8x8 SMS & Chat Apps Terms and Conditions
1. 8x8 SERVICES
1.1. SMS SERVICES. 8x8 shall enable Client to communicate by sending short message services with Client’s users via 8x8 Platform (“SMS”).
1.2. CHATAPPS SERVICES. 8x8 shall enable Client to communicate with Client’s end users who are channels users (such as WhatsApp, Viber, Facebook Messenger, Line, Wechat) via 8x8 Platform (“ChatApps service”). Client will send a message via 8x8 Platform to its end user(s) to channels as agreed with Client in the Agreement. In the event no delivery or read confirmation of such message sent is received by 8x8 after a certain amount of time as determined with Client by email before sending the message, 8x8 Platform will automatically process the message and send it using the following channel (as determined with Client) and/or 8x8 SMS channel. Price of the message re/sent automatically will vary based on the following channel selected.
1.3. AGREEMENT. For avoidance of doubt, the Agreement refers to the Service Agreement signed between the Parties. The Agreement includes these Terms and Conditions.
2. OWNERSHIP AND LICENSING
2.1. INTELLECTUAL PROPERTY. Nothing in these Terms and Conditions is intended to effect an assignment by or to either Party of any right to intellectual property, including but not limited to any logo, mark, trademark, whether registered or unregistered (“Intellectual Property”) or any applications for registration of such rights.
2.2. USE. Nothing in these Terms and Conditions shall entitle one Party to use the other Party’s Intellectual Property, except as specifically set forth herein or with the prior express, written consent of said other Party.
2.3. RIGHTS. Each Party agrees that nothing in these Terms and Conditions confers on either Party any right of ownership in the other Party’s Intellectual Property which remain vested in the other Party. Client agrees that all Intellectual Property rights of 8x8 including, without limitation, all property rights in the 8x8 Services, shall be and remain the absolute property of and shall vest and remain vested in 8x8 and, if licensed, its licensors, and except as expressly provided in these Terms and Conditions, no rights or licenses, express or implied, are hereby granted to Client in respect of the same. 8x8 agrees that all Intellectual Property rights in the Client Site and the Client brand, the Client Content and the web interface associated with the 8x8 Services (together, the “Client Elements”) shall remain with the Client and its licensors and except as expressly provided in these Terms and Conditions, no rights or licenses, express or implied, are hereby granted to 8x8 in respect of the same. For the purposes of these Terms and Conditions, “Client Content” shall refer to any messages, numbers, email addresses or similar material of such nature provided by the Client to 8x8 for the purposes of the 8x8 Services.
2.4. SURVIVAL. This Section 2 shall survive the termination of the Agreement for any reason whatsoever.
3. CONFIDENTIAL INFORMATION
3.1. CONFIDENTIAL INFORMATION. All Confidential Information disclosed by either Party to the other Party, during the term of the Agreement and for a period of three (3) years thereafter, shall not be used by the receiving Party except in connection with the activities contemplated by the Agreement and these Terms and Conditions, shall be maintained in confidence by the receiving Party and shall not otherwise be disclosed by the receiving Party to any other person, firm or agency, governmental or private, without the prior written consent of the disclosing Party. The obligation of confidentiality and non-disclosure shall not apply to such portion of the Confidential Information which (a) is or becomes generally available to the public other than as a result of disclosure by the receiving Party or its employees, representatives or agents; or (b) becomes available to the receiving Party on a non-confidential basis from a third party (unrelated to the receiving Party) which is entitled to disclose it; or (c) was known to the receiving Party on a non-confidential basis prior to its disclosure to the receiving Party by the disclosing Party; or (d) is independently developed or generated by the receiving Party without use of Confidential Information of the disclosing Party; (e) is required to be disclosed by law or court order; provided that the Party required to disclose Confidential Information under this clause (e) shall provide reasonable advanced notice to the other Party and shall permit such Party to oppose or limit the scope of such disclosure. “Confidential Information” means information which the disclosing Party desires to protect against unrestricted disclosure or competitive use by the receiving Party and which is clearly identified as confidential to the receiving Party. Confidential Information includes, but is not limited to, information concerning other party business methods and rates, business plans, client information and information concerning the technology and know-how of a Party. Confidential Information may include proprietary or confidential information of third parties that have granted licenses to the disclosing Party.
3.2. RIGHTS. None of the terms in these Terms and Conditions shall be understood or construed as granting to the receiving Party a license or any other right to use or exploit the Confidential Information other than for the 8x8 Services. The receiving Party shall not claim any patent or proprietary right based upon the provision of Confidential Information and shall defend and indemnify the disclosing Party from any such claims from the receiving Party, and any of its affiliates, consultants, representatives, agents or employees or others who may receive the Confidential Information from or through the disclosing Party.
3.3. SURVIVAL. This Section 2 shall survive the termination of these Terms and Conditions for any reason whatsoever.
4. REPRESENTATIONS AND WARRANTIES
4.1. WARRANTIES OF CLIENT. Client warrants that, (a) to the best of its knowledge, the Client Content do not and will not infringe or violate the Intellectual Property rights of any third party; (b) Client Content will not (i) violate any applicable law and/or regulation; (ii) be defamatory, obscene, harmful to minors or child pornography; or (iii) contain, at the date of the Agreement, any commonly known viruses, trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information (collectively “Prohibited Messages”); and (c) it shall make no representation or warranty on behalf of 8x8 to any client user (“Client User”, which, for the avoidance of doubt, shall mean a customer of the Client) concerning the 8x8 Services. Client agrees that Client Content shall be free from obscene materials when Client uses the services for marketing purposes. 8x8’s remedy and Client’s sole liability for breach by Client of the foregoing warranties shall be as set forth in Sections 5 and 6 below.
4.2. WARRANTIES OF 8X8. 8x8 warrants that, (a) to the best of its knowledge, the 8x8 brand and the 8x8 Content, where applicable, associated with the 8x8 Service (collectively, the “8x8 Elements”) do not and will not infringe or violate any Intellectual Property rights of any third Party and (b) the 8x8 Content will not (ii) be defamatory, obscene, harmful to minors or child pornographic; or (iii) contain, at the date of the Agreement, any commonly known viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, and (c) it shall make no representation or warranty on behalf of Client in relation to Client content. 8x8 warrants and represents that the Services provided hereunder to Client shall be provided in a professional and workmanlike manner in accordance with industry standards. 8x8 further warrants it has all the necessary rights and permits to enter into and perform its obligations under these Terms and Conditions. Except as expressly set forth in these Terms and Conditions, Client’s sole remedy and 8x8 sole liability for breach by 8x8 of the foregoing warranties shall be as set forth in Sections 5 and 6 below.
4.3. DISCLAIMER. Except as expressly set forth in these Terms and Conditions, neither Party makes any representation or warranties to any person or entity with respect to its services, brands, content or otherwise, and each Party hereby disclaims all implied warranties, including without limitation warranties of merchantability, fitness for a particular purpose, accuracy of data or information provided through its Services and non-infringement and implied warranties arising from course of dealing or course of performance. Except as expressly set forth in these Terms and Conditions, 8x8 Services are provided “as is” and 8x8 expressly disclaims any representation or warranty regarding the performance, availability, functionality or any other aspect of its Services. 8x8 and its suppliers make no warranty that the use of the 8x8 Services will be uninterrupted, timely, secure, or error-free; nor do 8x8 or its suppliers make any warranty as to the results that may be obtained from use of the 8x8 Services. The disclaimers on liability shall not apply to the extent that liability was due to the negligence, act or omission of 8x8 or a third Party.
4.4. LEGAL WARRANTIES. Client warrants that:
a. All elements provided by Client for the use of the 8x8 Services, including but not limited to the Client Content and personal data of end users, will not be in violation of and is in full compliance with any applicable law, regulation, or codes of practice, including but not limited to the General Data Protection Regulations (EU) 2016/679, and the Law No. 11 of Year 2008, Law No. 32 of Year 2002 and all its implementing regulations and amendments thereto; and
b. None of the Client Content has been generated or obtained through the use of a dictionary attack or address harvesting software.
4.5. COMPLIANCE. Client undertakes that it shall do all things necessary within its control to ensure that 8x8, in providing the 8x8 Services, remains compliant with all applicable laws, regulations or codes of practice.
5.1. INDEMNIFICATION. Parties shall fully indemnify the other Party for any claim or loss raised by a third party, or any fines or penalties by any governmental authority, caused by any non-compliance with any provisions of these Terms and Conditions.
5.2. INDEMNIFICATION PROCEDURE. As a condition of this obligations under this Section 5, the indemnified Party agrees to (a) promptly notify the indemnifying Party in writing of any indemnifiable claim, and all threats, claims and proceedings related thereto, (b) give the indemnifying Party the opportunity to defend or negotiate a settlement of any such claim at its expense, except that the indemnifying Party shall not enter into any settlement that imposes any executory obligation on the indemnified Party (beyond the payment of money in settlement of the claim) and does not unconditionally release the indemnified Party without the indemnified Party’s prior written approval, and (c) use best efforts to facilitate the indemnifying Party in defending or settling such claim at the indemnifying Party’s expense.
6.1. LIMITATION OF LIABILITY. The total liability of 8x8 under or in connection with the Agreement and these Terms and Conditions shall be limited as follows:
(i) All aggregate claims under this Agreement and these Terms and Conditions (whether arising from breach of contract or warranty or from negligence or strict liability or otherwise) relating to the unavailability or nonconformity of an 8x8 Service shall not exceed fifty thousand Euros (50,000 Euros).
(ii) 8x8 shall not be liable for any claim due to the negligence or failure of 8x8’s responsible telecommunication service provider; for the avoidance of doubt such negligence or failure shall be determined where the 8x8 Services could be provided by an alternative telecommunications service provider.
6.2. DEATH OR PERSONAL INJURY. Nothing in this Agreement and these Terms and Conditions excludes or limits the liability of either Party for death or personal injury caused by either Party’s negligence or fraudulent misrepresentation.
6.3. INDIRECT, INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES. In no event shall either Party be liable for any indirect, incidental, special or consequential damages (including but not limited to such damages arising from breach of contract or warranty or from negligence or strict liability or otherwise), including loss of profits, revenue, data or use, or for interrupted communications, incurred by either Party in connection with the Agreement, even if the other Party or any other person has been advised of the possibility of such damages.
7. SERVICE USAGE
7.1. SPAM, ABUSIVE OR INAPPROPRIATE CONTENT
7.1.1 Client shall not under any circumstances, knowingly and wilfully, transmit any message via 8x8 which is (a) unsolicited, for example where the recipient has not explicitly requested the message or where the message or originator is as such that the sender cannot be easily identified; or (b) contains content that includes spyware, viruses, worms, Trojan horses, adware or other malware, or exposes the recipient to such programs in an indirect way; or (c) contains content deemed illegal by the applicable law and/or the law of the recipient’s country; or (d) is offensive, abusive, defamatory, threatening, indecent, menacing, misleading or discriminatory, or otherwise intended to cause distress, annoyance, inconvenience, worry or upset to the recipient; or (e) contains copyright works, trademarks or other Intellectual Property without the written permission of the rights holder; or (f) may bring the name of 8x8 into disrepute.
7.1.2 If Client discovers that Prohibited Messages, as described above, have been submitted to 8x8 then Client shall, to the best of its abilities, notify 8x8 at the earliest possible opportunity and no later than twenty-four (24) hours after discovery of the incident. If 8x8 discovers that Client has transmitted Prohibited Messages, then 8x8 shall, to the best of its abilities, notify Client at the earliest possible opportunity and no later than twenty-four (24) hours after the discovery of the incident.
7.1.3 As a result of Prohibited Messages (as may be reasonably determined by 8x8) being transmitted by Client to 8x8, 8x8 shall first notify Client of the purported Prohibited Message and Client must rectify the event to comply with these Terms and Conditions. 8x8 shall be entitled, without any liability, to suspend or modify the 8x8 Services as may be reasonably necessary to ensure that it is in compliance with such applicable laws, regulations or codes of practice. Where the event is capable of being remedied and Client fails to remedy the said event, 8x8 shall provide to Client notice prior to the suspension. In the event the Parties are unable to further resolve the matter, 8x8 may suspend Client’s account or in extreme cases, terminate Client’s account and Agreement. In the instance of fines being levied against 8x8 as a result of Prohibited Messages being sent by Client, provided that Client has failed to notify 8x8 prior to transmission, Client shall be liable to pay each fine in its entirety.
7.2. SECURITY AND PRIVACY. Client shall be responsible for keeping account and connection credentials secure and private, for choosing passwords of strong enough complexity, and for implementing IP address based access controls where applicable. 8x8 shall not be liable for any indirect, incidental, special or consequential damages arising from any intrusion of Client’s online customer account or the unauthorized use of Client’s credentials, including (without limitation) loss of profits, loss of revenue, or interrupted communications, provided that such intrusion was not due to the negligence, act or omission of 8x8. Client will transmit messages over 8x8 platform using HTTPS protocol. 8x8 may disclose any messages transmitted over the 8x8 platform to the extent permitted by law to protect 8x8 rights or property, including (without limitation) to protect the operation of the 8x8 platform, or to comply with the law or regulatory enquiries or requirements.
7.3. SOURCE AND DESTINATION ADDRESSES. Where applicable to do so, Client acknowledges that correct source address Type Of Number (TON) and Number Plan Indicator (NPI) settings, and correct source and destination address formatting, according to GSM specification, must be set for each message submitted to 8x8. Client acknowledges that failure to correctly set such settings and formatting may result in message delivery failure or the incorrect representation of the source address when it is displayed on the receiving device. 8x8 shall not be responsible for checking or modifying above-mentioned settings or formatting.
7.4.1 8x8 shall make available 8x8 Services to Client as defined in these Terms and Conditions. 8x8 shall notify Client if it believes abuse (as defined in section 7.1) of a service is taking, or has taken place. An abused service shall be deactivated until Client resolves the incident to the commercially reasonable satisfaction of 8x8.
7.4.2 Any attempt by Client to influence their account in order to achieve gain to which they are not entitled, including but not limited to exploiting undocumented features of an account or service, shall result in the immediate suspension of Client’s account in accordance with Section 6.5 Client is liable to repay 8x8 for the full amount of the value of any improper gain.
7.5. SUSPENSION OF 8X8 SERVICES. Client acknowledges that 8x8 has the right to cease the 8x8 Services in respect of any individual who has given notification that such individual does not, or is withdrawing, consent to receive messages (a “Withdrawal Consent Notification“), whether such Withdrawal Consent Notification was received indirectly or directly by 8x8. 8x8 shall inform Client where it has received such Withdrawal Consent Notification directly.
8. CHARGES AND PAYMENT
8.1. CHARGES. Client shall pay 8x8 at the applicable rate (without limitation):
a. for charges for successful SMS-MT submitted messages using any delivery method,
b. for charges for successful ChatApps delivered Messages using ChatApps delivery method,
c. any applicable Value Added Tax.
8.2. PRICING. Price per SMS and ChatApp Message is detailed in Pricing Section of the Agreement. Any SMS sent to a destination not detailed in such Pricing Section will be charged as per the Standard Routing Price available on Client’s Customer Portal under the pricing tab.
8.3. PAYMENT CONDITIONS. Failure to pay any amount due as per the Agreement and these Terms and Conditions shall constitute a breach of these Terms and Conditions.
8.4. POST PAYMENT CONDITIONS. Client shall pay charges in arrears, in which case:
a. Unless otherwise specified by 8x8, 8x8 will issue invoices to the Client on a monthly basis;
b. Such invoices shall be paid by the Client within thirty (30) days from the date of the invoice sent to Client; and
c. Each invoice will itemise the 8x8 Services delivered within the relevant month or other period.
8.5. SECURITY DEPOSIT. Client shall pay to 8x8 the Deposit amount that is specified in the Agreement within five (5) calendar days after the date of the Agreement. The Deposit shall be held as security for the payment obligations of the Client. 8x8 shall have the right to apply the Deposit towards making good any default of the Client, and the Client shall pay 8x8 any such applied amount within seven (7) days to maintain the Deposit amount. Security Deposit will be refunded upon termination of the Agreement to Client once all defaults and/or obligations of the Client have been cleared.
8.6. RECEIVED PAYMENTS. In the case of payment by bank transfer, payment shall be deemed to have been received as soon as 8x8 has confirmed that the correct amount has been deposited in the agreed currency in the agreed 8x8 bank account. Client must allow reasonable time for payments to be received and any anti-fraud checks to be carried out. 8x8 shall notify Client by email once a payment has been received.
8.7. PAYMENT TRANSACTION FEES. Client shall pay any applicable transaction or currency exchange fees levied by the Client’s bank, Client’s payment partner, or any intermediate banks or financial institutions, that are incurred when making a payment to 8x8.
8.8. PAYMENT BY BANK TRANSFER. Payment by bank transfer must be initiated by the creation of an invoice. An invoice may be created by 8x8 or Client. A payment reference shall be included in the invoice that must be quoted in the payment transfer details when payment is made. 8x8 bank account details are included on every invoice and it is the responsibility of Client to pay to the correct bank account matching the agreed currency. 8x8 shall communicate any changes in 8x8’s bank account details to Client, which change shall be effective upon acknowledgment by Client.
8.9. FREE TRIALS AND TESTING CREDITS. At the discretion of 8x8, free trial periods or testing credit may be issued for which no charges shall apply. Such free trial periods and any testing credit is intended for Client to test the capabilities of the 8x8 Service. During such periods, all these terms apply.
8.10. TAXES. Unless otherwise stated, all charges exclude taxes, including (without limitation) sales, value-added, excise, or other taxes and duties including penalties and interest. Each party shall pay their own taxes. If any withholding tax is levied on the payments, then the Client shall increase the sums paid to 8x8 so that the amount received by 8x8 after the withholding tax is deducted is the full amount 8x8 would have received if no withholding or deduction had been made.
8.11. MESSAGE CHARGES. 8x8 charges for each submitted SMS consisting of up to 140 bytes of payload data, after any applicable GSM encoding has been performed or equivalent to 160 character using GSM-7 encoding. Messages containing more than 140 bytes of payload data, after any applicable GSM encoding, shall be automatically split and concatenated by 8x8, and each resulting part shall be charged for as a separate message. 8x8 charges message rates based on the specific country in a destination that a message is sent to. Destination shall be determined by the Mobile Network Operator in each destination country, as recorded by the detailed report. Message charges shall be deducted from Client’s credit balance immediately upon message submission. Current message rates may be viewed from within the 8x8 online Client account.
8.12. PRICING AND COVERAGE CHANGES. From time to time 8x8 shall issue changes to Client’s message pricing and coverage, where changes can include:
a. the addition of destination networks,
b. the removal of destination networks, or
c. the modification of price of destination networks.
Such changes shall be available in real-time on 8x8 customer portal in the pricing section for SMS and on the Agreement for ChatApps messages. Upon request from Client, changes can be sent by email to Client’s billing contact(s), or primary contact(s) if no billing contact(s) is/are available, and shall be effective immediately. Pricing and coverage changes shall be considered as communicated to Client at the time the email is recorded as sent by 8x8. 8x8 shall not be liable for any indirect, incidental, special or consequential damages arising from pricing and coverage changes, including (without limitation) loss of profits, revenue, or interrupted communications.
8.13. CREDIT LIMITS. Credit limit means the ceiling value of credits allowed to be spent by Client on 8x8 Platform over one (1) month. In the event Client reaches the limit of the Credit Limit allowed by 8x8, the 8x8 Services will be interrupted. Such interruption will last until Client has fully paid all amounts outstanding. Once payment has been validated by 8x8, the credit balance on the Client’s account will be increased by the amount paid. In order to facilitate the operation of the Services, 8x8 may extend the Credit limit on Client’s account. Such extension of Credit Limit should be accompanied by an increase of the Security Deposit.
8.14. OVERDUE PAYMENTS. 8x8 shall charge monthly interest at a rate of 3.5% on all overdue invoices relating in whole or part to a negative currency balance on Client’s account, starting on the date the invoice became overdue and ending on the date that the overdue payment is received. Where the overdue invoice only consists in part of a negative currency balance on Client’s account, 8x8 shall only charge interest on the total negative amount and not on any prepayment part. 8x8 shall clearly state the payment terms on all invoices issued to Client. Where the payment term is “Immediate”, the invoice shall be considered overdue if payment has not been received by 8x8 within seven (7) calendar days. Details of invoices for which payment has not yet been received shall be made available by 8x8 to Client in the billing section of Client’s online Client account.
8.15. MESSAGE STATISTICS. 8x8 shall record the number of SMS successfully submitted by Client each day from 00:00:00 up until and including 23:59:59 GMT time, along with the associated destination country, destination network, and charged price. Statistics for the previous day shall be verified automatically each night to ensure a) that each submitted SMS has been assigned a unique identification number, and b) that each submitted SMS has been successfully assigned to an outgoing connection for onward delivery. Client shall not be charged for any SMS that does not satisfy both of the above-mentioned criteria. Long SMS (exceeding 140 bytes after GSM encoding, if necessary) that are automatically split and concatenated by 8x8 shall be recorded as a single SMS where the charge reflects the sum of the charges for each resulting SMS part, in order to bring to the attention of Client that long SMS have been submitted to 8x8.
8.16. MESSAGE STATISTICS DISPUTES. In the event of an imbalance between message statistics recorded by Client and messages statistics recorded by 8x8, Client shall notify 8x8 within seven (7) calendar days from the invoicing date that the imbalance refers to and provide 8x8 with a detailed report for each disputed period and message (including MSISDN, Message ID, timestamp, country, operator, message or DLR status, look-up results if applicable). 8x8 shall investigate each reported imbalance and shall notify Client as to whether an adjustment to Client’s currency balance is necessary. 8x8 reserves the right to decline to investigate a message statistics imbalance reported after seven (7) calendar days of the date that the imbalance refers to.
8.17. RIGHT TO COLLECT AGAINST FUNDS ON DEPOSIT. If full payment of undisputed amounts is not received by 8x8 when due, 8x8 shall have the right to make payment out of funds on deposit.
9. TERMS AND TERMINATION
9.1. TERM. The Agreement shall commence as of the date of execution (either electronic or in writing) and, unless earlier terminated pursuant to Section 9.2 below, it shall continue for a period of one (1) year (the “Initial Term”). At the expiration of the Initial Term, the Agreement shall be renewed for successive one year periods (each such period referred to as the “Renewal Term”), unless or until (i) either Party terminates the Agreement at any time after the Initial Term upon thirty (30) working days advance written notice, or (ii) the Agreement is otherwise terminated in accordance with the provisions Section 8.2. The Initial Term and, if applicable, Renewal Term(s) are referred to as the Term.
9.2.1. The Agreement may be terminated (as of right and without judicial intervention) by either Party in the event that:
a. The other Party has breached any material obligation under the Agreement (unless that breach arises from any of the special circumstances set out in Section 10.7 of the Agreement), and such breach is not remedied within ninety (90) days for non-monetary breaches or within thirty (30) days for monetary breaches of the breaching Party’s receipt of the non-breaching Party’s written notice specifying the breach in reasonable detail and demanding its cure.
b. The other Party is unable to pay its debts when due or otherwise becomes insolvent, is the subject of any order made, or a resolution is passed, for its administration, winding-up or dissolution (otherwise than for the purposes of an amalgamation or reconstruction), has an administrative receiver, manager, trustee, liquidator, curator, administrator, or similar officer appointed over all or any substantial part of its assets, enters into or proposes any composition or arrangement with its creditors generally; or is the subject of any event or circumstances analogous to the foregoing in any applicable jurisdiction.
c. 8x8 cannot provide a workable resolution not compliant with Services defined in Appendix 1. Client shall notify 8x8 as per the section 9.5 “Notices” if Client records non compliancy of Services.
9.2.2. Subject to Section 8.1(i), both Parties shall not terminate the Agreement for convenience during the Initial Term.
9.2.3. Except as explicitly set forth elsewhere in the Agreement, the foregoing rights of termination shall be in addition to and not in lieu of any other legal or equitable remedies that the terminating Party may have.
9.3. EFFECT OF TERMINATION
9.3.1. RETURN OF CONFIDENTIAL INFORMATION. Within thirty (30) days following any expiration or termination of the Agreement, each Party shall return the Confidential Information of the other Party and shall delete all copies of such Confidential Information from any computer storage; provided that neither Party will be required to delete copies of Confidential Information that are included within a backup or archival copy of such Party’s computer systems made in the ordinary course of business.
9.3.2. SURVIVAL. The provisions of the Sections of the Agreement entitled Ownership of Technology, Confidential Information, Representations and Warranties, Indemnification, Limitation of Liability, Effect of Termination and Miscellaneous, shall survive any termination or expiration of the Agreement.
10.1. RELATIONSHIP OF THE PARTIES. Notwithstanding any provision hereof, for all purposes of the Agreement each Party shall be and act as an independent contractor and not as an employee, employer, partner, joint venture, permanent establishment or agent of the other and shall not bind nor attempt to bind the other to any contract, liability or obligation of any kind.
10.2. NON-SOLICITATION. Both Parties agree that, during the Initial Term and/or Renewal Term of the Agreement and for two (2) years after its termination, they will not directly or indirectly employ or offer employment to any person who was employed by the other Party unless such person shall have ceased to be employed by the respective Party for at least six (6) months.
10.3. ASSIGNMENT. Neither Party may assign the Agreement in whole or in part without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided, however, that either Party may assign the Agreement upon notice to the other Party in connection with a merger, reorganization, consolidation, re-incorporation, or sale of all or substantially all assets or all the capital stock of the Party. The Agreement shall be binding upon and inure to the benefit of any successors and assigns.
10.4. AMENDMENT OR MODIFICATIONS. Any amendments or modification of any provision hereof must be in writing, dated, and communicated to both Parties and be accepted by both Parties for application.
10.5. BUSINESS DAY. A Business Day means a day which is not a Saturday or Sunday or a public holiday in the 8x8’s country.
10.6. NOTICES. Any notice or communication under or in connection with the Agreement and these Terms and Conditions shall be in writing and shall be delivered personally, or by post, email, telex cable or facsimile to the addresses or telefax numbers given in the Agreement or at such address or telefax numbers as the recipient may have notified to the other Party hereto in writing or by advertising or by advertisements in the newspapers. Proof of posting or despatch or transmittal of any notice or communication to the other Party shall be deemed to be proof of receipt:
(i) in the case of a letter, on the fifth (5th) Business Day after posting; and
(ii) in the case of an email, on the Business Day immediately after successful transmission;
(iii) in the case of a telex or cable, on the Business Day immediately after successful transmission; and
(iv) in the case of a facsimile, on the Business Day immediately after successful transmission.
8x8 shall ensure the relevant Client departments are informed of the following:
- Pricing/Coverage Update
- Agreement notice
10.7. FORCE MAJEURE. Neither Party will be liable for any failure to fulfil its obligations hereunder due to causes beyond its reasonable control, including acts or omissions of government or military authority, acts of God, shortages of materials, telecommunication failures (including without limitation any systemic Internet failures and any interruptions in services of Internet or mobile service providers or operators), transportation delays, earthquakes, fires, floods, labour disturbances, riots or wars (“Force Majeure Event”). Notwithstanding the foregoing, Force Majeure Event and termination of the Agreement due to Force Majeure shall not affect Client’s payment obligations arising out of the Agreement and these Terms and Conditions.
10.8. COMPLIANCE WITH LAWS.
10.8.1. In its performance under the Agreement and these Terms and Conditions, the Parties shall strictly comply with all applicable laws, codes and regulations, and specifically with any personal data protection, health, safety and environmental laws, ordinances, codes and regulations of any jurisdiction where the Agreement may be performed. For avoidance of doubt, the Parties shall comply, and shall ensure that each of its principals, owners, shareholders, officers, directors, commissioners, employees and agents complies with all applicable anti-bribery and corruption laws in any business dealings and activities undertaken in connection with the Agreement. 8x8 further warrants that in providing the 8x8 Services under the Agreement, 8x8 shall strictly comply with all applicable data protection laws relating to the processing of data.
10.8.2. Client shall comply with all applicable laws or regulations in any country where SMS and ChatApps messages are sent, marketed or provided.
10.9. WAIVER. No failure by either Party to insist upon the strict performance of any covenant, duty, agreement or condition hereof or to exercise any right or remedy consequent upon a breach hereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.
10.10. COUNTERPARTS. The Agreement may be executed in counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument.
10.11. EXCLUSION OF THIRD PARTY RIGHTS. A person who is not a party to the Agreement has no rights under the Contracts to enforce any term of the Agreement.
10.12. GOVERNING LAW AND JURISDICTION. Each Party irrevocably agrees to submit to the law and non-exclusive jurisdiction of the courts of 8x8’s country over any claim or matter arising under or in connection with the Agreement and Terms and Conditions or the legal relationships established by the Agreement and 8x8 Terms and Conditions.
10.13. CUSTOMER REFERENCE. 8x8 may refer to Client as a customer in sales presentations, marketing vehicles and activities.
10.14. SEVERABILITY. If any provision hereof should be held invalid, illegal or unenforceable in any respect in any jurisdiction, then, to the fullest extent permitted by law, (a) all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the Parties as nearly as may be possible and (b) such invalidity illegality or un-enforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
10.15. PRECEDENCE ORDER. Unless otherwise expressly stated in the Appendix, in the event of any inconsistencies between the provisions of the main part of the Agreement, these Terms and Conditions and the content of any of the Appendices, the main part of the Agreement and Terms and Conditions shall take precedence over the Appendices.