THESE TERMS SHOULD BE READ CAREFULLY, AS THEY AFFECT THE PARTIES‘ LEGAL RIGHTS BY, AMONG OTHER THINGS, LIMITING SNAP DIAL LLC’S LIABILITY UNDER THE AGREEMENT AND REQUIRING ARBITRATION OF CERTAIN DISPUTES.
On the first occasion that the legal entity in whose name SNAP DIAL LLC agrees to provide Services (“Customer”) performs any of the following acts, such entity thereby enters into a legally-binding contract with SNAP DIAL LLC (“SNAP DIAL LLC”), a Texas corporation, that applies to and governs all sale, provision, acquisition, and/or use of Ordered Products (the “Agreement”): (a) entering into an agreement, order, or other document that incorporates SNAP DIAL LLC services.
The Agreement shall consist of these SNAP DIAL LLC Virtual Office and Virtual Contact Center Service Terms and all content expressly incorporated herein (these “Terms”) and all Orders, SOWs, and other documents entered into by or on behalf of Customer and SNAP DIAL LLC or its Affiliate in respect of Customer’s acquisition and/or use of Ordered Products.
The individual who agrees to or accepts these Terms represents and warrants to SNAP DIAL LLC that he or she has the authority to bind Customer to the Agreement and enter into the Agreement on Customer‘s behalf. IF SUCH INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE TO THESE TERMS, THEN HE/SHE SHOULD NOT ACCEPT THESE TERMS, ENTER INTO ANY ORDER, OR ORDER, ACCESS, OR USE THE SaaS SERVICES OR AUTHORIZE OR PERMIT ANY OTHER PERSON TO DO SO.
These Terms apply with respect to all Orders, all SaaS and Project Services (“Services”), and all equipment ordered or provided under the Agreement (such equipment, “Ordered Equipment”; such Services and equipment together, “Ordered Products”). In the event of any conflict among the documents that comprise the Agreement, the following order of precedence shall apply: (i) an Order (solely as to type, quantity, and pricing of the Services or equipment ordered there under); (ii) an SOW (solely as to the performance of the Project Services ordered there under and the billing of amounts related thereto); (iii) these Terms; and (iv) Orders and SOWs (as to all other terms). In the event of any conflict among the components of these Terms, the following order of precedence shall apply: (1) the SNAP DIAL LLC Virtual Office and Virtual Contact Center Regional Terms included at the end hereof (the “Regional Terms”) (which are incorporated herein), (2) the SNAP DIAL LLC Virtual Office and Virtual Contact Center Use Policy (available at www.snapvoip.net/terms-and-conditions/use-policy) (the “Use Policy”) (which is incorporated herein), and (3) the other components of these Terms.
2.1. Ordering SaaS Services. Customer may order SaaS Services under the Agreement, in each case by entering into an SNAP DIAL LLC-prepared written or electronic order for the same with SNAP DIAL LLC or its Affiliate pursuant to the Agreement (such orders, “Orders”; such SaaS Services, the “Ordered SaaS Services”). Orders shall be (a) deemed entered into by, and shall become effective and legally binding on, the Parties upon execution or completion of an electronic SNAP DIAL LLC “click-through” or “click to accept” process by Customer and (b) coterminous with the Agreement (i.e., shall terminate, renew, and/or expire at the same time as the Agreement, in accordance with Sections 11 (Term and Renewal) and 12 (Termination)). Upon placement of an Order, the applicable Ordered SaaS Services shall be provisioned, a tenant and account shall be automatically created for Customer, and Customer’s designated administrator shall receive email instructions and credentials necessary to access such Ordered SaaS Services, assign lines and/or seats to individual users, and otherwise enable Customer to access and use such ordered SaaS Services (“Provisioning”).
2.2. SNAP DIAL LLC Responsibilities With Respect to SaaS Services
2.2.1. SaaS Services Availability. SNAP DIAL LLC shall, itself or through one or more of its vendors, subcontractors, or other service-providers (each, a “Partner” of SNAP DIAL LLC) or Affiliates, (a) make the Ordered SaaS Services (which shall substantially conform to the applicable Documentation) available to Customer during the Effective Period as set forth in, and subject to the terms and conditions of, the Agreement and (b) provide standard support for Ordered SaaS Services via telephone, email, and web chat during SNAP DIAL LLC’s regular business hours.
2.2.2. SaaS Services Pricing Commitment. The Service Fee rates for Ordered SaaS Services shall be as set forth in the applicable Order, and, during the Initial Term, SNAP DIAL LLC may not increase any such rates. After the Initial Term, SNAP DIAL LLC may, at any time, increase such rates up to – but not in excess of – the then-current list price for the applicable Ordered SaaS Services. Finally, when Customer orders Ordered SaaS Services for the first time in a country, such order shall establish the Service Fee rates that SNAP DIAL LLC must offer for future Orders of the same Ordered SaaS Services in that country, provided that such established rates shall increase in parallel with any rate increases under the immediately preceding sentence. The initial Regulatory Fee rates for Ordered SaaS Services shall be as set forth in the applicable Order.
2.2.3. Changes to Ordered SaaS Services. SNAP DIAL LLC may not change Ordered SaaS Services in any way that materially reduces their overall functionality or security (based on customary usage in the United States (“US”), the United Kingdom, Australia, and Canada (the “Primary Market”)), except with Customer’s written approval. SNAP DIAL LLC may, however, make other changes or perform upgrades to Ordered SaaS Services, provided that SNAP DIAL LLC shall provide advance notice to Customer of any such change or upgrade if reasonably practicable or otherwise promptly thereafter.
2.2.4. Content and Data Protection. SNAP DIAL LLC shall implement and maintain commercially reasonable administrative, physical, and technical safeguards to protect the content of all communications transmitted, received, and/or stored through any Ordered SaaS Services (Customer’s “Content”) from unauthorized access and use. Customer shall remain the owner of its Content. The Parties acknowledge and agree that (a) SNAP DIAL LLC’s and its Affiliates’ role with respect to Customer’s Content, if any, shall be that of a passive conduit and (b) neither SNAP DIAL LLC nor any of its Affiliates or Partners shall be responsible for or have any involvement in determining or creating such Content or determining the recipients or destinations of any communications through Ordered SaaS Services.
2.3. Customer Responsibilities With Respect to SaaS Services
2.3.1. Customer Subscription Commitment. AS A MATERIAL COMMITMENT UPON WHICH PRICING AND OTHER TERMS OF THE AGREEMENT ARE BASED, CUSTOMER SHALL BE OBLIGATED TO PAY (IN ACCORDANCE WITH SECTION 7 (BILLING AND PAYMENT)) ALL SERVICE FEES, REGULATORY FEES, AND TAXES RELATED TO ORDERED SaaS SERVICES FOR THE ENTIRE PERIOD BEGINNING ON THE EFFECTIVE DATE OF CUSTOMER’S FIRST ORDER AND CONTINUING FOR THE NUMBER OF MONTHS IDENTIFIED THEREIN AS THE “TERM,” “INITIAL TERM,” OR SIMILAR PERIOD (OR, WHERE NO SUCH PERIOD IS SO IDENTIFIED, FOR THIRTY-SIX (36) MONTHS) THEREAFTER) (THE “INITIAL TERM”) AND EACH RENEWAL TERM (CUSTOMER’S “SUBSCRIPTION COMMITMENT”), provided that Customer may reduce in quantity or downgrade (e.g., to a tier with a lower Service Fee rate) Ordered SaaS Services for the next renewal term by providing notice of the same to SNAP DIAL LLC at least sixty (60) days before the start of such renewal term (“Reduce” or a “Reduction”).
2.3.2. Usage. Customer shall be responsible for, and shall pay in accordance with Section 7 (Billing and Payment), any applicable usage charges of the sort set forth at the time of such usage at www.Voicesnapvoip.net /terms-and-conditions/usage.
2.3.3. Use Policy Compliance. Customer accepts and agrees to the Use Policy and shall fulfill all of its obligations, representations, warranties, and covenants thereunder.
2.3.4. Registration Information. Customer shall be responsible for the accuracy and legality of all account, Agent, and registration information (including without limitation Customer’s legal name and payment information, Customer/Agent contact information, and any personal data included therein) (“Registration Information”) and the means of its acquisition.
2.3.5. Network Requirements. Customer shall be responsible for ensuring that all aspects of the applicable network environment(s) adhere to the applicable standards and requirements specified in the Documentation and are configured appropriately to its proposed use of Ordered SaaS Services.
2.4. SaaS Services Limitations. Customer acknowledges and agrees that (a) the Ordered SaaS Services will not be uninterrupted, error-free, or available one-hundred percent (100%) of the time (e.g., they may be unavailable during periods of planned or unplanned downtime and communications may not always be delivered to their intended destination or without loss of data), (b) a single log-in is provided for each SNAP DIAL LLC Virtual Office extension, and, except with respect to conference and other extensions specifically designed for conference or multi-party use (“Conference Extensions”), such log-in and extension is provided solely for use by a single Agent, (c) data transmitted or stored through the SaaS Services may be exported therefrom in a variety of ways (including without limitation via third-party integrations, other features that interoperate with third-party offerings, or local or external download), (d) the SaaS Services are not intended to and should not be used for back-up or long-term storage of data, and (e) SNAP DIAL LLC shall not be responsible for any such exported data or any loss of such stored data. Use of SNAP DIAL LLC mobile applications may utilize underlying third-party cellular and/or data services and thus may use such services’ allotted units and/or result in usage or other charges associated with such third-party services.
2.5. Third-Party Offerings and Integrations. Customer’s relationship and dealings (including without limitation any collection or use of data) with providers of non-SNAP DIAL LLC offerings that interoperate with the SaaS Services (e.g., third-party applications for which SaaS Services integrations are available) or that are used in connection with the SaaS Services (e.g., broadband, MPLS, and equipment leasing services) (“Providers”) shall in each case be governed by Customer’s agreement with the applicable Provider and shall be outside the scope of the Agreement. In no event shall SNAP DIAL LLC be liable or responsible (a) under any such agreement or for any act or omission of any Provider or any operation of its offering (e.g., any accessing, modification, or deletion of data), regardless of whether SNAP DIAL LLC endorses, refers Customer to, approves of Customer’s use of, or agrees to bill and/or collect behalf of such Provider or designates any such offering as “certified,” “approved,” “recommended,” etc., (b) for supporting any such third-party offering, or (c) (except as expressly set forth in an SOW) for ensuring the continued availability or operation of any such offering or any SaaS Services integrations or other features designed to interoperate therewith, which such integrations or features may be discontinued at any time.
2.6. Suspension and Restriction. In addition to SNAP DIAL LLC’s other rights and remedies under the Agreement, SNAP DIAL LLC may (a) suspend some or all of the Ordered SaaS Services where SNAP DIAL LLC reasonably determines that such suspension is necessary to avoid actual or likely harm or damages to, or liability for, any party or where Customer has breached the Agreement and/or (b) place reasonable limitations or restrictions on the use of any Ordered SaaS Services that are being used in violation of the Use Policy. SNAP DIAL LLC shall notify Customer of any such suspension in advance thereof if reasonably practicable or promptly thereafter if such advance notification is not reasonably practicable. None of the foregoing actions by SNAP DIAL LLC shall relieve Customer of any of its obligations under the Agreement, except that Customer shall not be liable for any fees for any suspended Ordered SaaS Services for the period of such suspension if not due to Customer’s breach of the Agreement.
3.1. Ordering Equipment. Customer may order equipment, in each case by entering into an Order. The pricing for Ordered Equipment shall be as set forth in the Order under which it was ordered. Equipment-related pricing, discounts, and promotions (e.g., free shipping) provided in an Order shall apply solely to the particular equipment ordered under that Order, and SNAP DIAL LLC makes no commitment and shall have no obligation with respect to future pricing for or availability of equipment.
3.2. SNAP DIAL LLC Responsibilities With Respect to Equipment. SNAP DIAL LLC shall, itself or through its Affiliates or Partners, provide the Ordered Equipment to Customer and pass through to Customer a twelve- (12-) month warranty (or an extended warranty if permitted by the manufacturer) therefor. Customer may return any defective Ordered Equipment covered by warranty by obtaining a return authorization number from SNAP DIAL LLC and thereafter returning the Ordered Equipment in its original packaging or equivalent to the address specified by SNAP DIAL LLC, in which case SNAP DIAL LLC shall replace the Ordered Equipment at no charge and pay the reasonable associated shipping costs.
3.3. Customer Responsibilities With Respect to Equipment. Customer shall, in accordance with Section 7 (Billing and Payment), pay for all Ordered Equipment at the pricing set forth in the applicable Order and for all shipping and related charges. All shipments of Ordered Equipment shall be F.C.A. (free carrier), and title and risk of loss or damage shall pass to Customer upon delivery to the carrier. Customer shall be deemed the importer of Ordered Equipment for all purposes. Customer shall be responsible for all lost, stolen, or broken equipment (except to the extent covered by warranty), and for ensuring that any externally-acquired equipment used with Ordered SaaS Services is in reasonable working condition and configured in accordance with SNAP DIAL LLC’s technical requirements.
3.4. Equipment Financing Plans. Where Customer orders Ordered Equipment pursuant to an Extended Payment Plan or similar financing option (an “EPP”), Customer shall pay for such Ordered Equipment according to such EPP’s schedule and for such EPP’s entire term, which shall be (a) as set forth in the applicable Order or (b) monthly and twenty-four (24) months if not set forth therein. Customer may terminate any EPP for convenience with thirty (30) days’ advance notice to SNAP DIAL LLC. In the event of termination of any EPP for any reason, all unpaid amounts owed thereunder shall become immediately due and payable.
SNAP DIAL LLC may from time to time, in each case in its sole discretion, offer to perform work for Customer related to the configuration or customization of Ordered SaaS Services, network assessments, Agent training, or similar work or services (“Project Services”). Customer may order Project Services under the Agreement (“Ordered Project Services”), in each case by entering into (via execution or completion of an electronic SNAP DIAL LLC “click-through” or “click to accept” process) an Order and/or written statement of work for the same with SNAP DIAL LLC or its Affiliate (an “SOW”). SNAP DIAL LLC shall, itself or through its Affiliates or Partners, perform the Ordered Project Services in a professional and workmanlike manner, with reasonable skill and care, and in accordance with the terms of the applicable SOW (which shall set forth the other terms and pricing related to the Ordered Project Services ordered thereunder), provided that Customer’s sole and exclusive remedies for SNAP DIAL LLC’s breach of this sentence shall be as set forth in the applicable SOW. Customer shall pay all fees and other amounts set forth in the applicable Order and/or SOW for Ordered Project Services, in accordance with Section 7 (Billing and Payment) and any other terms set forth in such SOW.
ORDERS AND PARTY AFFILIATES; SNAP DIAL LLC SUBCONTRACTING
SNAP DIAL LLC may, in each case in its sole discretion, (a) permit an Affiliate of Customer to order Ordered Products, in which case, with respect to such orders, (i) references to “Customer” in the Agreement shall be deemed to include such Customer Affiliate (as well as Customer) and (ii) Customer shall remain fully, including jointly and severally, liable under the Agreement, (b) designate an SNAP DIAL LLC Affiliate to enter into one or more Orders or SOWs with Customer, in which case, with respect to such Orders or SOWs (unless otherwise agreed in writing by the Parties), (1) the Agreement’s references to “SNAP DIAL LLC” shall include such SNAP DIAL LLC Affiliate (as well as SNAP DIAL LLC) (provided that the SNAP DIAL LLC Affiliate shall be deemed to be the service provider under such Orders or SOWs) and (2) SNAP DIAL LLC shall remain fully, including jointly and severally, liable under the Agreement, and (c) subcontract for the performance of SNAP DIAL LLC’s obligations under the Agreement, provided that SNAP DIAL LLC shall remain responsible for performance of such obligations and for such subcontractors’ actions or omissions in performing such obligations.
Customer shall be liable and responsible for, and shall pay in accordance with Section 7 (Billing and Payment), all taxes, levies, imports, exports, customs, duties, charges, fees or similar governmental assessments, including value-added tax, sales, use, withholding, public utility, or universal service taxes or fees, and emergency services surcharges (i.e., 911, E911, 999, etc.) that SNAP DIAL LLC reasonably believes to be assessed or assessable by any governmental, fiscal, or other authority or recoverable by SNAP DIAL LLC, in respect of Ordered Products, other than those assessable against SNAP DIAL LLC based solely on its income (collectively, “Taxes”). Any Taxes set forth in a quote or the Agreement shall be solely non-binding estimates. Any such estimates set forth in a quote or Order shall be calculated by SNAP DIAL LLC in good faith based on the service address(es) provided by Customer. In order to assert an exemption from any Tax, Customer must deliver to SNAP DIAL LLC a valid tax exemption certificate authorized by the appropriate taxing authority, in which case Customer shall still be liable for any Taxes assessed prior to such delivery. To the extent required by law, Customer may deduct amounts from its payment of Billed Amounts for or on account of any Tax and/or withholding imposed by any governmental or fiscal authority, provided that Customer shall (a) provide notice of such requirement to SNAP DIAL LLC at least thirty (30) days prior to making the deduction, (b) furnish SNAP DIAL LLC with receipts evidencing remittance of the deducted amounts, and (c) pay such additional amounts to SNAP DIAL LLC, as applicable, as are necessary to ensure receipt by SNAP DIAL LLC of the full amount that it would have received but for the deduction. Customer acknowledges and agrees that SNAP DIAL LLC may not charge value-added, goods and services, or similar Taxes in certain jurisdictions (such as Australia) that permit reverse charge of such Taxes. Customer shall account for and remit any such Taxes on Ordered Products in such jurisdictions.
BILLING AND PAYMENT
7.1. Billing of Billed Amounts. Service Fees and other monthly-recurring charges shall start to be billed as of the effective date of the applicable Order. Except to the extent otherwise provided in an Order, such amounts shall be billed monthly, at or near the beginning of the applicable calendar month, provided that when Ordered SaaS Services are ordered, SNAP DIAL LLC or its Affiliate may bill the first thirty (30) days of such amounts for such Ordered SaaS Services at or near the time of order. One-time Services charges, including Project Services fees, shall be incurred on the effective date of the applicable Order. Equipment-related charges shall be incurred upon shipment of the Equipment.
7.2. Payment of Billed Amounts. Except as set forth in this Section 7.2 (Payment of Billed Amounts) and Section 6 (Taxes), Customer shall pay all amounts billed to Customer by or on behalf of SNAP DIAL LLC or its Affiliate in respect of Ordered Products (“Billed Amounts”) without counter-claim, set-off, withholding, or deduction of any sort. If Customer believes in good faith that a Billed Amount was not actually incurred under the Agreement (i.e., was overbilled), then Customer may dispute such Billed Amount by providing notice to SNAP DIAL LLC by email to [email protected] within thirty (30) days of the date of the first posting of the Billed Amount in the relevant account (where payment is not By Invoice) or the date of the first invoice in which the Billed Amount was invoiced (where payment is By Invoice), which such notice must specify the particular Billed Amount(s) in dispute and the basis of the dispute in reasonable detail. Failure to so dispute a Billed Amount within such period shall constitute a complete and irrevocable waiver of Customer’s right to dispute such Billed Amount. If payment of a Billed Amount is By Invoice and Customer disputes such Billed Amount in good faith in accordance with this Section 7.2 (Payment of Billed Amounts), then Customer may, at its option, either (a) pay such Billed Amount expressly under protest or (b) withhold payment of such Billed Amount, in which case such Billed Amount, if (and only if) actually incurred under the Agreement (i.e., not actually overbilled), shall not become due until ten (10) days after SNAP DIAL LLC’s determination of the same (if such due date is later than the original due date for such amount). Delinquent Billed Amounts shall, beginning upon delinquency, accrue interest at the rate of the lesser of one-point-five percent (1.5%) per month or the maximum rate permitted by applicable law. Except as expressly provided otherwise in the Agreement, all payments to SNAP DIAL LLC or its Affiliate shall be non-refundable and non-creditable.
7.3. Up-Front Payment. At all times during the Effective Period other than those periods for which payment of all Billed Amounts is By Invoice, Customer shall maintain on file with SNAP DIAL LLC or the billing SNAP DIAL LLC Affiliate (as applicable) complete, accurate, and up-to-date information for at least one valid, working credit card or Customer account (sufficient to permit ACH withdrawals). Payment of all Billed Amounts – other than those for which SNAP DIAL LLC has agreed to payment By Invoice – shall be by charge to such credit card(s) or by ACH withdrawal from such account(s), at or near time of billing, and Customer hereby authorizes SNAP DIAL LLC to make such charges or withdrawals. Where payment is by such charge or withdrawal, (a) SNAP DIAL LLC shall post a statement of the Billed Amounts in the relevant account at or near the time of the first attempted charge or withdrawal and shall thereafter make commercially reasonable efforts to notify Customer by email and/or telephone if the charge or withdrawal is not successful and (b) Billed Amounts shall be due within fourteen (14) days of such posting.
7.4. Payment by Invoice. To the extent agreed by SNAP DIAL LLC, Customer may pay Billed Amounts by invoice, in which case payment of those Billed Amounts shall be (a) made by credit card, check, ACH, or wire transfer and (b) due within thirty (30) days of invoice date (Net 30) (payment “By Invoice”). Each such agreement shall be within SNAP DIAL LLC’s sole discretion, but, once entered into, may not be revoked by SNAP DIAL LLC, except upon the occurrence of event(s) that, in SNAP DIAL LLC’s reasonable discretion, put Customer’s creditworthiness or solvency into question (which such events shall include without limitation Customer’s default on any of its financial obligations or a Solvency Event with respect to Customer or any entity that owns or controls it).
7.5. Promotions. Promotion, discount, or related codes must be provided to SNAP DIAL LLC at the time of the relevant order(s), may not be used cumulatively or retroactively, and may be changed or discontinued by SNAP DIAL LLC at any time in its sole discretion. In no event shall promotional rates or pricing apply for a period longer than a single Term or extend beyond the Term for which they were provided.
CHANGE IN TERMS
SNAP DIAL LLC may not change these Terms in any manner that would materially reduce Customer’s rights or benefits, or materially increase Customer’s obligations or liability, under the Agreement (i.e., any such change shall not apply to the Agreement), except where SNAP DIAL LLC provides Customer with at least thirty (30) days’ notice of such change. Where Customer objects (via notice to SNAP DIAL LLC) to such change before the end of such notice period, such change shall not take effect during the then-current Initial Term or renewal term (as applicable) (each a “Term”), but shall take effect if and when the Agreement renews (i.e., on the first day of the Agreement’s next renewal term, if any). Where Customer fails to so object to such a change, such change shall take effect at the end of such notice period. SNAP DIAL LLC may make other changes to these Terms (including without limitation adding Regional Terms for a new country or region) by posting such changes to www.snap-dial.com/order-terms or this web page, which changes shall be effective upon such posting.
GENERAL REPRESENTATIONS AND WARRANTIES; WARRANTY DISCLAIMER
Each Party represents and warrants that it is a bona fide business, has the power and authority to enter into and perform its obligations under the Agreement, and is not relying upon any statements, commitments, representations, or warranties other than those expressly set forth in the Agreement. Customer represents and warrants that its orders or purchases are not contingent on the delivery of any future functionality or feature. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED BY SNAP DIAL LLC IN THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SNAP DIAL LLC MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES IN RELATION TO THE SERVICES, EQUIPMENT, AND/OR THE AGREEMENT, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE.
RIGHTS IN AND TO THE SERVICES AND FEEDBACK
To the maximum extent permitted by law, all intellectual property and other rights, title, and interest in or to the Documentation or the Services and related software, applications, functionalities, APIs, tools, and interfaces (the “SNAP DIAL LLC Platform”) – and all configuration designs, code, deliverables, and other work product produced or developed by SNAP DIAL LLC or its Affiliates or Partners in the course of performing under the Agreement (except to the extent such work product embodies Customer’s pre-existing intellectual property) – shall remain with, and belong exclusively to, SNAP DIAL LLC, its Affiliates, and/or their licensors. Customer hereby assigns to SNAP DIAL LLC all intellectual property and other rights, title, and interest in or to any improvement, enhancement, recommendation, correction, or other feedback that Customer may provide to SNAP DIAL LLC or its Affiliates relating to their operations or the Services or Equipment, and agrees that SNAP DIAL LLC shall be free to use, license, assign, and exploit any ideas, concepts, know-how, or techniques contained therein for any purpose without restriction or compensation.
TERM AND RENEWAL
The Agreement shall become effective on the date that the Parties enter into the Agreement and continue in full force and effect until the earlier of (a) the date terminated in accordance with Section 12.1 (Exclusive Termination Rights) and (b) the date of expiration as set forth in the next sentence (the “Effective Period”). At the end of each Term, the Agreement will automatically renew for a twelve- (36-) month renewal term.
12.1. Exclusive Termination Rights. The Agreement may be terminated:
(a) by either Party with thirty (30) days’ notice to the other Party in the event of the other Party’s material breach of the Agreement (which shall include without limitation any Customer payment delinquency or Customer breach of the Use Policy) and, if such breach is reasonably capable of cure, failure to cure such breach within such notice period, provided that such cure requirement shall not apply with respect to a Customer payment delinquency where there has already been such a delinquency;
(b) immediately by either Party upon notice to the other Party where the other Party experiences a Solvency Event;
(c) by SNAP DIAL LLC with thirty (30) days’ notice to Customer in the event that any SaaS Services become subject to an actual or threatened Claim of infringement (an “Infringement Claim”) and avoidance of the alleged infringement via procurement of a license or modification or replacement of the applicable SaaS Services (either or both of which may be exercised by SNAP DIAL LLC, at its sole option and expense, in the event of any Infringement Claim) is not commercially feasible;
(d) by SNAP DIAL LLC with thirty (30) days’ notice to Customer in the event that Customer objects to any change to these Terms proposed or made by SNAP DIAL LLC under Section 8 (Change in Terms);
(e) by SNAP DIAL LLC with thirty (30) days’ notice to Customer in the event that SNAP DIAL LLC determines in good faith that such termination is necessary to comply with a law, regulation, or court or administrative order or ruling; or
(f) by Customer through notice provided to SNAP DIAL LLC within the first (30) days after the effective date of Customer’s initial Order, if the Ordered SaaS Services do not satisfy Customer’s requirements, in which case (i) Customer shall be relieved of its Subscription Commitment for any post-termination period and (ii) SNAP DIAL LLC shall refund any Service Fees paid to SNAP DIAL LLC for such post-termination period and any fees paid to SNAP DIAL LLC for the purchase of Ordered Equipment (less a $25.00 (USD) per piece re-stocking fee) that is returned to SNAP DIAL LLC within thirty (30) days after Customer’s notice of termination (with Customer first obtaining a return authorization number from SNAP DIAL LLC and SNAP DIAL LLC providing pre-paid return shipping) in accordance with SNAP DIAL LLC’s instructions, in its original packaging, and in an undamaged condition; provided that for avoidance of doubt, (1) Customer shall remain liable for any other amounts incurred under the Agreement, including without limitation any Service Fees for any period prior to such termination, Taxes, Regulatory Fees, or amounts related to Usage (including without limitation any post-termination Usage) and (2) where Customer has not paid Service Fees or other recurring amounts to SNAP DIAL LLC for any pre-termination portion of the Initial Term (including without limitation due to any agreement by SNAP DIAL LLC to waive or delay the billing of any Service Fees or other recurring amounts or to provide free service), Customer shall – notwithstanding any such agreement – become liable for and shall pay to SNAP DIAL LLC any such unpaid Service Fees or other recurring amounts for such pre-termination period.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 12 (TERMINATION) STATES THE PARTIES’ SOLE AND EXCLUSIVE RIGHTS TO TERMINATE THE AGREEMENT, AND THE AGREEMENT MAY NOT OTHERWISE BE TERMINATED BY EITHER PARTY.
12.2. Effect of Termination. Upon any termination of the Agreement for any reason, subject to any continuing Customer financial obligations under the Agreement, all Orders, SOWs, and EPPs shall immediately terminate. In the event that the Agreement is terminated by Customer under and in accordance with clause (a) or (b) – or by SNAP DIAL LLC under clause (c), (d), or (e) – of Section 12.1 (Exclusive Termination Rights), Customer shall be relieved of its Subscription Commitment for any post-termination period, and SNAP DIAL LLC shall refund any amounts un-used and pre-paid for Ordered SaaS Services for any such period. For clarity, (a) no other termination of the Agreement shall relieve Customer of such commitment (which shall survive any such termination) or entitle Customer to any refund and (b) in no event shall termination or expiration of the Agreement relieve Customer of its obligation to pay any amount incurred thereunder prior to such termination or expiration.
SNAP DIAL LLC shall (a) defend Customer, its Affiliates, and their personnel (collectively, the “Customer Parties”) from and against any Indemnified IP Claim threatened or brought against any of them by any third party and (b) indemnify and hold harmless the Customer Parties against any damages, attorneys’ fees, defense costs, and other losses (collectively, “Losses”) payable by them pursuant to the adjudication or settlement of any Indemnified IP Claim. Customer shall (i) defend SNAP DIAL LLC, its Affiliates, and their personnel (collectively, the “SNAP DIAL LLC Parties”) from and against any action, claim, demand, suit, investigation, inquiry, or proceeding (each a “Claim”) threatened or brought against any of them by any third party that arises out of or results from Customer’s Content or any actual or alleged breach of the Agreement by Customer and (ii) indemnify and hold harmless the SNAP DIAL LLC Parties against any Losses payable by any of them pursuant to the adjudication or settlement of any such Claim. An indemnified party shall (1) provide the indemnifying Party prompt notice upon becoming aware of such a Claim, (2) permit the indemnifying Party to have sole and exclusive control over the defense and settlement of any such Claim, if it elects, and (3) provide reasonable assistance to the indemnifying Party in connection therewith; provided, the indemnifying Party shall not enter into any settlement agreement that would result in any payment or other obligation, or restriction on the business of, the indemnified party without its prior written consent.
EXCLUSIONS AND LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (a) NONE OF THE SNAP DIAL LLC PARTIES SHALL BE LIABLE UNDER THE AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR COVER DAMAGES; LOSS OF PROFITS, REVENUES, OR GOODWILL; OR LOSS OR INTERRUPTION OF BUSINESS, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE AND (b) THE MAXIMUM LIABILITY OF THE SNAP DIAL LLC PARTIES UNDER THE AGREEMENT, WHETHER ARISING FROM A THEORY OR CLAIM OF BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL IN NO CASE EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAYABLE UNDER THE AGREEMENT FOR THE TWELVE- (12-) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING EXCLUSION AND LIMITATION SHALL APPLY REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND ON A CUMULATIVE (RATHER THAN PER-INCIDENT) BASIS. THE PARTIES AGREE THAT (i) THE FOREGOING EXCLUSION AND LIMITATION ARE INTENDED TO ALLOCATE RISK AMONG THE PARTIES UNDER THE AGREEMENT AND COMPRISE AN ESSENTIAL PART THEREOF, (ii) THE PARTIES RELIED ON SUCH EXCLUSION AND LIMITATION IN ENTERING INTO THE AGREEMENT, AND (iii) THE PRICING FOR THE ORDERED PRODUCTS WOULD HAVE BEEN SUBSTANTIALLY HIGHER IN THE ABSENCE OF SUCH EXCLUSION OR LIMITATION.
15.1. Pre-Filing Notice. Each Party shall, before initiating an arbitration, court or other action, suit, or proceeding against the other Party, its Affiliate, or their personnel in respect of any Covered Claim (each a “Proceeding”), provide written notice to the other Party describing in reasonable detail its contentions and the specific provisions of the Agreement, if any, allegedly breached. The Parties shall work diligently and in good faith for thirty (30) days following such notice to attempt to resolve the dispute, including without limitation by ensuring that knowledgeable executives of each Party hold at least one meeting (in person or by video- or tele-conference) to such end. If the Parties fail to resolve the dispute within such thirty- (30-) day period, either Party may thereafter initiate the Proceeding in accordance with these Terms (and without satisfying any further notice or cure period under the Agreement). FAILURE TO COMPLY WITH THIS SECTION 15.1 (PRE-FILING NOTICE) MAY BE PLEADED AS A FULL AND COMPLETE BAR AND DEFENSE TO, AND MAY BE USED AS A BASIS FOR AN INJUNCTION AGAINST, ANY PROCEEDING INSTITUTED IN CONTRAVENTION THEREOF.
15.2. Mandatory Arbitration. (IF CUSTOMER IS DOMICILED IN THE US, THIS SECTION 15.2 (MANDATORY ARBITRATION) SHALL APPLY TO ALL COVERED CLAIMS; OTHERWISE, IT SHALL APPLY TO ONLY COVERED CLAIMS RELATING TO SERVICES PROVIDED IN THE US.) COVERED CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION ADMINISTERED BY AMERICAN ARBITRATION ASSOCIATION (“AAA”). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services provided or billed to Customer if Claims are asserted against SNAP DIAL LLC in the same proceeding. Arbitration will be conducted under AAA’s published commercial arbitration rules. Customer and SNAP DIAL LLC agree to bear their own fees, costs, and expenses, including those for any attorneys, experts, and witnesses. The place of arbitration shall be Santa Clara County, California. The language of the arbitration shall be English.
16.1. Notices. Except as expressly provided otherwise in the Agreement, any notice to be provided thereunder shall be provided as follows: (a) to Customer – via email to the email address specified by Customer in connection with its initial order of Services or via personal service, overnight courier, or US certified mail (return receipt requested and postage prepaid) (collectively, “Delivery”) to any postal address provided by Customer in connection with such order and (b) to SNAP DIAL LLC – via email to [email protected] (for notices of Claims or termination) or via Delivery to “SNAP DIAL LLC Attn: Customer Service, PO Box 600281 Dallas Texas 75360”. Either Party may change any of its designated notice addresses via notice to the other Party. Notices shall be deemed effective and received as follows: (i) via Email – the first business day after the date sent (without any undeliverable notification being returned), (ii) via Personal Service – the first business day after the date delivered to the noticed Party, (iii) via Overnight Courier – the first business day after the date delivered to the overnight courier, and (iv) via US Certified Mail – the fifth (5th) day after the date sent.
16.2. Governing Law; Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of Texas, without regard to its choice or conflicts of law rules. The Parties agree to submit to the jurisdiction of the state and federal courts within Dallas County, Texas (which jurisdiction shall be exclusive if Customer is domiciled in the US), and waive any objection as to venue or inconvenient forum in such courts.
16.3. Force Majeure. Neither Party shall be considered in breach of, or have any liability under, the Agreement as the result of any failure or delay in such Party’s performance thereunder caused by events beyond such Party’s reasonable control, including without limitation act of God; fire, flood, hurricane, earthquake, tsunami, or other natural disaster; riot; war; terrorism; government action or intervention; embargo; strike; destruction of facilities; late or failed delivery by suppliers; unavailability of power or Internet services; or network or carrier issues, provided that the foregoing shall not apply to either Party’s payment obligations under the Agreement.
16.4. Entire Agreement; Amendment. The documents comprising the Agreement constitute the entire agreement between the Parties in respect of the Ordered Products and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to thereto. The Agreement may not be amended, except via both Parties’ execution of a written amendment thereto or as otherwise expressly provided in these Terms. In no event shall the terms of any purchase order or similar document delivered by or on behalf of Customer or its Affiliate to SNAP DIAL LLC or its Affiliate in connection with the Agreement (to which SNAP DIAL LLC hereby objects) become part of, apply to, or modify or supersede the Agreement’s terms.
16.5. Severability. If any provision of the Agreement is deemed illegal, invalid, or unenforceable, in whole or in part, under applicable Law, the Agreement shall be deemed amended as and to the extent necessary to render its terms valid, enforceable under applicable Law, and, to the greatest extent possible, consistent with the Parties’ original intent.
16.6. Waiver. Except to the extent expressly otherwise provided in the Agreement, (a) either Party’s failure to exercise or enforce any right or remedy under the Agreement shall not constitute a waiver of such right or remedy and (b) no waiver of any right or remedy shall be enforceable against a Party unless in writing and otherwise conforming with these Terms.
16.7. Assignment; Binding Effect. The Agreement shall be binding upon the Parties’ heirs, successors, and permitted assigns. Customer may not assign the Agreement or assign its rights or delegate its obligations thereunder, in whole or in part, except (a) (to the extent in connection with a bona fide sale of Customer or substantially all of its assets to a third party) with ten (10) days’ prior notice to SNAP DIAL LLC or (b) with SNAP DIAL LLC’s prior express written consent. In connection with any such proposed or actual assignment or delegation by Customer, Customer shall provide such information and documentation concerning the assignee or delegee as SNAP DIAL LLC might reasonably request, and Customer shall remain jointly liable for the obligations of such assignee or delegee. For the avoidance of doubt, SNAP DIAL LLC may assign its rights and/or delegate its obligations under the Agreement, in part or in full, to one or more of its Affiliates.
16.8. No Third-Party Beneficiaries. Except as expressly stated in the Agreement, the Agreement is intended for the sole benefit of, and shall only be enforceable by, each Party and its permitted assigns. Without limiting the foregoing, SNAP DIAL LLC shall have no obligation or liability hereunder to any Agent or other end user of Ordered SaaS Services.
16.9. Document Execution/Acceptance. Use of DocuSign, or any other widely-used method of verifiable electronic signature and delivery, shall be a valid method of execution and/or delivery of all documents under the Agreement. Any document or other content related to or proposed for addition to the Agreement that is prepared by SNAP DIAL LLC and sent to Customer for acceptance via completion of an electronic “click-through,” “click to accept,” or similar process shall be deemed accepted and entered into by Customer upon Customer’s completion of such process.
16.10. Interpretation. The headings in the documents comprising the Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of thereof. References in the Agreement to a web address (URL) shall be deemed to include (a) any subpages that are accessible through one or a series of clearly-labelled hyperlinks and (b) such successor sites as may be designated by the owner or controller of the web site.
16.11. Survival. Sections 2.3.1 (Customer Subscription Commitment), 13 (Indemnification), 14 (Exclusions and Limitations of Liability), and 15 (Dispute Resolution) shall survive termination or expiration of the Agreement, as shall any other provision that by its nature is intended to so survive.
16.12. Definitions. When used in these Terms, the following capitalized terms shall have the following meanings:
“Affiliate” – an entity that directly/indirectly controls or is controlled by or under common control with the applicable person.
“Agent” – an individual authorized to use, administer, or perform actions with respect to Ordered SaaS Services through Customer’s account (as an agent, administrator, or otherwise), as identified through a unique log-in.
“Covered Claim” – a Claim that one Party intends to assert against the other Party, its Affiliates, or any of their personnel, other than (a) provisional remedies related to Claims related to infringement or misappropriation of intellectual property, (b) Claims of SNAP DIAL LLC or its Affiliate relating to Billed Amounts not disputed in accordance with Section 7.2 (Payment of Billed Amounts), and (c) Claims that the other Party is expressly required to defend under the Agreement.
“Documentation” – user manuals and technical documentation related to the SaaS Services posted to snap-dial.com or otherwise made available by SNAP DIAL LLC to its customers from time to time, but excluding marketing or promotional materials.
“Indemnified IP Claim” – a Claim alleging that the SaaS Services, as used in accordance with the Agreement and the Documentation, infringe any patent, trademark, or copyright enforceable under the laws of the Primary Market or the European Community, excluding any Claim based upon: (a) the combination, operation, or use of SaaS Services with any non-SNAP DIAL LLC product, device, service, or software; (b) the alteration or modification of SaaS Services other than by SNAP DIAL LLC or its authorized subcontractors; or (c) SNAP DIAL LLC’s or its Partner’s alteration or modification of SaaS Services at Customer’s request.
“Party” – each of SNAP DIAL LLC and Customer (together, the “Parties”).
“Regulatory Fees” – monthly fees (which are not Service Fees, Taxes, or government-imposed charges), including Emergency Services Fees (or E911 Service Fee in the US) and Regulatory Recovery Fees (in the US), charged by SNAP DIAL LLC or its Affiliate for each number (including without limitation toll free and virtual numbers) associated with telephony Ordered SaaS Services, to offset costs incurred by SNAP DIAL LLC and its Affiliates in complying with inquiries from, and obligations imposed on them by, regulatory bodies and/or governmental agencies.
“SaaS Services” – the SNAP DIAL LLC Virtual Office and SNAP DIAL LLC Virtual Contact Center services (whether stand-alone, included in SNAP DIAL LLC Editions, SNAP DIAL LLC X Series, or otherwise bundled with other services), including all components thereof.
“Service Fees” – the base recurring fees for Ordered SaaS Services.
“Solvency Event” – a bankruptcy, reorganization, insolvency, or similar proceeding not dismissed within thirty (30) days; dissolution; becoming insolvent or bankrupt; or the making of an assignment for the benefit of creditors.
Numbers and Porting. Subject to the following requirements and limitations, SNAP DIAL LLC shall support number portability under applicable law for Ordered SaaS Services that involve telephone numbers (including codes) that are provided to Customer by SNAP DIAL LLC or its Affiliate in connection with such Ordered SaaS Services (“SNAP DIAL LLC Numbers”) or telephone numbers that are ported into SNAP DIAL LLC or its Affiliate by Customer in connection with such Ordered SaaS Services (“Ported-In Numbers”):
17.1 Availability of Porting – In the US and Canada, portability is dependent upon the cooperation of third parties not under the control of SNAP DIAL LLC, and applicable laws and regulations concerning the geographic relevance of local exchange area service, where applicable. Outside of the US and Canada, number portability may be unavailable (and thus Customer may not be able to port numbers into or out of SNAP DIAL LLC or its Affiliate when transferring service to or from SNAP DIAL LLC or its Affiliate) under certain circumstances (e.g., the absence of any porting agreement between SNAP DIAL LLC and the relevant carrier).
17.2 Number Port-Ins – Where Customer wishes to port numbers in to SNAP DIAL LLC or its Affiliate from another provider (the “Donor Provider”), Customer authorizes SNAP DIAL LLC to have the numbers routed by SNAP DIAL LLC (instead of the Donor Provider) and to forward appropriate details of Customer’s porting application.
17.3 SNAP DIAL LLC Numbers – SNAP DIAL LLC shall use commercially reasonable efforts to facilitate Customer’s retention of numbers assigned to the Ordered SaaS Services during the Effective Period, provided that SNAP DIAL LLC Numbers (a) may be changed with reasonable notice to Customer where SNAP DIAL LLC or its Affiliate is so instructed by a regulator or determines in good faith that a third party has a valid claim to such SNAP DIAL LLC Number(s) or that such change is required under applicable law and (b) shall belong to SNAP DIAL LLC, and not Customer, and Customer shall have no right to sell, dispose, transfer, or keep SNAP DIAL LLC Numbers.
17.4 Number Port-Outs – Upon termination of the Agreement or a Reduction, SNAP DIAL LLC shall, at Customer’s request, use commercially reasonable efforts to assist Customer to port out the relevant numbers (including both SNAP DIAL LLC Numbers and Ported-In Numbers), provided that (a) outside of the US and Canada, SNAP DIAL LLC shall have no obligation to port out any SNAP DIAL LLC Number where such port out would require the porting out of a larger block of numbers and (b) to the extent permitted by applicable law, SNAP DIAL LLC may charge, and if charged, Customer shall pay, a reasonable administrative fee for each number ported out or attempted to be ported out. In the US, such fee shall be $5.00 (USD) per number.
17.5 Disclosure to Directory Services – Subject to any specific requirements in these Regional Terms, Customer consents to SNAP DIAL LLC’s or its Affiliate’s disclosure of details of its and its Agents’ numbers to organizations that wish to compile directories or directory enquiry services.
17.6 Emergency Calling Labels. In the US and Canada, SNAP DIAL LLC will provide Customer with warning labels regarding the limitations or unavailability of 911 emergency dialing. Customer agrees to place a label on or near each non-mobile telephone or other equipment through which Ordered SaaS Services may be utilized or accessed. If additional labels are required, Customer shall request them from SNAP DIAL LLC.