Legal
This agreement (together with Appendix A, the “Agreement”) applies to the Microsoft Teams Products, Services or Subscriptions provided as provided or resold by Inteliquent, Inc. (and its affiliates providing the Services below, “Seller”) to the customer (“Customer”) (the “Parties”) using or reselling such Products, Services or Subscriptions. If the Parties have signed a Master Services Agreement (“MSA”) or similar agreement, the MSA is incorporated into this Agreement.
MS Teams Direct Routing connects Microsoft Teams users (“Subscribers” or “End Users”) to Inteliquent Voice Services as described in the Inteliquent Direct Routing Agreement. Users may utilize Microsoft Teams to make and receive calls to the Public Switched Telephone Network (PSTN) with Inteliquent Direct Routing Services. Microsoft Office 365 licensing necessary to enable voice features within Microsoft Teams is an end user responsibility.
Fees for the Products, Services or Subscriptions shall be provided to Customer in a Service Order, or similar document.
Customer shall limit its activities under this Agreement to the following regions, countries, locations, and/or End Users (the “Territory”): All 50 states of the United States of America plus its territories, Washington, D.C. and Puerto Rico (except U.S. federal government).
Customer acknowledges that its appointment under this Agreement is nonexclusive and that it obtains no exclusive rights in any geographic area, customer group or market for the Products, Services, or Subscriptions. Customer further acknowledges Seller’s right to appoint additional distributors, resellers, managed service providers, OEMs, sale representatives and any other channels and entities to make direct or indirect sales, or additional distribution of the Products, Services, or Subscriptions or any other Seller products and services in the Territory to any customers in that Territory or elsewhere without liability or obligation to Customer.
Customer is hereby prohibited from otherwise copying and from translating, modifying or adapting the software portion of the Products or incorporating in whole or any part in any other product or creating derivative works based on all or any part of the Products. Customer is not authorized to license others to reproduce any copies of the software portion of the Products, except as expressly provided in this Agreement. Customer agrees to ensure that all patent, copyright, trademark and other proprietary notices of Seller affixed to or displayed on the software portion of the Products will not be removed or modified. Customer shall not decompile, disassemble or reverse engineer, the software portion of the Products or any component thereof, except as may be permitted by applicable law, in which case Customer must notify Seller in writing and Seller may provide review and assistance.
Customer shall not delete or alter any trade names, trademarks, logos, markings, colors and other insignia (the “Trademarks”) which are affixed to the Products and included in related materials. Customer may only use the Trademarks in conjunction with Customer’s marketing, sale and license of the Products, Services or Subscriptions and in accordance with Seller’s then-current guidelines on trade name and Trademark usage which will be provided, from time to time, at Customer’s request. Upon expiration or termination of this Agreement, at Seller’s expense, Customer shall take all actions necessary to transfer and assign to Seller, any right, title or interest in and to any of the Trademarks, and the goodwill related thereto, which Customer may have acquired in any manner as a result of the handling and selling of Products under this Agreement and shall immediately cease to use any Trademark. Customer shall immediately, upon receiving knowledge, notify Seller of any infringement or potential infringement of any Trademark in the Territory. Customer shall promptly advise Seller in writing of any complaints or claims brought or threatened against Customer and/or claims threatened against Seller with respect to the sale or use of the Products or with respect to any alleged patent, copyright, trademark, or other intellectual property infringement.
For Subscriptions, Customer agrees to complete the appropriate order form (“Order Form”) for the Subscriptions as provided by Seller. Subscriptions will commence upon receipt and acceptance by Seller of a Subscription Order Form.
Subject to the provisions of this section, Seller duly possesses and grants to Customer a nonexclusive, nontransferable license to use the object code form of the software Products only as necessary to carry out the following activities in accordance with this Agreement: (i) market and distribute the software Products solely for use in conjunction with Seller’s Products, (ii) demonstrate the software Products to potential purchasers/licensees of the Products and (iii) service and support Customer’s Customers hereunder. Except as otherwise permitted above, Customer’s internal use of any software Products licensed hereunder shall be subject to the Seller software EULA.
To the extent that Customer is required to support Customer’s Customers pursuant to this Agreement, Seller also hereby grants to Customer a nonexclusive, nontransferable license to copy and distribute software Products to Customer’s Customers for purposes of providing customer support. Localization of the Products requires Seller’s prior written approval and may be subject to additional terms and conditions. Customer is hereby prohibited from otherwise copying and from translating, modifying or adapting the software portion of the Products or incorporating in whole or any part in any other product or creating derivative works based on all or any part of the Products. Customer is not authorized to license others to reproduce any copies of the software portion of the Products, except as expressly provided in this Agreement. Customer agrees to ensure that all patent, copyright, trademark and other proprietary notices of Seller affixed to or displayed on the software portion of the Products will not be removed or modified. Customer shall not decompile, disassemble or reverse engineer, the software portion of the Products or any component thereof, except as may be permitted by applicable law, in which case Customer must notify Seller in writing and Seller may provide review and assistance.
To enable Customer to market and distribute the software Products, Seller grants to Customer the nonexclusive, nontransferable right, perpetually, except for Software licensed on a subscription or limited term basis per the applicable Product or Service description, subject to the terms of this Agreement, to sublicense the software Products in object code form to Customer’s Customers, as sublicensees, for their internal use only by means of the written nonexclusive and nontransferable Seller software EULA or in a form substantially similar to and no less restrictive or limited than the EULA. Such agreement between Customer and each of its sublicensees shall contain a provision providing that Seller is a beneficiary of the EULA and may enforce such agreement directly against the sublicense.
In the event of a sublicensee’s material breach of its sublicense, Customer shall promptly notify Seller of such breach and will reasonably assist Seller to institute legal action against such sublicensee if requested by Seller.
Warranties
Seller warrants that it is legally permitted to provide the Services, Subscriptions and Products to Customer and is providing all Services and Products in accordance with all applicable laws and regulations. Further, to the extent legally and contractually permissible, Seller agrees to pass through to Customer all applicable warranties and indemnifications provided to Seller by its third-party vendors. Customer’s sole remedy for Seller’s breach of this clause shall be a refund of the amounts paid during the event or events giving rise to the claim. In the event this remedy is deemed to fail of its essential purpose, under no circumstances shall Seller’s liability under this clause exceed ten thousand dollars ($10,000).
Customer shall defend any third-party claim, suit or proceeding, and indemnify and hold Seller and its affiliates harmless from and against any settlement amounts, damages, liabilities, penalties, fines and reasonable expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or in connection with (i) the sale, license, servicing and related activities pursuant to this Agreement; (ii) the failure of Customer to comply with all applicable laws, rules, and/or regulations regarding using, providing, advertising, selling, licensing, importing or exporting the Products, Services or Subscriptions; (iii) Customer’s attachment to the Products of any tradename, trademark or logo that is challenged as an infringement of the proprietary rights of any third party; (iv) any warranties granted by Customer, or any implied warranties claimed by any of Customer’s purchasers or end users, in excess of those warranties contained herein; or (v) from any negligent or willful act or omission of Customer.
The indemnifying Party’s indemnification and defense obligations are subject to the indemnified Party’s compliance with the following procedures: (a) the indemnified Party will promptly notify the indemnifying Party in writing of any claim or the commencement of any suit, action, proceeding or threat that the indemnified Party believes will result in losses for which it will be entitled to indemnification; (b) the indemnified Party will tender to the indemnifying Party (and its insurer) full authority to defend or settle any such claim; and (c) the indemnified Party shall cooperate in the defense of such claim (at the indemnifying Party’s expense). The indemnifying Party will use counsel reasonably acceptable to the indemnified Party in connection with its defense of any claim hereunder. The indemnified Party may participate in the defense or settlement of any such claim, suit or proceeding with counsel of its own choosing at its own expense.
Customer shall conduct its business under this Agreement as a principal for its own account at its own expense and risk. The relationship between the Parties is that of independent contractors. This Agreement creates no relationship of principal and agent, Customer, joint venturer or any similar relationship between Seller and Customer. The grant of the right to sell the Products, Services and Subscriptions for the term hereof does not constitute a franchise or grant to Customer any continuing rights or interest in selling Seller’s Products, Services and Subscriptions beyond the term hereof. Customer agrees that it does not have and will not have any authority to act on Seller’s behalf. Customer further covenants and warrants that it will not act or represent itself, directly or by implication, to be an agent for Seller and will not attempt to create any obligation or make any representation on behalf of or in the name of Seller. Customer represents that it has no contractual or legal obligations that conflict with Customer’s carrying out its obligations hereunder.
This Agreement may be terminated by either Party in the event it notifies in writing the other Party of a material breach under this Agreement and the other Party does not cure such breach within thirty (30) days of receipt of such notice. Seller may immediately suspend the Services if it reasonably suspects the Services are used for improper purposes (as Seller’s sole discretion. Further, Seller may terminate this Agreement for any reason upon thirty (30) days’ written notice.
Export Laws. Customer acknowledges that the exportation or re-exportation of Seller Product(s), Confidential Information, and related technical data is subject to local country export laws and regulations. Customer agrees to comply with all applicable export and import laws and regulations.
U.S. Export Laws.
For Seller Product exports from the United States of America (“U.S.”), Customer acknowledges that the exportation of Seller Product(s), confidential information, and related technical data from the U.S. is subject to U.S. export laws including without limitation the U.S. Bureau of Industry and Security (“BIS”) Export Administration Regulations and the U.S. Office of Foreign Assets Control (“OFAC”) which restrict exports, re-exports and release of the Products, related technical data and direct products of such technical data. Customer shall not commit any act which would, directly or indirectly, violate any United States or local law, regulation, treaty or agreement to which the United States adheres or complies relating to the export or reexport of the Product or related technical data, or products thereof.
Prohibited Countries. Customer shall not sell, license or distribute, directly or indirectly, any of the Products (including any part of a Product or any direct product of such Products) or related technical data into any of those countries or to a national of any country listed in the then-current applicable United States export regulations as “embargoed, prohibited or restricted” countries (collectively, the “Prohibited Countries”). Prohibited Countries may change from time to time. Customer further agrees not to distribute or supply the Products (including any part of a Product or any direct product of such Products) or related technical data to any entity or person if Customer has reason to believe that such entity or person intends to export, re- export or otherwise transfer the same to, or use the same in, any of the Prohibited Countries. Customer agrees to seek reasonable written assurances in the form of binding covenants from its customers as may from time to time be requested by Seller.
Proliferation Controls. Customer agrees not to sell, license or distribute and Products (including any part of a Product or any direct product of such Products) or related technical data, directly or indirectly, for use in nuclear, chemical, biological warfare or missile activities or facilities engaged in such activities or to any entity listed in the U.S. BIS Entities List, without first obtaining written authorization to do so from the U.S. BIS or other applicable U.S. government agencies.
Prohibited Parties. Customer agrees not to sell, license or distribute and Products (including any part of a Product or any direct product of such Products) or related technical data, directly or indirectly, to any individual or entity listed on a “prohibited” list issued by any U.S. government agency, including without limitation the U.S. BIS Denied Persons List, the U.S. OFAC Specially Designated Nationals List, or Debarred List.
End User Certification. Upon Seller’s request before shipment of Products and materials for U.S. export to certain designated countries as identified by Seller from time to time, Customer agrees to obtain from its End-User a signed End User Certification (EUC) for the End User to certify that it is the final recipient of the exported Products and materials and it has no intention of re-exporting such Products and materials to another party. Customer agree to use the EUC form available from Seller which is required to be on the End User’s company letterhead as instructed per the form.
Export License. If an export license is required before Seller can sell or transfer any of the Product(s) or related technical data to Customer, Customer acknowledges and agrees that Seller shall be under no obligation to effect such sale or transfer until the required export license is obtained. Seller shall use reasonable efforts to expeditiously obtain such required export licenses or approvals.
Anti-Bribery and Anti-Corruption Laws. Each Party represents and warrants to the other Party that the first Party is familiar with all applicable domestic and foreign antibribery or anticorruption laws, including the Foreign Corrupt Practices Act and the U.K. Bribery Act, which prohibit such Party, and, if applicable, its officers, employees, agents and others working on its behalf, from taking corrupt actions in furtherance of an offer, payment, promise to pay or authorization of the payment of anything of value, including but not limited to cash, checks, wire transfers, tangible and intangible gifts, favors, services, and those entertainment and travel expenses that go beyond what is reasonable and customary and of modest value, to: (i) an executive, official, employee or agent of a governmental department, agency or instrumentality, (ii) a director, officer, employee or agent of a wholly or partially government-owned or – controlled company or business, (iii) a political party or official thereof, or candidate for political office, or (iv) an executive, official, employee or agent of a public international organization (“Government Official”); or (v) a director, officer, employee or agent of a privately-owned business (“Private Actor”); while knowing or having a reasonable belief that all or some portion will be used for the purpose of: (a) influencing any act, decision or failure to act by a Private Actor, or Government Official in his or her official capacity, (b) inducing a Government Official to use his or her influence with a government or instrumentality to affect any act or decision of such government or entity, or (c) securing an improper advantage; in order to obtain, retain, or direct business. Each Party represents and warrants that (i) it shall be in compliance, and remain in compliance with, all applicable domestic and foreign antibribery or anticorruption laws; (ii) it will not act in any fashion or take any action or permit or authorize any action in connection with the sale or distribution of Seller Products and/or services which will render the other Party liable for a violation of any applicable domestic and antibribery or anticorruption laws; and (iii) no part of the payments received by it from customers will be used for any purpose that could constitute a violation of any applicable domestic and foreign antibribery or anticorruption laws.
Records. Customer shall maintain complete records of its disposition of all Products and technical data, showing the user name, ultimate destination, product model, serial number, and date of sale, lease or license, including contract documents, and to make these records available to Seller or any representatives of the U.S. government upon request.
Indemnification. In addition to any other indemnity under this Agreement, Customer shall defend, indemnify and hold Seller harmless from and against any and all third-party claims, damages and liabilities asserted by any person or entity against Seller connected directly or indirectly from a breach of this Agreement by Customer or its customers. Customer’s indemnification shall include the payment of all reasonable attorneys’ fees and other costs incurred by Seller.
Customer will carry the types and amounts of insurance coverage that would be customary for the types of activities to be performed by Customer hereunder.
1. Terms. Seller will use commercially reasonable efforts to provide Customer Subscriptions Services as described under the applicable Seller Subscription Service Description (the “Subscription Service” or “Service”). The Subscription Services shall be subject to the Subscription Services Usage Terms, defined as the terms in this Appendix (“Subscription Services Usage Terms” or the “Terms”).
2. Access Right. The access right provided by Seller to Customer for the Subscription Service is non-exclusive, non-transferable (and, if applicable, is limited within the Territory) for the duration of the Service Term. Customer is granted the right to authorize access to the Services to Subscribers as set forth in Section 4 below (Subscriber Rights). Seller reserves all rights not expressly granted hereunder. Seller may create and maintain administrative, support, system, and maintenance accounts within the Service(s), all with data access for Seller and its assigned agents and/or other service providers, in order to deliver the Service.
3. Access and License Restrictions. Except as expressly permitted under the Subscription Service and any addendum thereto, Customer will not (i) grant access or use, sell, transfer, assign, distribute, rent, lease, time share or otherwise commercially exploit the Service or Seller Technology to any third party; (ii) modify or create derivative works based on the Service or Seller Technology; (iii) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Service or the Seller Technology in whole or in part, except as and only to the extent this restriction is prohibited by law; (iv) copy any features, functions or graphics of the Service or Seller Technology; (v) directly or indirectly create or attempt to create a localized version of the Software, Service, Seller Technology or any features, functions or graphics thereof; or (vi) remove or obscure any proprietary or other notice contained in the Service or Seller Technology. User accounts and subscriptions cannot be shared or used by more than one individual
4. Subscriber Rights. Customer, subject to the terms and conditions under these Terms, may grant to each Subscriber a limited, non-exclusive, nontransferable, revocable right to use the Services for such Subscriber’s internal business purposes, provided that such Subscribers have agreed to be bound contractually to terms and conditions consistent with those set forth in these Terms and any applicable Service Description.
5. Downstream Service Providers. Customer, subject to these Terms, and if expressly permitted and authorized in the Order or the applicable Service Description: (a) may grant to Downstream Service Providers a right to grant to Subscribers within the territory a limited, non-exclusive, nontransferable, revocable right to use the Services for such Subscribers’ internal business purposes, provided that such Downstream Service Providers have agreed to be bound contractually by and comply with the terms of these Terms and the applicable Subscription Service Description and to pass down such appropriate terms to Subscribers, and (b) may grant to Downstream Service Providers the right to grant to other Downstream Service Providers the right to provide the Services within the territory to further Downstream Service Providers, provided that, in each case, the Subscriber of such Service(s) is granted a limited, non-exclusive, nontransferable, revocable right to use the Subscription Service(s) for such Subscriber’s internal business purposes, and, further provided, that each such Downstream Service Provider has agreed to be bound contractually by and comply with the terms of these Terms and the applicable Subscription Service Description and to pass down such appropriate terms to Subscribers. Customer may not grant Subscribers rights or warranties beyond those granted herein, except if mutually agreed otherwise in writing between Seller and Customer.
6. Emergency Services. Customer acknowledges that the Seller Service may be used as part of an interconnected VoIP service and if so used, will not support or facilitate calls to emergency services such as public safety answering points, medical care units, hospitals, fire departments, or law enforcement agencies (“Emergency Services”) and is not a replacement for an ordinary mobile or fixed line telephone (the “Emergency Services Limitations”). Customer agrees to notify all of its Downstream Service Providers and Subscribers of the Emergency Services Limitations. Additionally, Customer shall advise its respective Downstream Service Providers and Subscribers to notify all of their potential users, who may place calls using Customer’s services, of the Emergency Services Limitations.
7. Service Administration. Customer and each Downstream Service Provider shall be responsible for: (i) communicating with and invoicing its Subscribers and (ii) providing all Customer support obligations as set forth in the applicable Service Description to its Subscribers. Customer will be responsible and liable for any and all access to and use of the Service by any person logging in under a user ID registered under Customer’s account or providing and/or receiving Customer Data or other information through the Service. Customer acknowledges that Customer’s access to information, including user IDs and passwords, will be Customer’s “key” to the Service and, accordingly, Customer will be responsible for maintaining the confidentiality and security of such access information (including each user ID and password). Customer will: (i) notify Seller immediately of any unauthorized use of any password or account or any other known breach of security; (ii) immediately terminate access to the Service for any person or entity who Customer knows has committed a security breach; (iii) distribute any and all documents and media connections associated with the Services to Subscribers with all proprietary notices intact as provided by Seller; (iv) take all steps reasonably requested by Seller to inform Subscribers of any applicable restrictions and limitations regarding the use of the Services; (v) report to Seller immediately and use reasonable efforts to stop immediately any copying or distribution of Seller Technology that is known or suspected by Downstream Service Providers or Subscribers; and (vi) not impersonate another Seller authorized user or provide false identity information to gain access to or use the Service; and (vii) use only the Software and/or Services, including any features, available within the scope of the Subscription that Customer purchases for and on behalf of Subscribers. In the event of a security threat (“Threat”), Seller may, if necessary, limit or suspend immediately any Services without liability if reasonably necessary to prevent any harm to Seller or to Customer. Seller will provide notice of such limitation or suspension as soon as practicable depending on the nature of the Threat giving rise to the suspension. Customer shall follow all instructions provided by Seller for the purpose of mitigating the effects of such Threat. Such instructions may include requirements to notify Subscribers of the extent of such Threat.
8. Customer Data. Customer grants Seller and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, revocable, non-transferable (except as provided under an authorized assignment), limited right and license to host, cache, copy, process, store, display and retrieve information associated with the “Customer Data” for the purpose of and in conjunction with Customer’s use of the Service. Customer warrants that Customer and each Subscriber and Downstream Service Provider is authorized to transfer Customer Data to Seller and to process the Customer Data as contemplated by the Services and in compliance with applicable laws in any location in which Seller or its affiliates operate. Seller is a data processor (or sub-processor) acting on Customer’s behalf and Customer appoints and authorizes Seller and its affiliates (and their successors and assigns, contractors and business partners) to transfer to, store and process Customer Data in any country where Seller uses facilities in connection with the Service in order to provide the Service to Customer. Customer acknowledges and agrees that Seller may, in performing its obligations pursuant to these Terms, be dependent upon or use Customer Data, material and other information furnished by Customer without any independent investigation or verification thereof, and that Seller shall be entitled to rely upon the accuracy and completeness of such information. Except as expressly provided under this Section, Customer acknowledges and agrees that Seller is not responsible in any manner for Customer Data, including any loss, damage or liability arising from the loss of Customer Data, and Customer assumes all risk related to the transmission of Customer Data to the Service. In addition to its other rights and remedies, Seller may remove Customer Data from the Service at any time if Seller in its sole discretion determines that Customer has violated these Terms.
9. Back Ups. Seller maintains the necessary data as needed by Seller in accordance with the applicable Service Description in order for Seller to provide the functionality of the Service including service emergency recovery purposes. Seller will not have any obligation to provide Customer or Subscriber with any backup of Customer Data, if any, nor will Seller be responsible for storing or maintaining data except as otherwise expressly stated in the applicable Service Description.
10. Equipment. Customer is responsible for obtaining and maintaining any equipment and ancillary services such as establishing, maintaining and supporting all connectivity and access to Seller’s servers, systems and network (including the payment of any additional fees therefore) needed to connect to, access or otherwise use the Service (and, to the extent applicable, the Seller Technology), including, without limitation, video-enabled devices, video communication services, modems, hardware, servers, software, operating systems, networking, web servers, internet and telephone service (collectively, “Equipment”). Customer shall comply with any and all instructions and requirements provided by Seller with respect to procedures and requirements for such access. Customer shall ensure that it and all third parties with whom Customer engages in business in relation to the provision of Services including, but not limited to Downstream Service Provider, comply with all applicable obligations for registration, as applicable with federal, state and local agencies with jurisdiction to regulate telecommunications services and related activities and for complying with all such regulatory requirements and laws.
11. Third Party Applications. If Customer installs or enables any third party applications for use in connection with the Services, Customer acknowledges and agrees that Seller may allow the applicable third party to access the Customer Data as required for the interoperation of such third party applications with the Services. Seller will not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access.