v. April 2020

 

THE PRESENT SPECIFIC TERMS OF USE (the “STU”) SHALL BE INCLUDED IN THE CONTRACT AND SHALL DEFINE THE TERMS AND CONDITIONS APPLICABLE TO HOSTED ANYWHERE365 SERVICES (THE “SERVICES”), AS SPECIFIED IN THE RELEVANT SERVICE ORDER FORM (“SOF”) AND FURTHER DESCRIBED IN THE SERVICE DESCRIPTION.

 

THE PARTIES AGREE THAT THESE SPECIFIC TERMS OF USE SHALL PREVAIL ON ANY CONFLICTING PROVISIONS CONTAINED IN ANY OTHER CONTRACTUAL DOCUMENT HAVING THE SAME PURPOSE.

 

1. DEFINITIONS

 

The capitalized terms used but not otherwise defined herein shall have the meaning assigned to such terms in the Contract or in the Hosted Anywhere365 Service Description.

 

 

 

“ANI” means “Automatic Number Identification” of the caller’s extension and refers to a feature of a telecommunications network for automatically determining the origination telephone number on toll calls.

 

 

 

“CLI” means “Caller Line Identification”. The CLI is the presented or restricted phone number of the calling party.

 

 

 

“Documentation” means user documentation, in all forms, relating to the Software (e.g. user manuals, on-line help files).

 

 

 

“Release” means a version of a Software that incorporates corrections or provides functional or performance improvements.

 

 

 

“Service Description” means the overview and other technical and operational terms applicable to the Service, as amended from time to time and provided to Client.

 

 

 

"Software" means (i) any software provided with the Services and made available by Supplier and/or its licensors according to the articles 3.2. Software may be (a) any machine-readable version, provided in object code, of a computer program or components to be installed on User computer systems and any Release provided to Client and/or (b) provided on Software-as-a Service (SaaS) and subscription basis including all patches, bug fixes, upgrades and Releases of the Software.

 

 

 

“User” means any authorized individual having a Hosted Anywhere365 account hosted on Supplier’s or its Partners (and/or Licensors) platforms.

 

 

 

2. HOSTING AND CLOUD VOICE SERVICES

 

2.1 SERVICE DESCRIPTION AND PRE-REQUISITES

 

The hosting and voice services provided by Supplier are set out in and subject to the relevant Service Description. 

 

2.1.1 Client obligations Conditions applicable to the access to the Services will be agreed between the parties in the Statement of Work (“SOW”) which will be added by way of reference to the SOF. The SOW will include, without limitation, the best-suitable method of connection, as chosen by Client according to its specifications.

 

2.1.2 Caller ID Name (“CNAM”)

 

CNAM is used to display the calling party’s name alongside the phone number and help users identify a caller. Client and its Users shall not undertake any improper, illegal, unfair, misleading or aggressive sales and marketing activities using CNAM services. If User uses CNAM services in order to provide any form of direct marketing activities, Client shall be solely responsible to comply with all applicable laws such as, but not limited to anti-spam regulations, consumer protection laws and marketing regulations in respect to such activities.

 

Client warrants that all data transmitted from Client to Supplier for CNAM Service (“CNAM Data”) are accurate to the best of Client’s knowledge in order to prevent any abuse or misuse such as identity theft. In this respect, Client shall verify that the CNAM Data correspond with their identity or identity of a group of persons within the Client’s organization (such as Client support for instance) and that no unlawful, objectionable, racist, sexual, discriminatory, vulgar or offensive data shall be communicated to Supplier. Furthermore, Client warrants it has the right and authority to provide such CNAM Data to Supplier. 

 

2.2 SUPPORT

 

The technical support associated to the Services shall be operated according to the Service Description.

 

2.3 EXPORT COMPLIANCE

 

Each party shall comply with the United States and other foreign import and export control laws and regulations. Client acknowledges that the Service or Software may contain Commercial Computer Software under Federal Acquisition Regulations as may be supplemented by the Federal Government agencies and are provided only under the Restricted Rights Provision of the Federal Acquisition Regulations applicable to commercial computer software developed at private expense and not in the public domain and that the Services, Software and Documentation are accordingly subject to the U.S. Export Administration Regulations (the “EAR”). Client shall be responsible for ensuring that Client’s right to import, export or use the Services, Software and Documentation complies with laws and regulations applicable to Client and Client’s industry and business, including with the EAR. Without limiting the foregoing, Supplier and Client each respectively represents that: (i) it is not located in any country that is subject to U.S. export restrictions or prohibitions (“Restricted Country”); and (ii) it is not on any Government issued list of restricted persons or entities including the Commerce Department Entity List, Denied Persons List or Unverified List, the Treasury Department Specially Designated Nationals and Blocked Persons List and the State Department Debarred Parties List/; (iii) it is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. Government.  

 

 

 

3. ANYWHERE365 SOFTWARE

 

“Anywhere365” refers to the computer program offered by WorkstreamPeople (the “Licensor”) and supplied by Supplier to Client (i) as outlined in the configuration management overview as set out in the Service Description as well as any modifications, additions and revisions provided to Client under the terms of the Contract and (ii) as further described in the Service Description.

 

3.1 SERVICE DESCRIPTION AND PRE-REQUISITE

 

The offer description applicable to the Anywhere365 Software is set out in the Service Description. Client’s network infrastructure, including LAN and WAN, shall meet the requirements as defined in the Service Description, including the Client network minimum requirements.

 

3.2 LICENSE CONDITIONS

 

In connection with the Services, during the Term of the Contract, Supplier grants Client a non-exclusive, non-transferable (except as specified in this Contract) license to use the Software, as required to provide Client such hosted Anywhere365 Services for the License Period or Renewal License Period, for Client’s own internal business purposes.

 

The Software is licensed, not sold. These STU only give Client some rights to use the Software and all other rights are reserved. Supplier or its Licensor grants Client a worldwide, nontransferable, non-exclusive, limited and personal right to install, use, and run, display on screen in the ordinary course of use, the Software for the License Initial Term or, where applicable any License Renewal Term. License Initial Term and License Renewal Term, unless otherwise stated in the SOF, shall coincide with the Contract Term. Unless applicable law gives Client more rights despite this limitation, Client may use the Service or Software only as expressly permitted in these STU or in the Service Description. Client may not (i) work around any technical limitations in the Software; (ii) reverse engineer, decompile or disassemble the Software, except and only to the extent that applicable law expressly permits, despite this limitation; (iii) make more copies of the Software than specified in these STU or allowed by applicable law, despite this limitation; (iv) publish the Software for others to copy; (v) rent, lease or lend the Software; or (vi) use the Software for commercial software hosting services.

 

Supplier or its Licensor grants Client a limited, worldwide, non-exclusive, non-transferable right to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with the use of the Software.

 

3.3 SUPPORT

 

The technical support associated to the Services shall be operated according to the Services Description.

 

 

 

4. SPECIFIC TERMS APPLICABLE TO SUPPLIER SERVICES (HOSTING AND CLOUD VOICE SERVICES) AND ANYWHERE365 SOFTWARE

 

4.1 WARRANTY

 

EXPECT AS OTHERWISE MENTIONED BELOW, SUPPLIER OR ITS LICENSOR MAKES NO WARRANTY OR REPRESENTATION TO CLIENT AS TO THE PERFORMANCE OR OPERATION OF THE SERVICE, SOFTWARE, SUPPORT OR ANY OTHER PRODUCTS OR SERVICES EXCEPT AS PROVIDED FOR IN THE CONTRACT. SUPPLIER OR ITS LICENSOR MAKES NO OTHER WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO SUPPLIER OR ITS LICENSOR, THE SERVICE, SOFTWARE, SUPPORT OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY SUPPLIER OR ITS LICENSOR AND, SUBJECT TO THIS CLAUSE, ANY CONDITION OR WARRANTY WHICH WOULD OTHERWISE BE IMPLIED IN THIS CONTRACT IS HEREBY EXCLUDED. WHERE LEGISLATION IMPLIES IN THIS CONTRACT ANY CONDITION OR WARRANTY, AND THAT LEGISLATION AVOIDS OR PROHIBITS PROVISIONS IN A CONTRACT EXCLUDING OR MODIFYING THE APPLICATION OF OR EXERCISE OF OR LIABILITY UNDER SUCH CONDITION OR WARRANTY, THAT CONDITION OR WARRANTY WILL BE DEEMED TO BE INCLUDED IN THIS CONTRACT.

 

Without prejudice to the foregoing, Supplier or its Licensor warrants to Client that the Service and Software will, during the term of this Contract, be materially conform to the Service Description. Supplier or its Licensor also represents and warrants that Supplier or its Licensor (i) is the true and lawful exclusive owner of the Software and is fully entitled to grant all the rights granted under this Contract; (ii) has no notice of any suits or actions commenced or threatened against it, on notice of claims asserted or threatened against it, with references to the Software and/or its Documentation; (iii) the license to the Software and/Documentation and all rights granted under this Contract are granted free from any liens, charges, options, licenses, pledges and encumbrances of any kind; (iv) shall work according to the Documentation, with no material defects or errors.

 

4.2 INTELLECTUAL PROPERTY

 

All rights, title, ownership rights and Intellectual Property rights in the Service or Software are protected by applicable copyright laws or other laws and are held by Supplier and/or its Licensors. Supplier and/or its Licensors own and reserve all rights, title and interests in and to the Service or Software.

 

4.3 INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT INDEMNIFICATION

 

4.3.1 Infringement Defense and Indemnification

 

Subject to any limitation and restriction set out in the Contract, Supplier will defend and indemnify Client from any actual or threatened third party claim that Client’s use of Supplier Material in connection with the Services infringes or misappropriate any Intellectual Property rights of any third party during the License Period or Renewal License Period if (i) Client gives Supplier prompt written notice of the claim; (ii) Supplier has full and complete control over the defense and settlement of the claim; (iii) Client provides reasonable assistance in connection with the defense and settlement of the claim as Supplier may reasonably request; and (iv) Client complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).

 

Subject to the limitation of liability set out in Clause 9 of the Contract, Supplier’s obligation will be to pay all proven direct damages and expenses awarded by a court or arbitrator or agreed by Supplier in a settlement of the claim.

 

Exclusions. Supplier will have no obligation for any infringement to the extent that it arises out of or is based upon (i) the combination, operation, or use of Supplier Material with third party software or services if such infringement would have been avoided but for such combination, operation, or use; (ii) designs, requirements, or specifications for the Software required by or provided by Client, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (iii) use of Supplier Material  outside of the scope of the license or other rights granted to Client; (iv) Client’s failure to use the latest Release of any Supplier Material made available to Client under the Contract or to comply with instructions provided by Supplier, if the alleged infringement would not have occurred but for such failure; (v) any modification of Supplier Material not made by Supplier or its Partners where such infringement would not have occurred absent such modification; (vi) Client Data; (vii) software which contains open source code and/or free software components; or (vii) unauthorized use of Supplier Material.

 

Client hereby agrees that it will reimburse Supplier for any costs or damages that result from these actions.

 

4.3.2      Mitigation of Infringement Action

 

Without limiting the foregoing, if an injunction against Client, its affiliates or Users prevents the use of Supplier Material in connection with the Services or any part thereof results from such a claim (or, if Client reasonably believes such an injunction is likely), Supplier shall procure Client’s continuing right to use Supplier Material; (ii) replace the infringing material with non-infringing material that is substantially equivalent in functionality; (iii) repair or make those modifications to the infringing material that may be necessary to remove the alleged infringement; or (iv) if there is no way of remedying the infringement, terminate the Contract under which the infringing material is provided, in whole or in part, on notice to the Client, and Client will be entitled to a pro-rata refund of any part of the Charges it has paid for the Services to be supplied after the date of termination under such Contract..

 

4.3.3      Exclusive remedy

 

The present article states Supplier’ sole and exclusive liability, and Client’ sole and exclusive remedy, for any infringement claim related to the Services and any associated Supplier Material.

 

4.4 USE OF THE SERVICES IN CHINA

 

Due to the uncertainty of the legal status of the use of Hosted Anywhere365 Services in China, which is not clearly either prohibited or authorized, any use of the Services in China will be at Client’s own risk without any warranty of any kind. In addition, Client shall not resell or distribute Hosted Anywhere365 licenses in China.

 

4.5 FAIR USE POLICY

 

4.5.1

 

Client’s use of the Services is subject to Supplier’s Fair Use Policy which ensures the quality and reliability of the Services.  Supplier will evaluate the reasonable use of the Services based on the factors, including but not limited to, historical usage volumes, seasonal business fluctuation, business downturn and upturn and/or restructuring.  If, in Supplier’s reasonable opinion, Client’s use of the Service violates the Fair Use Policy, Supplier reserves the right to make any adjustment to the rates and usage as it deems appropriate.

 

4.5.2

 

Capacities limitations: Client understands and accepts the capacity limitations attached with the Services as et out in the Service Description.

 

4.5.3

 

The maximum duration for a call is two (2) hours, after which the Services and the call may be automatically disconnected.

 

4.5.4

 

The Services are provided with a fair use policy, as set out below, designed to prevent fraud and abuse of the Services. As an example, would not be considered as a legitimate use of the Services, the following:

 

-        PSTN Services shall not be used in any manner that may expose Supplier, its Partners or any of their personnel to criminal or civil liability;

 

-        Re-selling subscription minutes or sharing subscription or minutes;

 

-        Calling PSTN telephone numbers (whether singly, sequentially or automatically) to generate income for Client or others as a result of placing the call, other than for Client individual business communications;

 

-        Continuous and extensive call forwarding;

 

-        Fax broadcast or fax "blasting”; or

 

-        Unusual calling patterns inconsistent with normal, individual subscription use.

 

4.5.5

 

CLI/ANI manipulation or spoofing in violation of applicable law, rule or regulation is strictly forbidden, and Supplier and its voice carriers support industry standard CLI presentation and restrictions. Supplier will not be liable for any failure to provide or delay in providing the Services or any part thereof if such failure or delay is caused by a change of CLI. Calls or signaling made with a changed CLI are excluded from any SLA.

 

4.5.6

 

Re-charging: Client understands and accepts that Supplier is entitled to retro-charge any unfair use or use above the Services limitations according to the applicable rates.