General Terms and Conditions

These General Terms and Conditions are incorporated by reference into and made part of the Master Services Agreement (“Agreement”) by and between Dialpad, Inc. (“Dialpad”), and customer (“Customer”) identified in the corresponding Service Order (“Order”). For purposes of clarification, Customer shall include employees, contractors, agents, and anyone else to whom Customer provides access to the Services.

1.SERVICES.

1.1General. Subject to the terms and conditions of this Agreement, Dialpad agrees to provide the Services to Customer via browser-based and/or downloadable software. During the term of the Agreement, Dialpad may make enhancements to the Software and Services. In connection with any such enhancements, Dialpad will use commercially reasonable efforts to provide Customer with support services, through electronic mail or telephone, in accordance with Dialpad’s standard practice, to allow Customer’s continued uninterrupted use of the Software and Services during the term of this Agreement. For purposes of this Agreement, the “Services” means any and all services provided or performed by or on behalf of Dialpad as further described in the applicable Order, and the “Software” means any and all software provided by Dialpad to Customer in connection with the Services, including any updates, modifications, enhancements, or new versions of the same.

1.2.License Grant. Subject to the terms and conditions of this Agreement, Dialpad grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to use the Software and the Services solely during the Term (as defined in Section 2.1 herein), in object code format only. For the avoidance of doubt, the license grant provided herein authorizes Customer to use the Software and Services for the benefit of Customer’s subsidiaries at no additional cost or expense to Customer.

1.3Access to Dialpad Software and Services. Customer shall select an in-house administrator (“Customer Administrator”) of its business account who will grant and manage access to individual employees or end users, and where applicable, Dialpad (or its agent) may act as Customer Administrator of Customer’s business account if authorized by Customer. The Customer Administrator will have access to the settings for its end users’ accounts and will have the option to select the area code(s) and phone numbers for its end users. Upon account creation by the Customer Administrator, end users will be able to use the provided numbers and may change account settings or profile information by logging in to their accounts through the Dialpad’s website.

1.4Customer Data and Security. Customer will be responsible for maintaining the security of Customer credentials (including but not limited to administrative and end user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent through usage of Customer credentials due to any security breaches of Customer’s systems, except to the extent any such breach was the direct result of Dialpad’s failure to fulfill its obligations hereunder. Customer shall be solely responsible for collecting, entering and updating the Customer Data. “Customer Data” as used herein shall mean data and/or information regarding Customer and its affiliates provided to Dialpad hereunder, or to which Dialpad has access, or which Dialpad has accessed or controls, in connection with the provision of the Software and Services contemplated in this Agreement, including all personally identifiable and other information.

1.5Dialpad Compliance. Dialpad will, at its own expense, (a) obtain and maintain any approvals, licenses, filings or registrations necessary to perform its obligations pursuant to this Agreement, and (b) comply with all applicable local, state, federal and foreign laws.

1.6Technical Support Services. Customer and Customer Administrator will respond to questions and complaints from end users or third parties relating to Customer’s or end users’ use of the Services. Customer will use commercially reasonable efforts to resolve support issues before escalating them to Dialpad. If Customer cannot resolve a support issue, then Customer may escalate the issue to Dialpad’s Customer Support Department (support@dialpad.com).

2.TERM AND TERMINATION.

2.1Term. This Agreement commences on the Effective Date and, unless earlier terminated pursuant to the terms of this Agreement, will continue for so long as there is an Order or Statement of Work in effect between the parties (the “Term”).

2.2Termination.

(a) For Cause.

(i) In the event of a material breach of this Agreement, which is not cured within thirty (30) days of written notice thereof (or ten (10) days in the case of nonpayment), the non-breaching party may terminate this Agreement upon receipt of written notice.

(ii) Either party may terminate this Agreement immediately by written notice if the other party (A) becomes insolvent, (B) makes an assignment for the benefit of creditors, (C) files or has filed against it a petition in bankruptcy or seeking reorganization, (D) has a receiver appointed, (E) institutes a proceeding for liquidation or winding up, or (F) breaches its confidentiality obligations herein.

(b) Effect of Termination. Customer agrees to pay Dialpad all undisputed fees for the Services up to and including the last day on which the Services are provided. All sections of the 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.

3.FEES.

3.1Fees. In consideration for the Software and Services provided by Dialpad, Customer will pay Dialpad the fees in accordance with the terms set forth in the applicable Order, or the Services may be suspended or terminated. The fees include all applicable recovery, foreign, U.S. federal, state, local municipal and other governmental taxes, duties, levies fees, excises or tariffs of any kind that may arise in connection with this Agreement (collectively “Taxes”). Taxes will be stated separately on the invoice. For purposes of clarification, Customer may self-provision additional licenses and such license fees shall be invoiced by Dialpad to Customer throughout the Service Term as such licenses are provisioned. The Service Term for such self-provisioned Services shall have a term equal to the provision date through the latest service order end date as set forth in its respective Order. The initial invoice for such self-provisioned licenses shall be prorated for the initial year of Services to be coterminous with the service start date or anniversary date of the service start date, as applicable, and shall subsequently be included in the annual invoice sent by Dialpad for the remainder of the term of the applicable Order.

3.2Payment Terms. The applicable Order specifies when payment of invoices shall be due and Customer agrees to pay all invoices within the timeframe specified in the “Payment Terms” provision of the applicable Order. Payment is deemed to be made on the date payment is received. Customer may elect to either (1) receive invoices and make payments by check or transfer of funds (ACH/EFT/Wire); or (2) pay by credit card. Customers who elect to be invoiced may only pay by ACH/EFT/Wire, and may not pay by credit card. Any charges for bank wire transfer are to be borne by Customer. In the event of late payment, access to the Service may be suspended or terminated following notice of failure to pay. Further, unpaid fees are subject to a finance charge of 1% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.

3.3Billing Disputes. Disputes for any charges for the Services must be made in writing to Dialpad within thirty (30) days of the date of the invoice by Dialpad. Failure to provide a written statement explaining in reasonable detail the reasons for disputing the charge(s) within such time period, irrevocably waives any objection and further recourse with regard to such charges. Written statements disputing charges must be directed to Dialpad’s Customer Support Department and sent to support@dialpad.com.


4.CONFIDENTIALITY.

4.1Confidential Information. Neither party will use or disclose to third parties the other’s Confidential Information (as defined below) unless permitted by this section. The party disclosing Confidential Information is the “discloser” and the party receiving confidential information is the “recipient.” “Advisors” (or “advisors”) means either party’s attorneys and accountants, and any other subcontractor or advisor subject to such party’s non-disclosure agreement containing terms substantially similar to this Agreement. “Affiliates” (or “affiliates”) means any company, existing now or in the future, owning at least fifty percent (50%) or majority owned by, either directly or indirectly, or controlling, controlled by or under common control with either party, as long as such ownership or control exists, and their directors, officers and employees. “Confidential Information” is nonpublic information, know-how and trade secrets in any form that are designated as “confidential,” or a reasonable person knows or reasonably should understand to be confidential. Confidential Information is provided to the recipient “as is” without any warranties of any kind. For the avoidance of doubt, the Software shall be deemed Dialpad’s Confidential Information subject to the obligations of this Section 4.

4.2Not Confidential Information. The following types of information, however marked, are not Confidential Information:

(a) Information that is, or becomes, publicly available without a breach of this Agreement;

(b) Information that was lawfully known to the recipient, its advisors or any of affiliates of the information without an obligation to keep it confidential;

(c) Information that is received by recipient, its advisors or any of its affiliates from another source who can disclose it lawfully and without an obligation to keep it confidential;

(d) Information that is independently developed by recipient, advisors or any of its affiliates; or

(e) must be disclosed pursuant to applicable federal, state or local law, regulation, court order or other legal process.

4.3 Limits on Use of Confidential Information. The recipient agrees it will:

(a) Not disclose the discloser’s Confidential Information to third parties;

(b) Use and disclose the discloser’s Confidential Information to individuals as set forth herein solely for the purpose of the business relationship between the parties; and

(c) Not reverse engineer, decompile or disassemble the discloser’s Confidential Information, except and only to the extent that applicable law expressly permits, despite this limitation.

4.4Standard of Care. The recipient agrees:

(a) To take reasonable steps to protect the discloser’s Confidential Information, and these steps must be at least as protective as those the recipient takes to protect its own Confidential Information, and no less than a reasonable standard of care;

(b) To notify the discloser promptly upon discovery of any unauthorized use or disclosure of discloser’s Confidential Information; and

(c) To cooperate with the discloser to help regain control of the Confidential Information and prevent further unauthorized use or disclosure of it.

4.5Other Permitted Disclosures and Requirements.

(a) The recipient may disclose the discloser’s Confidential Information to representatives and affiliates only if they have a need to know about it for the purpose of the business relationship between the parties. Before doing so, the recipient must ensure that the affiliates and representatives are required to protect the discloser’s Confidential Information on terms consistent with this Agreement, and recipient shall take all responsibility for each representative’s use of Confidential Information.

(b) The recipient may disclose the discloser’s Confidential Information if required to comply with a court order or other government demand that has the force of law.

(c) Each party acknowledges that money damages may not be sufficient compensation for a breach of this section. Each party agrees that the other may seek court orders to prevent Confidential Information from becoming public in breach of this section. Each Party agrees that it will confirm compliance with the obligations of this Section 4 if so requested by the other party in writing.

5.PROPRIETARY INFORMATION. Dialpad’s proprietary information shall remain the sole and exclusive property of Dialpad. Customer’s proprietary information shall remain the sole and exclusive property of Customer. In the event that Customer provides any feedback, ideas, or suggestions to Dialpad regarding the Services (collectively, “Feedback”), Customer acknowledges and agrees that Dialpad shall have the unrestricted right to use such Feedback in Dialpad’s sole discretion and that any patent, trademark, intellectual property, or other ownership rights in any improvements or modifications to the Software and/or Services, whether or not resulting from or incorporating any such Feedback, shall belong to and be retained solely by Dialpad.

6.REPRESENTATIONS, WARRANTIES AND DISCLAIMER.

6.1Mutual. Each party represents and warrants to the other party that: (a) it has the power, authority and legal right to make, deliver and perform the obligations set forth herein and to its knowledge, no other agreement conflicts with the terms set forth herein; (b) the execution of this Agreement has been duly authorized and executed and is, or upon delivery will be a legal, valid and binding obligation enforceable in accordance with its terms, and (c) its respective provision and use of the Services is in compliance with applicable law and regulations, including but not limited to federal, state, and local statutes, ordinances, and regulations, including tax and license fees of federal, state and local governmental agencies or bodies.

6.2Dialpad. Dialpad shall use commercially reasonable efforts to maintain the Services in a manner which minimizes errors and interruptions in the Services. Customer acknowledges that Dialpad only supports the desk phones set forth at https://help.dialpad.com/hc/en-us/articles/115002035703-Supported-Desk-Phones and the inability to use the Services on any phones not outlined therein shall not be deemed a breach of the Agreement by Dialpad. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Dialpad or by third-party Dialpads, or because of other causes beyond Dialpad’s reasonable control. HOWEVER, DIALPAD 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. THE SERVICES ARE PROVIDED “AS IS” AND DIALPAD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

6.3Customer. Customer represents, covenants and warrants to Dialpad that it owns or has the right to use the trademarks and Customer Data as contemplated herein, and will use the Services only in compliance with applicable law, Dialpad’s Acceptable Use Policy available at www.dialpad.com/legal/#aup, Dialpad’s Privacy Policy available at www.dialpad.com/legal/#privacy and Dialpad’s Copyright Dispute Policy available at https://www.dialpad.com/legal/#copyright.

7.INDEMNIFICATION.

7.1 Dialpad agrees to indemnify, defend and hold harmless Customer from and against all claims, liabilities, damages (actual and consequential), losses and expenses (including reasonable attorneys’ fees) arising from or in any way related to any unaffiliated third party claims (“Claims”) relating to actual infringements or misappropriation of any third party intellectual property or other proprietary rights in the use of the Software or Services provided to Customer under this Agreement. The foregoing is Dialpad’s exclusive obligation for infringement claims. If Dialpad becomes aware of a Claim alleging infringement of misappropriation, or Dialpad reasonably believes such a Claim will occur, Dialpad may, at its sole option: (i) obtain for Customer the right to continue use of the Service(s); (ii) replace or modify the Service(s) so that it is no longer infringing; or, (iii) if neither of the foregoing options is reasonably available, terminate the Service(s), in which Dialpad’s sole liability, in addition to the indemnification obligations outlined above, shall be to refund to Customer a prorated amount of prepaid fees for the Service(s) applicable to the remaining period in the then-current Service Term. Dialpad’s indemnification obligations under this Section 7.1 are expressly conditioned on Customer providing: (a) prompt notice to Dialpad of any applicable claim; (b) Dialpad retains the unconditional option to control the defense and settlement of any such claim, and (c) reasonable assistance (at Dialpad’s expense) in the defense and settlement of such claim. Dialpad will have no indemnification obligation for Claims arising from: (i) Customer’s or any Authorized User’s use of the Services other than as permitted under this Agreement; (ii) the combination of the Services with any products, services, hardware, data, or business process not provided by Dialpad; or (iii) the modification of the Services by any party other than Dialpad or Dialpad’s agents, or modification by Dialpad or Dialpad’s agents in accordance with Customer’s instructions.

7.2 Customer agrees to indemnify, defend and hold harmless Dialpad, its affiliates, officers, agents, employees, and partners from and against all claims, liabilities, damages (actual and consequential), losses and expenses (including reasonable attorneys’ fees) arising from or in any way related to any third party claims relating to (a) Customer’s use of the Services (including any actions taken by a third party using Customer’s account), and (b) Customer’s violation of applicable law and regulations. Customer’s indemnification obligations under this Section 7.2 are expressly conditioned on Dialpad providing: (i) prompt notice to Customer of any applicable claim; (ii) Customer retains the unconditional option to control the defense and settlement of any such claim and (iii) reasonable assistance (at Customer’s expense) in the defense and settlement of such claim.

8.LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND RESULTING FROM ITS PERFORMANCE OR ANY FAILURE TO PERFORM UNDER THIS AGREEMENT. EXAMPLES INCLUDE LOSS OF ANTICIPATED PROFITS OR BENEFITS, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S LIABILITY ON ANY CLAIM OF ANY KIND FOR LOSS OR DAMAGE ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT WILL IN NO CASE EXCEED, IN THE AGGREGATE, THE GREATER OF (A) ONE HUNDRED THOUSAND DOLLARS, OR (B) THE FEES PAID OR PAYABLE TO DIALPAD HEREUNDER IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9.FORCE MAJEURE. If either party is prevented from completing performance of any or all of its obligations under this Agreement by any cause or causes beyond its reasonable control, including but not limited to acts of God, acts or omissions of any government or any rules, regulations, or orders of any governmental authority or any officer, department, agency, or instrument thereof, fire, storm, earthquake, accident, acts of the public enemy, war, rebellion, Internet brownout, Internet virus attack, insurrection, riot, invasion, strikes, or lockouts (a “Force Majeure Event”), then it shall be excused from further performance under this Agreement upon notice to the other party, stating the reason for nonperformance. If such Force Majeure Event lasts more than ten (10) business days, either party may terminate this Agreement immediately and Customer shall be entitled to a refund for amounts paid for Services not rendered prior to termination.

10.MODIFICATIONS. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.

11.INDEPENDENT CONTRACTOR. Dialpad is an independent contractor for all purposes, without express or implied authority to bind Customer by contract or otherwise. Neither Dialpad nor its employees, agents or subcontractors are agents or employees of Customer. Dialpad will be responsible for all costs and expenses incident to performing its obligations under this Agreement and will provide its own supplies and equipment.

12.OTHER PROVISIONS.

12.1Governing Law & Venue. This Agreement is subject to and is governed by and construed in accordance with the laws of the State of California, U.S.A., without regard to its conflicts of laws provisions. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be mutually agreed upon from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California.

12.2Waiver. Any delay or failure by either party to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy. If any provision of this Agreement is unenforceable, the parties (or, if they cannot agree, a court) will revise that provision so that it can be enforced.

12.3Assignment. Neither party may assign this Agreement or any of its obligations hereunder without the prior written consent of the other party, except that a party may make such an assignment in connection with a bona fide reorganization or sale of its business (provided, however, that the assigning party in such an instance shall provide written notice to the other party of such assignment). Subject to the preceding sentence, this Agreement, and the rights and obligations hereunder, shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

13. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE. This Agreement is the entire agreement between Customer and Dialpad and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any inconsistency between the provisions of the following documents, the inconsistency shall be resolved by giving precedence in the following order: (1) the Order and all subsequent amendments thereto; (2) Documents incorporated into the Order in the order in which they are listed; (3) these General Terms and Conditions. In the event such inconsistency relates to modification of the Indemnification, Proprietary Information, Representations, Warranties and Disclaimer, or Limitations of Liability Sections herein, then such modification must specifically state that it is amending this Agreement as so stated.

14. NOTICE. All notices, requests, demands, and determinations shall be subject to the notice provisions set forth in the Order.

Last Updated October 14, 2019