Current as of: November 1, 2021
These Enterprise Terms (“Terms”) and the details agreed by you and Valtix, Inc. in an order (“Order”) combine to form the agreement (“Agreement”) that governs your access to and use of the services specified in the Order (“Service”). Each Order forms a separate Agreement that is governed by the Terms that are current as of the date of the Order or its renewal.
1. We will make the Service available to you
The Valtix Service includes a management tool delivered as a web service (“Valtix Controller”) and a gateway that runs in the customer’s own cloud environment (“Valtix Gateway”). Subject to the Agreement, Valtix will make the Valtix Controller available to you as a service and grants you a nonexclusive, limited, personal, nonsublicensable, nontransferable license to access and use the Valtix Gateway and other aspects of the Service for your internal business purposes, only within the scope of your Order’s subscription terms and only in accordance with the applicable official user documentation for the Service (“Documentation”).
2. We can help with implementation
Upon payment of applicable fees, Valtix will use reasonable commercial efforts to provide the implementation assistance specified in the Order. If Valtix provides services beyond what is specified in an Order, you will pay Valtix for that extra work at our then-current hourly rates for consultation.
3. We will maintain the Service
Valtix will deliver the Service substantially in conformity with its Documentation and will provide reasonable product and technical support as specified in the Order. From time to time, Valtix may provide upgrades, patches, enhancements, or fixes for the Service to customers generally without additional charge (“Updates”). Any such Updates will become part of the Service and subject to this Agreement; provided that Valtix shall have no obligation to provide any such Updates. You understand that Valtix may cease supporting old versions or releases of the Service at any time in its sole discretion; provided that Valtix shall use commercially reasonable efforts to give you prior notice of any major changes.
4. You own your data
You retain all right, title and interest in and to Customer Data, including all intellectual property rights therein. “Customer Data” means data, information or other material you provide, upload, or submit to the Service in the course of using the Service. Valtix shall use commercially reasonable efforts to maintain the security and integrity of the Service. You, not Valtix, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. You are responsible for the use of the Service by any person to whom you have given access to the Service, even if you did not authorize such use. You agree and acknowledge that Customer Data may be irretrievably deleted if your account is ninety days or more delinquent.
5. Valtix owns the Service
Valtix retains all right, title, and interest in and to the Service, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Valtix for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly set forth in this Agreement. You may (but are not obligated to) provide suggestions, comments or other feedback to Valtix with respect to the Service (“Feedback”). Feedback, even if designated as confidential, shall not create any confidentiality obligation for Valtix. Valtix acknowledges and agrees that all Feedback is provided “as-is” and without warranty of any kind. You shall, and hereby do, grant to Valtix a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Valtix’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that you may develop, produce, market, or distribute.
6. Your Responsibilities
- Restrictions. Except as expressly set forth in this Agreement, you shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Valtix product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Valtix may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). You are responsible for all your activity in connection with the Service. You shall (a) use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) not use the Service in a manner that violates any third-party intellectual property, contractual or other proprietary rights.
- Non-Valtix Services. You are responsible for your cloud environment on which the Valtix Gateway runs and any API’s and/or other services or data operated or provided by third parties that the Service may use or operate on or with, including through integrations or connectors provided by Valtix (collectively, “Non-Valtix Services”). You are responsible for procuring any rights necessary for the Service to access Non-Valtix Services (including any Customer Data or other information) and for complying with any applicable terms or conditions. Valtix is not responsible for recommending, procuring or operating Non-Valtix Services nor the availability or operation of the Service to the extent it is dependent on Non-Valtix Services. Any exchange of data or other interaction between you and a provider of Non-Valtix Services is solely between you and that provider and is governed by that provider’s terms and conditions.
- Direct Orders. For Orders that you sign directly with Valtix (and not indirectly, through a reseller or cloud service provider for example), you shall pay Valtix the fees specified in the Order (“Fees”), in U.S. dollars, within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. You are responsible for all taxes associated with Service (excluding taxes based on the net income of Valtix). All Fees paid are non-refundable and are not subject to set-off. If you exceed any user or usage limitations set forth on an Order, then (i) Valtix will invoice you for such additional users or usage at the overage rates set forth on the Order (or if no overage rates are set forth on the Order, at our then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the expiring term; and (ii) any renewal shall include the additional fees for such overage.
- Indirect Orders. For Orders that you enter into through a Valtix-authorized reseller (“Indirect Orders“) payment terms shall be specified on the Indirect Order, provided that should you fail to pay Fees when due to an authorized reseller, Valtix may seek payment directly from you. Indirect Orders are not valid until and unless approved by Valtix and cannot modify the Agreement without prior written approval by Valtix. Indirect Orders must include at least (i) specific Valtix Services to be provided, (ii) any limitations on permitted use that may differ from those set forth in these Terms, (iii) the service term or other timing considerations, (iv) Fees and (v) any other applicable terms and conditions.
- Free Tier. “Free Tier” Service means the access to the Service that Valtix provides at no charge to you, subject to the limits specified in your Free Tier Order (“Free Tier Limits”). The features and functions of Free Tier Service may be different from the paid Service and may be changed (added, subtracted, etc.) by Valtix at any time, at Valtix’s sole discretion. Subject to the applicable Free Tier Order and this Agreement, you may access and use the Free Tier Service during the Free Tier Term, up to the Free Tier Limits, at no fee. If you exceed the Free Tier Limits, then you agree to pay the then-current list price for use of the Service. Valtix will make the Free Tier Services available to you until the earliest of: (a) the end of the period specified in the applicable Free-Tier Order; (b) the start date of any paid Order for the applicable Services; (c) termination by Valtix, at any time, in its sole discretion; or (d) termination by you. For any Free Tier Service, Valtix reserves the right to delete all Customer Data contained therein if you have not accessed the Valtix Controller for a period of 30 days. Valtix may, in its discretion, provide knowledge base access or other self-help tools or assistance to help with Free-Tier use, but the Free Tier Service (i) does not include product and technical support; and (ii) does not include the indemnification by Valtix specified in this agreement.
- Term. The term of the Agreement (“Term”) shall begin as of the effective date set forth on the Order, shall continue for the initial term specified on the Order, and shall automatically renew for additional successive periods of equal duration to the initial term unless either party notifies the other party of such party’s intention not to renew no later than thirty days prior to the expiration of the then-expiring term. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty days of receipt of such notice. Valtix may suspend or limit your access to or use of the Service if (i) your account is more than sixty days past due, or (ii) your use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Valtix’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) Valtix shall use reasonable good faith efforts to work with you to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Valtix shall use commercially reasonable efforts to provide notice to you describing the nature of the damage or degradation; and (c) Valtix shall reinstate your use of or access to the Service, as applicable, if you remediate the issue within thirty days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. In the case of expiration or termination of this Agreement, upon request by you made before, or within thirty days after, the effective date of expiration or termination, Valtix shall make available to you a complete download of all Customer Data in a file or database format in Valtix’s discretion. For clarity, any services provided by Valtix to you, including the data export set out above, and any assistance in exporting the Customer Data, shall be billable at Valtix’s standard rates then in effect.
- Confidentiality. A receiving party will not use the disclosing party’s Confidential Information except as permitted under this Agreement or to enforce its rights under this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and/or subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and/or subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this section. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own Confidential Information of similar nature and in no event using less than a reasonable standard of care; provided, however, that a party may disclose such Confidential Information as required by applicable law, regulation, court order or action by applicable regulatory authority, subject to the party required to make such disclosure giving reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. “Confidential Information” means the terms of the Agreement and any other information provided by the disclosing party to the receiving party, whether disclosed orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure and excluding any information that was or has become publicly available without action or inaction by the receiving party.
- Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to (i) any claim that the Customer Data or your use of the Service (in the case of you as Indemnitor), or the Service (in the case of Valtix as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right; or (ii) any unauthorized access, use or disclosure of Customer Data resulting from breach of a party’s obligations under the section of these Terms titled “You own Customer Data.” Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Valtix do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Valtix (including without limitation any Customer Data), (ii) made in whole or in part in accordance to your specifications, (iii) modified after delivery by Valtix, (iv) combined with other products, processes or materials not provided by Valtix (where the alleged Losses arise from or relate to such combination), (v) where you continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) your use of the Service is not strictly in accordance herewith.
- Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
- Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR YOUR BREACH OF SECTION 6, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY YOU TO VALTIX HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
- Miscellaneous. This Agreement represents the entire agreement between you and Valtix with respect to the subject matter of this Agreement. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties’ consent to exclusive jurisdiction and venue in the state and federal courts located in Santa Clara County, California. All notices under this Agreement shall be in writing and shall 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 e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. No modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Valtix may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. –