Edify Terms of Service
Huddle ML | Huddle Office
Updated June 14, 2021
Edify reserves the right to make reasonable modifications to the Terms of Service at any time by emailing a new version of the Terms of Service to you, the Customer, or by posting it on Edify’s website at http://www.edify.cx/tos. We will aim to provide you at least thirty (30) days prior written notice of any material changes. Revisions and updates will be effective as of the date stated above. Your continued use of the Services on or after the effective date of the revised or updated version of these Terms of Service constitutes your acceptance of such updated Terms of Service.
1. DEFINITIONS AND INTERPRETATION
In the Agreement the following definitions apply:
“Acceptable Use Policy” has the meaning given to it in Section 4.2.
“Customer” means the relevant Customer entity named on the Cover Page or on the Order as the case may be. Edify may accept instructions from a person who Edify reasonably believes is acting with the Customer’s authority or knowledge.
“Edify Credit” means one use of the Product by one User on one computer at a time.
“Edify Credit Window” means the window of availability for the Customer to purchase additional Edify Credits at the price set forth in the Order.
“Effective Date” means the date of last signature by the authorized representatives of the Parties to the Order or this Agreement, as the case may be.
“Implementation Services” has the meaning given to it in Section 2.2.
“Order” means Edify’s order form, quote, invoice, prospectus, or proposal evidencing a subscription for the Services specifying the Product, the Edify API and the applicable Service Fees, signed by the Customer. Each such Order is incorporated herein by reference (if any conflict between the terms of this Agreement and the terms of any such Order, the terms of this Agreement prevail).
“Party” means either Edify or the Customer; “Parties” means both Edify and the Customer.
“Price” and “Pricing” shall have the meanings afforded them in the Order.
“Product” means the Edify Huddle ML and/or Huddle Office or Workforce Management products or such other products ordered by the Customer as set forth in the Order, and associated Edify application programming interfaces (API) (“Edify API”), proprietary technology and documentation (including software, hardware, processes, user interfaces, algorithms, know-how, techniques, and other tangible or intangible technical material or information, and specifications describing the features, functionality or operation of the Services) made available to Customer by Edify in providing the Services to Customer.
“Scheduled Maintenance” has the meaning given to it in the Service Level Agreement.
“Services” means each service described in the Order to deliver the Product including, but not limited to, the cloud-native service, online hosting, maintenance, professional services, and Product support services and any other services or products provided by Edify to Customer as set forth on an Order.
“Service Capacity” the total number of Edify Credits purchased by the Customer as set forth on the Order.
“Service Fees” means the price for Services including, but not limited to, the price per Edify Credit detailed in the applicable Order, the Usage Rates, and all applicable excise, sales, use, or other taxes, fees or charges applicable to the Product and Services.
“Software” has the meaning given to it in Section 4.3.
“Terms of Service” means Sections 1 to 12 (inclusive) of this document, the general terms and conditions of the Agreement.
“Usage Rates” means non-defined usage-based charges billed monthly at the then-current rates which can be found at www.edify.cx/pricing.
“User” means anyone who is permitted by the Customer to use or access the Service purchased by the Customer.
In the Agreement headings and bold type are for convenience only and do not affect the interpretation of the Agreement. Words importing the singular include the plural and vice-versa. In the event of an inconsistency between the terms of the documents comprised within the Agreement, the order of precedence shall be as follows: (i) Terms of Service, (ii) Service Level Agreement (iii) Order, (iv) Service Annexes (if any), (iii) Cover Page (if any).
2. SERVICES AND SUPPORT
2.1 Subject to the terms of this Agreement, including but not limited to the Customer’s payment of the Service Fees, Edify agrees to provide Customer the Services specified in the Order in accordance with the service levels detailed in the Service Level Agreement schedule attached hereto.
2.2 Promptly following the Effective Date, Customer and Edify shall jointly develop a migration plan designed to complete Edify’s migration and installation of the full scope of Services contemplated in the Order (the “Implementation Services”).
2.3 Edify reserves the right to perform Scheduled Maintenance and update or modify its cloud infrastructure at any time provided that such updates and modifications do not result in a material reduction in the use of the Services. Scheduled Maintenance will not normally result in service interruption.
3.1 Subject to the terms and conditions of this Agreement, Edify hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, limited user-subscription based license to access and use the Services with the number of Users and Edify Credits and type of user-subscription licenses set forth on the Order until the expiration or sooner determination of the Agreement pursuant to Section 7.
3.2 Customer may purchase additional Edify Credits for the Services at the Price stated in the Pricing table to the Order at any time during the Edify Credit Window. On the expiration of the Edify Credit Window additional Edify Credits may be subscribed by Customer pursuant to an additional Order. Edify reserves the right to change the Service Fees or applicable charges and to institute new charges and Service Fees at the end of the Edify Credit Window. The use of the Services is solely for the use of Customer and its Users and does not extend to third parties. Customer is responsible for the use of the Services by Customer’s Users. If Customer does not use the Edify Credits before the one (1) year anniversary of the end of the Edify Credit Window, Edify reserves the right to withdraw such Edify Credits without any liability and this Agreement will expire.
3.3 Authenticated Customer accounts for the Users will be created to access the Services as part of the Implementation Services. An Edify Credit is deemed to have been redeemed or used by the Customer on the occasion of each and every login by a User to access the Services and/or commencement of a new user access session. Edify Credits are consumed in the order in which they were purchased by the Customer. The date and time of each User login is time stamped and recorded on Customer’s Edify account. In the case of Huddle ML, the User access session for each login shall remain active for a twenty-four (24) hour period and each such session shall equate to one redeemed Edify Credit. (At the end of the twenty-four (24) hour period a new session begins and a further Edify Credit is redeemed if the User remains logged in.) In the case of Huddle Office, a User access session is one (1) calendar month, or part thereof, and each active user during such period shall equate to one redeemed Edify Credit.
4. RESTRICTIONS AND RESPONSIBILITIES
4.1 As part of the Implementation Services process, Edify will provide Customer with an administrative username and password for Customer’s Edify account. Where the Customer is responsible for any preparatory work, such as the provision of items required by Edify in order to fulfil its obligations, the Customer shall ensure that all such activities are completed and items are made available in sufficient time to allow Edify to complete its work in accordance with the agreed timetable.
4.2 Customer may use the Services for its own purposes and agrees not to rent, lease, sublicense, timeshare, or otherwise distribute the Product for resale, or to host applications to provide service bureau, time-sharing, or other computer services to third parties, or otherwise make available the Product to any third parties. Customer represents, covenants, and warrants that Customer (a) will use the Services only in compliance with Edify’s standard published policies then in effect at www.edify.cx/aup (the “Acceptable Use Policy”) and all applicable laws and regulations, or any license applicable to the Customer in any country where Service is provided; (b) provides evidence of such compliance in response to a request from Edify; (c) does not, or permit, any user to use the Services in any manner which is illegal; (d) remains responsible for any access and use of the Services by users and ensures that its list of users is kept current, and that the Customer terminates access immediately for anyone who is no longer a user; and (e) takes appropriate actions to protect the licensed Services and all parts thereof from unauthorized copying, modification, or disclosure by its Users and other third parties. Customer may not use or access the licensed Services if Customer is a direct competitor of Edify or for purposes of monitoring the availability, performance or functionality of the Services, or for any other benchmarking or competitive purposes.
4.3 Customer will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Edify or authorized within the Services).
4.4 Edify reserves the right to suspend user ID and password access to the Service if Edify considers that there is, or is likely to be, a breach of security; and require the Customer to change any or all of the Customer’s passwords. If Edify suspend the Services pursuant to this Section 4.4 or Section 7.3 (Payment), Edify will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur in connection with any such suspension.
4.5 Customer acknowledges and understands that Edify's Services rely on existing Customer infrastructure (not provided by Edify) and are dependent on high-speed, quality broadband access to each Customer's location. Service outages may occur that are outside of the control of Edify. Outages may occur for a variety of reasons including but not limited to power failures, service interruptions by Customer's broadband provider and/or Internet Service Provider, service interruptions by third party service providers and failings of the public internet, Customer's components or PSTN (Public Switch Telephone Network). Should such an outage occur, these will be treated as Excused Outages, (as further defined in the Service Level Agreement), and Edify’s Services may be unavailable in part or entirely until such time that the outage is resolved and access connectivity is restored.
4.6 Edify shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for Scheduled Maintenance or for unscheduled emergency maintenance, either by Edify or by third-party providers, or because of other causes beyond Edify’s reasonable control, but Edify shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Edify does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.
4.7 Customer acknowledges that the use of software that automatically dials telephone numbers pulled from a list and connects either to a live agent or a prerecorded message (“Auto Dialer”) that has not been purchased from or provided by Edify is strictly prohibited. Additionally, the Customer agrees not to engage in short duration calls (i.e. a call equal to or less than six (6) seconds in duration). If Edify, acting in its sole and absolute discretion, classifies traffic as a short duration call or having been generated from an Auto Dialer, Edify may treat this as both a violation of the Acceptable Use Policy and a material breach of the Agreement, and may terminate Customer's Service in accordance with Section 7.2 of this agreement.
4.8 Customer shall not: (1) re-classify or re-originate traffic or take any other action to make traffic appear as if it: (i) is anything other than the type of traffic delivered to Customer (including but not limited to making time division-multiplexing packet (TDM) originated traffic appear to be internet protocol (IP) originated) or (ii) originated from a place or on a type of equipment different from the place or type of equipment from where it, in fact, originated; or (2) modify, alter or delete in any manner calling party number information, originating point codes or any other signaling information, or call detail in connection with the transport and termination of traffic to the called party. Upon Edify’s request, Customer shall certify in writing its continued compliance with this Section.
4.9 If Customer uses Edify’s platform to collect, access, use, store, process, dispose of or disclose credit, debit or other payment cardholder information, then Customer agrees to do so under Edify’s guidelines and best practices for such information. Both Parties shall at all times use all reasonable commercial endeavors to act in compliance with the Payment Card Industry Data Security Standard (“PCI DSS”) requirements and the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as applicable, including remaining aware at all times of changes to the PCI DSS and HIPAA, as applicable, and shall promptly implement all procedures and practices as may be necessary to remain in compliance with the PCI DSS and HIPAA.
4.10 Edify shall use all reasonable commercial efforts to advise and assist Customer with its choice and configuration of equipment to maximize the Services. However, Customer acknowledges that it is responsible for the provision, installation, configuration, monitoring and maintenance of any Customer equipment connected to or used in connection with the Service (including software in or run on such equipment). The Customer shall ensure that any Customer equipment it attaches (directly or indirectly) to the Service is technically compatible with the Service and approved for that purpose under any applicable law or regulation. Edify does not make any commitment with respect to the interoperability between the Service and any Customer equipment. If Edify provided equipment is used with the Service, the Customer may rely upon Edify’s representations as to such compatibility and compliance, as of the date of provision.
4.11 Edify shall use all reasonable commercial endeavors to facilitate the Service and features of the Products in compliance with emergency 911 service and E911 regulations at all times. Edify will provide to Customer emergency 911 and E911 service access and call routing to the appropriate public safety answering point (PSAP) by means of the existing 911 and E911 infrastructure. Edify will provide to Customer access to the Product to load and update dispatchable address or location details for each User. The Parties acknowledge and agree that Edify can only facilitate emergency 911 and E911 provided throughout:
Customer has instructed Users not to block their telephone number on their handsets when calling 911 and ensured that each User has provided a correct and valid emergency response address for that telephone number. The dispatchable address information provided must include sufficient information (in accordance with National Emergency Number Association standards) to enable emergency responders to locate the calling party;
Customer has ensured that all devices at Customer premises are able to connect to equipment and are configured properly; and
E911 call routing can only be provided in territories where the PSAP or E911 authority offers E911.
Customer will be solely responsible for compliance with all applicable emergency service laws and/or other governmental requirements imposed or required by any state or other applicable governmental authority. Customer will be solely responsible to test the emergency services function after the Implementation Services have been delivered and then periodically throughout the term of this Agreement and will notify Edify if Customer notes any issues at any time with the Services and share the results of such testing at the request of Edify.
4.12 Customer hereby agrees to indemnify and hold harmless Edify against any costs, damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use and/or misuse of the Services. Although Edify has no obligation to monitor Customer’s use of the Services, Edify may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
4.13 Upon signature of the Agreement, the Parties are entitled to announce publicly the fact that they have entered into the Agreement for the provision of the Service. Customer hereby also agrees that Edify may use the trademark, service mark, trade name, logo or other indicia of origin of Customer or its affiliates in connection with the Agreement or any Service provided under the Agreement. Customer should advise Edify in writing if it desires that Edify not publish or use the Customer’s trademark, service mark, trade name, logo or other indicia on Edify’s website, deal lists, brochure, or in other marketing materials. Any other publicity, announcements and/or press releases about or in relation to the Agreement will require the prior written consent of the other Party which shall not be unreasonably withheld or delayed.
4.14 Customer agrees to cooperate with the reasonable requirements of Edify in relation to customer satisfaction surveys organized by or on behalf of Edify.
5. CONFIDENTIALITY; PROPRIETARY RIGHTS
5.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Edify includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Edify to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
5.2 Customer shall own all right, title and interest in and to the Customer Data, however any data that is based on or derived from the Customer Data with all Customer identifiable information removed shall be owned by Edify. Edify shall own and retain all right, title and interest in and to (a) the Services and Software and Product, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
5.3 Notwithstanding anything to the contrary, Edify shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Edify will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Edify offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. Other than as a required by law, Edify shall be under no obligation to store or retain any Customer Data after the termination or expiration of the Agreement.
6. BILLING AND PAYMENT
6.1 Customer will pay Edify the Services Fees and any other applicable fees described in the Order for the Services and Implementation Services in accordance with the terms therein. Unless otherwise specified, Edify Credits are payable in advance in accordance with the terms of the Order. If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees per the terms of this Agreement, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Customer is responsible for all charges respecting the Service, even if incurred as a result of unauthorized use.
6.2 Edify will invoice and Customer will pay the Service Fees in U.S. dollars on a monthly invoice basis. Usage Rates will be calculated in accordance with the details recorded by, or on behalf of, Edify. The Customer must pay all charges within thirty (30) days of the date of Edify’s invoice, without any set-off, counterclaim or deduction. Where applicable, Edify may set-off any amounts it owes to the Customer against any amounts owed by the Customer to Edify under the Agreement. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is greater, plus all expenses of collection.
6.3 If Customer believes in good faith that Edify has billed Customer incorrectly, Customer must contact Edify no later than fourteen (14) days after the due date on the invoice or billing statement in which the error or problem first appeared in order to receive an adjustment or credit. Billing disputes should be directed to Edify’s billing department in writing with all information pertinent to the dispute including an explanation of the amount disputed and the reasons. The Customer must pay all undisputed amounts in accordance with Section 6.2 unless the disputed amount is less than 5% of the total invoice amount in which case the total invoice amount shall be due and payable by the due date. Disputes shall be resolved promptly and the resolved amount, if any, payable within fourteen (14) days after resolution. Interest will accrue from the due date on subsequent payments of amounts withheld or credits on overpayments refunded.
6.4 Customer is responsible for all taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service, including but not limited to value added, consumption, sales, use, gross receipts, withholding excise, access, bypass, ad valorem, franchise or other taxes, fees, duties or surcharges (including regulatory and 911 surcharges), whether imposed on Edify or an Edify affiliate, along with similar charges stated in the Order (collectively “Taxes and Fees”). Some Taxes and Fees are recovered through imposition of a percentage surcharge on the charges for Service. If Customer is required by law to make any deduction or withholding of withholding taxes from any payment due hereunder to Edify, then, notwithstanding anything to the contrary contained in this Agreement, the gross amount payable by Customer shall be increased so that, after any such deduction or withholding for such withholding taxes, the net amount received by Edify will not be less than Edify would have received had no such deduction or withholding been required. The Customer will pay all such Taxes and Fees including those paid or payable by Edify and any related interest and penalties, for goods or services supplied under the Agreement, except to the extent a valid exemption certificate is provided by the Customer to Edify prior to the delivery of Service.
6.5 Usage Rate charges are assessed to Customer's account as Services are utilized and are based on Usage Rates in effect at the time the Service was delivered. Usage Rates may vary depending on a number of factors including but not limited to: (i) the type of Services provided, and (ii) the terminating locations where the Services are offered and provided. Current Usage Rates can be viewed on the pricing page (https://www.edify.cx/pricing). Usage-based billing increments are units of sixty (60) seconds.
6.6 If changes in applicable law, regulation, rule or order materially affect delivery of the Service, the Parties will negotiate appropriate changes to this Agreement. If the Parties cannot reach agreement within thirty (30) days after Edify's notice requesting renegotiation: (a) Edify may, on a prospective basis after such thirty (30) day period, notify Customer of the necessary changes to the terms of the Agreement and pass any increased delivery costs on to Customer and (b) if Edify does so, Customer may terminate the affected Service on ninety (90) days prior written notice to Edify delivered within 30 days of such notification.
7. TERM AND TERMINATION
7.1 This Agreement shall become effective as set forth in the opening paragraph and shall remain in effect until all Edify Credits to the Services under the Order have been redeemed or have expired, or the termination of the Agreement pursuant to this Section 7, whichever is the sooner.
7.2 In addition to any other remedies it may have, the Agreement may be terminated (a) by either Party upon thirty (30) days’ notice if the other Party materially breaches any of the terms or conditions of this Agreement and fails to remedy that breach within thirty (30) days of written notice from the other Party, or (b) by either Party immediately upon notice upon the institution of any insolvency, bankruptcy or similar proceeding by or against the other Party including an assignment for the benefit of creditors, the appointment of a receiver over assets, an attachment of assets lasting more than thirty (30) days, or the other Party ceases to conduct its business operations in the ordinary course of business.
7.3 Without prejudice to any other provision of the Agreement, Edify reserves the right to treat failure to pay by the Customer as a material breach of the Agreement and this Agreement may be terminated by Edify upon ten (10) days prior written notice to Customer for failure to timely pay any Service Fees. Additionally, Edify reserves the right to restrict, suspend or terminate provision of the relevant Service and Edify shall be released from its obligations under the Agreement with respect to such Service until any balance due is paid or until such other material breach is remedied, and may recover any Edify provided equipment.
7.4 Upon expiration or termination of this Agreement for any reason, Customer’s right to access the Services (and Customer Data) and use the Product immediately ceases. Termination will not relieve Customer of its obligation to pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
8. INTELLECTUAL PROPERTY
8.1 All intellectual property rights either pre-existing or created by either Party during or arising from the performance of the Agreement shall remain the absolute property of that Party or its licensors.
8.2 Edify shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Edify is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Edify will not be responsible for any settlement it does not approve in writing.
8.3 The foregoing obligations in Section 8.2 do not apply with respect to portions or components of the Service (i) not supplied by Edify, (ii) made in whole or in part in accordance with Customer specifications or using content, designs or specifications supplied by or on behalf of Customer, (iii) that are modified after delivery by Edify, (iv) combined with or used in conjunction with other products, software, processes or materials not supplied by Edify where the alleged infringement relates to such combination or use, (v) any unauthorized alteration or modification of the Service or any software, (vi) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vii) where Customer’s use of the Service is not strictly in accordance with this Agreement. Customer will indemnify and hold Edify harmless against all such claims, proceedings and expenses arising from the matters set out in this Section 8.3 and will immediately upon notification of any such claim by Edify cease any activity which gives rise to the claim.
8.4 If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Edify to be infringing, Edify may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
9. NO WARRANTIES
9.1 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND EDIFY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE EXTENT PERMISSIBLE BY LAW. EDIFY ADDITIONALLY DISCLAIM ALL WARRANTIES RELATED TO THIRD PARTY TELECOMMUNICATIONS PROVIDERS. BETA OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER, AND EDIFY WILL HAVE NO LIABILITY AND NO OBLIGATION TO INDEMNIFY FOR ANY BETA OFFERING WHATSOEVER.
9.2 Edify does not authorize anyone, whether a company employee, agent, sub-contractor, or otherwise, to make a warranty of any kind on its behalf and the Customer should not rely on any such statement.
10. LIMITATION OF LIABILITY
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OR DEATH OF A PERSON OR FRAUDULENT MISREPRESENTATION, EDIFY AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, STATUTORY, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, TRANSMISSION OF VIRUS, OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY LOSS OF PROFITS, ANTICIPATED SAVINGS, GOODWILL, REVENUE, AND ANY OTHER INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER; (C) THIRD PARTY CLAIMS AGAINST CUSTOMER FOR DAMAGES, OR (D) FOR ANY MATTER BEYOND EDIFY’S REASONABLE CONTROL.
10.2 IN NO CIRCUMSTANCES SHALL EDIFY AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES BE LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OF ANY KIND WHETHER ACTIVE OR PASSIVE FOR ANY DELAY, LOSS, DAMAGE OR SERVICE FAILURE ATTRIBUTABLE TO ANY SERVICE, PRODUCT OR ACTIONS OF ANY PERSON, INCLUDING BUT NOT LIMITED TO DELAY, LOSS, DAMAGE OR SERVICE FAILURE ATTRIBUTABLE TO COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, ‘DENIAL OF SERVICE’ ATTACKS, DNS SPOOFING ATTACKS AND/OR OTHER HACKING ATTACKS OF A SIMILAR NATURE.
10.3 If Edify is in breach of any of its obligations under this Agreement or if any other liability is arising (including liability for negligence or breach of statutory duty) then, subject to the foregoing, Edify’s total and cumulative liability shall be limited to the lesser of (i) seventy five thousand dollars ($75,000) or (ii) an amount equal to the Service Fees paid by the Customer in the twelve (12) consecutive months preceding the act or acts that gave rise to the liability in each case whether or not Edify has been advised of the possibility of such damages.
10.4 Edify shall not be liable for any loss resulting from a cause over which Edify does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines; telephone or other interconnect problems; bugs, errors, configuration problems or incompatibility of computer hardware or software; failure or unavailability of internet access; problems with internet service providers or other equipment or services relating to Customer’s computer; problems with intermediate computer or communications networks or facilities; problems with data transmission facilities, telephone or telephone service; or unauthorized access, theft, or operator errors. Edify is not responsible for any damage to Customer’s computer, software, information technology equipment or other property resulting from Customer’s use of the Services.
10.4 Neither Party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to force majeure which shall include, but not be limited to events which are unpredictable, unforeseeable or irresistible, such as any extremely severe weather, flood, landslide, earthquake, storm, lightning, fire, subsidence, epidemic, pandemic, acts of terrorism, outbreak of military hostilities (whether or not war is declared), riot, explosions, strikes or other labor unrest, civil disturbance, sabotage, expropriation by governmental authorities and any other act or any event that is outside the reasonable control of the concerned Party (a “Force Majeure Event”). In the event Edify is unable to deliver Service as a result of a Force Majeure Event, Edify shall be excused from its obligation to deliver the Services and Customer shall not be obligated to pay Edify for the affected Service for the duration of the event. Force Majeure Events and scheduled maintenance are considered Excused Outages (as further defined in the Service Level Agreement).
11. DISPUTE RESOLUTION
11.1 The Parties shall endeavor to amicably resolve any dispute before bringing a formal legal case. Any dispute shall first be dealt with in accordance with this Section 11. The Parties agree to work in good faith at all times to try to reach a settlement within thirty (30) days following the day of written notification of a dispute. The Parties will escalate the dispute internally, as appropriate, to see if it can be resolved. If an agreement cannot be reached by the end of the thirty (30) day period representatives of both Parties shall meet, in person whenever possible. In the event the Parties do not meet or if during two weeks after such meeting, an agreement has not been reached, the Parties may attempt to settle the dispute by mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure.
11.2 The Parties irrevocably agree that the exclusive jurisdiction and venue of any proceeding, suit or action arising out of or in connection with this Agreement shall be the state courts of the state of California or the United States District Court for the Central District of Los Angeles (Western Division) and each of the Parties hereto submits itself to the exclusive jurisdiction and venue of such courts (and no other courts). The validity, interpretation and performance of this Agreement will be governed by the laws of the state of California, USA, excluding its conflict-of-laws provisions, and further excluding the United Nations Convention on Contracts for the International Sale of Goods.
11.3 All negotiations connected with any matter in dispute, shall be conducted in confidence and without prejudice to the rights of the Parties in any future proceedings. Notwithstanding any other provision in this section 11 (and the good faith intention of the Parties to fully utilize the relevant dispute resolution procedures set out in this section 11), nothing herein shall prevent a Party from at any time taking steps to preserve or enforce its rights including by way of interlocutory or other interim or immediate relief in a court of competent jurisdiction.
12. GENERAL TERMS
12.1 Edify may subcontract the performance of any of its obligations under the Agreement, but without relieving Edify from any of its obligations to the Customer. Customer agrees and understands that it may need to interact directly with a subcontractor for ordering, provisioning or maintaining the subcontracted Service.
12.2 Customer may not assign their rights or obligations under this Agreement or any Order without the prior written consent of Edify, which will not be unreasonably withheld. This Agreement shall apply to any permitted transferees or assignees. Unless otherwise provided in a Service Schedule, Customer may provide Service to third parties or use the Services in connection with goods or services provided by Customer to third parties (“Customer Provided Services”) provided that Customer shall indemnify, defend and hold Edify and its affiliates harmless from any claims arising from or related to any Customer Provided Services. If Customer sells telecommunications services, Customer certifies that it has filed all required documentation and will at all times have the requisite authority with appropriate regulatory agencies respecting the same. Nothing in this Agreement, express or implied, confers upon any third party any right, benefit or remedy under or by reason of this Agreement.
12.3 All notices under this Agreement will be in writing in the English language and shall be sent by prepaid post or email to the following addresses: (a) to Edify addressed to the Office of the General Counsel at 401 Wilshire Blvd., Suite 1000, Santa Monica, CA 90401 (or to any other address and addressee which Edify has given to Customer for that purpose) with a copy via email to firstname.lastname@example.org, or (b) to Customer at the email or other address shown on the Order or Cover Page to the Agreement, as applicable, (or to any other address and addressee which the Customer has given to Edify for that purpose). The Customer shall confirm receipt of notice as soon as reasonably possible. Notices given under the Agreement (a) if sent by prepaid post, are deemed to be given by the sender and received by the addressee three (3) normal business days from and including the date of postage, or (b) if sent by email, when transmitted to the addressee; but if transmission is on a day which is not a normal business day or after 1600hrs in the addressee’s time zone, it is deemed to be duly given and received on the next normal business day.
12.4 If any action or proceeding is commenced to enforce or interpret any of the provisions of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys’ fees, expert witness fees, costs of suit and expenses, in addition to any other relief to which such prevailing party may be entitled. As used herein, “prevailing party” includes without limitation, a party who successfully brings or defends an action and, as a result, receives a favorable judgment or verdict, or a party who dismisses an action for recovery hereunder in exchange for payment of the sums allegedly due, performance of covenants allegedly breached or consideration substantially equal to the relief sought in the action.
12.5 Each Party shall comply with all applicable laws, rules and regulations associated respectively with Edify’s delivery or Customer’s use of the Service under the Agreement.
12.6 This Agreement may only be modified or supplemented by an instrument executed by an authorized representative of each Party.
12.7 A waiver by Edify of any term or condition of this Agreement in any instance shall not be deemed or construed as a waiver of such term or condition in the future. No waiver by Edify of any breach of this Agreement shall be considered valid unless in writing. The failure or delay of Edify in exercising any of its rights under this Agreement shall not constitute a waiver of Edify's rights.
12.8 The relationship between the Parties is not that of partners, agents, or joint ventures. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument. Electronic signatures shall be sufficient to bind the Parties to this Agreement. No person or entity who is not a party to the Agreement has any right to enforce any term of the Agreement.
12.9 This Agreement, including any Schedule(s), Annexes, and the Order(s) executed hereunder, constitute the entire and final agreement and understanding between the Parties with respect to the Service and supersedes all prior agreements, understandings, proposals, or representations relating to the Service, which are of no further force or effect. Customer acknowledges and agrees that it has not been induced to enter into the Agreement by any representation, warranty or other assurance not expressly incorporated into the Agreement.
12.10 If any provision of the Agreement is held to be invalid or unenforceable, it will be severed from the Agreement, the remaining provisions will remain in full force and effect and the Parties will promptly negotiate a replacement.
12.11 The Parties’ rights and obligations, which, by their nature would continue beyond the termination, cancellation or expiration of the Agreement, shall survive termination, cancellation or expiration of the Agreement.
12.12 Each Party warrants that it has the necessary rights, licenses and permissions to enter into and perform its obligations under the terms of the Agreement.