TERMS OF USE
Updated: September 27, 2021
Please read these Terms of Use (this “Agreement”) fully and carefully
before using the Site and Services (as described in Section 1 below).
This Agreement sets forth the legally-binding terms and conditions for
your use of the Site and Services. BY REGISTERING FOR AND/OR USING THE
SERVICES IN ANY MANNER, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND
ACCEPT THIS AGREEMENT AND ALL OTHER OPERATING RULES, POLICIES AND
PROCEDURES REFERENCED HEREIN, EACH OF WHICH IS INCORPORATED HEREIN BY
THIS REFERENCE AND EACH OF WHICH MAY BE UPDATED FROM TIME TO TIME AS SET
FORTH BELOW, TO THE EXCLUSION OF ALL OTHER TERMS. You may not use the
Services if you do not unconditionally accept this Agreement. If you are
accepting on behalf of an organization, you represent and warrant that
you have the authority to do so; however, if your organization has entered
into a separate contract with Vonage covering its use of the Services,
then that contract shall govern instead.
EXCEPT FOR CERTAIN TYPES OF DISPUTES DEFINED IN THE ARBITRATION SECTION
BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND VONAGE SHALL BE RESOLVED
BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE
IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
In this Agreement, “Customer” shall refer to you, unless you are accepting
on behalf of a company in which case “Customer” shall mean that
organization; and “Vonage” shall refer to Nexmo Inc., a Delaware corporation
with a principal place of business at 23 Main Street, Holmdel, New Jersey
07733, USA. Notwithstanding the foregoing, if Customer is based in
Singapore, for the purposes of providing telecommunications-related
Services to Customer, "Vonage” shall refer to Nexmo Pte. Ltd., a Singapore
private limited company that is wholly-owned by Nexmo Inc., provided
that Nexmo Inc. shall act as the agent of Nexmo Pte. Ltd. for the purpose
of collecting payment from Customer to the extent that Customer’s Account
is prepaid. Vonage and Customer are each referred to in this Agreement
as a “Party” and collectively as the “Parties.” In consideration of the
terms and covenants set forth herein, and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged,
the Parties agree as follows.
1. Vonage’s Services.
Vonage offers a variety of communication-enabling services (“Services”)
described at https://www.vonage.com/communications-apis (the “Site”),
which include its APIs, SDKs, software, code snippets, documentation,
technical support, the Site itself, and the features, functionality, and
connectivity provided through Vonage’s proprietary platform. This Agreement
governs the Parties’ respective obligations regarding all Services
provided to or used by Customer.
a. Additional Terms and Policies. This Agreement incorporates the
following additional policies:
i. Privacy Policy, https://www.vonage.com/legal/privacy-policy
(“Privacy Policy”)
ii. Acceptable Use Policy,
https://www.vonage.com/legal/communications-apis/acceptable-use
(“AUP”)
iii. Supplemental Terms for Certain Vonage Services,
https://www.vonage.com/legal/communications-apis/supplemental-terms
(“Supplemental Terms”)
iv. Data Processing Addendum, https://www.vonage.com/legal/data/dpa/
("DPA")
Vonage may update the foregoing additional terms and policies from
time to time by posting a notice on the Site or by sending Customer
notice through the Services.
b. Changes. Changes in the industry, carrier and other partner
requirements, applicable law and regulations may require Vonage to
make changes to the Services from time to time. It is Customer’s
responsibility to ensure that its usage is compatible with the
then-current Services. Vonage endeavors to maintain backward
compatibility, but where it cannot, it will make commercially
reasonable efforts to provide at least 60 days’ notice prior to
implementing changes that do not maintain backward compatibility.
Vonage may in its reasonable discretion suspend or discontinue any
of the Services or component thereof at any time by posting a notice
on the Site or by sending Customer notice through the Services, or
by another appropriate means of electronic communication.
c. Telephone Numbers. Customer acknowledges and agrees that its use
of the Services or any of the telephone numbers that Vonage may
provide in connection with use of the Services do not grant Customer
any ownership or other rights in the telephone number other than the
limited, revocable use rights expressly set forth in this Agreement.
Customer does not have the right to use those telephone numbers
indefinitely. Customer acknowledges and agrees that telephone numbers
which Vonage provisions may be reclaimed by Vonage or the applicable
supplier from time to time during the Term, and may be re-assigned
to other customers after the Term. Vonage reserves the right to
reclaim any phone number from Customer’s Account if Customer does
not send sufficient traffic over that phone number such that the
phone number is unutilized or underutilized, as defined by any local,
federal, and/or national regulatory agency and/or governmental
organization with oversight over the relevant phone number and
numbering plan. If Vonage seeks to reclaim a phone number from
Customer’s Account, excluding suspended, terminated, and trial
accounts, Vonage will provide at least two weeks’ advance notice via
email where possible within commercial reason, except where Vonage
is prevented from doing so by the applicable regulatory agency or
governmental organization. Vonage also reserves the right to reclaim
phone numbers from accounts suspended for failure to pay and/or
suspended for suspected fraud. Customer may not transfer or assign
the telephone numbers Vonage provides to Customer unless otherwise
mutually agreed by the Parties in writing.
2. Customer Account.
To access and use certain Services, Customer must create an account
(“Account”) on the Site. Customer shall provide accurate, complete, and
current Account information and, as applicable, timely update the same.
Customer is solely responsible for the activity that occurs on its Account
(which includes its sub-accounts), including via the Customer Application
(as defined below), and for keeping its Account password secure. Vonage
will not be liable for losses caused by any unauthorized use of the
Account. Customer represents and warrants that it is duly authorized to
do business and use the Services in all jurisdictions in which Customer
operates. Customer must notify Vonage promptly of any change in Customer’s
eligibility to use the Services (including any changes to or revocation
of any licenses from state authorities), breach of security or any known
unauthorized use of Customer’s Account. Upon termination of this Agreement,
Customer may delete its Account by emailing support@nexmo.com.
Notwithstanding deletion of Customer’s Account, Vonage may retain Customer
data as reasonably necessary for compliance with applicable law.
3. Fees and Payment
a. Paid Services. Customer agrees to pay for its use of the Services
as set forth on the pricing page on the Site, as may be updated from
time to time, except and only to the extent Customer has entered a
separate written agreement or addendum with Vonage for special pricing
on certain Services and/or country-specific pricing, or Vonage has
otherwise conveyed special pricing in writing to Customer. Vonage
reserves the right to change pricing from time to time. Customer’s
continued use of the Services after a price change becomes effective
constitutes Customer’s agreement to pay the changed amount.
b. Prepayment. Except as set forth in the next sub-section, Customer
shall pay in advance for the Services in the currency specified by
Vonage, without the right of set-off, deductions, or counterclaim.
Some of the Services may accept recurring period charges as agreed
to by Customer on the Site. By choosing such auto-reload payment
plan, Customer acknowledges that such Services have a recurring
payment feature and Customer accepts responsibility for all recurring
charges prior to cancellation. VONAGE MAY SUBMIT PERIODIC CHARGES
(E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL
CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY
VONAGE) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES
TO CHANGE ITS PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES
SUBMITTED BEFORE VONAGE REASONABLY COULD ACT. CUSTOMER MUST PROVIDE
CURRENT, COMPLETE AND ACCURATE INFORMATION FOR ITS BILLING ACCOUNT.
IF CUSTOMER HAS REQUESTED AUTO-RELOAD PAYMENTS, CUSTOMER MUST PROMPTLY
UPDATE ALL INFORMATION TO KEEP ITS BILLING ACCOUNT CURRENT, COMPLETE
AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER,
OR CREDIT CARD EXPIRATION DATE), AND CUSTOMER MUST PROMPTLY NOTIFY
VONAGE OR ITS PAYMENT PROCESSOR IF CUSTOMER’S PAYMENT METHOD IS
CANCELED (E.G., FOR LOSS OR THEFT) OR IF CUSTOMER BECOMES AWARE OF
A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE
OR USE OF CUSTOMER’S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION
CAN BE MADE IN THE ACCOUNT DASHBOARD. IF CUSTOMER FAILS TO PROVIDE
ANY OF THE FOREGOING INFORMATION, CUSTOMER AGREES THAT VONAGE MAY
CONTINUE CHARGING CUSTOMER FOR ANY USE OF PAID SERVICES UNDER THE
BILLING ACCOUNT UNLESS CUSTOMER HAS CANCELLED AUTO-RELOAD OR TERMINATED
ITS PAID SERVICES AS SET FORTH ABOVE. Customer may change its payment
method or terminate any auto-reload authorization via the Account
dashboard.
c. Post-payment. Where authorized by Vonage in writing, Vonage will
invoice Customer for the Services monthly in arrears, and payment
shall be due 30 days following the date of invoice, without deduction.
Invoices may be sent to the e-mail address specified in Customer’s
Account, and shall be deemed received on the date sent. Customer
shall pay interest on past due amounts at a rate of 1.5% per month
or the maximum rate permitted by law, whichever is less, and shall
be responsible for all costs of collection. If Customer disputes any
invoiced charges exceeding EUR 1,000 in a detailed writing provided
to Vonage, and such disputes are reasonable and made in good faith
(as reasonably determined by Vonage), then (i) the Parties shall
discuss and attempt to resolve the dispute in good faith in a timely
manner, and (ii) Customer may withhold the disputed portion of the
invoice exceeding EUR 1,000 if Customer has paid the undisputed
portion of the invoice in accordance with the Agreement, until the
dispute is resolved. Customer’s credit shall be limited to the amount
indicated by Vonage from time-to-time in connection with Customer’s
Account.
d. Taxes. Unless otherwise provided on the pricing page on the Site,
all charges and fees for the Services are exclusive of any country,
province, federal, state or local taxes, including without limitation,
use, sales, value-added, privilege, or other taxes, levies, imports,
duties, fees, surcharges, governmental assessments and withholdings
(“Taxes”). Customer will be solely liable for and will pay upon
demand all Taxes associated with Customer’s access to and use of the
Services and shall not deduct any such amounts, or any other
withholdings, set-offs or deductions, from amounts Customer owes
Vonage, but will not be responsible for taxes based on Vonage’s net
income. Customer may present Vonage with an exemption certificate
eliminating Customer’s and Vonage’s liability to pay certain Taxes.
Once Vonage has received and approved the exemption certificate,
Customer shall be exempt from those Taxes on a going-forward basis.
If, a taxing jurisdiction determines that Customer is not exempt
from Taxes and assesses those taxes, Customer shall pay those Taxes
to Vonage, plus any applicable interest or penalties. SUCH NOTICE
WILL NOT AFFECT CHARGES SUBMITTED BEFORE VONAGE REASONABLY COULD
ACT.
e. Billing Disputes. Billing disputes must be initiated within 30
days of the date the Service was provided, by contacting Vonage at
billing@nexmo.com. Upon expiration of such 30-day period, Customer
will not be entitled to dispute any fees paid or payable to Vonage.
The Parties will work together in good faith to resolve billing
disputes. A pending billing dispute shall not exempt Customer from
timely paying any undisputed amounts owed. Any disputes that cannot
be resolved in accordance with the foregoing shall be handled in
accordance with Section 13 below. Other than in accordance with the
foregoing, fees paid are non-refundable.
4. License
Subject to Customer’s compliance with this Agreement, Vonage hereby
grants Customer a limited, revocable, personal, non-exclusive,
non-transferable, non-sublicenseable license until this Agreement or
Customer’s Account is terminated (the “Term”) to (i) use the documentation
and APIs Vonage makes available to Customer to create an original
application that interfaces with the Services (“Customer Application”),
and (ii) make the Services available to Customer’s end users (“End Users”)
through the Customer Application. The foregoing license shall extend to
Customer Affiliates, provided that such Customer Affiliates are acting
via Customer’s Account and provided further that Customer remains jointly
and severally liable for all acts and omissions of its Affiliates. An
“Affiliate,” with respect to a Party, means any entity that controls,
is controlled by, or is under common control with that Party.
5. Restrictions.
Customer shall not, and shall ensure that its End Users and Affiliates
do not, and shall not authorize, assist or enable any other third party
to:
a. Transfer, resell, lease, license, or otherwise make available the
Services to third parties, except for Customer’s use of the Services
to provide its Customer Application to third parties as set forth
in Section 4;
b. Use the Services in any manner that violates the AUP;
c. Decipher, decompile, disassemble, reverse engineer or otherwise
attempt to derive any source code or underlying ideas or algorithms
of any part of the Services, except to the limited extent applicable
laws specifically prohibit such reverse-engineering restrictions;
d. Alter, modify, translate, or otherwise create derivative works
of any part of the Services, except as may be authorized by specific
licensing terms accompanying certain software or software development
kits; or
e. Use the Services in connection with any call types that would
result in Vonage incurring originating access charges, local exchange
carrier “DIP” fees or other call types that may be subject to any
reverse billing process, application or charge.
6. Intellectual Property.
a. Customer’s Application and Application Content. As between Customer
and Vonage, Customer owns and reserves all right, title and interest
in Customer Applications, and any content originally transmitted by
Customer or its End Users via the Customer Applications (“Application
Content”). Customer authorizes Vonage to use the Application Content
to provide the Services and perform in accordance with this Agreement.
b. Suggestions. Customer’s suggested improvements to and feedback
regarding the Services are not Confidential Information (as defined
below), and Customer grants to Vonage an unrestricted, irrevocable,
fully paid-up, and non-exclusive right to use such suggestions and
feedback for any purpose.
c. Vonage Services and Vonage Content. Vonage owns and reserves all
right, title and interest in and to the Services and all improvements,
modifications and derivative works thereof. Other than the Customer
Application and Application Content, all content made available
through the Site or the Services (collectively, “Vonage Content”)
are as between Customer and Vonage owned by Vonage.
d. Publicity. Except as explicitly granted herein, neither Party is
granted a license or other right (express, implied or otherwise) to
use any trademarks, copyrights, service marks, logos, trade names,
patents, trade secrets or other form of intellectual property of the
other Party or its Affiliates without the express prior written
authorization of the other Party. Customer will not issue any press
release or other public statement relating to this Agreement, except
as may be required by law or agreed by Vonage in a writing signed
by an authorized representative of Vonage’s Corporate Communications
department. Vonage may identify Customer using its name, trademarks
and/or logos in its marketing collateral, presentations and websites.
e. Notices and Restrictions. The Services may contain Vonage Content
specifically provided by Vonage, Vonage's partners, Vonage’s customers,
or other third parties that is subject to and protected by copyrights,
trademarks, service marks, patents, trade secrets or other proprietary
rights and laws under United States and other laws and international
conventions. Customer shall abide by and maintain all copyright
notices, information, and restrictions contained in any Vonage Content
accessed through the Services.
7. Confidentiality.
a. Confidential Information. “Confidential Information” means any
non-public information or data, regardless of whether it is in
tangible form, disclosed by either Party that is marked or otherwise
designated as confidential or proprietary or that should otherwise
be reasonably understood to be confidential given the nature of the
information and the circumstances surrounding disclosure. “Confidential
Information” does not include any information which: (i) is publicly
available through no fault of receiving Party, (ii) was properly
known to receiving Party, without restriction, prior to disclosure
by the disclosing Party, (iii) was properly disclosed to receiving
Party, without restriction, by another person without violation of
disclosing Party’s rights, or (iv) is independently developed by the
receiving Party without use of or reference to the disclosing Party’s
Confidential Information. Each Party agrees that it will use the
Confidential Information of the other Party solely in accordance
with the provisions of this Agreement (and for Vonage to provide the
Services) and it will not disclose such information to any third
party without the other Party’s prior written consent, except as
otherwise permitted hereunder or for Vonage to provide the Services
or make other disclosures identified in the Privacy Policy. Each
Party agrees to exercise due care in protecting the other Party’s
Confidential Information from unauthorized use and disclosure. Each
Party may also disclose the Confidential Information of the other
Party, in whole or in part to its employees, representatives, actual
or potential investors and subcontractors who have a need to know
and are bound to keep such information confidential consistent with
the terms of this Section. In addition, Vonage may disclose this
Agreement under a comparable non-disclosure agreement in response
to a third-party due diligence request supporting a financing or
non-ordinary course of business corporate transaction. Either Party
may disclose the Confidential Information of the other as required
by law, legal process or court order; provided that, subject to
applicable law, it promptly notifies the other Party of such required
disclosure in order to allow the other Party to seek a protective
order or other appropriate remedy.
8. Indemnification.
a. Customer Indemnification. Customer agrees to defend, indemnify
and hold harmless Vonage, its Affiliates, suppliers, and partners,
and each of their respective employees, contractors, directors,
officers and representatives, from and against any damages, liabilities,
claims, demands, obligations, losses, fines, penalties, and expenses
(including reasonable attorney’s fees) (collectively, “Losses”)
incurred in connection with claims made or brought by a third party
arising from or relating to: (i) unauthorized or prohibited use of
the Services, including violations of the AUP or applicable law, by
Customer, its Affiliates or its or their End Users, employees, agents
or subcontractors; (ii) Application Content, (iii) claims by End
Users to the extent they purport to extend Vonage’s liability or
obligations beyond the limitations and disclaimers set forth in this
Agreement, or (iv) gross negligence or willful misconduct of Customer,
its Affiliates or its or their employees, agents or subcontractors.
b. Procedure. Vonage shall notify Customer promptly after Vonage
learns of the existence of an indemnifiable claim hereunder; provided,
however, that failure to give such notice shall only affect the
rights of Vonage to the extent that Customer is prejudiced. Vonage
shall not admit any liability whatsoever. Customer shall be entitled
to take sole control of the defense and investigation of the
indemnifiable claim at its own expense, by providing prompt written
notice to Vonage, subject to Vonage’s approval of Customer’s counsel,
such approval not to be unreasonably withheld or delayed. Vonage
shall cooperate in all reasonable respects with Customer and its
attorneys in the defense of the claim (including by making available
books, records, and personnel), and may reasonably participate at
its own expense, through its attorneys or otherwise, provided that
such participation does not interfere with Customer’s defense. All
settlements of indemnifiable claims under this Section shall: (i)
be entered into only with Vonage’s consent if such settlement requires
any admission of guilt or imposes any restriction on Vonage; and
(ii) include an appropriate confidentiality agreement prohibiting
disclosure of the terms of such settlement.
9. Warranties and Disclaimers.
a. Representations. Vonage represents and warrants to Customer that
it (i) has the corporate power and authority to enter into this
Agreement and perform its obligations hereunder, and (ii) is authorized
to do business and provide the Services.
b. Assumption of Risk. Vonage has no special relationship with or
fiduciary duty to Customer. Customer acknowledges and agrees that
Vonage has no control over and has no duty to take any action regarding
and shall have no liability for acts, faults or omissions of any
third party telecommunications systems, networks or operators
(including, without limitation, suspension or termination of Vonage’s
connections, or faults in or failures of their apparatus or network),
in the jurisdictions in which it operates.
c. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH ABOVE IN THIS
AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE
SERVICES AND VONAGE CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND
WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY, QUALITY (E.G., AS TO LATENCY AND THROUGHPUT), AND
FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY
COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY
DISCLAIMED. VONAGE, AND VONAGE’S SUPPLIERS, PARTNERS AND LICENSORS,
AND EACH OF VONAGE’S AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AND AGENTS, DO NOT WARRANT (AND HEREBY EXPRESSLY DISCLAIM
ALL WARRANTIES) THAT: (I) THE SERVICES (OR ANY MOBILE OPERATORS)
WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, (II)
ANY DEFECTS OR ERRORS WILL BE CORRECTED, (III) ANY CONTENT OR SOFTWARE
AVAILABLE ON OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS, (IV) THE CONTENT ON THE SITES OR SERVICES (OR
ANY THIRD PARTY SITES OR SERVICES LINKED THERETO) IS ACCURATE,
ERROR-FREE, APPROPRIATE, COMPLIANT, OR COMPLETE, OR (V) THE RESULTS
OF USING THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER’S
USE OF THE SERVICES IS SOLELY AT CUSTOMER’S OWN RISK. VONAGE DOES
NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY
CONTENT OF, COMMUNICATION BY, OR PRODUCT OR SERVICE ADVERTISED OR
OFFERED BY, A THIRD PARTY THROUGH THE SERVICES, AND VONAGE WILL NOT
BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY
TRANSACTION BETWEEN CUSTOMER AND THIRD PARTIES.
d. Reservation of Rights. Vonage reserves the right, but is not
obligated, to monitor and audit Customer’s use of the Services for
any reason or no reason, without notice, to ensure Customer’s
compliance with this Agreement. Vonage reserves the right, but is
not obligated, to reject, refuse to transmit or post, block, or
remove any posting (including Application Content), or to restrict,
suspend or terminate Customer’s access to all or any part of the
Services at any time if Customer has violated the AUP or this Agreement
or to prevent harm to Vonage’s business or reputation. Vonage also
reserves the right to access, read, preserve, and disclose any
information that Vonage reasonably believes is necessary to (i)
satisfy any applicable law, regulation, legal process or governmental
or agency request, (ii) enforce this Agreement, including investigation
of potential violations hereof, (iii) detect, prevent, or otherwise
address fraud, security or technical issues, (iv) respond to user
support requests, or (v) protect the rights, property or safety of
Vonage, its customers, its customers’ end users, and/or the public.
Customer agrees to provide Vonage with any information Vonage
reasonably requests to investigate and resolve problems relating to
Customer’s Account.
e. No Emergency Services. Vonage’s Services are not intended for and
may not be used (i) in connection with 911, E911, or other emergency,
public safety or similar services (“Emergency Services”), or (ii)
as a replacement for any primary phone services (e.g., landline or
mobile phones) used to contact Emergency Services. Customer acknowledges
that Vonage and Vonage’s suppliers have no responsibility to connect
any 911 calls to any Public Safety Answering Point.
f. Beta Services. Certain Services may be designated or offered as
a “beta” version (“Beta Version”) of a Service, which may or may not
be released as a full commercial service in the future. Customer is
not required to use any Beta Version and does so at its sole risk.
Except as otherwise indicated under separate terms and conditions
that may apply to such Beta Version, Vonage shall not charge for
such Beta Version, but reserves the right to charge for subsequent
versions of the Beta Version, including any potential commercial
releases. Customer acknowledges and agrees that the Beta Version may
contain, in Vonage’s sole discretion, more or fewer features or
different licensing terms than a subsequent commercial release version
of the Beta Version. Vonage reserves the right not to release later
commercial release versions of the Beta Version. Without limiting
any disclaimer of warranty or other limitation stated in this Agreement
(or any separate terms and conditions that would otherwise be
applicable to such Beta Versions), Customer agrees that Beta Versions
are not considered by Vonage to be suitable for commercial use, and
that may contain errors affecting their proper operation. CUSTOMER
ACKNOWLEDGES AND AGREES THAT USE OF ANY BETA VERSION MAY EXHIBIT
SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT CUSTOMER’S
USE OF ANY SERVICES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, VONAGE SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM
CUSTOMER’S USE OF ANY BETA VERSION. The fact and existence of any
Beta Version shall be deemed to be Vonage Confidential Information
under this Agreement. The Support Policy shall not apply to Beta
Versions.
g. Deletion of Customer Data. Except as agreed by Vonage and Customer
in writing, Vonage may periodically delete Customer’s data including
any Application Content. Further, data storage is not guaranteed by
Vonage and Vonage shall not have any liability whatsoever for any
damage, liabilities, losses, or any other consequences that Customer
may incur relating to the loss or deletion of Customer’s data.
10. Suspensions and Terminations.
a. Termination for Convenience. Customer may terminate its use of
the Services any time for any reason, and may close its Account by
following the instructions on the Site or by contacting Vonage at
support@nexmo.com. Vonage may terminate this Agreement by providing
60 days’ advance notice to Customer.
b. Suspension of Services; Termination for Cause. Vonage may suspend
Customer’s right to use the Services or terminate this Agreement in
its entirety (and, accordingly, Customer’s right to use the Service),
for cause: (A) if Customer is in breach of this Agreement and has
failed to cure such breach within 30 days after written notice
thereof, or (B) immediately (i) if Customer has violated or Vonage
has reason to believe Customer has violated or has encouraged others
to violate any provision of the AUP, (ii) upon Customer’s liquidation,
commencement of dissolution proceedings, disposal of Customer’s
assets, failure to continue Customer’s business in the ordinary
course, assignment for the benefit of creditors, or if Customer
becomes the subject of a voluntary or involuntary bankruptcy or
similar proceeding, or (iii) if Customer is in default of any payment
obligation with respect to any of the Services or if any payment
mechanism Customer has provided to Vonage is invalid or charges are
refused for such payment mechanism.
c. Effect of Suspension. Upon Vonage’s suspension of Customer’s use
of or access to any Services, in whole or in part, for any reason:
(i) fees will continue to accrue for any Services that are still in
use by Customer, notwithstanding the suspension, (ii) Customer remains
liable for all fees, charges and any other obligations Customer has
(or Customer’s Account has) incurred through the date of suspension
with respect to the Services, and (iii) all of Customer’s rights
with respect to the Services will be terminated during the period
of the suspension.
d. Effect of Termination and Survival. Upon termination of this
Agreement, for any reason: (i) Customer remains liable for all fees,
charges and any other obligations accrued and owed by Customer through
the effective date of such termination, (ii) except as expressly set
forth herein, all of Customer’s rights and licenses under this
Agreement will immediately terminate and Customer shall cease using
the Services, and (iii) any balance on Customer’s Account remaining
after termination of this Agreement will be repaid to Customer within
twenty (20) business days following termination. All amounts accrued
or owed to Vonage in connection with this Agreement and Sections 3,
5, 6, 7, 8; 9(b)-(e); 10; 11; 12; 13 and 14 shall survive any
termination of this Agreement. Following any suspension or termination
of this Agreement or Customer’s Account other than for breach,
Customer may request any post-termination assistance that Vonage may
elect to make generally available with respect to the Services such
as data retrieval arrangements, subject to and conditioned upon
Customer’s advance payment of fees and acceptance of all terms and
conditions that Vonage specifies in writing with respect thereto.
11. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VONAGE OR VONAGE’S PARTNERS,
SUPPLIERS, LICENSORS, OR CONTENT PROVIDERS, OR ANY OF ITS OR THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE UNDER
ANY CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER
LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES OR OTHER SUBJECT
MATTER OF THIS AGREEMENT FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL,
PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER,
LOST PROFITS, GOODWILL, REVENUE, INCOME OR BUSINESS, DATA LOSS, INTERRUPTION
OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, RIGHTS
OR SERVICES (HOWEVER ARISING AND EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES); (II) ANY LIABILITY THAT EXCEEDS THE GREATER OF 50,000 EUR
OR THE AMOUNT OF FEES ACTUALLY PAID TO VONAGE IN THE 6MONTHS PRECEDING
THE EVENT GIVING RISE TO THE CLAIM; OR (III) USE OF OR INABILITY TO USE
THE SERVICES IN CONNECTION WITH EMERGENCY SERVICES.
12. Governing Law and Venue.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, without reference to its principles of
conflicts of law rules. The United Nations Convention on Contracts for
the International Sale of Goods shall not be applicable hereto. Without
limiting the preceding language, Customer agrees to submit, for purposes
of this Agreement, to the jurisdiction and venue of the state and federal
courts located in the State of Delaware. CUSTOMER AGREES THAT ANY CAUSE
OF ACTION ARISING OUT OF OR RELATED TO THE SITE OR SERVICES OR VONAGE
MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
13. Arbitration and Dispute Resolution.
a. Management Resolution. In the event either Party has a dispute
or claim against the other Party (except with respect to billing
disputes), the disputing Party shall provide written notice to the
other Party. The Parties agree to escalate disputes to their respective
management, who will use commercially reasonable efforts to resolve
the dispute by consulting with each other in good faith to reach an
equitable resolution satisfactory to both Parties within 30 calendar
days of the receipt of notice. Neither Party shall pursue or commence
proceedings regarding the dispute in any court, administrative
arbitral or other adjudicative body prior to engaging in such
consultations and negotiations.
b. Binding Arbitration. If negotiations fail to resolve the dispute
within 30 calendar days, and/or small claims court is not a valid
option due to the size or nature of the claim, all disputed claims
(except for claims relating to intellectual property rights, indemnity,
or confidentiality obligations, fraudulent or unauthorized use,
theft, or piracy of service, or matters relating to injunctions or
other equitable relief) must be resolved by binding arbitration
before a single arbitrator, in the English language. This agreement
to arbitrate is intended to be given the broadest possible meaning
under applicable law. The initiation of an arbitration dispute shall
not otherwise prevent Vonage or Customer from terminating Services
in accordance with the Agreement.
c. Location and Procedure. A Party who intends to seek arbitration
must first send to the other Party a written notice of dispute, which
must describe the nature and basis of the dispute and set forth the
specific relief sought. The location of arbitration will be in New
York, New York, in accordance with the JAMS Streamlined Arbitration
Rules and Procedures, and this dispute resolution provision will be
governed by the Federal Arbitration Act and not by any state or
national law concerning arbitration. The amount of any settlement
offer made by Customer or Vonage shall not be disclosed to the
arbitrator until after the arbitrator determines the amount, if any,
to which Customer or Vonage is entitled. Judgment on the award
rendered by the arbitrator may be entered in any court having competent
jurisdiction. Any provision of applicable law notwithstanding, the
arbitrator will not have authority to award damages, remedies or
awards that conflict with this Agreement. The prevailing Party in
any action or proceeding to enforce this Agreement shall be entitled
to recover its reasonable attorneys’ fees and costs.
d. Jury Trial and Class Action Waiver. Each Party waives its right
to a trial by jury for claims subject to arbitration hereunder. 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. The arbitrator may not
award special, indirect, punitive, incidental or consequential
damages. CUSTOMER MAY BRING CLAIMS AGAINST VONAGE ONLY IN CUSTOMER’S
INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND CUSTOMER EXPRESSLY
WAIVES ITS RIGHT TO BRING A CLASS ACTION SUIT. 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.
e. Equitable Relief. Notwithstanding the foregoing, each Party shall
be entitled to enforce its intellectual property rights and seek
equitable relief in any court of competent jurisdiction at any time.
14. Miscellaneous.
a. Entire Agreement; Headings. This Agreement constitutes the entire
agreement between Customer and Vonage with respect to the Site and
Services, and supersedes all prior or contemporaneous communications
and proposals (whether oral, written or electronic) between Customer
and Vonage with respect thereto. The section and paragraph headings
in this Agreement are for convenience of reference only and shall
not affect their interpretation. No oral or written information or
advice given by Vonage or its employees and other representatives
will create any obligations or warranty on behalf of Vonage unless
otherwise agreed in a writing signed by an authorized Vonage
representative. Any purchase orders, confirmations, payment
documentation, or other terms provided by Customer, even if signed
by the Parties after the date hereof, shall have no force or effect.
In the event that the Parties have executed versions of this Agreement
drafted in more than one language, the English language version shall
govern and prevail.
b. Modifications/Waivers. Except as expressly provided elsewhere in
this Agreement, this Agreement may not be changed or modified, nor
may any provisions hereof be waived, nor may any consent or confirmation
be considered to have been given, except by an agreement in writing
signed by the Party against whom enforcement of the change or
modification is asserted, and any such modification, change, waiver,
consent or confirmation on Vonage’s behalf may only be given by an
authorized signatory of Vonage. The failure of either Party to
exercise in any respect any right provided for herein shall not be
deemed a waiver of any further rights hereunder.
c. Severability. If any provision of this Agreement, or any part of
such provision, is found to be unenforceable or invalid, that provision
will be (to the minimum extent necessary) replaced by a valid and
enforceable provision the effect of which comes as close as possible
to the intended economic effect of the unenforceable or invalid
provision, so that this Agreement will otherwise remain in full force
and effect and enforceable.
d. Force Majeure. Neither Party is liable for any failure of performance
(other than for delay or performance in the payment of money due and
payable hereunder) to the extent such failure is due to any cause
or causes beyond such Party’s reasonable control, including acts of
God, fire, explosion, vandalism, cable cut, adverse weather conditions,
governmental action, acts of terrorism, strikes and similar labor
difficulties, war, sabotage, outages of third party connections,
utilities, or telecommunications networks, including, without
limitation, carrier-related problems or issues, internet-access
issues, denial of service attacks, shortage or unavailability of
supplies, and other mechanical, electronic or communications failures
or degradation. Either Party’s invocation of this clause will not
relieve Customer of its obligation to pay for any Services actually
provided or permit Customer to terminate any Services except as
expressly provided herein.
e. Notices. Customer hereby authorizes Vonage to send notices to
Customer relating to this Agreement (e.g., Service updates, notices
of breach and/or suspension) via email to the email address Customer
provides to Vonage in Customer’s Account, in addition to the other
means and methods set forth in this Agreement. It is Customer’s
responsibility to keep Customer’s email address current, and Customer
will be deemed to have received any email sent to the last known
email address Vonage has on record for Customer. Notices that Vonage
sends to Customer via email will be deemed effective upon Vonage’s
sending of the email. Notices provided to Vonage under this Agreement
shall be sent to the attention of Customer’s account manager, with
a copy sent to the following address with respect to any legal
matters, at:
Nexmo Inc. 23 Main Street Holmdel, NJ 07733 Attn: Legal Department
legaldept@vonage.com
Unless otherwise specified in this Agreement, all notices under this
Agreement will be in writing and will be deemed to have been duly
given when received, if personally delivered or sent by certified
or registered mail, return receipt requested; when receipt is
electronically confirmed, if transmitted by facsimile or email; or
the day after it is sent, if sent via next day delivery by recognized
overnight delivery service.
f. Relationship of the Parties. The relationship of the Parties shall
not be that of partners, agents or joint venturers for one another,
and nothing contained in the Agreement shall be deemed to constitute
a partnership or agency agreement between the Parties for any purpose.
Vonage and Customer shall be independent Parties and shall discharge
their contractual obligations at their own risk subject to the terms
of this Agreement.
g. Assignment. This Agreement inures to and is binding upon the
Parties’ successors and permitted assignees. Customer shall not
assign this Agreement without Vonage’s prior written consent.
h. Export Controls. By using the Services, Customer represents and
warrants that (i) its use of the Services will not violate any
embargoes, sanctions, trade restrictions or similar restrictions
issued by any applicable governmental entity, and (ii) Customer, its
Affiliates, and its End Users have not been designated by any
applicable government or any government agency as a prohibited or
restricted party under any trade restrictions, export laws or the
like. Customer also will not use the Site or Services for any purpose
prohibited by applicable law, including the development, design,
manufacture or production of missiles, or nuclear, chemical or
biological weapons. Customer may not use, export, re-export, import,
or transfer any technology or data related to the Services except
as authorized by both this Agreement and all applicable laws, rules
and regulations.
i. Government Terms. If Customer (or its End Users) is an agency,
department or other entity of any government, then any use,
modification, duplication, reproduction, release, performance,
display, transfer or disclosure of the Services and accompanying
documentation shall be governed solely by this Agreement. Any other
use shall be prohibited and no other rights are granted.
15. Terms Applicable to EU Residents.
The terms and conditions in this Section shall apply only to Customers
who reside in the European Union, and notwithstanding anything else
contained in this Agreement.
a. Customer shall ensure that Vonage is enabled to use all Customer
data (including Application Content) necessary to provide the Services.
b. The primary characteristics of the Services will remain available
to Customer during the term of this Agreement.
c. For Customers who reside in Germany, and notwithstanding anything
to the contrary herein, in general, warranty rights with regards to
the Services are ruled by statutory law. However, liability without
fault for initial defects is excluded. The liability with fault
remains unchanged. In assessing whether or not Vonage is in fault
Customer acknowledges that software cannot actually be without defect.
Deficiencies can be cured at Vonage’s discretion either by rectification
or replacement delivery. Customer is only entitled to a termination
according to statutory law due to the failure to grant use in
accordance with the Agreement if Vonage has been given sufficient
opportunity to rectify the deficiency and such attempt has failed.
Vonage does not warrant internet access for Customer, especially the
availability or volume of internet access. Customer is solely
responsible for its access to the internet until the point where
Services are handed over by Vonage.
d. Notwithstanding Section 3(d), Customer will have a reasonable
period from the date of any charge to dispute such charge.
e. As to non-German Customers who reside in the EU, notwithstanding
Section 11, the following shall apply in relation to the limitation
of liability:
i. The Parties shall only be fully liable for intent and gross
negligence as well as damages caused by injury to life, body or
health;
ii. In an event of slight negligence, the Parties shall be liable
only for breaches of a material contractual obligation (cardinal
duty). A “cardinal duty” in the sense of this provision is an
obligation whose fulfillment makes the processing of this Agreement
possible in the first place and on the fulfillment of which the
other Party may therefore generally rely;
iii. In any of the above mentioned cases, the Parties shall not
be liable for any lack of commercial success, lost profits and
indirect damages;
iv. Liability in accordance with the above clauses shall be
limited to the typical, foreseeable damages: and
v. Except where otherwise stated in this Agreement, the Parties
shall not be liable for any loss or damage or any costs, expenses
or other claims including without limitation loss of profit,
business, revenue, goodwill or anticipated savings, loss of any
data or information and/or special or indirect loss or consequential
loss or otherwise which arise out of or in connection with this
Agreement.
f. As to German Customers, notwithstanding Section 11, the following
shall apply in relation to the limitation of liability:
i. The liability of Vonage is unlimited for damages arising out
of death, injury to body or health based on a breach conducted
by a legal representative or designated agent of Vonage, as well
as for damages that arise from the lack of a guaranteed
characteristic or in case of fraudulent intent;
ii. The liability of Vonage is unlimited for damages caused by
Vonage, a legal representative, or designated agent by intent
or gross negligence;
iii. In case of a slight negligent breach of a contractual core
duty Vonage shall, except in the cases pursuant to (i) and (iv),
only be liable to the amount of the typically foreseeable damage.
Contractual core duties abstractly are such duties whose
accomplishment enables proper fulfilment of the contract in the
first place and whose accomplishment a contractual party regularly
may rely on;
iv. Liability pursuant to the German Product Liability Act remains
unaffected;
v. The limitation period for claims for damages shall be one (1)
year, except in the case of (i), (ii) and (iv) above, where the
statutory statute of limitations shall apply.
vi. Insofar as telecommunication services are affected, Vonage
shall, except in cases pursuant (i) and (iv) above, in cases of
slight negligent breach of a contract only be liable for an
amount that does not exceed EUR 12,500 vis-à-vis Customer and
vis-à-vis all damaged parties an amount that does not exceed EUR
10,000,000 per damaging event. If, in the latter case, the
compensation exceeds the said maximum amount payable to several
parties due to the same event, the compensation shall be reduced
in proportion to the ratio between the total claims for damages
and the upper limit.