pay Telestax the then-applicable Fees and expense described in the Order Form for the Services in accordance with the terms therein. Client authorizes Telestax to bill Client’s credit card, or bank account via ACH or SWIFT withdraw, for the Fees and expenses. Except as otherwise provided in this Agreement, any and all payments made by Client pursuant to this Agreement are non-refundable. Late payments are subject to interest charges of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all collection expenses. Telestax reserves the right to suspend or cancel performance of all or part of the Services and/or change its credit terms if actual payment has not been received within thirty (30) days of the invoice date. If Client believes that Telestax has billed Client incorrectly, Client must contact Telestax no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
All Fees are exclusive of Taxes. Client will pay Telestax an amount equal to any Taxes arising from or relating to this Agreement or an applicable Order Form which are paid by or are payable by Telestax. “Taxes” means any form of sales, use, value added, service tax, research & development tax, or other form of taxation and any fines, penalties, surcharges or interest, but excluding any taxes based solely on the net income of Telestax. If Client is required to withhold or deduct any portion of the payments due to Telestax, Client will increase the sum payable to Telestax by the amount necessary so that Telestax receives an amount equal to the sum it would have received had Client made no withholdings or deductions. To the extent any Applicable Taxes are imposed by law on Telestax, Telestax may add a surcharge to the price of the affected Services to recover the amount of such Applicable Taxes from Client. The payment of any of the aforementioned taxes, except income tax, shall be the sole responsibility of Client, and Client agrees to indemnify and hold Telestax harmless from any liability therefor.
4. License and Ownership
4.1. Software, Generally.
Telestax grants Client a worldwide, non-exclusive, non-transferable, non-sublicenseable right to use the commercially licensed Restcomm code, subject to the terms and conditions of this Agreement and any Order Forms. This Subscription Agreement is a license exception to the network disclosure (“copyleft”) requirements of the AGPLv3 license for Restcomm software. It also includes additional benefits and promises to the Client from Telestax. This license exception is granted by Telestax to the Client executing this Subscription Agreement and upon its payment of the Initial Subscription Fee. All use of Software must be in accordance with the relevant Telestax documentation and policies, which are located at www.telestax.com.
4.2. Freedom to Use Ideas.
Subject to Sections 9, 10, and Client’s rights in Client Information and notwithstanding anything to the contrary contained in this Agreement or an Order Form, the ideas, methods, concepts, know-how, structures, techniques, inventions, developments, processes, discoveries, improvements, analytics, and other information and materials developed in and during the course of any Order Form may be used by Telestax, without an obligation to account, in any way Telestax deems appropriate, including by or for itself or its clients or customers.
Unless expressly stated in an Order Form, no right or license, express or implied, is granted in this Agreement for the use of any Telestax, Client or third party trade names, service marks or trademarks, including, without limitation, the distribution of the Software utilizing any Telestax trademarks.
5. Reporting and Inspection
Client will notify Telestax promptly if the actual number of Units of Services utilized by Client exceeds the number of Units for which Client has paid the applicable Fees. In its notice, Client will include the number of additional Units and the date(s) on which such Units were first utilized. Telestax will invoice Client for the applicable Services for such Units and Client will pay for such Services no later than thirty (30) days from the date of the invoice.
During the term of this Agreement and for one (1) year thereafter, Telestax or its designated agent may inspect Client’s facilities and records to verify Client’s compliance with this Agreement. Any such inspection will take place only during Client’s normal business hours and upon no less than ten (10) days prior written notice from Telestax. Telestax will give Client written notice of any non-compliance, including the number of underreported Units of Services, and Client will have fifteen (15) days from the date of this notice to make payment to Telestax for the applicable Services provided with respect to the underreported Units. If Client under reports the number of Units utilized by more than five percent (5%) of the number of Units for which Client paid, Client will also pay Telestax for the cost of such inspection.
6. Term and Termination
6.1. Term and Termination of Agreement.
The term of this Agreement will begin on the Effective Date and will terminate at the expiration of ninety (90) days following written notice of termination given by one party to the other. Termination of this Agreement will not operate to terminate any Order Form and the terms and conditions of this Agreement will continue in full force and effect to the extent necessary to give effect to any Order Form in effect at the time of termination of this Agreement and until such time as the applicable Order Form expires or is terminated in accordance with Section 6.2 below.
6.2. Term and Termination of Order Form
6.2.1. The term of an Order Form begins on the date the Order Form is executed (“Order Form Effective Date”) and continues for the term stated in the Order Form. Thereafter, the term for Subscription Services will automatically renew for successive terms of one (1) year each, unless either party gives written notice to the other of its intention not to renew at least sixty (60) days before the commencement of the next renewal term. Client must use any other Services set forth in an Order Form during the term specified in the Order Form or within one (1) year of the Order Form Effective Date, whichever is shorter; if unused, such Services will be forfeited.
6.2.2. If Client or Telestax materially breaches the terms of an Order Form, and such breach is not cured within thirty (30) days after written notice of the breach is given to the breaching party, then the other party may, by giving written notice of termination to the breaching party, terminate the applicable Order Form and/or this Agreement; provided, however, that no cure period will be required for a breach of Section 9 of this Agreement. The termination of an individual Order Form will not terminate any other Order Form or this Agreement unless otherwise specified in the written notice of termination. Without prejudice to any other right or remedy of Telestax, in the event either party terminates an Order Form, Client will pay Telestax for all Services provided up to the effective date of termination.
6.3. Survival. If this Agreement or an Order Form is terminated for any reason, Sections 3, 4, 5.2, 6.3, 7, 8, 9, 10.3, 11, 12.1, 12.5-12.13, and 13 of this Agreement (as the same are incorporated into each Order Form) will survive such termination.
7. Continuing Business
Nothing in this Agreement will preclude or limit Telestax from providing materials, or services for itself or other clients, irrespective of the possible similarity of such materials or services to those that might be delivered to Client. The terms of confidentiality in Section 9 will not prohibit or restrict either party’s right to develop, use or market products or services similar to or competitive with the other party; provided, however, that neither party is relieved of its obligations under this Agreement.
Notwithstanding anything to the contrary in this Agreement, Client and Telestax agree not to contact or initiate contact at any time for any purpose, either directly or indirectly, with any end-user whose identity was revealed, or who initially purchased Services, through the efforts of Either Party, or any officers, directors, shareholders, consultants, attorneys, employees, agents or other affiliates of Either Party, unless such approval is specifically granted in written form by the Other Party on a case-by-case basis in its sole discretion. Both Parties further agree not to undertake any transaction or a series of transactions of any kind with the end-user or to collect any fees in connection with the end-user without the express prior written agreement of the other party, which agreement may be withheld in the sole discretion of the other party.
8. Limitation of Liability and Disclaimer of Damages
8.1. Limitation of Liability.
FOR ALL EVENTS AND CIRCUMSTANCES, TELESTAX’S AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL ORDER FORMS, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS OR SERVICES, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STATUTE, IP INFRINGEMENT OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED FOR ANY YEAR THE LESSER OF (A) US$1,000,000 OR (B) THE AMOUNT ACTUALLY PAID BY CLIENT FOR SUCH SOFTWARE AND SERVICES, DEPRECIATED ON A THREE-YEAR STRAIGHT LINE BASIS, OR (C) SUCH HOSTED SERVICE IN THE LAST TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, WITH RESPECT TO THE PARTICULAR ITEMS (WHETHER SERVICES OR OTHERWISE). THE LIMITATIONS OF LIABILITY IN THIS SECTION ALSO WILL APPLY TO ANY LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND VENDORS
8.2. Disclaimer of Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR AN ORDER FORM, IN NO EVENT WILL TELESTAX BE LIABLE TO CLIENT OR ITS AFFILIATES FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION: ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, INFRINGEMENT OR OTHERWISE; OR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, REGULATORY NON-COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF TELESTAX HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR THESE DAMAGES WILL BE LIMITED AND EXCLUDED EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
During the term of this Agreement, both parties agree that (i) Confidential Information will be used only in accordance with the terms and conditions of this Agreement; (ii) each will use the same degree of care it utilizes to protect its own confidential information, but in no event less than reasonable care; and (iii) the Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement. Both parties agree that obligations of confidentiality will exist for a period of two (2) years following initial disclosure of the particular Confidential Information. “Confidential Information” means all information disclosed by either Telestax or Client (“Disclosing Party”) to the other party (“Recipient”) during the term of this Agreement that is either (i) marked confidential; or (ii) disclosed orally and described as confidential at the time of disclosure or within thirty (30) days following the oral disclosure; or (iii) would be understood by a reasonable person to be confidential, whether due to the nature of the information or the circumstances surrounding its disclosure.
Confidential Information will not include information which: (i) is or later becomes publicly available without breach of this Agreement, or is disclosed by the Disclosing Party without obligation of confidentiality; (ii) is known to the Recipient at the time of disclosure by the Disclosing Party; (iii) is independently developed by the Recipient without use of the Confidential Information; (iv) becomes lawfully known or available to the Recipient without restriction from a source having the lawful right to disclose the information; (v) is generally known or easily ascertainable by parties of ordinary skill in the business of the Recipient. The Recipient will not be prohibited from complying with disclosure mandated by applicable law if, where reasonably practicable and without breaching any legal or regulatory requirement, it gives the Disclosing Party advance notice of the disclosure requirement.
10. Representations and Warranties
10.1. General Representations and Warranties.
Telestax represents and warrants that: (a) the Services will be performed in a professional and workmanlike manner by qualified personnel; (b) it has the authority to enter into this Agreement with Client;
10.2. GDPR Processing of Personal Data.
As of May 25 2018, Telestax will be in full compliance with the GDPR. As per Article 5 of the GDPR, Processing of Personal Data, Telestax represents that the personal data will be processed lawfully, fairly and in a transparent manner. It will be collected for specified, explicit, and legitimate purposes. It will be adequate, relevant, and limited to what is necessary for the purposes for which it is being processed. The information will be accurate, and kept up to date. The information will be kept in a form which permits identification of data subject for no longer than is necessary for the purpose of the data processed. Further, Telestax will process the data in a manner that ensures appropriate security of the personal data.
10.3. Disclaimer of Warranty.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.1, OR MANDATED BY THE GDPR UNDER SECTION 10.2, OR BY A THIRD-PARTY VENDOR DIRECTLY TO CLIENT UNDER A SEPARATE AGREEMENT, THE SERVICES ARE PROVIDED BY TELESTAX “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. TELESTAX DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE SERVICES, WILL BE UNINTERRUPTED, COMPLY WITH REGULATORY REQUIREMENTS, BE ERROR FREE OR THAT TELESTAX WILL CORRECT ALL SOFTWARE ERRORS. FOR THE BREACH OF THE WARRANTIES SET FORTH IN SECTION 10.1, CLIENT’S EXCLUSIVE REMEDY, AND TELESTAX’S ENTIRE LIABILITY, WILL BE THE REPERFORMANCE OF DEFICIENT SERVICES, OR IF TELESTAX CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, CLIENT MAY TERMINATE THE RELEVANT SERVICES AND RECEIVE A PRO RATA REFUND OF THE FEES PAID FOR THE DEFICIENT SERVICES AS OF THE EFFECTIVE DATE OF TERMINATION.
10.4. General Representations and Warranties.
Client represents and warrants that it has the authority to enter into this Agreement with Telestax.
11. Governing Law/Consent to Jurisdiction
The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the State of Delaware, United States of America without giving effect to the conflicts of law’s provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the state or federal courts of competent jurisdiction located in Delaware, US, and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue. In the event the Uniform Computer Information Transactions Act (UCITA) or any similar federal or state laws or regulations are enacted, it will not apply to this Agreement, and the governing law will remain as if such law or regulation had not been enacted. The parties also agree that, prior to litigation, that they will engage in arbitration. The seat of arbitration shall be Delaware, United States, and shall be settled in accordance with the Commercial Arbitration Rules of the American Arbitration Association and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Said arbitration shall be conducted in Delaware, USA, by a single arbitrator. Such dispute resolution shall be in accordance with the applicable substantive laws of the state of Delaware. The prevailing party shall be entitled to all fees and costs arising therefrom, including, but not limited to, reasonable attorney’s fees and costs.
Notices must be in English, in writing, and will be deemed given when delivered by hand or five (5) days after being sent using a method that provides for positive confirmation of delivery to the respective addresses or facsimile numbers indicated in an Order Form.
This Agreement is binding on the parties to this Agreement, and other than the rights conferred on Business Partners in Sections 5.1 and 6.2.2, nothing in this Agreement or in any Order Form grants any other person or entity any right, benefit or remedy of any nature whatsoever. This Agreement is assignable by either party only with the other party’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; provided, however, either party may, upon written notice and without the prior approval of the other party, (a) assign this Agreement to an Affiliate as long as the Affiliate has sufficient credit to satisfy its obligations under this Agreement and the scope of Service is not affected; and (b) assign this Agreement pursuant to a merger or a sale of all or substantially all of such party’s assets or stock.
12.3. Independent Contractor.
Telestax is an independent contractor and nothing in this Agreement or related to Telestax’s performance of any Order Form will be construed to create an employment or agency relationship between Client (or any Client personnel) and Telestax (or any Telestax personnel). Each party will be solely responsible for supervision, direction, control and payment of its personnel, including applicable taxes, deductions, other payments and benefits. Telestax may subcontract Services under an Order Form to third parties or Affiliates without the approval of Client; provided, however, that (a) subcontractors agree to protect Client Confidential Information, and (b) Telestax remains responsible to Client for performance of its obligations hereunder.
12.4. Force Majeure.
With the exception of the Payment as outlined in Section 3, neither party will be liable for nonperformance or delays caused by acts of God, wars, riots, strikes, fires, floods, hurricanes, earthquakes, government restrictions, terrorist acts or other causes beyond its reasonable control.
Client agrees not to solicit or hire any personnel of Telestax involved with the delivery of Services in connection with any Order Form during the term of and for twelve (12) months after termination or expiration of such Order Form; provided that Client may hire an individual employed by Telestax who, without other solicitation, responds to advertisements or solicitations aimed at the general public.
12.6. Export and Privacy.
Telestax may supply Client with technical data that is subject to export control restrictions. Telestax will not be responsible for compliance by Client with applicable export obligations or requirements for this technical data. Client agrees to comply with all applicable export control restrictions. If Client breaches this Section 12.6 or the export provisions of an applicable end user license agreement for the Software, or any provision referencing these sections, Telestax may terminate this Agreement and/or the applicable Order Form and its obligations thereunder without liability to Client. Client acknowledges and agrees that to provide the Services, it may be necessary for Client Information to be transferred between Telestax, its Affiliates, Business Partners and/or subcontractors, which may be located worldwide. Client agrees and covenants to comply with all applicable laws, ordinances and regulations, including the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, and all other applicable anti-corruption laws, anti-competition laws, and export compliance laws. Client will not take any action, or fail to take any action, that would result in Telestax violating any such law, rule, ordinance or regulation.
12.7. Dispute Resolution.
Each party agrees to give the other a written description of any problem(s) that may arise and to make a good faith effort to amicably resolve any such problem before commencing any proceeding. Notwithstanding the foregoing, either party may take any action reasonably required to protect such party’s rights.
All headings contained in this Agreement are inserted for identification and convenience and will not be deemed part of this Agreement for purposes of interpretation.
If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the minimal modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement.
The delay or failure of either party to exercise any rights under this Agreement will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorized representative of the party against whom such waiver is sought to be enforced.
12.11. Complete Agreement.
Each Order Form (a) is a separate agreement and is deemed to incorporate this Agreement, unless otherwise expressly provided in that Order Form; (b) constitutes the exclusive terms and conditions with respect to the subject matter of that Order Form, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Client to place orders or otherwise effect transactions under this Agreement; and (c) represents the final, complete and exclusive statement of the agreement between the parties with respect thereto, notwithstanding any prior written agreements or prior and contemporaneous oral agreements with respect to the subject matter of the Order Form. In the event of any conflict between this Agreement, any Order Form and any end user license agreement for Software, this Agreement will take precedence unless otherwise expressly provided in the Order Form. Any claim relating to the provision of the Services by Telestax, will be made against Telestax alone
Neither this Agreement nor any Order Form may be amended or modified except in a writing signed by the parties, which writing makes specific reference to this Agreement or the applicable Order Form.
12.13. Counterparts and Facsimile Signature.
In the event this Agreement is executed with signatures, this Agreement may be executed in counterparts, each of which will be deemed an original and all of which will constitute one and the same document. The parties may exchange signature pages by facsimile and/or electronic signatures, and such signatures will be effective to bind the parties to all the terms contained in this Agreement.
13. Waiver of Jury Trial.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT.
14. Publicity Rights.
Telestax may identify the Client as a customer in Product promotional material. Client may request that Telestax cease identifying Client at any time by submitting an email to sales@Telestax.com. Requests may take 30 days to process.
Each of the parties has executed this Agreement by its duly authorized representatives as of the Effective Date.