Legal

NEXTIVA MASTER TERMS & CONDITIONS

SIGNING UP FOR NEXTIVA’S SERVICES CREATES A CONTRACT BETWEEN YOU AND US, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT (AS DEFINED BELOW). ANY ONE OF THE FOLLOWING ACTIONS CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS: (1) ACCEPTING THE TERMS AND CONDITIONS ELECTRONICALLY DURING THE ORDERING PROCESS AND/OR UPON LOGGING ON TO USE YOUR SERVICE, (2) YOUR SUBMISSION OF AN ORDER AND/OR ACCEPTANCE OF A QUOTE, (3) YOUR USE OF THE SERVICES DESCRIBED HEREIN, (4) YOUR EXECUTION OF A MINIMUM COMMITMENT CONTRACT. THROUGH THESE ACTIONS YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT.

1. INTRODUCTION. These Nextiva Master Terms and Conditions, together with any Nextiva Service Agreement, the Service-Specific Terms, end-user license agreement, end-user service agreement, other terms and conditions, operating rules, policies, price schedules, and/or other supplemental documents entered into between you and Nextiva or that are otherwise applicable to your Services and/or expressly incorporated herein by reference and published from time to time (collectively, the “Agreement”), constitutes the entire agreement between Nextiva, Inc., a Delaware corporation (hereinafter referred to as “we,” “us” or “Nextiva”) and the party set forth in the related registration order form or quote (hereinafter referred to as “you,” “your”, “user” or “Customer”) regarding Nextiva’s Services (as defined herein), and supersedes all prior agreements, discussions and writings between the parties regarding the subject matter of this Agreement. For purposes of this Agreement, the term “Nextiva” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, attorneys and any other service provider that furnishes Services or Devices to you in connection with this agreement.
2. DEFINITIONS.
   1. “Device” means a Nextiva-provided telephone, telephone adapter (“Adapter”), fax bridge, router, or other device used with the Services.
   2. “Documentation” means user manuals and other documentation relating to the Services, which are made available to Customer by Nextiva accessible via the Internet, other electronic or digital means, or in the form of printed media.
   3. “Services” means the products and services that are being provided to you as described in any quote or order form, including, but not limited to, Nextiva’s services, including, but not limited to, unified communication (voice), digital customer engagement, contact center, and vFax services, and any associated features, functionalities, software, hardware or web-based platforms. “Services” shall also include any additional Services provided to you as described in any addendum or amendment.
      1. The following Services are subject to the service-specific terms and conditions (the “Service-Specific Terms”), which are linked below and integrated herein:
      2. UCaaS (VoIP) Services: https://www.nextiva.com/legal.html?doc=02
      3. Digital Customer Engagement Services: https://www.nextiva.com/legal.html?doc=03
      4. Contact Center Services: https://www.nextiva.com/legal.html?doc=04
      5. vFax Services: https://www.nextiva.com/legal.html?doc=05
      6. Five9-Provided Contact Center Services: https://www.nextiva.com/legal.html?doc=06
      7. If you purchase a bundle or package of Services, your package may include components from multiple service types and, as such, multiple Service-Specific Terms may apply to your Services.
   4. “Software” means any proprietary software owned by, licensed by, or which Nextiva has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used in or used to provide the Services.
3. REVISIONS TO TERMS AND PRICING. From time to time, we may revise the terms and conditions of this Agreement (including, without limitation, any of the policies incorporated by reference). Notice of revisions to the Agreement shall be posted on the Nextiva Website (the “Website") and deemed given and effective on the date posted to the Website. Pricing is also subject to change at any time (except base service pricing for contracted quantities during the initial term of a Minimum Commitment Contract such as a Nextiva Service Agreement), with or without notice. If you do not agree to a revision or pricing change (except for changes to taxes, surcharges, usage charges, and fees), you must terminate your Services immediately, subject to the Termination provisions provided in this Agreement. By continuing to use the Services after revision(s) and/or pricing changes are in effect, you hereby accept and agree to all such revisions and/or pricing changes.
4. CUSTOMER REPRESENTATIONS. You represent and warrant that your business address is in the United States. You represent and warrant that you are at least eighteen (18) years of age or, as applicable, the age of majority in the country, state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. You represent and warrant that your name, user name, contact information and registered location are true and correct and, if you are entering into this Agreement on behalf of a company or another entity, you are authorized to act on behalf of that company or entity. You understand that Nextiva relies on the information you supply and that providing false or incorrect information may result in delays in the provisioning or delivery of the Services, the suspension or termination of your Services and the inability of a 911- dialed call to be correctly routed to emergency service personnel where your Services include UCaaS (Voice) services. You agree to promptly notify Nextiva whenever your billing information changes (including, but not limited to, your name, address, e-mail address, telephone number, and payment method, including credit card number and expiration date, if applicable). You agree to be financially responsible for your use of the Services as well as for use of your account by others.
5. USE OF SERVICE AND DEVICE.
   1. Business Plans. Services are provided to you as a business user, for your business and home office use. This means that you are not using it for any personal, residential, nonbusiness and nonprofessional purpose. This also means that you are not to resell or transfer the Services to any other person for any purpose or make any charge for the use of the Services, without express written permission from Nextiva in advance. Nextiva reserves the right to immediately terminate, change the calling plan or modify the Services if Nextiva determines, in its sole discretion, that you are using the Services for non-business or non-commercial use.
   2. Restrictions. You shall not: (a) copy or adapt the Software or the Services for any purpose, except as specifically permitted under this Agreement; (b) use the Software or Services except in accordance with all applicable laws and regulations, and except as set forth in the Documentation; (c) reverse engineer, translate, decompile, or disassemble the Software or Services; (d) use the Software or Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party other than the Customer; (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Software or Services; or (f) use or access the Software or Services to compete or enable others to compete with Nextiva, including, but not limited to, copying features, functionalities, graphics, of the Services, developing or modifying competing products and/or services, and performing competitive analyses or benchmarking.
   3. User Responsibility. You agree that you are responsible for all use(s) related to your account. You understand this means that you accept full liability and responsibility for your actions or the actions of anyone who uses the Services via your account with or without your permission. You acknowledge that Nextiva will be sending you information, including your password, via e-mail over the Internet. You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt the information and telephone calls you transmit over the Internet. In order to maintain the security of your Services, you should safeguard your User IDs and Passwords, as well as the media access control (MAC) address of the Adapter. The MAC address is one of the pieces of information used by Nextiva to authenticate customer calls and should not be shared.
   4. Use of Service and Device by Customers Outside the United States. While Nextiva encourages use of the Services within the United States to other countries, Nextiva does not presently offer or support the Services to customers located in any countries other than the United States except where expressly agreed by Nextiva in writing. Nextiva’s Services are designed to work generally with unencumbered high-speed internet connections. However, if the high-speed internet connection you are using is outside the United States and/or your ISP places restrictions on the usage of the Services, Nextiva does not represent or warrant that use of the Services by you is permitted by any other jurisdictions or by any or all the ISPs. If you remove any Device to a country other than the United States or use the Services from there, you do so at its own risk, including the risk that such activity violates local laws in the country where you do so. You will be solely responsible for any violations of local laws and regulations or violations of ISP terms of service resulting from such use. You also agree to indemnify us for any claims, damages or expenses resulting from your use of the Services outside of the United States. Nextiva reserves the right to disconnect Services immediately if Nextiva determines, in its sole and absolute discretion, that you have used the Services or the Device in violation of applicable laws, including without limitation laws of jurisdictions outside the United States. You are solely liable for any and all use of the Services and/or Device by any person making use of the Services or Device provided to you.
   5. Account Ownership. The owner of the account under which the Services are ordered shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Services with Nextiva. If no legal entity is provided upon sign-up, the account owner shall be the owner of the credit card used to open such account, if applicable. Subsequent changes to ownership must be supported by appropriate legal documentation. Nextiva shall not adjudicate ownership-related disputes, or any other internal business dispute. If Nextiva is unable to determine the valid owner of the account, Nextiva reserves the right to suspend or terminate the account and Services.
   6. Multi-Location Accounts. Nextiva may allow you to set up Services to multiple locations and/or sub-accounts under your account. You understand that users on an account containing multiple locations or sub-accounts may be able to access data from or regarding other locations or sub-accounts under that account. This data may include, but is not limited to, customer proprietary network information (CPNI), personally identifiable information (PII) and/or protected health information (PHI). Further, users of an account containing multiple locations or sub-accounts may be able to add or remove Services at other locations or sub-accounts. By accepting a quote(s) or other agreement providing for multiple locations or sub-accounts, you acknowledge the aforementioned service feature, and you agree to indemnify us for, and hold us harmless from, any claims, damages or expenses resulting from access by your users from one location or sub-account to other locations or sub-accounts on your account.
   7. Compatibility with Broadband, Cable Modem, and Other Services. There may be other third-party services with which our Services may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications or other content using the Services. We do not warrant that the Service swill be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Services with any particular broadband service. You agree that you are solely responsible for ensuring that the Services are interoperable with your internet service provider (ISP).
6. DISCONTINUATION OF SERVICES; FREE TRIALS.
   1. Substitution and Discontinuation of Services. Nextiva may, in its sole discretion, discontinue or substitute any service, feature or functionality without your prior approval. If Nextiva discontinues a service, feature or functionality and fails to substitute that service, feature or functionality with an equivalent service, feature or functionality, then upon your written request, Nextiva will reduce the fees assessed to your account by the amount that you specifically pay for any such discontinued service, feature or functionality. Notwithstanding the foregoing, Nextiva may include with or add to your account certain services, features and/or functionalities on a trial, temporary or otherwise limited basis. Nextiva reserves the right to discontinue any such services, features and/or functionalities without notice and without compensation to you, and/or to charge you a fee as a condition of your continued use of any such services, features and/or functionalities.
   2. Free Software Offering. From time to time, Nextiva may make a free, feature-limited version of the Software (a “Free Version”) available to You
      1. Generally. The Free Version is provided “as-is, where-is” and without any warranty of any kind. Nextiva reserves the right, in its sole discretion, to discontinue the Free Version and/or any service, feature or functionality included within the Free Version without your prior approval and without compensation to you at any time. Nextiva will, to the extent commercially practicable, provide you with reasonable advanced notice of any planned termination of the Free Version. Services, features, and functionalities within the Free Version are subject to change, with or without notice to you. You agree that you will be responsible for any all fees, taxes, charges, and surcharges arising from your use of the Free Version beyond the limitations contained within the Free Version, including, but not limited to, excess usage charges and international calling charges.
      2. Added Services. You may be prompted to add optional features or services to the Free Version from time-to-time (collectively, the “Added Services”). Your use of a Free Version does not entitle you to the use of any Added Services except to the extent you agree to any requirements that Nextiva provides for access to such Added Services. Such additional requirements may include, but are not limited to: payment of additional costs (subscription, taxes, fees, and the like), becoming subject to a minimum-term commitment, or purchasing additional hardware or features or services to fully enable your usage of such Added Services.
      3. Number Assignment and Use. If your Free Version includes voice and/or SMS/MMS usage features and/or functionalities, you may be assigned a phone number by Nextiva. You may also be able port a phone number to your Nextiva Free Version account. You understand and agree that if you do not use the voice and/or SMS/MMS features and/or functionalities included with your Free Version for a period of thirty (30) days, Nextiva may remove the phone number from your account and reassign that number to another user. If a phone number is removed from your account due to non-use, you further understand and agree that Nextiva may assign a new phone number to your account if you request that the voice features and/or functionalities be re-enabled; however, Nextiva may not be able to return the phone number to your account that was previously assigned to you or ported to your account.
7. LENGTH OF SERVICE.
   1. Service Term. We provide the Services for the term that you have signed up for. Your term begins on the date you first ordered service (the “Subscription Date”). It is not the day you receive the Device you ordered or the first time you use the Services. You are purchasing the Services for the full service term as set forth in the Order.
   2. Automatic Renewal. The Services will automatically renew for subsequent terms of the same length as the initial term, excluding any promotional or “free” months of Services or initial or renewal term extensions, unless you cancel your Services by providing Nextiva with notice as provided in Section 7.5 of this Agreement at least thirty (30) days before the end of the then-current service term. Each renewal term begins on the day after the last day of the previous term. Any and all fees assessed to your account during the initial term and any renewal terms will be charged to your payment method on file, which may include any payment method automatically updated by your issuing bank. If you are paying by credit card and your credit card is declined, invalid, or payment is not timely made by the issuer of your credit card, without further notice Nextiva reserves the right to automatically recharge the payment method until payment is received, the payment method is updated, or the Services are discontinued for nonpayment.
   3. Our right to disconnect. You understand and agree that Nextiva has the right to suspend, terminate or disconnect any part of Your Services generally at any time if:
      1. We determine or reasonably believe that You are violating, or violated, any applicable law;
      2. We determine or reasonably believe that You materially breached this Agreement and/or the AUP (as defined below);
      3. We determine or reasonably believe that You used fraudulent means to pay for the Services, including use of a fraudulent credit card;
      4. We determine or reasonably believe that You abused or harassed (verbally or otherwise) any Nextiva employee, contractor, agent or representative;
      5. We are ordered by law enforcement or other government agencies to suspend, terminate or disconnect your Services;
      6. You bring any legal action or proceeding against Nextiva, or participate in any class action lawsuit against Nextiva;
      7. A petition in bankruptcy is filed by or against You and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over You or Your material assets;
      8. We determine that such action is necessary to protect, maintain, or improve the Services, to prevent fraud or misrepresentation, to protect Nextiva, its customers or other third party Nextiva affiliates, or for any other good cause.
      9. You breached this Agreement or as otherwise contemplated by this Agreement.
      10. You fail to make payment.
   4. All charges owed at the time of disconnection will be immediately payable. We will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.
   5. Termination of Services. In order to terminate the Services, contact our Customer Care Department, via email at [email protected] or by calling 1-800-983-4289 at least thirty (30) days prior to the expiration of the current service term. Please refer to the Nextiva Cancellation Policy posted on our Web site at https://www.nextiva.com/legal.html?doc=10. If you provide notice of termination less than thirty (30) days prior to the end of your then-current term, your Agreement will renew as provided herein, and the termination of your Services will be effective at the end of that renewal term.
8. DEVICES.
   1. Ownership and Risk of Loss. Upon full payment of all fees associated therewith, you will own any Devices that you purchase from Nextiva and, in all events, you bear all risk of loss, theft, or damage regardless of the payment schedule selected for Services and Devices once Nextiva ships the Device(s) to you. Returns of non-defective Devices outside of any initial 30-day money back guarantee period, if any, will not be accepted. Refer to the Cancellation Policy for more information.
   2. Rented Devices. Section 8.1 above will not apply to Rented Devices. Unless otherwise agreed upon, Customer agrees that within thirty (30) days after the expiration of the Term of any Device Rental Agreement or termination of this Agreement, Customer will promptly return all Rented Devices to Nextiva. Customer will be responsible for (i) any damage to the Rented Devices as assessed by Nextiva upon receipt, (ii) the replacement cost of such Rented Devices if it is lost, misplaced, not delivered or stolen during transit, and (iii) shipping/handling costs. Customer agrees to pay the full retail cost for the repair or replacement of any Rented Device or part that is lost, stolen, damaged, modified, sold, transferred, leased, encumbered or assigned together with any costs incurred by Nextiva in obtaining or attempting to obtain possession of any Rented Devices. For the purposes of this section "Rented Devices" means any Device leased to Customer by Nextiva or Nextiva agents or any other third-party with or without a separate charge or fee in connection with the Services.
   3. Promotional Devices. Devices provided to you at a discount or at no charge may be previously used, refurbished or reconditioned equipment. Unless otherwise provided in a Minimum Commitment Contract, discounted and free Devices not returned upon cancellation of the Services will be charged to the customer. See Cancellation Policy for details.
   4. Replacement of a Defective Device. Devices purchased from Nextiva will be covered by their respective factory warranties, if any, only. Nextiva does not offer any warranty in addition to, or in replacement of any factory warranties. If a factory warranty applies, then prior to returning the equipment, you must contact Nextiva at [email protected] so that Nextiva may determine whether a defect exists and to receive an RMA number, which is required along with the return. You must ship the equipment to the manufacturer at the address provided by Nextiva in accordance with all RMA procedures. You have 7 days after receipt of an RMA to ship the equipment back to the manufacturer at the address we provide. You must pay all shipping fees. Once the manufacturer has received the equipment, a replacement may, if eligible, be sent to you in accordance with the factory warranty, if any. If an advanced replacement is provided and the factory has not received the defective Device within 14 days or it was not in a returnable condition, (original carton, all packing materials and parts in the same condition in which you received them), then Nextiva will charge you for the second device or for the missing parts. Notwithstanding the foregoing, nothing herein shall be construed as creating an obligation for Nextiva to provide an advanced replacement, nor shall any action by Nextiva be construed as a warranty determination or as otherwise guaranteeing eligibility for a replacement device or other warranty remedy.
   5. Receipt of Damaged Devices. If you receive cartons or Devices that are visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. You must also keep the original carton, all packing materials, and parts in the same condition in which you received them from the carrier. You must then contact our Customer Care Department immediately at [email protected] for return instruction.
   6. Tampering with the Device. You may not change the electronic serial number or equipment identifier of your Device or perform a factory reset of your Device without first getting our written consent.
   7. Prohibited Devices. You are prohibited from using the Services with any devices other than Nextiva-approved devices received from authorized retailers or from us unless we otherwise agree in writing.
   8. All Headset Sales Are Final. Headsets, earpieces, in-ear monitors, microphones and similar devices are not eligible for return or refund unless otherwise required by law. All purchases of these types of products are final and non-refundable.
9. FEES AND CHARGES.
   1. Fees and Charges. Your fees and charges may change from time to time, with or without notice (except base service pricing for contracted quantities will not change during the initial term of a Minimum Commitment Contract). Any pricing adjustment will be reflected in an invoice provided to you at the time of the pricing adjustment for your account. We may introduce or otherwise make available new and/or existing products and services at special introductory pricing. Introductory pricing will not be applied retroactively to existing services and may be applied for only limited periods of time. At our discretion, we may change, reduce, or discontinue introductory pricing. Certain service charges, such as Regulatory Recovery Fees, Universal Service Fund fees, and E911 fees, where and as applicable, are subject to change from time to time and such changes are applicable to ALL Customers regardless of a Minimum Commitment Contract.
   2. Billing Increments. All billing policies are defined by the specific package the customer chooses. Please refer to the Web site for exact billing policies.
   3. Taxes. Customer is responsible for, and shall pay are any applicable federal, state, municipal, local or other governmental sales, use, excise, Universal Service Fees, value-added, personal property, public utility and other taxes, fees and charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Services or a Device. Such amounts are in addition to payment for the Services or Device and will be billed to you. If Customer is exempt from payment of such taxes, you will provide Nextiva with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date Nextiva receives such certificate.
   4. Activation Fee. One-time activation fees and any other installation fees that may apply are specified on the Web site and vary by product and plan chosen.
   5. Regulatory Recovery and e911 Fee. A Regulatory Recovery Fee and e911 Fee shall be charged monthly for certain Services to offset costs incurred by Nextiva in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses and in providing e911 services. These fees are not taxes or charges required or assessed by any government and are in addition to such taxes and charges. The Regulatory Recovery Fee and e911 Fee may apply to every phone number assigned, including toll free and virtual numbers.
   6. Reinstatement Fee. Reinstating any service deactivated for non-payment of fees shall result in a reinstatement fee up to $25.
   7. Returned Check Fee. Nextiva may charge up to the maximum amount permitted by law if your banking institution dishonors or reverses a check, draft, or other payment.
10. BILLING AND PAYMENT.
    1. Billing; Free Trials. We will charge you in advance for each term of service. If you have selected a free trial offering, we will commence charging you for those Services at the expiration of the free trial period, unless you terminate the free trial offering prior to the expiration of the trial period. If not terminated prior to the end of the trial period, these Services will be added to your account for the remainder of your term, and any subsequent removal of the Services will be subject to Nextiva’s Cancellation Policy, as well as any and all applicable early termination fees. In the event that you do terminate a free trial offering prior to the expiration of the trial period, Nextiva may, without prior notice to you, immediately terminate your access to the free trial offering. Any failure by Nextiva to immediately terminate your access to the free trial offering shall not be considered a waiver of the right to do so later. You further agree that you will not access or attempt to gain access to any free trial offering after the termination of your free trial period.
       1. When you subscribe to that Services, you must give us a valid email address and a payment method that we accept. We reserve the right to stop accepting your payment method or your payments. You must advise us at once if your payment method expires, you close your account, your billing address changes, your email address changes, or your payment method is cancelled and replaced on account of loss or theft. Except for usage-based charges, we will bill in advance to your payment method all charges, fees, taxes, and surcharges for each service term. Fees may also include activation fees, porting fees, early termination fees ("ETF"), reinstatement fees, and returned check fees. We reserve the right to charge all fees to your payment method. We will bill monthly as due immediately usage-based charges and any other charges which we decide to bill as due immediately. Bills will be posted to the customer portal and emailed to the email address on record. Any payment not made when due may be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month; or (ii) the highest rate allowed by law. Nextiva’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly)) will not waive, limit, or prejudice in any way Nextiva’s rights to collect any amount due. Nextiva may terminate the Services and this Agreement for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
    2. Payment. When you subscribe to the Services, you authorize us to collect from your payment method. This authorization will remain valid until thirty (30) days after you terminate our authority to charge your payment method.
    3. Collection. If we disconnect the Services, you will remain liable to us for all charges under this agreement and all the costs we incur to collect these charges, including, without limitation, collection costs and attorney’s fees. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest and charges due to insufficient credit.
    4. Notices. You understand that it is difficult for us to distinguish between credit and debit cards. You agree to waive your rights under Regulation E to receive ten (10) days’ advance notice from us regarding the amount that we will debit from your account. While we may send you messages about your billing from time to time, we are not obligated to do so. We may change or cease our messages at any time without notice to you.
    5. Billing Disputes. You must notify Nextiva in writing within seven (7) days after receiving your credit card statement or from the time funds are debited from your bank account if you dispute any Nextiva charges on that statement or that have been debited from your account, or such dispute will be deemed waived. Notification of all billing disputes shall be sent to the following address: [email protected]. Nextiva will charge a late fee as described in Section 10.1 for a disputed amount if (1) it was not paid by the due date and (2) Nextiva determines that you disputed the charge in bad faith.
    6. Prepaid Services. All prepaid fees being provided to you as described in any quote or order form and other payments by you under this Agreement are non-refundable and non-creditable.
11. PRICING AND PAYMENT.
    1. Prices and Fees. Nextiva fees and charges for the Services are supplied to you during the ordering process unless otherwise provided for in this Agreement. You agree to pay the applicable one-time and recurring charges. You further agree that any taxes and other charges, including but not limited to, account setup fees, Adapter fees, Device charges, shipping and handling and other nonrecurring charges will be charged to your payment method on file. Recurring charges will be billed and automatically charged to your payment method on file on the first day of every billing cycle. Your billing cycle will begin on the anniversary date of your subscription date as defined in section 7.1.
    2. YOU AGREE THAT WE MAY CHARGE YOUR CREDIT CARD (IF APPLICABLE) FOR ALL AMOUNTS DUE TO US WITHOUT ADDITIONAL NOTICE OR CONSENT. If you are paying with a credit card, you agree to provide a credit card and not a debit card. If your card is a combination credit card/debit card, you authorize us to use it as a credit card. If your issuing bank automatically provides us with an updated credit card, you agree that we may charge this new credit card for all amounts due to us without additional notice or consent. You also agree to indemnify us for any claims, damages or expenses resulting from providing a debit card instead of a credit card (if applicable). If your credit card is declined, is invalid or payment is not made by the issuer of your credit card at the time that a charge is attempted, you will not be able to use the Services until your account is paid in full.
    3. Credit Balance Account. Your credit balance account has been established to cover incidental charges on your account that are not covered by your subscription fee. For example, international calls, toll free charges, Directory Assistance calls and taxes related to these calls are automatically charged to your credit balance account. A certain credit limit will be set on your account based upon your service plan and credit history. When the balance of your credit account reaches the credit limit, your account will be unable to make additional calls until the balance is paid down. You can make payments to reduce your credit balance account at any time by contacting our Customer Care Department at 1-800-983-4289 or by email to [email protected]. Any credit balance used as of your subscription renewal or monthly anniversary date will be charged to the payment method on file.
    4. Credit Terms. All Services provided to You and covered by the Agreement shall at all times be subject to credit approval or review by Nextiva. You will provide such credit information or assurance as is requested by Nextiva at any time. Nextiva, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit.
    5. Discontinuation of Services for Nonpayment. The Services to you may be denied or discontinued without notice at any time in the event you fail to make payment, your credit card provider denies or discontinues providing credit to you for any reason, or you fail to provide us with a new credit card expiration date before the existing one expires. If your payment method fails for any reason during the ordering process, or any regular or monthly billing process, you will have 24 hours to provide Nextiva your payment method, including credit card information if applicable. If the payment method is not resolved within 48 hours, Nextiva will deactivate the Services. If your new payment method is approved within 24 hours, your calling plan and billing cycle will remain unchanged. We reserve the right to modify the per minute calling plan at any time. You agree to pay all charges owed to Nextiva, including but not limited to the reinstatement fee for reactivated services. In the event Nextiva utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all expenses incurred to recover such monies, including attorneys' fees.
    6. Promotions and Discounts. Nextiva may limit the number of promotions and/or discounts you may be eligible for in a given period. Promotions and discounts may be cancelled or modified, and discounts may be reduced or eliminated, by Nextiva at any time, with or without notice (except with respect to base service pricing for contracted quantities during the initial term of a Minimum Commitment Contract).
    7. Cancellation Policy. Nextiva cancellation policies are outlined in the Cancellation Policy posted at our Web site at https://www.nextiva.com/legal.html?doc=10 and are incorporated into this policy with this reference. All cancellation requests must be submitted in the form of an email ticket to [email protected] or by calling our Customer Care Department at 1-800-983-4289 and must be made prior to the expiration of the Service term. See the cancellation policy for details. Changes to the Cancellation Policy may be made at any time without notice to you and is effective the day following posting to our Web site.
12. Acceptable Use Policy. You agree to comply with the Nextiva Acceptable Use Policy (“AUP”), which is posted on our Web site at https://www.nextiva.com/legal.html?doc=09 and is incorporated into this policy with this reference. Changes to the AUP may be made at any time without notice to you and is effective the day following posting to our Web site.
13. MANAGEMENT OF YOUR DATA AND COMPUTER.
    1. System Management and Service Performance. You are solely responsible for obtaining, installing, configuring and maintaining suitable equipment, including your computer, fax, telephone and software (as necessary), including any necessary system or software upgrades, patches or other fixes which are or may become necessary to access the Services and to operate your computer. Nextiva will only provide technical assistance with respect to your Nextiva-provided Adapters and other Devices.
    2. Monitoring of Network Performance. Nextiva automatically measures and monitors network performance. We also will access and record information about your computer's profile and settings and the installation of the Software in order to provide customized technical support. No adjustments to your computer settings will be made without your permission. You hereby consent to Nextiva's monitoring of your Internet connection and network performance, and the access to and adjustment of your computer settings, as set forth above, as they relate to the Services.
    3. Storage of User Information. Nextiva is not obligated to store your communications logs, voicemails, faxes, e-mails, messages and/or other data and does so only as a convenience to you. You agree that Nextiva has no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, e-mails, messages, and/or other communications or data maintained or transmitted by the Services. You acknowledge and agree that Nextiva may establish limits as to the size of communications and/or data that Nextiva transmits or stores and the duration for which Nextiva stores any communications and/or data.
14. LIMITATION ON WARRANTIES, REMEDIES AND LIABILITY, INDEMNIFICATION.
    1. WARRANTIES.
       1. NEXTIVA MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICES OR DEVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. NEXTIVADOES NOT WARRANT THAT THE SERVICES OR DEVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEXTIVA DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. CUSTOMER AGREES THAT IT ACCEPTS THE SERVICES AND DEVICE “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND IN THE EVENT OF ANY DEFECT. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST NEXTIVA TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
       2. WE WILL NOT GIVE YOU CREDIT FOR ANY INTERRUPTION OF NEXTIVA SERVICES, INCLUDING INTERNATIONAL CALLING SERVICES.
    2. LIMITATION OF LIABILITY.
       1. IN NO EVENT SHALL NEXTIVA BE LIABLE TO YOU, YOUR REPRESENTATIVES OR AUTHORIZED ASSIGNS OR ANYONE ELSE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICES, THE USE OF OR INABILITY TO USE THE SERVICES, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICES, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT. NOR SHALL NEXTIVA BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICES, INCLUDING 911 DIALING, AT ANY TIME OR FROM TIME TO TIME, OR FOR ANY INTERRUPTION OR DEGRADATION OF VOICE QUALITY CAUSED BY ANY REASON INCLUDING BUT NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, EQUIPMENT, NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION, FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO ACTS OF GOD, ADVERSE WEATHER, STRIKES, FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICE, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO NEXTIVA OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND NEXTIVA’S CONTROL, INCLUDING WITHOUT LIMITATION THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS TO BE CONNECTED OR COMPLETED, INCLUDING 911 DIALING, OR DEGRADATION OF VOICE QUALITY. NEXTIVA SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO NEXTIVA’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’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 NEXTIVA’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. NEXTIVA’S LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE SERVICE CHARGES ACTUALLY PAID BY YOU TO NEXTIVA FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM, OR, WITH RESPECT TO CLAIMS RELATING TO THE FREE VERSION, ONE HUNDRED DOLLARS ($100.00). THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT NEXTIVA WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE TO REIMBURSE NEXTIVA FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST NEXTIVA TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
15. INDEMNIFICATION AND WAIVER OF CLAIMS.
    1. INDEMNIFICATION BY NEXTIVA.
       1. Subject to any limitation of liability described in this Agreement including, without limitation in Section 14.2 of this Agreement, Nextiva agrees to indemnify, defend and hold you harmless at its expense any claim made or action brought or threatened against you based on an allegation that the Services infringe a patent, copyright, trade secret, or other intellectual proprietary right. Nextiva shall have control of the defense and shall pay any amount awarded either as damages or costs in any such action provided that you promptly notify Nextiva of the claim or action, and shall give Nextiva the information and assistance it reasonably requests in defending and/or settling the action. Nextiva may, at its sole option and expense, negotiate a settlement or compromise of the claim or action, provided such settlement or compromise includes an unconditional release of you. In the event that a settlement is reached or an injunction is obtained, prohibiting use of the Services, Nextiva shall at its expense, procure for Customer the right to continue using the Services, or replace or modify it so that it is non-infringing provided that there is no material diminution in features, functionality or service level. If Nextiva determines that neither of the foregoing alternatives is reasonably available and if the use of the Services is enjoined you shall cease using the Services and return to Nextiva all copies, if any, of the Services or certify that they have been destroyed. In the event it is necessary to cease using the Services, Nextiva shall repay to you a pro rata portion of all license fees paid by Customer.
       2. Exceptions to Indemnity. Nextiva shall have no obligation under its obligations of indemnification with respect to any proceeding or claim of infringement based upon the following: (i) unauthorized modification of the Services by you, or (ii) combination, operation, or use of the Services with equipment, software and/or services not furnished, authorized, or contemplated by Nextiva, or (iii) operation or use of the Services in a manner other than its intended purpose. Nextiva shall also not have any indemnification obligations for any claims alleging that a Device and/or Services resold by Nextiva infringe on a third-party’s intellectual property rights.
    2. INDEMNIFICATION BY CUSTOMER.
       1. YOU ARE LIABLE FOR ANY AND ALL USE OF THE SERVICES AND/OR DEVICE BY YOURSELF AND BY ANY PERSON MAKING USE OF THE SERVICES OR DEVICE, AND YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NEXTIVA AGAINST ANY AND ALL LIABILITY FOR ANY SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NEXTIVA FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, ATTORNEYS’ FEES, AND ANY AND ALL OTHER DAMAGES OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICES, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM OUR GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT. THIS SECTION SHALL SURVIVE THE AGREEMENT.
16. CONTENT. You are liable for all liability that may arise from the content you transmit to any person, whether or not you authorize it, using the Services or Device. You promise that you and anyone who uses the Services and all your and their content comply at all times with all laws, regulations, and written and electronic instructions for using the Services and the Device.
17. MISCELLANEOUS LEGAL CONSIDERATIONS.
    1. Governing Law. This Agreement and the relationship between you and Nextiva shall be governed by the laws of Arizona without regard to its conflict of law provisions. Any claim brought pursuant to this Agreement shall be brought in a court of competent jurisdiction within the State of Arizona and venue for any such claim shall be proper in the appropriate state or federal court located in Maricopa County, Arizona.
    2. No Waiver of Rights. Our failure to exercise or enforce any right or provision of this agreement will not constitute a waiver of the right or provision. Nextiva reserves all of its rights at law and equity to proceed against anyone who uses the Services or Device illegally or improperly. All determinations by Nextiva under this Agreement and exercise of its rights are made and done in our sole and absolute discretion.
    3. No Third-Party Beneficiaries. If you are not a party to this Agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action. This Agreement does not create any other third-party beneficiary rights.
    4. Entire Agreement. This Agreement, the Order, the applicable service description, the AUP, or any reference herein to the content of Nextiva’s websites constitute the entire agreement between you and Nextiva and govern your use of the Services, superseding any prior agreements between you and Nextiva and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
    5. Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. This invalidity or unenforceability will not invalidate or render unenforceable any other portion of this agreement.
18. DISPUTE RESOLUTION AND BINDING ARBITRATION.
    1. It is important that you read this entire section carefully. This section provides for resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury.
    2. Arbitration. Nextiva and you agree to arbitrate any and all disputes and claims between you and Nextiva except with respect to claims for amounts owed for services rendered. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between you and Nextiva, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision. References to “Nextiva,” “us” and “you” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services under this agreement or any prior agreements between you and Nextiva.
    3. Informal Resolution of Disputes. Our Customer Care Department can resolve most customer concerns quickly and to the customer’s satisfaction. If you have a dispute or claim against us, you should first contact the Nextiva Customer Care Department at (800) 983-4289 and provide in detail, including documents or analysis supporting your position, the basis of your claim. Customer care shall be provided with 14 days in which to research and respond to your claim.. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved as set forth below.
    4. Formal Notice of Disputes A party who intends to seek arbitration must first send to the other party a written “Notice of Dispute” setting forth in detail, including submission of supporting documentation, the grounds of your dispute. The Notice of Dispute to Nextiva must be sent to Nextiva, attention “General Counsel,” by certified mail addressed to 9451 East Via de Ventura, Scottsdale, AZ 85256.
       1. The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and Nextiva do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice of Dispute is received, you or Nextiva may commence an arbitration proceeding. The amount of any settlement offer made by you or Nextiva shall be non-discoverable and shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Nextiva is entitled.
    5. Arbitrator and Arbitral Rules. The arbitration shall be administered by the American Arbitration Association (“AAA”). You may contact the AAA by telephone at 1-800-778-7879, by email at [email protected], or by mail at 2415 E. Camelback Road, Suite 700, Phoenix, AZ 85016. The arbitration shall be governed by the AAA’s Commercial Arbitration Rules then in effect (collectively, “AAA Rules”), as modified by this Agreement. The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.
    6. Waiver of Judge or Jury Trial. You and Nextiva agree that, by entering into this agreement, you and Nextiva are waiving the right to a trial by judge or jury. Notwithstanding the foregoing, in the event that litigation is commenced as expressly permitted by this Agreement, you agree that the right to trial by jury only is waived.
    7. Waiver of Class Actions. You and Nextiva agree that the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. You and Nextiva agree that you and Nextiva may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You and Nextiva agree that, unless you and Nextiva agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.
    8. Statute of Limitations. You must present a claim within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to section 10 and 11 of the agreement), or you waive the right to pursue a claim based upon such event, facts, or dispute.
    9. Exceptions to Arbitration Agreement. Notwithstanding the obligation to arbitrate and any other provisions to the contrary herein, you and we agree that with respect to claims for unpaid invoices: (a) we may take our dispute to small claims court, if the contained dispute qualifies for hearing by such court; (b) if you fail to timely pay amounts due, we may assign your 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; (c) you or we may take any disputes over the validity of any party’s intellectual property rights to a court of competent jurisdiction; (d) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and (e) either you or we may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of you or Nextiva, pending the completion of arbitration.
    10. Modification of Arbitration. If Nextiva makes any substantive change to this arbitration provision, you may reject any such change and require Nextiva to adhere to the language in this provision.
    11. Venue/Jurisdiction. All claims for Arbitration shall be submitted to and heard by the office of AAA located in Maricopa County, Arizona. Should an evidentiary hearing be required by the Arbitrator, such hearing shall be heard in Maricopa County, Arizona.
19. PRIVACY. Nextiva Services utilize, in whole or in part, the public Internet and third party networks to transmit voice and other communications. You acknowledge and understand that Nextiva cannot guarantee that voice over IP communication is completely secure. You agree that Nextiva may access all features of your account and the Services to determine whether the Services are being used fraudulently and/or in violation of this Agreement, and for any other purposes. YOU AGREE THAT NEXTIVA SHALL NOT BE LIABLE FOR ANY LACK OF PRIVACY. Nextiva is committed to respecting your privacy relating to personally identifiable information. Once you choose to provide personally identifiable information, it will only be used in the context of your relationship with Nextiva. Nextiva will not sell, rent, or lease your personally identifiable information to others except as required by law or to satisfy regulatory requirements. Upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, Nextiva may disclose personally identifiable information. Please refer to our Privacy Policy for additional information.
20. EXPORT COMPLIANCE. You agree to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security. You also expressly agree that Customer shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Services or Device, including, without limitation, to any destination, company, or person restricted or prohibited by U.S. export controls.
21. RECORDING CONVERSATIONS. Certain Nextiva Services provide a function that allows You to record individual telephone conversations. The laws regarding the notice, notification, and consent requirements for recording conversations vary from state to state. In some states, You are required to obtain consent from all parties to record a conversation. You are solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using this feature. Nextiva expressly disclaims all liability with respect to your recording of telephone conversations. You hereby agree to fully, finally, and forever release, discharge, hold harmless, and fully indemnify Nextiva from and against any damages or liabilities of any kind related to Your recording of any telephone conversations using the Services. You agree that Nextiva, may at its sole discretion, record any call between Nextiva and You for Nextiva quality control purposes.
22. ASSIGNMENT. Nextiva may assign all or part of its rights or duties under the Agreement without notifying you. If we do that, we have no further obligation to you. You may not assign the Agreement or the Services or Device without our prior written agreement.
23. SURVIVAL. The provisions of this Agreement relating to indemnification, limitations on liability, warranty limitations and disclaimers, resolution of disputes, billings and your obligation to pay for the Services provided and any additional usage charges, shall survive the termination of the Agreement and the termination of the Service.
24. CALEA. Nextiva intends to fully comply with the Communications Assistance for Law Enforcement Act (“CALEA”). By using the Services, you hereby agree and consent to Nextiva’s right to monitor and otherwise disclose the nature and content of your communications if and as required by CALEA without any further notice to you.
25. COMPENSATION PROGRAMS. Nextiva markets its services through multiple sales channels, including through marketing partnerships, referral programs and sales representative relationships with third parties. We may pay compensation to such third parties in connection with your purchase of services from Nextiva.
26. FORCE MAJEURE (EVENTS BEYOND NEXTIVA’S CONTROL). Except for your payment obligations, each party shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of said party’s best efforts.
27. SOFTWARE COPYRIGHT Any software used by Nextiva to provide the Services and any software provided to you in conjunction with providing the Services are protected by copyright law and international treaty provisions. You may not copy the software or any portion of it. Furthermore, you may not delete, alter, cover, or distort any copyright or other proprietary notices or trademarks provided to you as part of the Services.
28. COPYRIGHT, TRADEMARK, AND INTELLECTUAL PROPERTY; COPYRIGHT INFRINGEMENT; DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE. Our Website content, our materials, services, logs, service marks and trademarks are protected by trademark, copyright, or other intellectual property laws, and international treaty provisions. Infringement by you may result in civil or criminal prosecution.
    1. The entire content included in this Website, including but not limited to text, design, graphics, interfaces, or code and the selection and arrangements thereof is copyrighted as a collective work under the United States and other copyright or intellectual property laws and is the property of, or used under license by, Nextiva.
    2. Nextiva’s trademarks are always changing. Some of our trademarks include, but are not limited to:
    3. Nextiva®
       Nextiva Office®
       NextOS®
       CoSpace®
       xBert®
       Amazing Service®
       Simplifying Business Communication®
       SmartTopics®
       NextCon®
       BuildAmazing®
       NextIQ®
    4. All trademarks, service marks, and trade names (collectively the "Marks") are trademarks or registered trademarks of and are proprietary to Nextiva, or other respective owners that have granted Nextiva the right and license to use such Marks.
    5. Nothing in this website or your subscription to, or licensing of, any Nextiva products or services grant any right, title, proprietary or ownership interest in any Nextiva intellectual property Marks, copyrights, patents, trade secrets, or other intellectual property.
29. LICENSE BY CUSTOMER TO USE FEEDBACK
    1. Customer hereby grants to Nextiva a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Nextiva’s Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the improvement, operation, or use of Customer’s Services.
    2. Nextiva may identify you (by name and logo) as a Nextiva customer on our website and on other promotional materials. You hereby grant Nextiva an irrevocable, non-exclusive, royalty free license to utilize your name, trademark(s), trade name(s) and other intellectual property for this limited purpose and as otherwise agreed by you in writing.
30. CUSTOMER DATA. Nextiva does not own: (i) any data, information or material that Customer submits to Nextiva in the course of using the Services; or (ii) outputs which are specifically provided to Customer during the usual course of providing the Services except to the extent that such outputs incorporate Nextiva’s Intellectual Property ("Customer Data"). Customer hereby grants to Nextiva a limited, non-exclusive, worldwide, royalty-free license to Customer Data for Nextiva to provide Services. Customer further agrees and authorizes Nextiva to use de-identified Customer Data for purposes of developing, optimizing and improving the Services. Customer, not Nextiva, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Nextiva shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Upon termination of Customer’s Services, Customer’s right to access or use Customer Data immediately ceases, and Nextiva shall have no obligation to maintain or forward any Customer Data. At our sole discretion, Nextiva may retain Customer Data in accordance with Nextiva’s data retention policies and our Privacy Policy.
31. THIRD-PARTY INTEGRATIONS. Certain Services may be capable of being integrated with third-party services (each, a “Third-Party Integration”) that are not provided by Nextiva. By enabling or integrating the Services with a Third-Party Integration, Customer expressly authorizes Nextiva to share all Customer Data and any other information necessary to facilitate the Third-Party Integration. Customer further understands and agrees that: (i) Nextiva is not responsible for, nor does it make any representations regarding, any Third-Party Integrations; (ii) Nextiva is not responsible for any loss, misuse, or other claims related in any way to the Third-Party Integration, including, but not limited to, any claims, losses or damages arising out of or related to any transmittal of Customer Data or other information to the provider of the Third-Party Integration; (iii) the provider of the Third-Party Integration is not a subprocessor of Nextiva; (iv) Customer is responsible for ensuring that adequate safeguards are in place with the provider of the Third-Party Integration to ensure that Customer’s interests are sufficiently protected; (v) under no circumstances shall Nextiva be liable to the Customer or any third-party for any loss, damage or claim arising out of or related in any way to the Third-Party Integration or the actions and/or omissions of the provider of the Third-Party Integration; and, (vi) Customer will indemnify, defend and hold Nextiva harmless from and against any claims arising out of the Third-Party Integration.

Last Updated: July 23, 2024

NEXTIVA CCaaS

SERVICE-SPECIFIC TERMS

1. SERVICE DESCRIPTION. Nextiva’s Contact Center services (as used herein, the “Services”) consist of an AI-powered contact center platform and related features and functionalities, including, but not limited to, Advanced IVR, intelligent virtual assistant, intelligent and skills-based routing, transcription and summarization services, a web-based agent voice and digital platform, and related analytics and reporting.
2. LICENSE TYPES. Nextiva may make the Services available under either a Named User License or a Concurrent User License.
   1. Named User License. A Named User License allows access to the Services to a specifically identified and designated individual user (a “Named User”) up to the contracted quantity of Authorized Users. Group or shared logins are strictly prohibited. You may not reassign a Named User License to another individual without Nextiva’s prior written approval.
   2. Concurrent User License. Concurrent User Licenses allow access to the Services to a specific number of concurrent users (“Concurrent Users”) at the same time up to the contracted quantity of Concurrent Users. This license shall only be used by one individual user at a time but is not for a specific named user.
3. BURST, OVERAGE, AND USAGE CHARGES. Nextiva may allow you to add services, features and/or functionalities above and beyond your contracted quantities and to allow access to the Services to Named Users and/or Concurrent Users above and beyond your contracted quantities. You understand and agree that you shall be obligated to pay burst, overage and usage charges regarding or related to the Services, including, but not limited to, excess user charges (above the contracted quantities), cloud-based data storage overages, directory assistance charges, SMS/MMS charges, local and long distance charges, toll free charges, international calling charges, as well as any taxes, fees or surcharges assessed on any such charges.
   1. Excess Users. If, during any billing month, your actual number of Named Users and/or Concurrent Users exceeds the contracted level of such users, or if the Services are accessed by someone that is not a Named User (where you have Named User Licenses), you agree to either: a) be invoiced the then-current retail price for any excess users that utilized the Services during the billing month, or b) place a co-terminus add-on order in the amount of such excess usage. For purposes of clarity, you shall be invoiced in arrears for the entire billing month for any excess users at the then-current regular retail pricing irrespective of the number of days the excess users accessed the Services during the applicable billing period.
   2. Additional Features and Functionalities. If, during any billing month, you enable or utilizes any service, feature and/or functionality in excess of the contracted services, features and/or functionalities, and the quantities thereof, you also agree to either: a) be invoiced the full retail price for any excess services, features and/or functionalities utilized during the billing month, or b) place a co-terminus add-on order in the amount of such excess usage. You shall be invoiced in arrears for the entire billing month for any such excess usage at the then-current regular retail pricing irrespective of the number of days said service(s), feature(s), and/or functionality(ies) were actually used during the applicable billing period.
   3. Usage Charges. You will be charged usage for calls placed and received and SMS/MMC messages sent and received using the Services. Monthly SMS/MMS charges, local and long distance, international call charges, toll-free charges, as well as usage, burst and any other overage charges, will be charged at the then-current rates and will be exhibited on the next month’s billing cycle invoice.
4. LOCAL NUMBER PORTABILITY. In the event you are transferring an existing phone number that currently is subscribed to another carrier, the following terms and conditions apply:
   1. Authorization. You hereby authorize Nextiva to process your order for the Services and to notify your local service provider of your decision to switch your local services to Nextiva and to transfer your telephone number and represent that you are authorized to take these actions. You may be required to complete a letter of authorization, provide us with a copy of your most recent bill from your service provider, as well as provide us with any other information required by your service provider to port your number. Failure to provide any information requested by Nextiva or the third-party services provider will delay the porting of the number to Nextiva. You acknowledge that the porting of your numbers is dependent upon the cooperation of you and third parties not under the control of Nextiva. Nextiva shall not be responsible for any delay in the port of your number and will not provide credit for any such delays.
   2. Activation. You agree and acknowledge that you must install and activate your Device prior to the date that the number switch becomes effective. You will be assigned a temporary telephone number until your transfer is completed. You may place and receive calls using this temporary number until such time as your phone number is transferred.
   3. Limitation. Nextiva has the right to refuse to import a number if, in its sole discretion, it does not have the infrastructure to support the number.
   4. Unauthorized Port Outs. You acknowledge and agree that telephone or facsimile numbers may be ported out from your Services or your account due to acts or omissions of third parties, and it may be difficult or impossible for Nextiva to: (i) prevent such port-outs: (ii) retrieve numbers ported-out of your account; or (iii) port such numbers back into your account. Nextiva has no responsibility or liability due to such port-outs.
5. SERVICE DISTINCTIONS. You acknowledge and understand that the Services are not a telephone service, and we provide it on a best-efforts basis. Important distinctions exist between telephone service and the enhanced Service offering provided by Nextiva. The Services are subject to different regulatory treatment than telephone. This treatment may limit or otherwise affect your rights of redress before Federal and State telecommunications regulatory agencies or judicial forums. Events beyond our control may affect our service, such as power outages, fluctuations in the internet, your underlying ISP or broadband service, or maintenance. We will act in good faith to minimize disruptions to your use of and access to our Services.
   1. NO 911 SERVICES. YOU UNDERSTAND AND AGREE THAT 911 AND EMERGENCY CALLS AND MESSAGES MAY NOT BE PLACED OR SENT UTILIZING THE SERVICES OR FROM WITHIN THE NEXTIVA CONTACT CENTER PLATFORM. YOU AGREE THAT YOU WILL OBTAIN AN ALTERNATIVE MEANS OF EMERGENCY AND 911 CALLING AND MESSAGING. YOU FURTHER AGREE TO PROVIDE NOTICE TO ALL USERS OF THE SERVICES OF (A) THE UNAVAILABILITY OF 911 AND EMERGENCY CALLING AND MESSAGING FEATURES IN THE SERVICES AND CONTACT CENTER PLATFORM; AND, (B) THE AVAILABILITY OF ALTERNATE METHODS FOR 911 AND EMERGENCY CALLING AND MESSAGING.
   2. Operator Assisted Calling. No 0+ or Operator Assisted Calling; May Not Support X11 Calling. You acknowledge and understand that the Service does not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, calling card calls or dial- around calls. Our Service may not support 311, 511, and other x11 services in one or more service areas.
   3. No Directory Listing. The phone numbers you get from us will not be listed in any telephone directories. However, any phone numbers you transfer from your local phone company may be listed.
   4. Use Outside of the United States. Nextiva’s Services do not provide access to emergency services in any country.
6. FEES AND CHARGES
   1. Charges for Directory Calls (411). We will charge you $1.25 for each call you make to Nextiva directory assistance.
   2. Charges for Calls from Public Payphones. We reserve the right to charge you for any tolls or fees resulting from calls you receive from public payphones.

Last Updated: July 23, 2024

PASS THRU END USER SOFTWARE-AS-A-SERVICE (“SAAS”) AGREEMENT

WORKFORCE MANAGEMENT SOFTWARE GROUP (“COMMUNITYWFM”) IS WILLING TO PROVIDE THE SAAS ACCESS RIGHTS IN ACCORDANCE WITH AND SUBJECT TO END USER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS SAAS AGREEMENT (“AGREEMENT”). SUBJECT TO YOUR COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE SAAS ACCESS RIGHTS TO THE SAAS SERVICES SPECIFIED IN THE ORDER SUBMITTED BY RESELLER ON CUSTOMER’S BEHALF AND ACCEPTED BY COMMUNITYWFM (“ORDER”) TO WHICH THIS AGREEMENT IS INCORPORATED SHALL BE PROVIDED DURING THE APPLICABLE ACCESS TERM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, ALL REFERENCES TO “YOU” OR “YOUR” IN THIS AGREEMENT SHALL MEAN COLLECTIVELY THE ORGANIZATION AND THE END USER OF THE SAAS SERVICES. ALL REFERENCES TO “CUSTOMER”, “YOU” AND “YOUR” IN THIS AGREEMENT SHALL MEAN FOR ALL PURPOSES THE COMPANY IDENTIFIED IN THE ORDER. IF YOU DO NOT AGREE WITH THIS END USER SOFTWARE LICENSE, YOU MUST IMMEDIATELY NOTIFY BOTH THE RESELLER AND COMMUNITYWFM THAT YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS AND SUCH ACCESS TO THE SOFTWARE SHALL NOT BE GRANTED TO THE END USER.

1. DEFINITIONS.

   The following capitalized terms shall have the meaning ascribed to them below:

   Access Term. The term, as further described in Section 3 below, for which COMMUNITYWFM has contractually agreed to provide you with access to the SaaS Services in accordance with the Order.

   Confidential Information. Any non-public information, technical data, or know-how, including, without limitation, that which relates to: (i) research, product plans, products, pricing, services, customers, personnel, markets, software, software code, software documentation, developments, inventions, lists, trade secrets, data compilations, processes, designs, drawings, engineering, hardware configuration information, marketing or finances, which is designated in writing to be confidential or proprietary at the time of disclosure if provided in tangible form, or if provided in non-tangible form, shall be identified by the disclosing party at the time of disclosure as confidential or proprietary, (ii) with respect to COMMUNITYWFM, information concerning the SaaS Services, On-Premise Components, Hosted Environment, and Documentation provided hereunder and/or materials resulting from services, and any derivatives thereto, and the terms and conditions of this Agreement, and (iii) with respect to you, any Customer Data. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how that is: (a) in the public domain or becomes available to the public and not as a result of the act or omission of the receiving party; (b) without restriction on disclosure, rightfully obtained by the receiving party from a third party; (c) without restriction on disclosure, lawfully in the possession of the receiving party at the time of disclosure; or (d) approved for release by written authorization of the disclosing party.

   Customer Data. All data either provided by you or entered on its behalf through use of the SaaS Services, or generated by the SaaS Services on behalf of you.

   Customer Environment. The computing environment separately procured, prepared and maintained by you for the access and use of the SaaS Services, where such computing environment meets COMMUNITYWFM’s then-current minimum requirements.

   Data Subject. An individual who uses the SaaS Services and/or about which information is collected or generated as a part of the SaaS Services.

   Designated Employees. A reasonable number of Customer Personnel (including Customer’s system administrator), who have received training from COMMUNITYWFM. Designated Employees may be changed by notice to COMMUNITYWFM.

   Documentation. COMMUNITYWFM’s documentation describing the specifications and use of the SaaS Service.

   Error. A failure of the SaaS Service to substantially conform to the Documentation, that COMMUNITYWFM can replicate or you can duplicate.

   Error Correction. Revisions, modifications, alterations, and additions to the SaaS Services, installed by COMMUNITYWFM in the Hosted Environment as bug fixes or workarounds to resolve Errors.

   Hosted Environment. COMMUNITYWFM’s third party hosted infrastructure environment required to operate and provide access to the relevant Software as-a-Service.

   Intellectual Property Rights. Any and all tangible and intangible rights, title and interest in and to: (i) works of authorship, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof, (ii) trademarks and trade names, (iii) Confidential Information, trade secrets and know-how, (iv) patents, designs, algorithms and other industrial property, (v) all other intellectual and industrial property rights whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force.

   On-Premise Components. Those portions of the COMMUNITYWFM provided software which must be installed at Customer’s site, if any.

   Professional Services. Consulting, training, installation and maintenance of On-Premise Components, and/or other services provided to Customer hereunder.

   Personnel. With respect to you, each of your employees or independent contractors (not a competitor of COMMUNITYWFM) under obligations of confidentiality and nondisclosure which you authorize to use the SaaS Services purchased and/or the SaaS Access Rights procured hereunder; with respect to COMMUNITYWFM, each COMMUNITYWFM employee or subcontractor under obligations of confidentiality and nondisclosure which performs on behalf of COMMUNITYWFM hereunder.

   Privacy Laws. Laws, as applicable to personal data, concerning the regulation of the collection, processing, data security, and trans-border data flows, use of web-site cookies, email communications, use of IP addresses and meta-data collection.

   SaaS Services. The online services offered by COMMUNITYWFM as more fully described in the Documentation, and all SaaS Access Rights, each as specified on an Order.

   SaaS Access Fees. In US dollars, the fees due to COMMUNITYWFM, as further specified in the Order, for use of the SaaS Services to the extent of the SaaS Access Rights.

   SaaS Access Rights. The type and quantity of SaaS access rights granted to Customer for use during the applicable Access Term.

   Scheduled Downtime. Any downtime scheduled to perform system maintenance, backup and upgrade functions for the Hosted Environment. COMMUNITYWFM will provide Customer with a minimum of seven (7) days advance notice of Scheduled Downtime.

   Service Levels. The service level commitments from COMMUNITYWFM with respect to the maintenance and support of the Hosted Environment and SaaS Services.

   Total Time. The total number of minutes in the applicable month.

   Updates. Periodic improvements or additions to the SaaS Services, including Error Corrections and other changes to the SaaS Services, that may be provided hereunder, but excluding any new feature or substantial additional functionality available for the SaaS Service, which, in COMMUNITYWFM’s sole discretion, is subject to additional fees.

   CommunityWFM Intellectual Property. All Intellectual Property Rights in the SaaS Services, Documentation, Hosted Environment, On-Premise Components, and all other Confidential Information provided by COMMUNITYWFM hereunder.

2. ACCESS RIGHTS. During the Access Term, and solely for your internal business use, COMMUNITYWFM grants to you a temporary non-exclusive, non-transferable, non-assignable, personal right to use the SaaS Services specified in the Order through internet access, up to the extent of the SaaS Access Rights specified in the Order. With regards to the On-Premise Components and related Documentation, COMMUNITYWFM grants to you, and you accept, a nonexclusive, nonassignable, and nontransferable limited license during the Access Term, to use the On-Premise Components and related Documentation solely in conjunction with the SaaS Services for Customer’s internal business purposes, and subject to the terms and conditions of this Agreement. With respect to the Documentation, you may make a reasonable number of copies of the Documentation applicable to the SaaS Services solely as reasonably needed for your internal business use in accordance with the express use rights specified herein. You acknowledge and agree that the use rights provided hereunder do not grant any rights not explicitly expressed. All other such rights and interests in COMMUNITYWFM Intellectual Property (including any derivatives thereto) are expressly reserved, owned by and remain vested in COMMUNITYWFM and its third party vendors, and except for the limited use rights granted hereunder, you shall not assert any right, title, or interest in or to any COMMUNITYWFM Intellectual Property, or portion thereof. Without limiting the foregoing, you acknowledge and agree that no rights or any other interests are provided to you with respect to: (i) rights in or to the Hosted Environment or SaaS Services beyond those rights specified in the Order, (ii) rights to provide access to or use of the Hosted Environment, SaaS Services and On-Premise Components to any other party, including, without limitation, any uses in the nature of a service bureau or application services provider, (iii) rights to obtain possession of copies of any component of the Hosted Environment or any software used to provide or perform the SaaS Services, except with respect to On-Premise Component(s) and then only as expressly provided for in this Section, or (iv) representations, warranties or other third party beneficiary rights from any COMMUNITYWFM third party vendor.
3. ACCESS TERM. The initial Access Term shall be 12 months. An Access Term shall commence on the first day of the month following receipt by the Reseller of the Activation Notice, sent by the Supplier, for the End User. The term shall automatically renew for successive twelve (12) month terms unless either party provides the other with no less than sixty (60) days prior written notice of its intent to not renew.
4. COMMUNITYWFM RESPONSIBILITIES.
   1. Support. As part of the SaaS Services, during any Access Term and subject to payment of all fees, COMMUNITYWFM shall, either directly, or through its applicable third party vendor(s), provide support for the Hosted Environment and SaaS Services in accordance with the terms and conditions of this Section.
   2. Hosted Server Updates. In addition to establishing and maintaining the Software within the Hosted Environment, COMMUNITYWFM shall maintain the components of the Hosted Environment with all current Updates that COMMUNITYWFM deems necessary for the SaaS Services. COMMUNITYWFM shall routinely be updating your hosted server and will coordinate with your operations team to minimize any impact on daily operations. Please contact the help desk to coordinate and control those regular cycles.
   3. Uptime. Please see our hosted services uptime commitment posting for details. https://www.communitywfm.com/product-uptime-agreement.
   4. Help Desk Service Level Targets. The CommunityWFM help desk toll free line (877) 668-6870, option 2. is available 7-7 M-F, excluding holidays and other days that may be deemed by CommunityWFM. Please see target response time for Help desk support here. https://www.communitywfm.com/response-time-service-level-agreement-exhibit-c.
   5. Customer Data. COMMUNITYWFM acknowledges it receives no ownership or, except to the extent specified herein, other rights in any Customer Data, and all rights, title and interest in such Customer Data remain with you. COMMUNITYWFM shall not, and shall not permit its third party vendor(s) to disclose Customer Data to any third party, or make any use of the Customer Data, unless authorized by you or COMMUNITYWFM is required to do so by law or court order. You agree that COMMUNITYWFM may: (a) use and disclose Customer Data in aggregate and anonymous form, and/or (b) use Customer Data for COMMUNITYWFM’s internal business purposes, including without limitation, improving and/or creating enhancements to or new offerings related to the SaaS Services, and for purposes of planning, support, administration and invoicing related to your use of the SaaS Services.. You agree that you are solely responsible for: (x) obtaining any Customer Data and other information you provide while using the SaaS Services, (y) obtaining all rights and requisite consents necessary to collect and use the Customer Data, and (z) the accuracy, completeness, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data. By providing any Customer Data or other information, you agree that you will not, and you represent and warrant that such information does not (i) violate any intellectual property rights, publicity rights, confidentiality or trade secret rights, or any other legal or equitable rights; (ii) violate any law, rule, order, judgment or regulation to which you or the Customer Data may be subject; and (iii) violate in any way your obligations in Section 5.2 below. You acknowledge and agree that COMMUNITYWFM is not responsible or liable for any unlawful, harassing, defamatory, privacy invasive, abusive, threatening, offensive, harmful, vulgar, obscene, tortuous, hateful, racially, ethnically or otherwise objectionable information, or content, or information or content that infringes or may infringe any copyright, patent, moral right, trade secret, confidential information, trademark right or any other right of a third party. COMMUNITYWFM may remove any violating content posted on the SaaS Services or transmitted through the SaaS Services, without notice to you.
5. END USER RESPONSIBILITIES.
   1. Passwords. All access codes and passwords are personal to the individual to which it is issued. You and your Personnel are responsible for maintaining the confidentiality and security of all access codes and passwords issued, and ensuring that each access code and password is only used by the individual authorized. To the extent COMMUNITYWFM assigned you with administrative rights to create access codes and passwords for your Personnel, you shall be responsible for issuing such passwords.
   2. Use of SaaS Services. Customer shall be solely responsible for the actions of its Personnel while using the SaaS Services and the contents of its transmissions through the SaaS Services (including, without limitation, Customer Data), and any resulting charges. Customer agrees: (i) to abide by all local, state, national, and international laws and regulations applicable to Customer's use of the SaaS Services, including without limitation all laws and administrative regulations (including, all U.S. and applicable foreign) relating to the control of exports of commodities and technical and/or personal data, and shall not allow any of its Personnel or Data Subjects to access or use the SaaS Service in violation of any export embargo, prohibition or restriction, including but not limited to any party on a U.S. government restricted party list; (ii) not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Hosted Environment, SaaS Services or another's computer; (iii) not to use the SaaS Services for illegal purposes; (iv) not to interfere or disrupt networks connected to the Hosted Environment or SaaS Services; (v) not to post, promote or transmit through the SaaS Services any unlawful, harassing, defamatory, privacy invasive, abusive, threatening, offensive, harmful, vulgar, obscene, tortuous, hateful, racially, ethnically or otherwise objectionable information or content of any kind or nature; (vi) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (vii) not to interfere with another customer's use and enjoyment of the SaaS Services or another entity's use and enjoyment of similar services; (viii) not to engage in contests, chain letters or post or transmit "junk mail," "spam," "chain letters," or unsolicited mass distribution of email through or in any way using the SaaS Services; (ix) to comply with all regulations, policies and procedures of networks through which Customer connects to, or uses in connection with the SaaS Services; and (x) to provide any required notifications to Data Subjects, and obtain all rights and requisite consents from Data Subjects in accordance with all applicable data privacy and other laws in relation to the collection, use, disclosure, creation and processing of personal data, and in connection with this Agreement and the use of the SaaS Services.
   3. SaaS Services Restrictions. Except as otherwise specified in this Agreement, expressly permitted in writing by COMMUNITYWFM, or otherwise cannot be precluded under mandatory applicable law, you shall not, and shall not permit any other party to:
      1. a. Disassemble, decompile, decrypt, or reverse engineer, or in any way attempt to discover or reproduce source code for, any part of the SaaS Services or On-Premise Components; adapt, modify, or prepare derivative works based on any of the COMMUNITYWFM Intellectual Property; or use any of the COMMUNITYWFM Intellectual Property to create any computer program or other material that performs, replicates, or utilizes the same or substantially similar functions as the SaaS Services;
      2. b. Alter, remove, or suppress any copyright, confidentiality, or other proprietary notices, marks or any legends placed on, embedded or otherwise appearing in or on any COMMUNITYWFM Intellectual Property; or fail to ensure that all such notices and legends appear on all full or partial copies of COMMUNITYWFM Intellectual Property or any related material;
      3. c. Sell, sublicense, lease, assign, delegate, transfer, distribute, encumber or otherwise transform any COMMUNITYWFM Intellectual Property or any of the rights or obligations granted to or imposed on you hereunder.
   4. Customer Environment. You are responsible for the establishment of the Customer Environment necessary for your use of the SaaS Services. Additionally, you acknowledge and agree that COMMUNITYWFM is not responsible for obtaining, licensing or selling any hardware, peripherals or third-party software or interfaces needed to prepare or maintain the Customer Environment.
   5. Privacy Policies and Data Protection Notices. Customer shall adopt, publish and comply with Customer’s privacy policy and ensure that such privacy policy is compliant with the Privacy Laws applicable to the Customer’s use of the SaaS Services and how Customer collects, uses and discloses personal data to third parties, such as COMMUNITYWFM (though, for the avoidance of doubt, COMMUNITYWFM need not be specifically named in Customer’s policy(ies)). Customer’s privacy policy must be sufficient to inform a Data Subject of the information collected by COMMUNITYWFM on Customer’s behalf during use of the SaaS Services and Customer warrants and represents that COMMUNITYWFM has the right to collect and process personal data on its behalf in order to permit COMMUNITYWFM to provide the SaaS Services and that such collection and processing shall not violate the rights of Data Subjects or the Privacy Laws.
   6. Indemnity. Customer, at your sole expense, shall defend, indemnify and hold harmless COMMUNITYWFM from any action based upon a claim resulting from any breach of Sections 4 or 5 by you, your affiliates, and/or Personnel of either, and shall reimburse COMMUNITYWFM for all damages, costs, and expenses (including reasonable attorneys’ fees) awarded against COMMUNITYWFM pursuant to any such actions.
6. PROFESSIONAL SERVICES. You may order Professional Services from COMMUNITYWFM or its authorized reseller or integrator by submitting a request for such services referencing this Agreement. Any such services provided hereunder are subject to (i) your performance of any obligations herein, and (ii) the terms of a mutually agreeable implementation plan (Statement of Work). With respect to any access to the Hosted Environment, use of the SaaS Services requiring integration and other services by and between Customer’s systems and the Hosted Environment, and configuration of the SaaS Services for Customer’s specific use, COMMUNITYWFM agrees to perform those services to the extent specified on an Order. You must provide all necessary information, access, workspace, computing resources, and other services and support materials as reasonably required by COMMUNITYWFM to perform its duties in a timely manner. All services provided on a time and material basis are per person unless otherwise specified, and charged hourly or daily as indicated for each person. Services scheduling is dependent upon the allocation and availability of COMMUNITYWFM resources. In the event you reschedule or cancel scheduled services, COMMUNITYWFM may, to the extent COMMUNITYWFM cannot reschedule its applicable resources, charge you a rescheduling or cancellation fee.
7. WARRANTY.
   1. Limited Performance Warranty. COMMUNITYWFM warrants to you that during any Access Term, the SaaS Services will be accessible by you, and the SaaS Services will perform substantially in accordance with the Documentation. Your exclusive remedy under this Section 7.1 shall be for COMMUNITYWFM to use commercially reasonable efforts to correct any Errors; provided, in the event COMMUNITYWFM is unable to correct that nonconformity, you shall have the right to terminate the remaining Access Term and receive a pro rata refund of any remaining prepaid SaaS Access Fees applicable to those SaaS Services NOT TO EXCEED THE FEES COLLECTED WITHIN THE LAST THREE (3) MONTHS.
   2. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, COMMUNITYWFM MAKES NO WARRANTY AND DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WRITTEN OR ORAL, OR EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, INTEROPERABILITY, DATA ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY PRODUCT, SERVICES, SUPPORT, OR ANY COMPONENTS THEREOF. WITHOUT LIMITING THE FOREGOING, COMMUNITYWFM DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SAAS SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE.
8. PAYMENT. All Orders placed hereunder are subject to COMMUNITYWFM’s acceptance of that Order. Prior to accepting an Order, COMMUNITYWFM shall have the right to perform any credit and other checks required by COMMUNITYWFM. For any Orders placed directly by you, COMMUNITYWFM shall invoice you one hundred percent (100%) of the SaaS Access Fee for the initial Access Term, and 50 % of the any fixed fee Professional Services, and fixed, prepaid travel expenses of $5,100 for training sessions within the continental US, travel outside of that shall be quoted on a client by client basis, applicable to such, balance due for remaining Professional Services upon the completion of the four day training session and receipt of Activation Notice upon COMMUNITYWFM's receipt and acceptance of the Order. For any month in which you exceed the licensed usage you subscribed to for that month (“Overage”), the fees due for such Overage shall be calculated with a twenty-five percent (25%) uplift. COMMUNITYWFM shall invoice you quarterly in arrears for any Overage. For any add-on SaaS Services subscription Orders, COMMUNITYWFM shall invoice you the pro rata amount for the remainder of the then current SaaS Services Access Term to co-terminate each of your SaaS Services subscription terms. COMMUNITYWFM may invoice you for each renewal Access Term prior to such renewal, and all other fees, assessments and expenses provided for under this Agreement as performed and/or incurred. All payments shall be due within thirty (30) days after the applicable invoice date, without deduction. You are responsible for all taxes, duties and tariffs of any kind (except with respect to COMMUNITYWFM’s income), and all costs of shipment. All shipments are made ExWorks (Incoterms 2010). You agree to pay COMMUNITYWFM all costs of collection resulting from your failure to pay any amounts due COMMUNITYWFM hereunder. COMMUNITYWFM shall have the right to withhold performance under this Agreement (i) to the extent it has knowledge that any governmental approvals required under then-current applicable laws and/or regulations have not been properly obtained by the respective party(ies), or (ii) if you are in delinquent on any payments or are otherwise in breach of this Agreement.
9. LIMITATION AND CAP ON LIABILITY. COMMUNITYWFM’S MAXIMUM LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL BE IN THE AGGREGATE AND LIMITED TO CUSTOMER’S DIRECT ACTUAL DAMAGES NOT TO EXCEED THE ACTUAL FEES PAID TO COMMUNITYWFM HEREUNDER FOR THE NONCONFORMING SAAS SERVICE, REDUCED BY ANY AMOUNT DUE COMMUNITYWFM. IN NO EVENT SHALL COMMUNITYWFM, ANY PARENT, SUBSIDIARY, AFFILIATE OR LICENSOR, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES, BE LIABLE (I) TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND OR NATURE OR IN ANY MANNER WHATSOEVER, OR (II) TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, INCIDENTAL, OR SPECIAL DAMAGES OR COSTS (INCLUDING ATTORNEYS’ FEES OR LOST PROFITS, TIME, SAVINGS, PROPERTY, DATA OR GOODWILL) REGARDING THIS AGREEMENT OR RESULTING FROM OR IN CONNECTION WITH THE USE, MISUSE, OR INABILITY TO USE THE SAAS SERVICES, OR ANY OTHER PRODUCTS OR SERVICES, REGARDLESS OF THE CAUSE OF ACTION, EVEN IF COMMUNITYWFM HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL COMMUNITYWFM BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. THIS SECTION 9.0 SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF ESSENTIAL PURPOSE, CONSIDERATION, OR OF AN EXCLUSIVE REMEDY.
10. CONFIDENTIALITY. The unauthorized disclosure or use of Confidential Information of a disclosing party or of a disclosing party’s third party licensors, and all information and services related thereto, would cause great injury and harm to the owner thereof. Therefore, each party agrees to take all appropriate action to ensure the confidentiality and security of the other party’s Confidential Information, but in any event no less than the same standard of care it uses to protect its own Confidential Information of like kind and value. Without limiting the generality of the foregoing, you and COMMUNITYWFM each agree that it: (i) shall maintain the other’s Confidential Information in the strictest confidence, including compliance with reasonable remote access security requirements; (ii) shall not disclose, display, publish, transmit, or otherwise make available such Confidential Information or take the benefit thereof, in whole or in part, except in confidence to its own Personnel on a need-to-know basis; and (iii) except as expressly permitted hereunder, shall not copy, duplicate, replicate, transform, or reproduce such Confidential Information. Notwithstanding anything to the contrary in this Section, neither party shall be liable to the other for damages resulting from disclosure of any Confidential Information required by law, regulation or valid court order; provided prior written notice is provided to the other party sufficiently in advance of such required disclosure to allow the other party to respond and take reasonable and lawful action to avoid and/or minimize the degree of such disclosure or seek appropriate protective orders.
11. TERM; TERMINATION. This Agreement shall be effective upon the date that COMMUNITYWFM accepts the initial Order hereunder (as may be evidenced by COMMUNITYWFM’s performance) and shall continue so long as you continue to abide by the terms and conditions of this Agreement. COMMUNITYWFM hereby reserves the right to terminate this Agreement and the SaaS Services upon ten (10) day notice and failure to cure your breach of any of the terms contained in this Agreement, including failure to make payment or any breach of Sections 2, 5 or 6. Upon termination of this Agreement, and except to the extent specified herein, (i) all fees due to COMMUNITYWFM for the current Access Term and any other amounts due COMMUNITYWFM shall be immediately paid, and (ii) all of Customer’s rights to access and use any of the SaaS Services, On-Premise Components and SaaS Access Rights shall immediately terminate without right of refund. Upon termination of this Agreement for any reason other than your breach, you may request that COMMUNITYWFM conduct a mass export of the Customer Data. Upon termination of this Agreement and subject to Customer’s compliance with Section 11 (i), Customer may request that COMMUNITYWFM export and provide to Customer available Customer Data. Subject to Customer ordering from COMMUNITYWFM Professional Services applicable to such work, COMMUNITYWFM agrees to provide such Professional Services at its then current rates, provided that in the event this Agreement is terminated for Customer’s breach, COMMUNITYWFM shall have the right to require that Customer prepay for such Professional Services. Notwithstanding the foregoing, after thirty (30) days from termination, COMMUNITYWFM may delete and destroy all Customer Data without notice or liability to Customer. Provisions herein which by their context and content are intended to survive termination or expiration hereof shall so survive, including the Sections 1, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16.
12. GOVERNING LAW; FORUM. This Agreement is governed exclusively by the laws of the U.S. and the State of Delaware, without giving effect to its conflict of law rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties. The parties further agree that the place of contract and performance of this Agreement is Dallas, Texas.
13. INJUNCTIVE RELIEF. You acknowledge that remedies at law may be inadequate to provide COMMUNITYWFM with full compensation in the event of your material breach of this Agreement, and that COMMUNITYWFM shall therefore be entitled, without bond or other security obligation, to seek injunctive relief in the event of any such material breach.
14. WAIVER / SEVERABILITY. The failure of COMMUNITYWFM to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is for any reason held unenforceable or invalid, then this Agreement shall be construed as if such provision were not contained in this Agreement.
15. ASSIGNMENT. Except to the extent such rights cannot be restricted by applicable law, you cannot assign, sublicense, or transfer this Agreement without the prior written consent of COMMUNITYWFM, and any such attempt by you to sublicense, assign or transfer any rights, duties, or obligations hereunder is null and void, and subject to COMMUNITYWFM’s right to immediately terminate this Agreement.
16. ENTIRE AGREEMENT / MODIFICATIONS. Except as otherwise specified in this Section, this Agreement, plus the terms on any Order signed in hardcopy form by both you and COMMUNITYWFM, comprises the entire agreement between you and COMMUNITYWFM, and supersedes any other agreement or discussion, oral or written, with respect to the subject matter of this Agreement, and may not be changed except by a written agreement signed in hardcopy form between the parties. Preprinted, additional or conflicting provisions on your purchase order or on either party’s acknowledgement forms, whether presented before or after the terms of this Agreement, and including any integration clauses contained therein, shall not apply unless agreed to by both parties in writing signed in hardcopy form. You agree that your use of the SaaS Services signifies your agreement to all terms and conditions of this Agreement. Notwithstanding any of the foregoing, in the event the parties to this Agreement have executed, in hardcopy form, a separate agreement covering the subject matter herein, that separate agreement shall continue to govern and control the parties with regard thereto, and shall supersede in all respects the terms of this Agreement. Any reference to a law or statute in this Agreement shall be deemed to include any amendment, replacement, re-enactment thereof for the time being in force and to include any by-laws, statutory instruments, rules, regulations, orders, notices, directions, consents, or permissions (together with an conditions attaching to any of the foregoing) made in respect thereof.

Five9 Contact Center

Terms & Conditions

Customers who subscribe to the Five9 Contact Center product also agree to these terms as passed from Five9, Inc. (as the provider of the product) to Nextiva to Customer:

1. SERVICES. “Services” means Five9’s cloud-based virtual contact center and related services (e.g., subscriptions, professional services and/or telecommunication services) that Customer orders from the Reseller.
2. SUSPENSION AND TERMINATION BY FIVE9.
   1. Termination for Breach. Five9 may terminate Customer’s access to the Services upon thirty (30) days’ written notice in the event of a material breach of these Required Terms by Customer, provided that such breach remains uncured at the expiration of such thirty (30) days.
   2. Termination for Bankruptcy. Additionally, either party may terminate these Required Terms if the other party becomes insolvent, files a voluntary petition in bankruptcy, is adjudicated bankrupt, has a receiver appointed for the operation of its business, makes an assignment for the benefit of creditors, abandons its business or makes a material liquidation of its assets.
   3. Suspension or Termination by Five9. Five9 may immediately suspend Customer’s access to the Services if Five9 has a good faith belief that Customer is using the Services as follows: (i) in violation of applicable laws and/or government regulations; or (ii) in a manner that is compromising the security or operability of the Services. If it is confirmed that Customer is using the Services as described in (i) above, Five9, in its sole discretion, may immediately terminate the Services without providing Customer an opportunity to cure and with respect to (ii), Five9 will notify Customer in writing and provide a reasonable time to cure prior to termination. Resumption of Customer’s account following suspension or termination by Five9 is subject to the sole discretion of Five9. Customer’s resumption of access to the Services following a suspension or termination by Five9 for the reasons cited in this section will not extend the then-current term, nor result in an extension of the period covered by the prepaid Service Fees or credit or refund.
   4. Effect of Termination. Upon termination of Customer’s access to the Services, all rights granted hereunder shall immediately terminate and Customer shall have no right to continue to access or use the Services, and Customer shall, at the written request of Five9, destroy or return all Confidential Information (as defined below) of Five9 in its possession or control.
3. ACCESS CONTROLS AND USE RESTRICTIONS.
   1. Access Controls. Customer has sole responsibility and control over access to the domain, account, and/or password(s ), including, (i) its use of Customer Data (defined below) with the Services and its users’ compliance with these Required Terms; (ii) the accuracy, quality, and means by which Customer acquired the Customer Data; (iii) using the Services in accordance with these Required Terms; (iv) responsibility for all authorized and unauthorized access, use, activities, calls and charges associated with the domain, account and/or password(s) resulting from use or provisioning of access to the Services by Customer and its users whose access to the Services is provided by Customer; (v) providing notice to and obtaining required consents regarding the collection, processing, transfer, and storage of information from individuals or entities whose information is included in Customer Data through Customer’s use of the Services; and (vi) obtaining and maintaining the performance of the internet connectivity related to its use of the Services under these Required Terms.
   2. Use Restrictions. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, or distribute the Services; (ii) reverse engineer, decompile, disassemble, modify, or translate the Services or make derivative works based upon the Services; (iii) use the Services for any purpose other than to support its internal call center or business process outsourcing. Customer may store its customers’ telephone numbers in the Five9 Virtual Contact Center (“VCC”). Customer understands and agrees that any other storage usage in the VCC (e.g., storage of call recordings, email, chat, or SMS transcripts) is strictly prohibited unless Customer orders the appropriate Five9 encryption Services under an applicable Service Order. Notwithstanding anything to the contrary, Customer may not store designated record sets (as defined by the Health Insurance Portability and Accountability Act) in the VCC.
4. CONFIDENTIAL INFORMATION.
   1. Customer shall hold Five9’s Confidential Information (defined below) in strict confidence while Customer has access to the Services. Customer shall not (i) disclose Five9’s Confidential Information to any third party (excluding affiliates and/or subcontractors who have a need to know and are bound by terms of confidentiality no less restrictive than those hereunder) unless, and only to the minimum extent required by law or to satisfy governmental regulatory requirements (in which case Customer shall notify Five9 in writing, if legally permitted, of its intent to make such disclosure so that Five9 may seek protective treatment); or (ii) use Five9’s Confidential Information for any purpose beyond the scope of these Required Terms other than with the express prior written consent of Five9. Except as otherwise stated in these Required Terms, Customer further agrees that Five9 may disclose Confidential Information of Customer to Five9’s service providers for compliance with law or to satisfy governmental regulatory requirements (in which case Five9 shall notify Customer, if legally permitted, of its intent to make such disclosure). “Confidential Information” means all non-public proprietary and/or confidential information of the disclosing party marked as confidential or information which by its nature should reasonably be considered confidential, including, but not limited to, the business, technical or financial activities of a party, its agents, and subcontractors, made available to the other party under or as a result of these Required Terms.
   2. Customer’s obligations pertaining to Confidential Information shall not apply to information that the Customer can document: (i) is or becomes part of the public domain through no act or omission of the receiving party, (ii) was in Customer’s lawful possession prior to the disclosure, (iii) is lawfully disclosed to Customer by a third party without restriction on disclosure, or (iv) is independently developed by Customer without access to or use of the disclosing party’s Confidential Information.
5. PROPRIETARY RIGHTS. The Services, Five9 products and solutions, and Proprietary Materials (defined below) of Five9 are owned exclusively by Five9 and its licensors including, without limitation, any modifications, customizations, derivative works, performance data, machine learning algorithms, and aggregated results of such machine learning, and are protected by intellectual property laws and international intellectual property treaties. Subject to the limited rights expressly granted in these Required Terms, nothing in these Required Terms shall convey, transfer, or assign any right, title, or interest in either party's Proprietary Materials to the other party. "Proprietary Materials" means all patents, copyrights, design rights, trademarks, service marks, trade secrets and other worldwide intellectual property or proprietary rights owned by a party and the software, schematics, diagrams, information, and other tangible embodiments, if any, relating thereto.
6. DATA USE AND RETENTION.
   1. “Customer Data” means Customer’s data and information provided by Customer via the Services to Five9 and processed by Five9. Customer retains all ownership of its Customer Data and instructs and grants Five9 a worldwide right to use Customer Data to (i) host, copy, access, transmit, and display Customer Data, each as appropriate for Five9 to provide and ensure proper operation and administration of the Services in accordance with these Required Terms, and (ii) develop, optimize, and improve the Services. If Customer does not wish for Five9 to use its Customer Data as set forth in Section 6.a.(ii) herein, Customer shall opt out at https://www.five9.com/legal/optout, which, upon completion, will render Section 6.a.(ii) as inapplicable to the extent of such opt out. For clarity, Customer may not opt out of Section 6.a(i) herein. Five9 shall manage Customer Data according with Five9’s data retention practices as set forth at https://www.five9.com/legal/dataretention
   2. Five9 retains all ownership of AI Features and AI Optimization Data, including any associated documentation, algorithms, machine learning models, tools, modifications, improvements, adaptations, annotations, or derivative works thereof. “AI Features” means any AI functionality included or provided with the Services. “AI Optimization Data” is any performance data or metrics, aggregated information, learnings, or processes included in or developed by or via the use of AI Features.
   3. Customer acknowledges that certain aspects of the AI Features may utilize third party service providers, and Five9 may share Customer Data with such service providers so that they may use Customer Data for the purposes described in Section 6.a.(i) above. Such service providers may host or process the Customer Data in different locations than the other Five9 Services, including outside of the United States depending on the service providers utilized by Customer. Customer hereby authorizes and consents to such hosting or processing.
   4. The technology used to provide the AI Features allows Five9 to identify Customer to Google upon Google’s request. When Google makes such a request, Customer acknowledges that Five9 must (i) provide Customer’s name to Google, and (ii) receive Google’s written consent for Customer to access the AI Features. In the event that such consent is not received, Five9 will notify Customer, and the corresponding Service Order(s) will automatically terminate, without penalty, with respect to the AI Features only.
   5. Use of AI Features utilizing technology from Google requires that Customer complies with Google’s acceptable use policy (currently available at https://cloud.google.com/terms/aup). Customer will immediately remedy any alleged non-conformance with such acceptable use policy upon receipt of notice of the same from Five9. Customer acknowledges that failure to comply with such acceptable use policy may result in Customer’s suspension from the relevant AI Features and/or termination of any Service Orders related to the same.
7. CALL RELATED COMPLIANCE.
   1. “Do Not Call” Compliance. If Customer is advised by any party that it does not wish to receive communications from Customer via the Services, Customer agrees, to the extent required by applicable laws or Customer’s policies, to promptly honor such do-not-contact requests, including where possible by adding the party to its internal do not call list, and thereafter refrain from calling that party. Customer is solely responsible for obtaining any required consent of or a release from persons or entities to whom or to which Customer intends to send communications using the Services. Customer agrees to contact only those persons who Customer is legally permitted to contact and only in the manner permitted under applicable law.
   2. Call Recordings. Customer acknowledges and understands that, if it subscribes to and uses call recording features of the Services, (i) recordings and transcripts of such calls are Customer Data, and (ii) calls will be recorded at all times, including when a call is placed on hold or after a call is transferred to another party. Customer agrees that when using the call recording features, it will comply with all notice, consent, and privacy requirements pursuant to any applicable laws.
8. EXPORT CONTROLS. All Services provided under these Required Terms are subject to U.S. export control laws and regulations and may be subject to export or import requirements in other countries. Customer acknowledges its obligation under and agrees to comply strictly, at its own expense, with all such laws and regulations, including without limitation the U.S. Export Administration Regulations. Customer shall not directly or indirectly export or reexport Services without the express written permission of Five9 and, when necessary, a U.S. government license. In particular, Customer agrees that it will not directly or indirectly export, or reexport the Services to countries or regions subject to U.S. economic sanctions (e.g., Cuba, Crimea, Iran, North Korea, Sudan, and Syria). Customer represents and warrants that: (i) the Services are not to be used for any prohibited end-use, including without limitation, use in rocket, missile or unmanned-aerial vehicle systems, chemical or biological weapons proliferation, any nuclear activities, or military use; and (ii) the Services are not destined for any prohibited end-user, including without limitation a military end-user, or an individual or entity identified on the U.S. List of Specially Designated Nationals and Blocked Parties, Denied Persons List, Entity List or similar U.S. government lists.
9. INTEGRATIONS AND INTEROPERABILITY. The Services may contain features designed to interoperate with non-Five9 Services (“Non-Five9 Services”). Customer is solely responsible for the use of such Non-Five9 Services and any data loss or other losses it may suffer as a result of using any such Non-Five9 Services, and Customer shall ensure that its use of any such integration or interoperability complies with the terms of use of those Non-Five9 Services. Five9 makes no warranty or guarantee with regards to any Non-Five9 Services, any interoperation between the Services and any Non-Five9 Services, or the continued availability of such features, and may cease providing such features for any reason without incurring fault or liability, for example and without limitation, if the provider of the Non-Five9 Services ceases to make the Non-Five9 Services available for interoperation with the Services. Any cessation of such features will not entitle Customer to any refund of Service fees or other compensation.
10. WARRANTY.
    1. Representations and Warranties. Customer represents and warrants that (i) it has the corporate power and authority to enter into and perform its obligations under these Required Terms; and (ii) it will comply with all applicable laws in performing its obligations under these Required Terms.
    2. Warranty Disclaimer. EXCEPT AS OTHERWISE SET FORTH HEREIN, FIVE9 PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. FIVE9 DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, WILL MEET ANY OR ALL OF CUSTOMER’S BUSINESS REQUIREMENTS, OR THAT ALL COMMUNICATIONS WILL BE DELIVERED, NOR DOES FIVE9 MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES. FIVE9 MAKES NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE SERVICES. Customer understands that the Services may be inaccessible or inoperable due to scheduled periodic maintenance and upgrades or for reasons beyond Five9’s reasonable control including, but not limited to, (i) Customer equipment or network malfunctions; or (ii) service interruptions caused by independent telecommunications providers that provide voice and data connectivity to Five9’s or Customer’s data centers.
11. LIMITATION OF LIABILITY AND DAMAGES. IN NO EVENT SHALL FIVE9 BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, LOSSES OR COSTS, ARISING OUT OF OR RELATING TO THESE REQUIRED TERMS. ADDITIONALLY, FIVE9 SHALL NOT BE LIABLE FOR ANY CLAIMS RELATING TO: (i) LOSS OR CORRUPTION OF DATA; (ii) INABILITY TO ACCESS THE SERVICES; (iii) PERFORMANCE-RELATED DELAYS; (iv) COMPUTER VIRUSES; (v) NON-DELIVERY OR MIS-DELIVERY OF COMMUNICATIONS; AND (vi) LOSS OR LIABILITY RESULTING FROM ACTS BEYOND A PARTY’S CONTROL.

    IN NO EVENT SHALL FIVE9’S LIABILITY UNDER THESE REQUIRED TERMS EXCEED THE SERVICE FEES PAID OR PAYABLE BY CUSTOMER FOR THE FIVE9 SERVICES GOVERNED BY THESE REQUIRED TERMS IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY IS IN THE AGGREGATE AND NOT PER INCIDENT.

12. EMERGENCY SERVICES TERMS.
    1. Emergency Services Not Provided for Non-United States and Non-Canada Domains. Customer fully understands and acknowledges that the Services do not support access to emergency organizations for non-United States and non-Canada domains, and Five9 makes no representation or warranty that the Services are capable of the same. For non-United States and non-Canada domains, Customer shall ensure at all times it has provided to it separate or alternative electronic communications services which do provide access to emergency organizations using standard emergency call numbers.
    2. Emergency Services for United States and Canada Domains.
       1. Customer e911 Responsibilities and Limitations. Customer understands that to the extent any e911 services are offered as part of the Services for United States domains (“e911 Services”), such e911 Services will not function or will not function properly: (A) if an end-user attempts a 9-1-1 call from a location different from the end-user’s then-current address provided to Five9’s e911 service provider by Customer; (B) during any disruption of power at Customer’s location; (C) during any disruption of internet connectivity to Customer’s location; (D) during any period in which Five9, Five9’s e911 provider, or Customer’s local exchange carrier has cancelled or suspended delivery of services to Customer for any reason (including suspension or cancellation for failure to pay or Customer’s default); (E) during any period of e911 outage or failure due to events beyond Five9’s or its service provider’s reasonable control; (F) if incorrect or invalid end-user address information is provided or is not updated accurately; or (G) if Customer equipment fails to function, is not properly configured, or is defective.
       2. Public Safety Answering Point. Five9’s e911 service provider uses commercially reasonable efforts to deliver every 9-1-1 call with the enhanced location data provided by Customer to the appropriate Public Safety Answering Point (“PSAP”). There are limitations placed upon Five9’s e911 service provider by the PSAPs. Each of the approximately 6,000 PSAPs must individually agree to accept a 9-1-1 call with a VoIP type service. Customer acknowledges that PSAPs fall into three categories: (A) those that accept VoIP 9-1-1 calls with location data on 9-1-1 equipment; (B) those that accept VoIP 9-1-1 calls without location data on administrative lines; and (C) those that do not accept VoIP 9-1-1 calls. In the case of (C), VoIP 9-1-1 calls are routed to the next closest PSAP that accepts VoIP 9-1-1 calls.
       3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, CUSTOMER SPECIFICALLY WAIVES ANY AND ALL CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO FIVE9’S SERVICES OR ANY OTHER SERVICE PROVIDED HEREUNDER TO CONTACT A PSAP OR OTHER EMERGENCY SERVICES PERSONNEL, AND FIVE9 WILL NOT BE LIABLE FOR ANY LOSS (WHETHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL) THAT MAY ARISE FROM THE USE, MISUSE, OR OPERATION OF THE E911 SERVICES BY CUSTOMER. FURTHER, CUSTOMER ACKNOWLEDGES THAT FIVE9 WILL NOT BE LIABLE FOR ANY CLAIMS ARISING FROM ANY EFFORTS UNDERTAKEN BY FIVE9, ITS THIRD PARTY SUPPLIER, OR THE EMERGENCY RELAY CENTER, TO CORRECT ANY FAILED CUSTOMER e911 CALLS, INCLUDING BUT NOT LIMITED TO THOSE THAT ARE A RESULT OF INVALID OR INCOMPLETE END-USER LOCATION DATA; ARE A RESULT OF INTERRUPTIONS IN VOICE CONNECTIVITY; OR WHICH CANNOT BE RE-ROUTED TO THE APPROPRIATE PSAP DUE TO LACK OF CORRECT OR VALID LOCATION INFORMATION.
13. MISCELLANEOUS.
    1. Force Majeure. Five9 shall not be held liable or responsible or be deemed to have breached these Required Terms for failure or delay of performance hereunder when caused by or resulting from causes beyond the reasonable control of Five9; provided, however, Five9 has taken reasonable commercial efforts to avoid or remove such causes of nonperformance, and when they are removed continue performance hereunder.
    2. Sub-processors. Five9 may utilize sub-processors (e.g., third party telecommunications service providers) in providing the Services. The use of any such sub-processor by Five9 shall not relieve Five9 of any of its obligations under these Required Terms, and Five9 shall be responsible for such actions of its sub-processors.
    3. Notices. All legal notices, authorizations, and requests in connection with these Required Terms may be sent via email, first-class mail, or courier, and shall be deemed given upon receipt (if sent by electronic mail with receipt-confirmation of successful delivery). All legal notices shall be delivered to Five9 via email (currently [email protected]) or mail at its then-current corporate headquarters and to Customer at its most current street and/or email address(es).
    4. General. No failure or delay in exercising or enforcing any right or remedy by either party shall constitute a waiver of any other right or remedy, or future exercise thereof. If any provision of these Required Terms is determined to be invalid under any applicable statute or rule of law, it is only deemed omitted to that extent, and the rest of the Required Terms remain enforceable. In the event of a dispute arising out of these Required Terms, the prevailing party shall be entitled to recover its reasonable attorneys’ fees. These Required Terms do not grant any right or cause of action to any third party. The following sections will survive expiration or termination of these Required Terms: Section 3 (Access Controls and Use Restrictions); Section 4 (Confidential Information); Section 5 (Proprietary Rights); Section 6 (Data Use and Retention); Section 11 (Limitation of Liability and Damages); 12 (Emergency Services Terms); and Section 13 (Miscellaneous).
    5. Verification Rights. While Customer has access to the Services and for a period of twelve (12) months after these Required Terms expire or terminates, Customer will take reasonable steps to maintain complete and accurate records of Customer’s use of the Services sufficient to verify compliance with these Required Terms (“Verification Records”). Upon reasonable advance notice, and no more than once annually, Customer will, within thirty (30) days of Five9’s notice, allow Five9 and its auditors access to the Verification Records during Customer’s normal business hours.
    6. Publicity. Customer shall not make, or cause to be made, any press release or public announcement in respect of the transactions contemplated by these Required Terms or otherwise communicate with or through any news or other media without the prior written consent of Five9.

Last Updated: December 12, 2023

NEXTIVA, INC. CONNECT BETA LICENSE AGREEMENT

PLEASE CAREFULLY READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THE NEXTIVA, INC. (“NEXTIVA”) CONNECT BETA LICENSE AGREEMENT (THIS “AGREEMENT”). IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “ACCEPT” BUTTON. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “DECLINE” BUTTON AND YOU WILL BE INELIGIBLE TO PARTICIPATE IN THE NEXTIVA, INC. CONNECT BETA PROGRAM. BY CLICKING “ACCEPT” YOU REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO EXECUTE THIS AGREEMENT ON BEHALF OF THE PARTY THAT YOU REPRESENT (THE “PARTICIPANT”).

This Agreement is entered into as of the date accepted by the Participant (the “Effective Date”).

Participant wishes to evaluate the Nextiva Connect desktop application and related Nextiva Connect features, functionalities and services as added to the Participant’s account (the "Beta Services").

1. USE OF THE BETA SERVICES. In consideration for the Participant’s participation in the Beta program provided for herein, Nextiva grants Participant a nonexclusive, nontransferable, non-sublicensable, temporary, revocable, limited right to access and use the Beta Services solely for the purpose of testing and evaluating the Beta Services. The rights granted under this Agreement are granted only to Participant and may not be assigned or transferred to any other party. Title to the Beta Services remains in Nextiva. Participant agrees that it will not (a) permit unauthorized access to or use of the Beta Services; (b) attempt to gain unauthorized access to the Beta Services or any related systems or networks; or (c) interfere with or disrupt the integrity or performance of the Beta Services or the data contained therein. Participant further agrees to safeguard all passwords related to the Beta Services and to notify Nextiva immediately of any unauthorized use of Participant’s password and/or account, or any other known or suspected breach of security.
2. TERM AND TERMINATION. The rights granted in Section 1 of this Agreement shall be in effect for the earlier of sixty (60) days from the date of delivery of access to the Beta Services to Participant or until either party provides the other with written notice of its termination of this Agreement (“Beta Period”). Participant agrees not to attempt to gain access to the Beta Services after the Beta Period without Nextiva’s express permission. Participant understands and agrees that Nextiva is under no obligation to release any final service or product resulting from the Beta Program to the public, including for Participant’s use after the Beta Period.
3. DISCLAIMER OF WARRANTY. NEXTIVA SPECIFICALLY DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED. Nextiva does not warrant that the Beta Service(s) will meet Participant's requirements or that operation will be uninterrupted or error free. The Beta Services(s) are provided "AS IS". PARTICIPANT AGREES THAT NEXTIVA SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES ARISING FROM PARTICIPANT’S USE OF THE BETA SERVICE(S). PARTICIPANT IS SOLELY RESPONSIBLE FOR ALL ACTIVITY OCCURING UNDER PARTICIPANT’S ACCOUNT(S) AND AGREES TO FULLY COMPLY WITH ALL APPLICABLE LAWS.
   Participant understands and agrees that any data entered by Participant into the Beta Services may be deleted or otherwise unavailable to Participant at the conclusion of the Beta Period even if Participant and Nextiva enter into a further agreement to allow Participant to continue to use any of the Beta Services at the conclusion of the Beta Period. Nextiva encourages Participant to maintain redundant back-up copies of any data inputted by Participant into the Beta Services.
4. REPORTING. Participant agrees to provide Nextiva with reports of any defects found in, and any recommendations for changes or modifications to, the Beta Service(s). Participant further agrees to designate one or more individuals that will provide regular feedback (at least once every two weeks) to Nextiva, including by email, chat and audio and/or video conferences that may, in Nextiva’s discretion, be recorded. Participant acknowledges and agrees that Nextiva shall exclusively own and retain all right, title, and interest, including but not limited to all intellectual property rights, in and to all suggestions, ideas, enhancements, requests, feedback, recommendations, and other information provided by Participant.
5. GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the State of Arizona. The parties hereby irrevocably consent to the jurisdiction of the courts having jurisdiction over Maricopa County, Arizona for the interpretation of this Agreement and for the resolution of all disputes hereunder.
6. INCORPORATION OF TERMS AND CONDITIONS. Participant further agrees to the Nextiva Terms and Conditions located at https://www.nextiva.com/legal.html. If there is a conflict between this Agreement and the Terms and Conditions referenced herein, the terms of this Agreement will prevail.
7. CONFIDENTIAL INFORMATION. Participant agrees that the Beta Services and any information concerning the Beta Services (including, but not limited to, its nature and existence, feature, functionalities, availability, log-in credentials, and interface (including screenshots thereof), and any other information disclosed to Participant by Nextiva regarding or in connection with the Beta Services shall be considered and referred to herein as “Confidential Information”. Confidential Information shall not include information that would otherwise be deemed Confidential Information, but (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the Participant at the time of its receipt from Nextiva; (iii) is rightfully received by the Participant from a third party who did not acquire or disclose such information by a wrongful or tortuous act; or (iv) can be shown by documentation to have been independently developed by the Participant without reference or access to any Confidential Information. All Confidential Information remains Nextiva’s sole property, and Participant has no implied licenses or other rights in the Confidential Information except as expressly set forth in this Agreement.
8. NON-USE AND NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Participant agrees that it will not disclose, publish, or otherwise disseminate any Confidential Information to anyone. Participant further agrees to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information, including preventing access to or display of the Beta Services to third parties. Participant agrees to use the Confidential Information solely for the permitted uses as set forth in this Agreement. Participant agrees not to use Confidential Information otherwise for its own or any third party’s benefit without Nextiva’s prior written approval in each instance. Participant hereby acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Nextiva that may be difficult to ascertain. Accordingly, Participant agrees that Nextiva will have the right to seek immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies available to it.
9. ENTIRE AGREEMENT. This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes any prior agreements or understandings between the parties, whether written or oral, with respect hereto. No modification to this Agreement shall be of any force or effect unless made in writing and signed by each party.
10. NO UNANNOUNCED MODIFICATIONS. By signing and delivering this Agreement and/or any schedule, exhibit, amendment, or addendum thereto, the delivering party represents to the other party that the delivering party has not made any changes to such document from the draft most-recently provided to the delivering party by the other party unless the delivering party has expressly called such changes to the other party’s attention in writing (e.g., by “redlining” the document or by a comment memo or email).

Last Updated: December 23, 2021