Cloud Terms of Service
Cloud Terms of Service
The Cloud Terms of Service (“Cloud Services Agreement“) is a legal agreement between Altigen Communications, Inc. and its suppliers and licensors (collectively “Altigen“) and a business entity (“Customer“) using the Altigen Cloud Services (“Cloud Services“).
ALTIGEN IS NOT RESPONSIBLE FOR ISSUES WITH THE CLOUD SERVICES CAUSED BY CUSTOMER INCLUDING, BUT NOT LIMITED TO: CUSTOMER’S INTERNET CONNECTION, DATA NETWORK OR THIRD PARTY PRODUCTS OR SERVICES.
a. Confidential Information. Includes all information provided in writing by one party to the other party, marked “Confidential” or “Proprietary” or with words of similar meaning. Whether or not marked “Confidential,” (including without limitation), the Software, Services, pricing, inventions, algorithms, know-how and ideas relating thereto (whether patentable or not), the operation of the Cloud Services, and all associated Documentation, shall constitute Confidential Information of Altigen. Any records provided by Customer which are marked “Confidential,” shall constitute Confidential Information of Customer. Confidential Information shall not include information which is (i) generally known or readily ascertainable from public sources (other than as a result of a breach of confidentiality), (ii) independently developed by the receiving party without reliance upon any Confidential Information of the disclosing party, or (iii) obtained from an independent third party who created or acquired such information without reliance on Confidential Information, and without breach of any obligation of confidentiality.
b. Non-Use and Nondisclosure. Neither party shall disclose Confidential Information to any third party for any reason and shall only disclose Confidential Information to its employees or contractors who are under a legally binding obligation of confidentiality. Each party shall, and have its employees and contractors, keep all Confidential Information of the other party confidential and shall not copy or disclose the same, or authorize its employees or contractors to copy or disclose the same, without the prior written consent of the disclosing party. Each party may use Confidential Information only for the purpose of exercising its rights and performing its obligations pursuant to this Agreement. Each party shall use no less than a reasonable degree of care to ensure the protection of the Confidential Information disclosed by the other party. Unauthorized use or disclosure of Confidential Information is considered a breach of this agreement. These obligations of confidentiality and nondisclosure shall be in effect for the term of this Agreement and for a period of three (3) years thereafter.
c. Required Disclosure. Notwithstanding the foregoing, Altigen and Customer may make such disclosures as may be required by order of a court of competent jurisdiction, administrative agency or other government body, or by any law, rule or regulation, provided, however, that to the extent possible, each party gives the other prior written notice of such requirement.
d. Return of Confidential Information. Upon request by either party, the receiving party shall return to the disclosing party all originals, reproductions and copies of all Confidential Information, printed or otherwise, delete all Confidential Information from its records, and certify to the disclosing party that it has done so, in writing, by an officer of the receiving party; notwithstanding the forgoing, the receiving party may retain a copy of those records necessary to establish rights of payment, or which must be retained to satisfy reporting or legal obligations, provided that such copy is kept confidential until destroyed.
e. Specific Performance. Each party acknowledges and agrees that the rights and obligations of each party set forth in this Section 1 are unique and that, if this Section 1 is not performed in accordance with its terms or is otherwise breached, a non-breaching party will be damaged irreparably and have no adequate remedy at law. Accordingly, the parties agree that any such non-breaching party will have the right, in addition to any other rights and remedies existing in its favor at law or in equity, to enforce such party’s rights and the breaching party’s obligations under this Section 1, by bringing an action or actions for specific performance, injunctive or other equitable relief (without posting of bond or other security).
a. Customer’s Indemnity. Customer hereby agrees to indemnify and hold harmless Altigen from and against any and all claims, liabilities, damages, costs and expenses (collectively, “Damages”), however stated, resulting from, relating to or arising out of (i) any breach by Customer of any of its representations, warranties, covenants, or agreements in this Agreement, (ii) any unauthorized use of the Cloud Services, or (iii) any fraud, gross negligence, or intentional misconduct of Customer or any of its officers, agents, or employees.
b. Altigen’s Indemnity. Altigen hereby agrees to indemnify and hold harmless Customer from and against any and all Damages, however stated, resulting from, relating to or arising out of (i) any breach by Altigen of any of its representations, warranties, covenants, or agreements in this Agreement, or (ii) any fraud, gross negligence, or intentional misconduct of Altigen or any of its officers, agents, or employees.
c. Claim Procedure.An indemnified party shall notify the indemnifying party of, and describe in reasonable detail, any claim for indemnification under Section 2.a or 2.b, as applicable (each, a “Claim”) within fourteen (14) days of becoming aware of the matter giving rise to such Claim. An indemnifying party may undertake the defense of any such Claim brought against the indemnified party by a third party (a “Third Party Claim“); provided that upon assuming the defense of such Third Party Claim, the indemnifying party shall give the indemnified party reasonable notice of any material developments in the defense of such Third Party Claim and shall permit the indemnified party to participate in the defense of such Third Party Claim at such indemnified party’s cost and expense. Provided that after so assuming the defense of a Third Party Claim an indemnifying party continues to actively defend such Third Party Claim, the settlement of Third Party Claim by an indemnified party without the indemnifying party’s prior written consent, (not to be unreasonably withheld, conditioned, or delayed) shall release the indemnifying party from its obligations hereunder with respect to such Third Party Claim.
3. LIMITATION OF LIABILITY
a. NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING LOSS OF PROFITS, OR LOSS OF DATA, AND BUSINESS INTERRUPTION) OR COSTS OF PROCURING SUBSTITUTE GOODS, CLOUD SERVICES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR CUSTOMER’S UNDISPUTED PAYMENT OBLIGATIONS, EACH PARTY’S MAXIMUM LIABILITY WHETHER FOR BREACH OF THIS AGREEMENT OR IN TORT (INCLUDING NEGLIGENCE) OR FOR ANY OTHER COMMON LAW OR STATUTORY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE IS LIMITED IN THE AGGREGATE TO TWO TIMES THE VALUE OF THE CLOUD SERVICES PAID OR PAYABLE GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING CONTRARY HEREIN, NOTHING HEREIN SHALL OPERATE TO LIMIT OR EXCLUDE: (i) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
b. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF A CLAIM RESULTS FROM, ARISES OUT OF, OR ALLEGES THAT THE CLOUD SERVICES OR ANY PORTION THEREOF INFRINGES, VIOLATES OR MISAPPROPRIATES ANY INTELLECTUAL PROPERTY RIGHT, ALTIGEN SHALL HAVE THE OPTION TO: (I) OBTAIN FOR CUSTOMER A LICENSE TO CONTINUE TO USE THE CLOUD SERVICES; (II)REPLACE OR MODIFY THE CLOUD SERVICES OR ANY PORTION THEREOF TO MAKE IT NON‐INFRINGING, PROVIDED THAT SUCH MODIFIED CLOUD SERVICES ARE SUBSTANTIALLY SIMILAR OR FUNCTIONALLY EQUIVALENT TO THE CLOUD SERVICES PROVIDED TO CUSTOMER; OR (III)WITHOUT LIABILITY OR PENALTY, TERMINATE THE SERVICE(S) PROVIDED THAT ALTIGEN PROMPTLY REFUNDS TO CUSTOMER ANY UNUSED CHARGES AND FEES FOR THE AFFECTED SERVICE(S) AND PROVIDES REASONABLE ASSISTANCE AT CUSTOMER’S REQUEST IN TRANSITIONING TO A REPLACEMENT SERVICE PROVIDER.
c. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABLITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ALTIGEN TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE REMEDIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
d. NOTWITHSTANDING ANY OTHER TERM HEREIN, THE SOLE AND EXCLUSIVE REMEDIES OF THE PARTIES ARISING OUT OF, RELATING TO OR RESULTING FROM THIS AGREEMENT WILL BE STRICTLY LIMITED TO THOSE CONTAINED IN SECTIONS 1.e, 2 AND 3, AND THE ONLY LEGAL ACTION THAT MAY BE ASSERTED BY ANY PARTY WITH RESPECT TO ANY MATTER THAT IS SUBJECT OF SECTION 3 OR 4 WILL BE A CONTRACT ACTION TO RECOVER DAMAGES PURSUANT TO SECTION 3 AND 4 (EXCEPT TO THE EXTENT EXPRESSLY STATED IN SECTION 4.b). IN FURTHERANCE OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY WAIVES ALL CLAIMS, CAUSES OF ACTION AND OTHER REMEDIES OF SUCH PARTY AGAINST THE OTHER PARTY AS A MATTER OF CONTRACT, TORT, EQUITY, STRICT LIABILITY, UNDER OR BASED UPON ANY APPLICABLE LAW OR OTHERWISE (INCLUDING FOR RESCISSION), EXCEPT TO THE EXTENT EXPRESSLY STATED IN SECTION 1.e, SECTION 2, OR THIS SECTION 3.
a. Warranty. Altigen hereby represents and warrants that the Software and Services will perform substantially in accordance with the Documentation. In the event of a warranty claim, Customer’s sole remedy shall be as provided in the attached Altigen Cloud Service Level Agreement. Customer shall be solely responsible for, and shall indemnify and hold Altigen harmless from, and against, any claims, warranties or representations made by Customers in any way relating to the Software or Services used by Customer.
b. Disclaimers. THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND ALTIGEN DOES NOT WARRANT OR REPRESENT THAT THE FUNCTIONS OR FEATURES CONTAINED WITHIN THE SOFTWARE OR SERVICES WILL MEET CUSTOMER REQUIREMENTS, OR WILL OPERATE IN ANY COMBINATION WHICH MAY BE SELECTED FOR USE BY CUSTOMER, OR THAT OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT ALL DEFECTS THAT MAY EXIST IN THE SOFTWARE OR SERVICES WILL BE CORRECTED. EXCEPT AS EXPRESSLY SET FORTH IN THE FIRST SENTENCE OF THIS SECTION 4.b, ALTIGEN DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES, REPRESENTATIONS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
5. GENERAL PROVISIONS
a. Legal Compliance and Export Prohibition. Customer shall comply with all applicable laws and regulations in performing under this Agreement, including without limitation those regarding exports as set forth in this paragraph. Altigen provides services and uses cloud technology that may be subject to the United States export control administered by the U.S. Department of Commerce, the United States Department of Treasury office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. Customer acknowledges and agrees that the Cloud Services shall not be used in, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to, countries as to which the U.S., Switzerland and/or the European Union maintains an embargo (collectively “Embargoed Countries“), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively “Designated Nationals“). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. You represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply with all U.S, Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The Services may use encryption technology that is subject to licensing requirements under the U.S. Export Admin. Regulations 15 D.F.R. parts 730-774 and Council Regulation (EC) No. 1334/2000. Altigen makes no representations that the Services is appropriate or available for use in other locations. If Customer or its Customers use the Cloud Services from outside the U.S., Switzerland and/or the European Union, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
b. Governing Law, Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the United States of America, without reference to conflicts of law provisions. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with this Agreement shall be only in a United States Federal or State Court located in Santa Clara County, California, and the parties hereby consent to the jurisdiction and venue of such courts. In any action between the parties to enforce any of the terms of this Agreement, the prevailing party shall be entitled to recover reasonable expenses, including reasonable attorney’s fees.
c. Force Majeure. Neither party shall be liable for any loss or damage resulting from any delay or failure to perform all or any part of its obligations under this Agreement, excepting payment obligations, to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the reasonable control, and without the negligence of, the responsible party. Such events, occurrences, or causes include, without limitation, acts of God, telecommunications or power outages, strikes, riots, acts of war, floods, earthquakes, fires and explosions .
d. Waiver. Any waiver of any right or remedy or limit on liability under this Agreement must be in writing and signed by the party to be bound to be effective. No delay or omission in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. Any waiver by any party of a condition, or of the breach of any provision, term, covenant, representation or warranty contained in this Agreement, in any one or more instances, shall not be deemed to be nor construed as furthering or continuing waiver of any such condition, or of the breach of any other provision, term, covenant, representation or warranty of this Agreement.
e. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall be given full force and effect and be interpreted as broadly as possible to give full effect to the intentions of the parties in entering into this Agreement. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION. FURTHER, IN THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SHALL REMAIN IN EFFECT.
f. Survival.All terms and provisions herein which by their nature should survive expiration or termination of this Agreement shall so survive.
g. Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Address for notice may be changed by a party providing proper notice thereof to the other party per the terms of this Section 5.g.
h. Assignment. Customer may not transfer, assign or delegate any of its rights or obligations under this Agreement, in whole or in part, whether voluntarily, by operation of law, by merger or sale of all its assets, or otherwise, without the prior written consent of Altigen, which may withhold its consent in its sole discretion. Altigen may assign this Agreement or its right to receive some or all of the payments due to Altigen pursuant to this Agreement at any time. Any attempted transfer or assignment in violation of this Section 5.h. shall be void and of no force and effect. Subject to the foregoing, this Agreement shall inure to the benefit of and shall be binding upon the permitted successors and assigns of the parties.
Cloud Service Level Agreement
1.TERMS OF SERVICE DEFINITIONS
• Service Outage is an unscheduled period during which the Cloud Services are interrupted and not usable due to failures or disruptions with Altigen’s hosted environment, Cloud Services.
• Service Outage Start Time is the time at which Altigen’s internal monitoring system shows the Cloud Services are experiencing a Service Outage as defined in this SLA.
• Service Outage End Time is the time at which Altigen restores the Cloud Services to online and accessible, as measured by Altigen’s monitoring systems.
• Total Service Outage Time is calculated by subtracting the Service Outage End Time from the Service Outage Start Time, based on normal business hours which are defined as 8:00 AM to 5:00 PM, excluding weekends and holidays, in Customer’s time zone. All calculations will be based on full one-minute increments.
• Scheduled Maintenance is the time that Altigen or its third-party service providers perform updates, upgrades, enhancements or other maintenance services, for which Customer has been provided at least one (1) week notice. Scheduled Maintenance is not considered to be a Service Outage.
• Emergency Maintenance is the time that Altigen or its third-party providers: (a) identify situations which, in Altigen’s sole discretion, have threatened or may threaten the integrity of the Cloud Services; and (b) use commercially reasonable efforts to prevent the situation from progressing into a Service Outage. Emergency Maintenance is not considered to be a Service Outage.
• Service Availability is the amount of time during a calendar month that the Cloud Services will be available.
• Service Credit is a credit issued by Altigen for a Service Outage, subject to the provisions herein.
2. SERVICE GUARANTEE
• Service Availability. Altigen guarantees the availability of the Cloud Services of 99.9%, calculated for each calendar month of Customer’s use of the Cloud Services. Subject to the terms and conditions of this SLA, Altigen will provide to Customer a Service Credit for a reported Service Outage as set forth in the chart below.
Total Service Outage Time
Service Credits (based on Monthly Fees Paid)
.1% to 2% downtime
5% of fees paid for Affected Services
2.1% to 5% downtime
10% of fees paid for Affected Services
> 5% downtime
50% of fees paid for Affected Services
3. SERVICE CREDITS
• Service Credit Eligibility. A Trouble Ticket must be opened with Altigen for the Service Outage for which the Service Credit has been requested. Service Credit requests shall be made no later than five (5) business days following the event giving rise to the Service Credit request. Customer must be current on all fees for the Cloud Services.
• Service Credit Limits. Service Credits in a particular month shall not exceed the total fees paid by Customer in such month for the Affected Services. Credits are only available toward future payment of fees and will not be applied to past due balances. Service Credits will not be applied to any applicable taxes charged to Customer. Service Credits are Customer’s sole and exclusive remedy with respect to the delivery of any Cloud Services.
o Service Credits are calculated only against the fees for the specific Cloud Services which were subject to a Service Outage. Credits are not calculated against the fees for all Cloud Services unless all Cloud Services were subject to the Service Outage.
o Any Service Outages caused by Customer, or failure by Customer to perform its support obligations, will be excluded from this Service Level Agreement. Service Outages do not include the following:
§ Scheduled Maintenance by Altigen, its underlying carriers or Customer;
§ Service Outages not reported by Altigen’s multi-homed monitoring systems;
§ Service Outages associated with Customer’s Internet connectivity, underlying network, equipment, or facilities; including, but not limited to, any DNS or local access provider issues;
§ Service Outages due to Customer not providing Altigen access to the Cloud Service for testing and repair;
§ Any act or omission on the part of Customer, any third-party contractor or vendor, or any other entity over which Customer exercises control or has the right to exercise control;
§ Any event or occurrence that results in “No Trouble Found” resolution to Trouble Tickets; or Trouble Tickets associated with the testing phase of the deployment;
§ Any event or outage lasting less than one (1) minute in duration;
§ Force majeure event beyond the reasonable control of Altigen including, but not limited to, acts of God, natural disasters, cable cuts, government acts and regulation and national emergency;
§ Time attributed to Customer’s delay in responding to Altigen’s requests for assistance to repair a Service Outage.