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This agreement ("Agreement") is between 8x8, Inc.
("8x8") and an end user ("End User") of the 8x8 Virtual Office
Communications Service ("8x8"). Any 8x8 services or products
("Services") provided by 8x8 to End User shall be governed by the terms
and conditions herein. By purchasing the Services, END USER AGREES TO BE
BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND
CONDITIONS CAREFULLY. They affect the legal rights between End User and
8x8 by, among other things, requiring (1) MANDATORY ARBITRATION OF
DISPUTES; (2) charging an EARLY DISCONNECTION FEE; and (3) LIMITING
8x8's LIABILITY UNDER THE AGREEMENT. End User acknowledges that they are
of legal age to enter into this Agreement.
1. TERMS AND CONDITIONS . The terms and conditions stated herein are in lieu of
and replace any and all terms and conditions set forth in any documents
issued by End User, including, without limitation, purchase orders and
specifications. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND
CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY END USER AT ANY TIME ARE
HEREBY OBJECTED TO BY 8X8, AND ANY SUCH DOCUMENTS SHALL BE WHOLLY
INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED HEREUNDER AND SHALL
NOT BE BINDING IN ANY WAY ON 8X8. No waiver or amendment to this
contract or these terms and conditions shall be binding on 8x8 unless
made in writing expressly stating that it is such a waiver or amendment
and signed by an Officer of 8x8.
2. TERM. The term of this
Agreement ("Term") begins on the date that End User purchases Services
and continues for the duration of the service period as defined by the
service plan that is selected by End User ("Plan"). At the end of the
current Term, the Term is automatically renewed unless End User provides
8x8, prior to the end of the current Term, notification of intention to
cancel the service. End User agrees to pay for Services for the
duration of the Term. Expiration of the Term does not alleviate End User
of responsibility for paying all unpaid, accrued charges due hereunder.
If End User transfers or ports their phone number to a service provider
other than 8x8, End User must contact 8x8 to cancel the Services
provided to End User by 8x8. If End User chooses to cancel the service
before the end of the current Term, Disconnection fees may apply as set
forth below. An End User who enters into a one (1) Year Term Plan, a two
(2) Year Term Plan or an Annual Plan will be converted, upon expiration
of the plan's Term, to a month-to-month plan at the then-current rates
offered for the Services, unless End User provides to 8x8, prior to the
end of the current Term, notification of intention to cancel the
service.
3. 911 & SERVICE LIMITATIONS.
The Federal Communications Commission (FCC) requires that 8x8 provide
E911 Service to all End Users who use 8x8 services within the United
States. Sections 3.1-3.7 apply to all End Users who use 8x8 services
within the United States. Section 3.8 applies to all End Users.
3.1 911 ACKNOWLEDGEMENT AND WARNING LABELS. END USER ACKNOWLEDGES
THAT 8X8'S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING
OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL WIRELINE
911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 3 AND
END USER AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICES, WHO MAY
PLACE CALLS USING END USER'S SERVICES, OF THE 911 LIMITATIONS DESCRIBED
HEREIN. 8X8 WILL PROVIDE END USER WITH WARNING LABELS REGARDING THE
LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY DIALING. END USER AGREES
TO PLACE A LABEL ON AND/OR NEAR EACH TELEPHONE OR OTHER CUSTOMER PREMISE
EQUIPMENT ON WHICH THE SERVICES MAY BE UTILIZED. IF ADDITIONAL LABELS
ARE REQUIRED, END USER MAY REQUEST THEM FROM 8X8. 8X8 WILL PROVIDE END
USER WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND REQUEST
ACKNOWLEDGMENTS FROM END USER. END USER AGREES TO RESPOND AND
AFFIRMATIVELY ACKNOWLEDGE THAT 8X8 HAS ADVISED END USER OF THE
CIRCUMSTANCES UNDER WHICH 8X8 E911 SERVICE MAY NOT BE AVAILABLE OR MAY
BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. 8X8
ADVISES END USER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING
TRADITIONAL 911 SERVICES.
3.2. ELECTRICAL POWER. END USER ACKNOWLEDGES THAT THE SERVICES WILL
NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
3.3. INTERNET ACCESS. END USER ACKNOWLEDGES THAT THE SERVICES WILL
NOT FUNCTION IF THERE IS AN INTERRUPTION OF END USER'S BROADBAND OR
HIGH-SPEED INTERNET ACCESS SERVICE.
3.4. NON-VOICE SYSTEMS. END USER ACKNOWLEDGES THAT THE SERVICES ARE
NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS INCLUDING HOME SECURITY
SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND ENTERTAINMENT
OR SATELLITE TELEVISION SYSTEMS. END USER HAS NO CLAIM AGAINST 8X8 FOR
INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
3.5. 8X8 E911 SERVICE IS A MANDATORY COMPONENT OF ALL
INBOUND/OUTBOUND TRADITIONAL FAX AND VOICE SERVICE PLANS. E911 SERVICE
IS NOT OFFERED ON VIRTUAL NUMBERS, TOLL-FREE NUMBERS OR SIMILAR SERVICE
ACCESSORIES OR ADD-ON PLANS. E911 SERVICE IS ONLY AVAILABLE IN SELECTED
AREAS. END USERS WHO SUBSCRIBE TO 8X8 E911 SERVICE WILL BE REQUIRED TO
REGISTER THE PHYSICAL LOCATION OF THEIR EQUIPMENT (PHONE, DTA OR
VIDEOPHONE) WITH 8X8, EITHER ON THE 8X8.COM WEBSITE OR BY CALLING
CUSTOMER SERVICE, AND AGREE TO UPDATE THE LOCATION WHENEVER THE PHYSICAL
LOCATION OF SERVICE CHANGES. END USERS WHO SUBSCRIBE TO 8X8 MOBILE
APPLICATIONS ACKNOWLEDGE THE PHYSICAL LOCATION REGISTERED FOR THEIR
EQUIPMENT (PHONE, DTA OR VIDEOPHONE) WILL BE THE PHYSICAL LOCATION
REGISTERED FOR THE MOBILE APPLICATION ASSOCIATED TO THE EQUIPMENT. END
USER ACKNOWLEDGES THAT 8X8'S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE
CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY
REGISTERED FOR THE ACCOUNT. END USER ACKNOWLEDGES AND UNDERSTANDS THAT
ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY 8x8
WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO 8X8 BY END USER.
IN THE EVENT THAT THE PHYSICAL LOCATION HAS NOT BEEN UPDATED OR IS NOT
COMPLETE, 8X8 MAY ATTEMPT TO ROUTE A 911 CALL BASED UPON THE BILL-TO OR
SHIP-TO ADDRESSES ASSOCIATED WITH THE END USER'S ACCOUNT OR INITIAL
ORDER.
3.6. END USERS WHO ARE REQUIRED TO SUBSCRIBE TO 8X8 E911 SERVICE WILL
BE SUBJECT TO A MONTHLY E911 SERVICE CHARGE. THE MONTHLY E911 SERVICE
FEE SHALL BE IN ADDITION TO THE APPLICABLE RESIDENTIAL OR BUSINESS PLAN
CHARGES FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR 8X8 E911 SERVICE
IS ASSESSED ON A "PER-LINE" (THAT IS, PER PHONE NUMBER BASIS), AND WILL
BE SET AT A LEVEL THAT REIMBURSES 8X8 FOR THE DIRECT COSTS IT INCURS IN
PROVIDING 8X8 E911 SERVICE, INCLUDING EXPENSES 8X8 INCURS, EITHER
DIRECTLY OR INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911
SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE,
LINE INFORMATION DATABASE AND CALLER ID (LIDB/CNAM) EXPENSES, AND ANY
OTHER TAXES OR SURCHARGES DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE
PROVISION OF SERVICES TO END USERS SUBSCRIBING TO THIS SERVICE. 8X8
RESERVES THE RIGHT TO ADJUST THE LEVEL OF CHARGES ASSOCIATED WITH THE
PROVISION OF E911 SERVICES TO REFLECT INCREASES OR DECREASES IN THE
COSTS IT INCURS. (SEE SECTION 14 REGARDING CHANGES TO THE AGREEMENT,
SERVICES OR PLAN).
3.7. END USER ALSO ACKNOWLEDGES THAT 8X8 E911 SERVICE HAS CERTAIN
CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY,
CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE 8X8 E911
SERVICES UNSUITABLE FOR SOME END USERS. BECAUSE END USER CIRCUMSTANCES
VARY WIDELY, END USERS SHOULD CAREFULLY EVALUATE THEIR OWN CIRCUMSTANCES
WHEN DECIDING WHETHER TO RELY SOLELY UPON 8X8 E911 SERVICE. END USER
ACKNOWLEDGES THAT IT IS END USER'S RESPONSIBILITY TO DETERMINE THE
TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET END USER'S
EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR
ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL
LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING
EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH 8X8 E911
SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
** 8X8 E911 SERVICE WILL NOT FUNCTION IF END USER'S DTA, PHONE OR
VIDEOPHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF END USER'S 8X8
SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED
TO, ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR
DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS
A POWER OUTAGE, END USER MAY BE REQUIRED TO RESET OR RECONFIGURE THE
EQUIPMENT BEFORE BEING ABLE TO USE THE 8X8 SERVICE, INCLUDING FOR E911
PURPOSES.
** AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY
CHANGE OF AND UPDATE TO END USER'S PHYSICAL LOCATION, THERE MAY BE SOME
DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO
THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY
POPULATED INTO OUR NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION,
BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION
INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
** THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING 8X8 E911 EMERGENCY
SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE
ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION.
THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL
LOCATION OF THE PERSON WHO IS MAKING THE 8X8 E911 CALL. DUE TO TECHNICAL
FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON
THE 8X8 NETWORK, THERE IS A POSSIBILITY THAT A 8X8 911 CALL WILL PRODUCE
A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR
TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, LEGACY,
CIRCUIT-SWITCHED TELEPHONE NETWORKS.
** IF END USER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE
8X8 EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE,
8X8 E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL
EMERGENCY OPERATOR.
3.8. END USER ACKNOWLEDGES AND UNDERSTANDS THAT 8X8 WILL NOT BE
LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER
EMERGENCY TELEPHONE NUMBER USING 8X8 OR TO ACCESS AN EMERGENCY SERVICE
OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET
FORTH IN THIS AGREEMENT. END USER AGREES TO DEFEND, INDEMNIFY, AND HOLD
HARMLESS 8X8, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS
AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO END USER IN
CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES,
FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, END USER OR ANY THIRD
PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE
SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
4. EQUIPMENT. To provide the
Services, 8X8 may provide Equipment to End User. All Equipment shipments
are F.O.B. 8x8's facility. 8x8's liability for delivery shall cease,
and title (if applicable) and all risk of loss or damage shall pass to
End User upon delivery to carrier. End User will be provided a twelve
(12) month manufacturer's warranty from the date of purchase of
Equipment or Service. End User shall be required to obtain authorization
from 8x8 to return any Equipment. 8X8 will provide replacement
Equipment only if the Equipment is deemed to be defective and covered
under the warranty. 8X8 will not cover replacement for lost, stolen or
modified equipment. Equipment returned by End User that is not covered
under warranty may be refused by 8x8, and End User will be responsible
to pay return shipping charges. End Users who purchased through a Retail
outlet may return within the first thirty (30) days to the place of
purchase or such shorter period as set forth in the Retail outlet's
return policy, after the return period has lapsed they can contact 8x8
regarding warranty replacement.
5. BILLING, CHARGES AND PAYMENT.
5.1. PAYMENT. Upon purchase of
the Service, End User must provide 8x8 with a valid credit card number
from an issuer that is accepted by 8x8. End User authorizes 8x8 to
charge the credit card number provided by End User ("Credit Card") for
all charges arising from End User's use of the Services. End User agrees
to notify 8x8 of any change to the credit card information including,
but not limited to, changes in account number, expiration date or
billing address. 8x8 shall not be responsible for any charges made by
the Credit Card issuer to End User's Credit Card account for exceeding
credit limit, insufficient funds or other reasons. End User's credit
card will not be billed until product has shipped. Estimated ship dates
are approximate and are not guaranteed. End User may cancel any order
due to shipping delays without charge.
5.2. CREDIT TERMS. All
Services provided to End User and covered by the Agreement shall at all
times be subject to credit approval or review by 8x8. End User will
provide such credit information or assurance as is requested by 8x8 at
any time. 8x8, in its sole discretion and judgment, may discontinue
credit at any time without notice or require a deposit.
5.3. BILLING. 8x8 will
provide End User with a monthly on-line billing statement for the
Services and bill all charges invoiced to End User's account to the
Credit Card. Such charges shall include activation fees, monthly service
fees, shipping charges, disconnection fees, equipment charges, toll
charges, taxes and any other applicable charges. Monthly service fees
are paid in advance of each month's service; toll charges and any other
applicable charges are billed subsequent to the end of each month's
service. 8x8 reserves the right to charge the Credit Card for charges,
due if at any time End User's cumulative charges for the current month
exceed fifty dollars ($50.00). Billing for monthly service fees
commences upon purchase of the Services on the web site, and the first
month's monthly service fee shall be prorated to take into account any
partial month that may occur as the result of the date monthly service
fees are initiated. Activation for Retail customers occurs after End
User activates the services on the 8x8 web site.
5.4. LATE/NON-PAYMENT. If any
charges for the Services are due but unpaid for any reason including,
but not limited to, non-payment or declined Credit Card charges, 8x8 may
suspend or terminate the Services and all accrued charges shall be
immediately due, plus a late fee of the lesser of 1.5% per month or the
maximum allowed by law accrued from the date of invoice until payment in
full is received by 8x8. If charges cannot be processed to the Credit
Card, End User will be charged a fee of ten dollars ($10.00). The fee
will also be charged to activate a suspended account. No suspension or
termination of the Services or of this Agreement shall relieve End User
from paying any amounts due hereunder.
5.5. TAXES. Prices for the
Services do not include any customs duties, sales, use, value added,
excise, federal, state, local, public utility, universal service or
other similar taxes. All such taxes shall be paid by End User and will
be added to any amounts otherwise charged to End User unless End User
provides 8x8 with an appropriate exemption certificate. If any amounts
paid for the Services are refunded by 8x8, applicable taxes may not be
refundable.
5.6. REGULATORY RECOVERY FEE.
A Regulatory Recovery Fee will be charged monthly to offset costs
incurred by 8x8 in complying with inquiries and obligations imposed by
federal, state and municipal regulatory bodies/governments and the
related legal and billing expenses. This fee is not a tax or charge
required or assessed by any government. The Regulatory Recovery Fee will
apply to every phone number assigned, including toll free and virtual
numbers.
5.7. TRIAL PERIOD. 8x8 offers
a thirty (30) day trial period ("Trial Period") to new End Users for
their first 8x8 account. The Trial Period commences upon the purchase of
Services by End User on the 8x8 web site. If End User is not satisfied
with the Services during the Trial Period, End User may obtain a refund
of the equipment and activation fee but not the monthly service fee.
Applicable taxes will be refunded to the extent allowed by law. Shipping
charges will not be refunded. To obtain a refund, End User must: a)
Notify 8x8 within thirty (30) days of purchase of the Services on the
web site and obtain a return material authorization number from 8x8 for
the Equipment and b) Return the Equipment to 8x8 within seven (7) days
of cancellation of the Services in its original, unaltered condition
with all packaging intact. Disconnection fees shall not apply if End
User cancels service during the Trial Period. Retail customers will be
required to return equipment within the first thirty (30) days (or such
shorter period as set forth in the Retail outlet's return policy) to the
place of purchase to receive any refund.
5.8. DISCONNECTION, OVERAGE AND
CONVERSION FEES. Subsequent to the expiration of the Trial
Period, if an End User terminates fax or voice Services within twelve
(12) months of the initial purchase of the Services, 8x8 shall charge a
service Disconnection Fee of fifty nine dollars and ninety nine cents
($59.99) for each Virtual Office extension, Virtual Office Pro voice
extension and Shared Line purchased with a phone or adapter and nine
dollars and ninety nine cents ($9.99) for Softalk Office extension, Fax
extension-second port activation, Virtual number, Basic Plan, Virtual
Extension, Virtual Attendant, Additional Auto Attendant, Toll Free
number, Additional Ring Group, Call Queuing Group and Switchboard. If an
End User terminates a Plus Extension or converts to a non Plus
Extension within twenty four (24) months of the initial purchase of the
Services, 8x8 shall charge a Disconnection or Conversion Fee of two
hundred dollars ($200.00) for each Plus Extension. If an End User of 8x8
VoIP QoS Management Service or video services (VTA464) terminates
services within twelve (12) months of the initial purchase of the
Services, 8x8 shall charge a Disconnection Fee of ninety nine dollars
and ninety nine cents ($99.99). Disconnection or Conversion Fees shall
be billed to End User's Credit Card when End User notifies 8x8 of the
cancellation of the Services. If an End User terminates a one (1) Year
Term Plan, a two (2) Years Term Plan or an Annual Plan prior to the end
of the committed term, 8x8 will charge the End User the remaining
services fees under the term plan agreement. 8x8 reserves the right to
charge overage fees when the End User exceeds the usage limits on
applicable services which includes but is not limited to recording
services on Virtual Meeting licenses ($0.15 for every 1MB increment) and
Virtual Office Pro extensions ($12.99 for every 1GB increment). All
fees, including service fees, payable under the applicable term plan
shall be non-refundable and non-creditable.
5.9. RATE CHANGES. 8x8 may
change the prices for the Services and toll charges from time to time.
8x8 may change prices, plans, taxes or fees without any advance notice.
For End Users on one, two or three year plans, rates will not be
increased during the plan term, with the exception of tax or fee changes
and international toll calling rates. In the event of a change in
prices or toll charges, 8x8 will post such changed rates to the web site
currently located at http://www.8x8.com International toll calling
rates are updated monthly on the first of each month and no other notice
shall be provided for changes to international toll calling rates.
5.10. CREDITS. End User
acknowledges and agrees that the Services are provided "as is, where
is." Credit allowances for interruption of the Services shall not be
provided.
5.11. DISCOUNTS. From time to
time in its sole discretion, 8x8 may offer promotions or discounts of
activation or other fees. Any promotion or discount codes must be
entered by End User upon purchase of the Services. End User shall not be
entitled to a subsequent credit for such promotions or discounts, if
not requested at the time of account creation or change of service.
5.12. BILLING DISPUTES. End
User must dispute any charges for the Services in writing within thirty
(30) days of the date of the charge by 8x8 or End User waives any
objection and further recourse. Written statements disputing charges
must be sent to: Billing Department 8x8, Inc. 810 W. Maude Ave.
Sunnyvale , CA 94085 -or- claims@8x8.com
6. TOLL CHARGES. Every call
to or from Equipment using the Services that originates or terminates in
the Public Switched Telephone Network ("PSTN"), including other VoIP
networks, is subject to the then applicable toll charges that are
associated with the Plan. Calls to a phone number outside the United
States and Canada to a non-8x8 telephone number will be charged at the
current rates published on the 8x8 web site. The duration of each call
is to be calculated in one minute increments and rounded up to the
nearest one minute increment for any fraction of minutes used. If the
computed charge for a call includes a fraction of a cent, the fraction
is rounded up to the nearest whole cent. If the computed charges for
taxes and surcharges include a fraction of a cent, the fraction is
rounded up to the nearest whole cent. When End User dials an
International PSTN phone number, charges may apply regardless of whether
the party on the other line answers the call. Calls made by an End User
to an International mobile, rather than landline, or premium rate
telephone number, may result in higher toll charges.
7. TELEPHONE NUMBER. Any
telephone number provided by 8x8 ("Number") to the End User shall be
leased and not sold. End User is not to use the Number with any other
device other than the Equipment without the express written permission
of 8x8. 8x8 reserves the right to change, cancel or move the Number at
its sole discretion.
8. LOST, STOLEN, ALTERED OR BROKEN
EQUIPMENT. End User shall not modify the Equipment in any way
without the express written permission of 8x8. End User shall not use
the Equipment except with the Services provided hereunder. Except as
otherwise provided for hereunder, End User is responsible for all lost,
stolen or broken Equipment and may be required to purchase a replacement
to continue service. Replacement charges will be based on the fair
retail price of equipment, plus applicable shipping costs and taxes. End
User shall immediately notify 8x8 of any lost or stolen Equipment and
shall cooperate with 8x8 in all reasonable aspects to eliminate actual
or potential unauthorized use of the Equipment. At 8x8's sole option,
failure to report lost or stolen equipment in a timely manner will cause
End User to be responsible for all service fees accrued until the time
that 8x8 is informed of the loss or theft and can effect a termination
of the Services.
9. PROHIBITED USES. Any use
of the Services or any other action that causes a disruption in the
network integrity of 8x8 or its vendors, whether directly or indirectly,
is strictly prohibited and could result in termination of the Services
at the sole discretion of 8x8. End User understands that neither 8x8 nor
its vendors are responsible for the content of the transmissions that
may pass through the Internet and/or the Services. End User agrees that
it will NOT use the Services in ways that violate laws (including but
not limited to laws prohibiting transmission of unsolicited fax
advertisements or laws on obtaining 3rd party consent for call
recording), infringe the rights of others, or interfere with the users,
services, or equipment of the network. End User agrees and represents
that it is purchasing the Services and/or the Equipment for its own
internal use only, and shall not resell, transfer or make a charge for
the Services or the Equipment without the advance express written
permission of 8x8. 8x8's Service Plans for business End Users that offer
unlimited minutes of PSTN calls ("Unlimited PSTN Plans") or unlimited
faxing are for reasonable business use of End User only. Such use shall
not include certain activities including, but not limited to, any
autodialing, continuous or extensive call forwarding, continuous
connectivity, fax broadcast, fax blasting, telemarketing (including
without limitation charitable or political solicitation or polling),
call center operations, junk faxing, fax spamming, calling/faxing any
person (through the use of distribution lists or otherwise) who has not
given specific permission to be included in such a process or any other
activity that would be inconsistent with reasonable business usage. End
User shall not transmit through the Service any unlawful, harassing,
libelous, abusive, threatening, harmful, vulgar, obscene or otherwise
objectionable material of any kind or nature. End Users further agree
not to transmit any material that encourages conduct that could
constitute a criminal offense, give rise to civil liability or otherwise
violate any applicable local, state, national or international law or
regulation. Any use found to be inconsistent with this restriction will
result in termination of the Service. 8x8 reserves the right to
immediately terminate or modify the Services of any End User using
Unlimited PSTN or fax Plans if 8x8 determines, in its sole discretion,
that End User is not using the Unlimited PSTN or fax Plans for End
User's reasonable business use.
10. USE, STORAGE AND OTHER LIMITATIONS.. 8x8 reserves the right
to establish or modify general practices and limits concerning use of
the Services and software, including without limitation, the maximum
number of days that content will be retained by the Service, the maximum
disk space and/or bandwidth capacity that will be allotted on servers
owned and/or operated by 8x8 on End User's behalf, if any. Where
practical, 8x8 will provide the End User with prior notice of such new
or modified practices; provided however, that 8x8 shall have the
absolute right to implement such new or modified practices without prior
notice in its sole discretion and without liability or any kind.
11. ELECTRONIG RECORDING. End User acknowledges and understands
that there are federal and state statutes governing the electronic
recording of telephone conversations and that 8x8will not be liable for
any illegal use of the service. Because End User circumstances vary
widely, End Users should carefully review their own circumstances when
deciding whether to use the recording features of the service and it is
the End User's responsibility to determine if the electronic recordings
are legal under the federal and state statutes. 8x8 is not responsible
for any misinterpretation, lack of understanding or lack of knowledge
regarding the use of electronic recordings or the use of its products by
the End User whether legal or illegal. For more
information on electronic recording policy.
12. RESPONSIBILITY FOR REGISTRATION
INFORMATION AND CONTENT OF END USER COMMUNICATIONS. End Users are
solely responsible for maintaining the confidentiality of End User
password and account, and agree not to transfer email address or
password, or lend or otherwise transfer use of or access to the 8x8
Service, to any third party. End Users are also solely responsible for
any and all activities that occur under End User account. End User agree
to immediately notify 8x8 of any unauthorized use of End User account
or any other breach of security related to End User account or the 8x8
Service, and to ensure that End User "log off"/exit from End User
account (if applicable) at the end of each session. 8x8 is not liable
for any loss or damage arising from End User failure to comply with any
of the foregoing obligations. In consideration for using the 8x8
Service, End User agrees to: (1) provide certain current, complete, and
accurate information about End User when prompted to do so by the 8x8
Service, and (2) maintain and update this information as required to
keep it current, complete and accurate. End User agrees that any such
information shall be accurate. End User agrees that End User are solely
responsible for the content of all visual, written or audible
communications ("Content") sent by End User or displayed or uploaded by
End User in using the Services. End User agrees that End User will not
use the Services to send unsolicited commercial e-mail outside End User
company or organization in violation of applicable law. End User further
agrees not to use the Services to communicate any message or material
that is harassing, libelous, threatening, obscene, indecent, would
violate the intellectual property rights of any party or is otherwise
unlawful, that would give rise to civil liability, or that constitutes
or encourages conduct that could constitute a criminal offense, under
any applicable law or regulation. Recognizing the global nature of the
Internet, End User also agree to comply with applicable local rules or
codes of conduct (including codes imposed by End User employer)
regarding online behavior and acceptable content and the transmission of
technical data exported from the United States or the country in which
End User reside. 8x8 reserves the right to investigate and take
appropriate action against anyone who, in 8x8's sole discretion, is
suspected of violating this provision, including without limitation,
reporting End User to law enforcement authorities. Use of the Services
is void where prohibited. Although 8x8 is not responsible for any such
communications, 8x8 may delete any such communications of which 8x8
becomes aware, at any time without notice to End User. End User retains
copyright and any other rights already held in Content which End User
submits, posts or displays on or through, the Services. End User
understands and agrees that by displaying, exchanging or uploading
Content to a 8x8 website, transmitting Content using the Services or
otherwise providing Content to 8x8, End User automatically grant (and
warrant and represent End User have a right to grant) to 8x8 a
world-wide, royalty-free, sublicensable (so 8x8 affiliates, contractors,
resellers and partners can deliver the Services) perpetual, irrevocable
license to use, modify, publicly perform, publicly display, reproduce
and distribute the Content in the course of offering the Site and/or the
Services.
13. RESPONSIBILITY FOR CONTENT OF
OTHERS. Be advised that other users of the Services ("Users") may
violate one or more of the above prohibitions, but 8x8 assumes no
responsibility or liability for such violation. If End User becomes
aware of misuse of the Services by any person, please contact 8x8
Customer Support at 1-866-879-8647. 8x8 may investigate any complaints
and violations that come to its' attention and may take any action that
it believes is appropriate, including, but not limited to issuing
warnings, removing the content or terminating accounts and/or User
profiles and/or logins. However, because situations and interpretations
vary, 8x8 also reserves the right not to take any action. Under no
circumstances will 8x8 be liable in any way for any data or other
content available on a Site, viewed or actions taken while using the
Services, including, but not limited to, any errors or omissions in any
such data, content or activity or any loss or damage of any kind
incurred as a result of the use of, access to, or denial of access to
any data, content or activities incurred from the actions taken on the
Site. If at any time End User are not happy with a Site or the Services
or object to any material on a Site, End User sole remedy is to cease
using the Site or the Services. 8x8 does not endorse and has no control
over what Users post , submit to or do on a Site. End User acknowledges
that 8x8 cannot guarantee the accuracy of any information submitted by
any User of a Site, nor any identity information about any User. 8x8
reserves the right, in its sole discretion, to reject, posting or other
data, or to restrict, suspend, or terminate any User's access to all or
any part of a Site or Services at any time, for any or no reason, with
or without prior notice, and without liability. 8x8 reserves the right
to investigate and take appropriate action against anyone who, in 8x8's
sole discretion, is suspected of violating this provision, including
without limitation, reporting End User or any User to law enforcement
authorities.
14. CHANGES TO THE AGREEMENT,
SERVICES OR PLAN. 8x8 reserves the right to make changes to the
terms and conditions of this Agreement, the Services and/or the Plan
("Change of Service"). In the event of a Change of Service, 8x8 will
post to the Web Site currently located at http://www.8x8.com/terms/. End
User may request a Plan change at anytime, subject to any applicable
change of service fee and additional terms and conditions. The Plan
change will take effect in the first month after the Plan is changed. In
no case will an activation fee be credited after thirty (30) days from
the initial purchase of the Services for a Plan change or cancellation.
For a Plan change to a plan that requires a purchase of the Equipment,
an equipment charge will apply.
15. NOTICE. Notice will be
considered received by End Users and such changes will become binding to
End Users, on the date the changes are posted to the Web Site ("Change
Date"), and no additional notice will be required. If End User does not
send 8x8 notification of their desire to terminate this agreement or
uses the Service after the Change Date, End User is deemed to have
accepted and consented to the change of terms and conditions of the
Service. If End User does not consent to the change of service and
terminates this agreement, End User will be responsible for any sums due
hereunder in addition to any applicable Disconnection Fee. End User may
request a Plan change at anytime, subject to any applicable change of
service fee and additional terms and conditions. In no case will an
activation fee be credited after thirty (30) days from the initial
purchase of the Services for a Plan change or cancellation. For a Plan
change to a plan that requires a purchase of the Equipment, an equipment
charge will apply.
16. TERMINATION. End User
agrees to provide 8x8 with thirty (30) days notice of termination. End
User shall be responsible for the full monthly service fee for the month
during which the notice of termination of service is provided to 8x8.
In accordance with section 5, Disconnection Fees may apply. 8x8 reserves
the right, at its sole discretion, to suspend, terminate or change the
Services without advanced notice for any reason, including without
limitation, misuse of the Services in any way, End User's breach of this
Agreement, End User's failure to pay any sum due hereunder, suspected
fraud or other activity by End User that adversely affects the Services,
8x8, 8x8's network or other End User's use of the Services. 8x8
reserves the right to determine, at its sole discretion, what
constitutes misuse of the Services and End User agrees that 8x8's
determination is final and binding on End User. 8x8 may require an
activation fee to change or resume a terminated or suspended account.
17. PRIVACY. 8x8 utilizes the
public Internet and third party networks to provide fax, voice and
video communication services. Accordingly, 8x8 cannot guarantee the
security of fax, voice and video communications of End User. 8x8 is
committed to respecting an End User's privacy. Once End User chooses to
provide personally identifiable information, it will only be used in the
context of the End User's relationship with 8x8. 8x8 will not sell,
rent, or lease End Users' personally identifiable information to others.
Unless required by law or subpoena or if End User's prior permission is
obtained, 8x8 will only share the personal data End User provides with
other 8x8 entities and/or business partners that are acting on 8x8's
behalf to complete the activities described herein. Such 8x8 entities
and/or national or international business partners are governed by 8x8's
privacy policies with respect to the use of this data. 8x8 is required
to file numerous reports with different administrative bodies. As such,
8x8 may provide aggregate statistics about customers, sales and traffic
patterns. None of these reports or statistics will include personally
identifiable information. However, 8x8 reserves the right to use
personally identifiable information to investigate and help prevent
potentially unlawful activity that threatens either 8x8 or any company
affiliated with 8x8. Moreover, upon the appropriate request of a
government agency, law enforcement agency, court or as otherwise
required by law, 8x8 may disclose personally identifiable information.
18. RETURNS AND ADJUSTMENTS.
No Equipment may be returned by End User for any reason without prior
approval of 8x8. All returns shall be in original packaging or
equivalent. End User shall be responsible for all costs related to
shipping to 8x8 any Equipment that is being returned. Any Equipment
returned to 8x8 without prior authorization for its return or proper
packaging may be refused. In order to obtain an appropriate refund, upon
cancellation End User must immediately obtain a return material
authorization number from 8x8, return to 8x8 any Equipment provided
hereunder, undamaged and in good working condition, in its original
packaging and with its original content or otherwise will be immediately
responsible for paying to 8x8 an amount equal to the fair retail price
of the equipment minus any payments End User had previously paid
specifically for said Equipment.
19. TECHNICAL SUPPORT. 8x8
provides technical support to End Users via telephone and e-mail for the
Services and the Equipment provided hereunder. Support for other
applications and uses is not provided or implied.
20. BREACH. In the event of
End User's breach of the terms of the Agreement, including without
limitation, failure to pay any sum due hereunder, End User shall
reimburse 8x8 for all attorney, court, collection and other costs
incurred by 8x8 in the enforcement of 8x8's rights hereunder and 8x8 may
keep any deposits or other payments made by End User.
21. INDEMNIFICATION. End User
agrees to defend, indemnify and hold 8x8, its affiliates and its
vendors harmless from any claims or damages relating to this Agreement.
22. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL 8X8 OR ITS
VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO
LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN
CONNECTION WITH THE USE OR INABILITY TO USE SERVICES OR PRODUCTS
PROVIDED HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF
WARRANTY, THE NEGLIGENCE OF 8X8 OR ITS VENDORS OR OTHERWISE.
23. WARRANTY AND LIABILITY LIMITATIONS. 8X8 MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NEITHER 8X8 NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO
8X8'S OR END USER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR
UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF END USER'S
DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT,
FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER
SUCH DAMAGE OCCURS AS A RESULT OF 8X8'S OR ITS VENDORS' NEGLIGENCE. ANY
CLAIM AGAINST 8X8 MUST BE MADE WITHIN 90 DAYS OF THE EVENT OF THE CLAIM
OR 90 DAYS FROM THE TERMINATION OF SERVICE, WHICHEVER IS EARLIER AND 8X8
HAS NO LIABILITY THEREAFTER. 8X8'S LIABILITY IS LIMITED TO REPAIR,
REPLACEMENT, CREDIT OR REFUND. 8X8 MAY ELECT TO PROVIDE A REFUND IN LIEU
OF CREDIT, REPLACEMENT OR REPAIR. ALL WARRANTIES COVER ONLY DEFECTS
ARISING UNDER NORMAL USE AND DO NOT INCLUDE MALFUNCTIONS OR FAILURES
RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION,
IMPROPER INSTALLATION, OR REPAIRS BY ANYONE OTHER THAN 8X8. IN NO EVENT
SHALL 8X8'S TOTAL LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID BY END
USER TO 8X8 IN THE PRIOR TWELVE (12) MONTHS FROM DATE OF CLAIM.
24. EXPORT COMPLIANCE. End
User agrees to comply with U. S. export laws concerning the transmission
of technical data and other regulated materials via the Services. End
User agrees to comply with applicable local, state and federal
regulations governing the locality in which the Equipment and Services
are used.
25. PHONE NUMBERS AND WEB PORTAL
DISCONTINUANCE. Upon expiration, cancellation or termination of
the Services, End User shall relinquish and discontinue use of any
Numbers, voice mail access numbers and/or web portals assigned to End
User by 8x8 or its vendors.
26. SOFTWARE COPYRIGHT. Any
software used by 8x8 to provide the Services and any software provided
to End User in conjunction with providing the Services are protected by
copyright law and international treaty provisions. End User may not copy
the software or any portion of it.
27. SURVIVAL. The provisions
of section 3, 5, 19, 20, 21, 22, 23, 25, 27, 28 and 30 shall survive any
termination of the Agreement.
28. NOTICES. 8x8 communicates
with End Users primarily via email. Notices to End User shall be sent
to the email address specified by End User at the time of registration
for the Services or as subsequently specified by End User ("Email
Address"). End User is responsible for notifying 8x8 of any Email
Address changes. End User agrees that sending a message to the Email
Address is the agreed upon means of providing notification. Email is
used to communicate important information about the Services, billing,
changes to the Services and other information. The information is
time-sensitive in nature. It is required that End User read any email
sent to the Email Address in a timely manner in order to avoid any
potential interruption in the Services provided hereunder.
29. FORCE MAJEURE (EVENTS BEYOND OUR
CONTROL). 8x8 shall not be liable for any delay in performance
directly or indirectly caused by or resulting from acts of God, fire,
flood, accident, riot, war, government intervention, embargoes, strikes,
labor difficulties, equipment failure, late delivery by suppliers or
other difficulties of 8x8 as may occur in spite of 8x8's best efforts.
30. GOVERNING LAW / RESOLUTION OF
DISPUTES.
30.1. Mandatory Arbitration. PLEASE READ THIS PROVISION CAREFULLY. IT
MEANS THAT, EXCEPT AS NOTED BELOW, END USER AND 8x8 WILL ARBITRATE ANY
DISPUTES OR CLAIMS IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, OR
THE PROVISION OF SERVICES OR PRODUCTS TO END USER, INCLUDING ANY
BILLING DISPUTES ("CLAIM"). CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING
ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). This
agreement to arbitrate also requires End User to arbitrate claims
against other parties relating to Services or Products provided or
billed to End User if Claims are asserted against 8x8 in the same
proceeding. ARBITRATION WILL BE CONDUCTED UNDER THE AAA'S PUBLISHED
COMMERCIAL ARBITRATION RULES AND SUPPLEMENTAL PROCEDURES FOR
CONSUMER-RELATED DISPUTES, WHICH ARE AVAILABLE BY CALLING THE AAA AT
800-778-7879 OR VISITING ITS WEB SITE AT www.adr.org. The AAA has a fee
schedule for arbitrations. End User will pay the published share of the
arbitrator's fees and administrative expenses ("Fees and Expenses")
except that: (a) for Claims less than $20, 8x8 will pay all Fees and
Expenses; and (b) for Claims between $25 and $1,000, End User will pay
only $20 in Fees and Expenses, or any lesser amount as provided under
AAA's Supplemental Procedures for Consumer-Related Disputes. End User
and 8x8 agree to bear their own other fees, costs, and expenses,
including those for any attorneys, experts, and witnesses. The AAA
Supplemental Procedures for Consumer-Related Disputes provide that
unless a hearing is requested, disputes will be resolved based on
written submissions and no personal appearance is required. If End User
requests an arbitration hearing, that hearing will take place either
telephonically or in San Jose, California. As a limited exception to the
agreement to arbitrate, End User and 8x8 agree that: (a) End User may
file Claims in small claims court in Santa Clara County (San Jose),
California, if the Claims qualify for hearing by such court; (b) if End
User fails to timely pay amounts due, 8x8 may assign the account for
collection, and the collection agency may pursue in court claims limited
strictly to the collection of the past due debt and any interest or
cost of collection permitted by law or the Agreement; and (c) any Claim
filed as a class action is not subject to arbitration but instead must
be filed in the California Superior Court, County of Santa Clara (San
Jose) or in the United States District Court for the Northern District
of California.
30.2. Prefiling Notice of Claim. BEFORE INSTITUTING ARBITRATION OR
SUIT, END USER AGREES TO PROVIDE 8x8 WITH AN OPPORTUNITY TO RESOLVE THE
CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO 8x8 AT. IF 8x8 IS
NOT ABLE TO RESOLVE THE CLAIM WITHIN 30 DAYS OF RECEIPT OF NOTICE, THEN
END USER OR 8x8 MAY INITIATE ARBITRATION OR SUIT AS DESCRIBED IN
SECTION 30.1. All claim notices should be sent to: Director of Customer
Service 8x8, Inc. 810 W. Maude Ave. Sunnyvale , CA 94085 -or-
claims@8x8.com
30.3. Governing Law. The Agreement and the relationship between End
User and 8x8 shall be governed by the laws of the State of California
without regard to its conflict of law provisions. To the extent court
action is initiated to enforce an arbitration award or for any other
reason consistent with Section 30.1, End User and 8x8 agree to submit to
the personal and exclusive jurisdiction of the courts within the state
of California, to the extent possible in Santa Clara County, and waive
any objection as to venue or inconvenient forum. The failure of 8x8 to
exercise or enforce any right or provision of the Agreement shall not
constitute a waiver of such right or provision. If any provision of the
Agreement is found by a court of competent jurisdiction to be invalid,
the parties nevertheless agree that the court should endeavor to give
effect to the parties' intentions as reflected in the provision, and the
other provisions of the Agreement remain in full force and effect. End
User agrees that regardless of any statute or law to the contrary, any
claim or cause of action arising out of or related to use of the Service
or the Agreement must be filed within one (1) year after such claim or
cause of action arose or be forever barred.
31. ENTIRE AGREEMENT. The
terms and conditions of this Agreement, along with the rates posted to
the web site currently located at http://www.8x8.com, constitute the
entire agreement with regard to this sale and expressly supersede and
replace any prior or contemporaneous agreements, written or oral,
relating to the Services. This agreement shall be binding upon the
heirs, successors, and assigns of 8x8 and End User.
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