EFFECTIVE: February 26, 2021
IMPORTANT, READ CAREFULLY : YOUR USE OF AND ACCESS TO THE PRODUCTS AND SERVICES (COLLECTIVELY, THE "SERVICES") OF TELECOM STACK LIMITED IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS, WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
BY UTILISING THE TELECOM STACK SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL EXHIBITS, ORDER FORMS, AND INCORPORATED POLICIES (THE "AGREEMENT"). THE TELECOM STACK SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS OF SERVICE.
Telecom Stack will provide the Services, and you may access and use the Services in accordance with this Agreement. If you order Services through an online registration page or an order form (each an "Order Form"), the Order Form may contain additional terms and conditions and information regarding the Services you are ordering. Unless otherwise expressly set forth in any such additional terms and conditions applicable to the specific Service which you choose to use, those additional terms are hereby incorporated into this Agreement in relation to Your use of the Service.
System Requirements. Use of the Services requires one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, Your ability to access and use the Services may be affected by the performance of these factors. High-speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility.
DEFINITIONS. The following definitions will apply in this Agreement, and any reference to the singular includes a reference to the plural and vice versa. Service-specific definitions are found in Exhibit A.
"Affiliate" means, with respect to a Party, any entity that directly or indirectly controls is controlled by or is under common control with that Party. For purposes of this Agreement, "control" means an economic or voting interest of at least fifty percent (50%) or, in the absence of such economic or voting interest, the power to direct or cause the direction of the management and set the policies of such entity.
"End User" means a Host or Participant (as defined in Exhibit A) who uses the Services.
"Initial Subscription Term" means the initial subscription term for a Service as specified in an Order Form.
"Service Effective Date" means the date an Initial Subscription Term begins as specified in an Order Form.
"Renewal Term" means the renewal subscription term for a Service commencing after the Initial Subscription Term or another Renewal Term as specified in an Order Form.
SERVICES. Telecom Stack will provide the Services as described on the Order Form and standard updates to the Services that are made generally available by Telecom Stack during the term. Telecom Stack may, in its sole discretion, discontinue the Services or modify the features of the Services from time to time without prior notice.
Beta Services. Telecom Stack may, from time to time, offer access to services that are classified as Beta version. Access to and use of Beta versions may be subject to additional agreements. Telecom Stack makes no representations that a Beta version will ever be made generally available and reserves the right to discontinue or modify a Beta version at any time without notice. Beta versions are provided 'as is', may contain bugs, errors or other defects, and your use of a Beta version is at your sole risk.
USE OF SERVICES AND YOUR RESPONSIBILITIES. You may only use the Services pursuant to the terms of this Agreement. You are solely responsible for your and your End Users' use of the Services and shall abide by, and ensure compliance with all Laws, including but not limited to Laws related to recording, intellectual property, privacy and export control. Use of the Services is void where prohibited. Registration Information. You may be required to provide information about yourself in order to register for and/or use certain Services. You agree that any such information shall be accurate. You may also be asked to choose a username and password. You are entirely responsible for maintaining the security of Your user name and password and agree not to disclose such to any third party.
Prohibited Use. You agree that You will not use, and will not permit any End User to use, the Services to: (i) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the Services; (ii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts Telecom Stack's networks, Your accounts, or the Services; (iii) engage in an activity that is illegal, fraudulent, false, or misleading, (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive product or Service, or copy any features, functions or graphics of the Services; or (vi) use the Services to communicate any message or material that is harassing, libellous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (vii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect the performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of Telecom Stack or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or Telecom Stack's security systems. (ix) use the Services in violation of any Telecom Stack policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings and You agree that You are solely responsible for compliance with all such laws and regulations.
RESPONSIBILITY FOR END USERS. You are responsible for the activities of all End Users who access or use the Services through your account, and you agree to ensure that any such End User will comply with the terms of this Agreement and any Telecom Stack policies. Telecom Stack assumes no responsibility or liability for violations. If You become aware of any violation of this Agreement in connection with the use of the Services by any person, please contact Telecom Stack at firstname.lastname@example.org. Telecom Stack may investigate any complaints and violations that come to its attention and may take any (or no) action that it believes is appropriate, including, but not limited to issuing warnings, removing the Content or terminating accounts and/or User profiles. Under no circumstances will Telecom Stack be liable in any way for any data or other Content viewed while using the Services, including, but not limited to, any errors or omissions in any such data or Content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or Content.
TERMINATION. If you have purchased a Service for a specific term, such termination will be effective on the last day of the then-current term. Your Order Form may provide that a Renewal Term will begin automatically unless either Party provides notice of termination at least thirty (30) days prior to the commencement of the next Renewal Term. If You fail to comply with any provision of this Agreement, Telecom Stack may terminate this Agreement immediately and retain any fees previously paid by You. Sections 1 and 3 through 15, inclusive, shall survive any termination of this Agreement. Upon any termination of this Agreement, You must cease any further use of the Services. If at any time You are not happy with the Services, Your sole remedy is to cease using the Services and follow this termination process.
PROPRIETARY RIGHTS. Telecom Stack and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks, service marks, logos, and domain names ("Telecom Stack Marks") associated or displayed with the Services. You may not frame or utilise framing techniques to enclose any Telecom Stack marks, or other proprietary information (including images, text, page layout, or form) of Telecom Stack without express written consent. You may not use any meta tags or any other "hidden text" utilising Telecom Stack Marks without Telecom Stack's express written consent.
EXPORT RESTRICTIONS. You acknowledge that the Services or portions thereof may be subject to the export control laws or trade sanction laws of the jurisdiction in which you operate ("Export Control and Sanctions Laws"). You and your End Users may not access, use, export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export control or trade sanctions law or regulation. You represent and warrant that (i) You and your End Users are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria, and the Crimea) and that you and your End Users will not access or use the Services, or export, re-export, divert, or transfer the Services, in or to such countries or territories; (ii) You and your End Users are not identified on any U.S. government restricted party lists (including without limitation the U.S. Treasury Department's List of Specially Designated Nationals and Blocked Persons and Foreign Sanctions Evaders List, U.S. Department of Commerce's Denied Parties List, Entity List, and Unverified List, and the U.S. Department of State proliferation-related lists); and (iii) that no Content created or submitted by You or your End Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. You are solely responsible for complying with the Export Control Laws and monitoring them for any modifications.
NO HIGH RISK USE. The Services are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. The Services shall not be used for or in any HIGH RISK environment.
INJUNCTIVE RELIEF. You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services may cause irreparable injury to Telecom Stack, its Affiliates, suppliers and any other party authorised by Telecom Stack to resell, distribute, or promote the Services ("Resellers"), and under such circumstances Telecom Stack, its Affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
NO WARRANTIES. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED "AS IS" AND TELECOM STACK, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. TELECOM STACK, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. TELECOM STACK DOES NOT ASSUME ANY RESPONSIBILITY FOR THE RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. TELECOM STACK CAN NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICES. USE IS AT YOUR OWN RISK.
INDEMNIFICATION. You agree to indemnify, defend and hold harmless Telecom Stack, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys' fees) arising from Your use of the Services, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other rights of any person or entity or applicable law.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TELECOM STACK OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF TELECOM STACK, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, TELECOM STACKS'S, ITS AFFILIATES', SUPPLIERS' AND RESELLERS' MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
Choice of Law and Forum. This Agreement shall be governed by and construed under the laws of the Republic Of Ireland, Except as provided in Exhibit B, the Parties consent to the exclusive jurisdiction and venue of the state courts located in and serving Berkshire County, Massachusetts and the federal courts in the Western District of Massachusetts.
Waiver and Severability. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
General Provisions. This Agreement embodies the entire understanding and Agreement between the Parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the Parties respecting such subject matter, except that if You or Your company have executed a separate written agreement or you have signed an order form referencing a separate agreement governing your use of the Services, then such Agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such Agreement. Telecom Stack may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. Telecom Stack will exercise commercially reasonable business efforts to provide notice to You of any material changes to this Agreement. Within ten (10) business days of posting changes to this Agreement (or ten (10) business days from the date of notice, if such is provided), they will be binding on You. If You do not agree with the changes, You should discontinue using the Services. If You continue using the Services after such ten-business-day period, You will be deemed to have accepted the changes to the terms of this Agreement. In order to participate in certain Services, You may be notified that You are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Agreement. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.
This Exhibit A to the Terms of Service ("TOS") describes the Services that may be ordered on an Order Form or provided by Telecom Stack and sets forth further Service-specific terms and conditions that may apply to Telecom Stack's provision and Customer's use of the Services. Capitalised terms not defined herein shall have the meanings assigned to them in the TOS.
Definitions. For purposes of this Service Description, the following definitions will apply:
"Administrator" is the individual or individuals who provision the Telecom Stack services using the Telecom Stack administrative portal.
"End User" is the individual who uses the Telecom Stack generated software within Microsoft Office 365 to manage and maintain communication services.
Telecom Stack Connector Services. Telecom Stack Connector services enable Enterprise customers to link their legacy phone systems ("PBX") to interact with Microsoft Teams enterprise collaboration and communication software.
Billing and Invoicing. Telecom Stack will bill You on behalf of Telecom Stack based on the Charges set forth on the Order Form. No adjustment will be made, or credit or refund given.
Taxes. You acknowledge and agree that Telecom Stack Connector Services are subject to certain Taxes and Fees. Accordingly, Telecom Stack shall invoice You for Taxes and Fees associated with the Charges.
Equipment. Telecom Stack does not supply any devices or other equipment used in connection with Your PBX or Microsoft Teams, and accordingly, Telecom Stack does not provide any guarantees as to the quality or operability of such Devices and equipment when used to access Telecom Stack Services.
Managed Domains. To interoperate your PBX to Microsoft Teams, an intermediary system called a Session Border Controller ("SBC") will be used. In the event Telecom Stack provides this SBC You will use a subdomain of Telecom Stack and its wildcard SSL certificate to maintain encrypted communication into the Microsoft Azure cloud where Office 365 software resides. In the event you opt to use Your own domain and Your own SBC, Telecom Stack will not provide domain management services or SSL certification services.
This Exhibit B to the Terms of Service ("TOS") describes the further provisions which apply to the Binding Arbitration and Class Action Waiver.
Disputes. A dispute is any controversy between You and Telecom Stack concerning the Services, any software related to the Services, the price of the Services, Your account, marketing, or communications, Your purchase transaction or billing, or any term of this Agreement, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of Your or Telecom Stack's intellectual property rights. As part of the best efforts process to resolve disputes, and prior to initiating arbitration proceedings, each Party agrees to provide notice of the dispute to the other Party, including a description of the dispute, what efforts have been made to resolve it, and what the disputing Party is requesting as resolution, to email@example.com. Small Claims Court Available. You may initiate an action in your local Small Claims Court if You meets the court's requirements. However, if such a claim is transferred, removed or appealed to a different court, Telecom Stack reserves the right to require arbitration. Arbitration Procedure. Disputes not resolved pursuant to Section A or B shall be resolved through arbitration. The Arbitrator will be selected at the discretion of Telecom Stack and will meet the general guidelines as stipulated under Arbitrator Ireland. Requirement to File Within One Year. Notwithstanding any other statute of limitations, a claim or dispute under this Agreement must be filed in Small Claims Court or noticed for arbitration within one year of when it could first be filed, or such claim will be permanently barred.
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