- Inlayer Services
1.1) This Agreement will be implemented through one or more Order Forms and/or Quotes. Any change to the terms of this Agreement within an Order Form will apply only to the Inlayer Service described therein.
1.2) Company will provide Customer, with a centralized portal and API (collectively, “The Services”, or “Inlayer Services”), that Customer can use to manage VoIP endpoints (“Devices”), according to the terms set forth in these Terms and Conditions, and any Order Forms, Quotes, or Subscription Agreements (collectively, the “Agreement”).
Any and all features and software development performed by Inlayer included in The Services provided, (including all intellectual property rights), will be and shall remain the sole property of Inlayer. Inlayer grants a limited, non-exclusive, non-transferable, non-assignable revocable right and license to Customer to use Inlayers’s property solely pursuant to this Agreement. - Account Access
2.1) As part of the registration process, Customer will identify an administrative username and password for Customer’s account. Customer accepts sole responsibility for any and all activities or actions that occur under Customer’s account and/or password, whether that password is held solely by Inlayer or a third-party service. Customer must notify Inlayer immediately upon becoming aware of any breach of security or unauthorized use of Customer’s account. - Service Level Agreement
3.1) Inlayer will provide the Services and associated support of the Services in accordance with the Service Level Agreement. - Restrictions and Responsibilities
4.1) 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 Inlayer or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
4.2) Notwithstanding the foregoing Section 3.1, nothing in this Agreement shall prevent Customer from provisioning Devices directly using its own software, independent of the Services provided by Inlayer.
4.3) Customer represents, covenants, and warrants that Customer will use the Services only in compliance with applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Inlayer against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from Customer’s alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Inlayer has no obligation to monitor Customer’s use of the Services, Phonism may do so and may prohibit any use of the Services that are in violation of the foregoing. - Confidentiality; Proprietary Rights; License
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 Inlayer includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Inlayer to enable the provision of the Services (“Customer Data”) as well as any other information of the Inlayer market or communicated as confidential. 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 that (a) 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, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Inlayer shall own and retain all right, title and interest in and to (a) the Services and Software, 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, Inlayer shall have the right 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 Inlayer 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 Phonism 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.5.4 - Fees, Payment Terms & Taxes
6.1) Customer will pay Inlayer the then applicable fees described in the Agreement (the “Fees”).
6.2) For convenience and continuity of Services, all Subscriptions shall automatically renew for the same term as the original Agreement unless a cancellation notice is received in writing no less than 90 days prior to the subscription end date.
6.3) Account activation will be made upon payment of Customer’s first invoice.
6.4) Inlayer will provide Customer an invoice or automated payment reminder (unless agreed to differently between both parties) for all applicable Service Fees at an agreed upon interval, as defined in the signed Order Form or Quote. Customer will pay all invoices (other than Fees disputed in good faith) within thirty days of receiving invoices. Late payments are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all external collection expenses.
6.5) To the extent that Inlayer’s underlying cost to deliver the Service materially change (by more than 15%), Inlayer will have the right to change the Service Fees charged to Customer (but such costs shall not increase more than any corresponding increase in underlying cost increases). Any change in Service Fees must be precipitated by formal notice from Inlayer to Customer with no less than 90 days prior notice to Customer (which may be sent by email with confirmation of receipt by Customer). In the event of a Service Fee increase by Inlayer, Customer shall have the right to have a third-party audit performed to validate the basis for any such increase in Service Fees and Customer shall bear the cost of such third-party audit, unless the audit concludes that the proposed Service Fees increase does not correspond to the actual cost increase, in which case the costs of the audit will be paid for by Inlayer.
6.6) If Customer believes that Inlayer has billed Customer incorrectly, Customer may submit a formal dispute to Inlayer and upon reasonable validation by Inlayer, Inlayer will issue a credit to Customer. Customer will not be entitled to submit a dispute on Service Fees that are older than 90 days. Customer disputes should be directed to the Inlayer’s customer support department.
6.7) Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Inlayer’s net income. - Termination & Transition Assistance
7.1) Neither Party may terminate this Agreement for convenience. Either Party may terminate this Agreement after 30 days written notice of breach and failure to cure the breach by the breaching Party (“Termination for Cause”).
7.2) In the event of Termination for Cause, Customer will pay in full for all Service Fees up to and including the last day on which the Services are provided. If the breaching party is Phonism, then Inlayer will provide a prorated refund to Customer for any prepaid and unused Service fees and Inlayer will assist with transition, as reasonably requested by Customer, to transition the Services from Inlayer to Customer or a Third Party of Customer’s choosing.
7.3) Upon any termination, Inlayer will make Customer Data available to Customer upon written request for electronic retrieval for a period of 60 days past the last day Service was provided by Inlayer to Customer, but thereafter Inlayer may delete stored Customer Data.
7.4) 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. - Warranty and Disclaimer
8.1) Inlayer shall use 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. Inlayer 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. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND Inlayer DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED (OTHER THAN THOSE SET FORTH IN THE SERVICE LEVEL AGREEMENT) INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. - Indemnity
9.1) Inlayer will defend and indemnify Customer from and against any claim by any third party that the Customer’s authorized use of the Services infringes or misappropriates any intellectual property rights of such third party. Inlayer shall, in the event of such a claim, in its reasonable discretion: (a) procure the continuing right for Customer to use the Services, or (b) replace or modify the Services in a functionally equivalent manner so that they no longer infringe. Inlayer’s duties under this section shall not arise if the alleged infringement is a result of Customer’s unauthorized use or modification of the Services. - Limitation of Liability
10.1) EXCEPT WITH REGARD TO A PARTY’S CONFIDENTIALITY AND INDEMNITY OBLIGATIONS, LICENSE RESTRICTIONS, DUTY TO PAY FEES UNDER THIS AGREEMENT, GROSS NEGLIGENCE, AND/OR WILLFUL MISCONDUCT, NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING; NOR, EXCEPT FOR THOSE ITEMS LISTED ABOVE IN THIS PARAGRAPH, SHALL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAYABLE BY CUSTOMER TO Inlayer FOR THE SERVICES DURING TERM OF THIS AGREEMENT. - Assignment
11.1) Neither Party may transfer or assign this Agreement, in whole or in part, without the written consent of the other Party, which consent will not be unreasonably withheld or delayed, except that either Party may transfer or assign this Agreement, without such consent, to an entity that acquires all or substantially all of the business or assets of such Party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any attempt by a Party to transfer or assign this Agreement without a required consent will be null and void. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon any permitted successor or assignee of the parties. Notwithstanding the foregoing, if Inlayer attempts to transfer this Agreement to any entity that is reasonably determined to be competitive to Customer, Customer will have the right to terminate this Agreement. In the event that Customer terminates this Agreement according to this Section 10, Inlayer will assist with transition, as reasonably requested by Customer to transition the Services from Inlayer to Customer or a Third Party of Customer’s choosing. - Force Majeure
12.1) Except for payment obligations, neither Party shall be liable for delays or failures to meet obligations caused by forces beyond such Party’s reasonable control (“Force Majeure Event”). Force Majeure Events together with Scheduled Maintenance shall be considered “Excused Outages”. - Miscellaneous
13.1) If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Inlayer in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorney's’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. These Terms shall be governed and construed in accordance with the laws of Delaware, United States, without regard to its conflict of law provisions.
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