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., and Customer as defined in the corresponding Service Order (such Service Order and such subsequent service orders, each an “Order”).

1.SERVICES.

1.1General. During the Term of this Agreement (as defined in Section 2.1 herein), Dialpad agrees to provide the goods and services as described in the applicable Order (“Services”) to Customer primarily via browser-based and/or downloadable software, which includes any updates, enhancements, modifications or new versions of the same (collectively, “Software”). Dialpad may make enhancements and modifications to the Services from time to time, including reassignment of phone numbers when such numbers are no longer available. Dialpad will also use commercially reasonable efforts to provide Customer with Dialpad’s standard support services, through email or telephone, to allow Customer’s continued, uninterrupted use of the Services. Services may be temporarily unavailable for unscheduled emergency maintenance, either by Dialpad or by third-party providers, or because of other causes beyond Dialpad’s reasonable control.

1.2.License Grant. Dialpad grants to Customer a limited, non-exclusive, non- transferable, non-sublicensable (except as provided herein), royalty-free license to use the Software (in object code format only) and the Services solely during the Term (as defined herein). For the avoidance of doubt, the license granted herein authorizes Customer to use the Software and Services for the benefit of Customer’s Affiliates (as defined below) at no additional cost or expense to Customer. Customer may further allow its contractors, agents and any other third party to whom Customer authorizes access to use the Software and Services on its behalf; provided that Customer shall be responsible and fully liable for such parties’ compliance with this Agreement. “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.

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 Dialpad’s website.

1.4Customer Data and Security. Customer will be responsible for maintaining the security of Customer’s credentials (including administrative and end user passwords) and files, and for all uses of Customer’s business account, with or without Customer’s knowledge or consent including through usage of Customer’s 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. Dialpad will take commercially reasonable precautions, including technical (e.g., firewalls and data encryption), administrative and physical measures, to help safeguard Customer Data. “Customer Data” as used herein shall mean data and/or information regarding Customer and its affiliates: (a) provided to Dialpad hereunder; or (b) to which Dialpad has access or control, or which Dialpad has accessed, in each case, in connection with the provision of the Software and Services contemplated in this Agreement, including all personally identifiable information.

1.5Dialpad Compliance. Dialpad will, at its own expense, obtain and maintain any approvals, licenses, filings or registrations necessary to perform its obligations pursuant to this Agreement.

1.6Technical Support Services. Customer will respond to questions and complaints from its end users or third parties relating to use of the Services. Customer will use commercially reasonable efforts to resolve any support issue and if Customer is unable to resolve such support issue, then Customer may escalate such issue to Dialpad’s Customer Support Department (support@dialpad.com or https://dialpad.com/contact-support).

2.TERM AND TERMINATION.

2.1Term. Term. 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 (“Term”).

2.2Termination.

(a) 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 at the end of the cure period.

(b) Either party may terminate this Agreement immediately by written notice if the other party: (i) becomes insolvent; (ii) makes an assignment for the benefit of creditors; (iii) files or has filed against it a petition in bankruptcy or seeking reorganization; (iv) has a receiver appointed; (v) institutes a proceeding for liquidation or winding up; or (vi) breaches its confidentiality obligations herein.

2.3 Effect of Termination. In the event of a material breach of this Agreement by Dialpad, Customer shall be entitled to a refund for amounts prepaid for Services not rendered prior to termination. In the event of a material breach of this Agreement by Customer, including non-payment of any Service Fees, any other fees and/or charges, Customer agrees to pay Dialpad all Service Fees for the Service Term, including all related taxes, surcharges, fees and other charges. All sections of this Agreement which by their nature should survive termination will survive termination, including 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. All payments for Services under this Agreement shall be made free and clear and without deduction for all present and future Taxes. “Taxes” means all income withholding taxes, levies, imposts, duties, fines or other charges of any nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement, or any instrument or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes as are imposed on or measured by a party’s net income or property. Payments due to Dialpad under this Agreement shall be increased so that amounts received by Dialpad, after provisions for Taxes and all Taxes on such increase, will be equal to the amounts required under this Agreement if no Taxes were due on such payments. Taxes will be stated separately on the invoice. Fees are exclusive of taxes, and Customer will pay or reimburse Dialpad for any Sales, Use, VAT or similar transaction taxes which Dialpad is required to charge by law to collect unless Customer provide Dialpad with a valid certificate of exemption. Without prejudice to the survival of any other obligation of Customer hereunder, the obligations of Customer contained in this section shall survive the payment in full of all payments hereunder.

For purposes of clarification, Customer may self-provision additional licenses and the fees for such licenses shall be invoiced by Dialpad to Customer throughout the applicable Service Term during which such licenses are provisioned. The term for such self-provisioned licenses shall commence on the applicable provision date and be coterminous with the then current Initial Service Term or Renewal Service Term, as applicable, as set forth in the respective Order. The initial invoice for such self-provisioned licenses shall reflect prorated fees for the then-current billing cycle and include a pre-payment for the next billing cycle, and fees for subsequent Renewal Service Terms shall be included in the applicable invoice sent by Dialpad for the remainder of the term of the applicable Order.

3.2 Payment Terms. The applicable Order specifies when payment shall be due and the method of payment. Dialpad offers payment via invoice or credit card, provided that all fees for Professional Services will be invoiced. Customers who pay via credit card shall enter credit card information directly into the Billing Admin portal, and all charges are made automatically, in advance. For Customers who pay based on an invoice, Customer agrees to pay all invoices within the timeframe specified in the “Payment Terms” provision of the applicable Order. For clarity: (a) all invoices must be paid via ACH/EFT/Wire and are not permitted to be paid via credit card; (b) Subscription Services and One-Time Services are invoiced in advance; and (c) porting fees and calling credit recharges are invoiced in arrears. Any charges for bank wire transfer, credit card chargeback or dispute fees, or any other fees associated with making payment, are to be borne by Customer. Payment is deemed to be made on the date payment is received. In the event of late payment of undisputed amounts, 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 two percent (2%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.

3.3 Billing 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 regarding such charges. Written statements disputing charges must be emailed to Dialpad’s Customer Support Department at support@dialpad.com.

3.4 Acceleration of Payments
. In the event Customer fails to remit payment for Service Fees in accordance with the payment terms set forth in the Order(s) and fails to cure such material breach as provided herein, Customer shall promptly pay Dialpad all Service Fees for the Services for the Service Term, including all taxes, surcharges, fees, finance charges, and other charges within thirty (30) days of receipt of invoice for such amounts from Dialpad. Further, in the event of any action by Dialpad to collect any amount not paid when due, Customer will pay or reimburse Dialpad’s costs of collection (including any reasonable attorneys’ fees and court costs).


4.CONFIDENTIALITY.

4.1 Confidential 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.” In addition, “advisors” means each party’s attorneys and accountants, and any subcontractor or advisor subject to such party’s non-disclosure agreement containing terms substantially similar to this Agreement. “Confidential Information” is nonpublic information relating to the business or affairs of the discloser or its Affiliates, including know-how and trade secrets, in any form, that are designated as “confidential,” or that a reasonable person knows or reasonably should understand to be confidential, as well as this Agreement. 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.

4.2 Standard of Care. The recipient agrees:

(a) To use the same degree of care that the recipient uses, but not less than a reasonable degree of care, to protect the discloser’s Confidential Information from unauthorized use, dissemination publication or disclosure;
(b) To use Confidential Information only as needed for the purpose of the business relationship between the parties;
(c) Not to disclose Confidential Information to any third party other than its advisors who have a need to know;
(d) Not to reverse engineer, decompile or disassemble the Confidential Information, except and only to the extent that applicable law expressly permits, despite this limitation;
(e) To immediately notify discloser of any intended or unintended, unauthorized disclosure or use of any Confidential Information by the recipient or any other person or entity of which the recipient becomes aware;
(f) That the discloser may seek a court order to prevent Confidential Information from becoming public in breach of this section; and
(g) To return or destroy the Confidential Information of the discloser, within ten (10) days after written request from the discloser, except that the recipient may retain one (1) archival copy of the Confidential Information as may be required by regulatory, legal, or record retention requirements, provided that any retained Confidential Information remains subject to the confidentiality obligations outlined in this Agreement.

4.3 Exceptions
. The obligations set forth in this section shall not apply to Confidential Information:
(a) that is, at the time of disclosure by the discloser, or becomes, subsequent to such disclosure, publicly available without a breach of this Agreement;
(b) that was lawfully known to the recipient, its advisors or any of its Affiliates without an obligation to keep it confidential;
(c) that is received by recipient, its advisors or any of its Affiliates from a third party lawfully possessing and entitled to disclose such information;
(d) that is independently developed by recipient, its advisors or any of its Affiliates without use of any Confidential Information; or
(e) that must be disclosed pursuant to applicable federal, state or local law, regulation, court order or other legal process, provided that: (i) the recipient shall, where permitted by law, provide the discloser with prompt written notice so that the discloser may seek a protective order or other appropriate remedy; and (ii) the recipient shall furnish only that portion of the Confidential Information that is, in the reasonable opinion of its counsel, legally compelled.

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


6.1 Mutual.
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; and (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. Furthermore, Dialpad warrants that its provision of, and Customer warrants that its use of, the Services is in compliance with applicable law and regulations, including federal, state, and local statutes, ordinances, and regulations, including tax and license fees of federal, state and local governmental agencies or bodies.

6.2 Dialpad.
Dialpad shall use commercially reasonable efforts to maintain the Services in a manner which minimizes errors and interruptions in the Services. Customer acknowledges that: (a) Dialpad only supports the desk phones set forth at https://help.dialpad.com/ hc/en-us/articles/115002035703-Supported-Desk-Phones; (b) the inability to use the Services on any phones not outlined therein shall not be deemed a breach of this Agreement by Dialpad; and (c) any phones provided by Dialpad shall only be covered by the phone manufacturer’s warranty, if any. NEITHER DIALPAD NOR ITS LICENSORS WARRANTS THAT ANY DIALPAD-SUPPORTED DESK PHONES (WHETHER PURCHASED DIRECTLY FROM DIALPAD OR NOT) WILL BE COMPATIBLE WITH ANY CUSTOMER APPLICATION OR ENVIRONMENT OR WILL OTHERWISE MEET CUSTOMER'S REQUIREMENTS. 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. EXCEPT AS EXPRESSLY PROVIDED HEREIN, DIALPAD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

6.3 Customer.
Customer shall maintain sufficient Internet access, network connectivity and power to enable use of the Services. Customer represents and warrants to Dialpad that it owns or has the right to use the Marks (as defined below) 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, its affiliates, officers, agents, employees, and partners from and against all claims, liabilities, damages, losses and expenses (including reasonable attorneys’ fees) arising from or in any way related to any 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: (a) obtain for Customer the right to continue use of the Services; (b) replace or modify the Services so that it is no longer infringing; or (c) if neither of the foregoing options is reasonably available, terminate the Services, 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 Services applicable to the remaining period in the then-current Service Term. Dialpad’s indemnification obligations under this Section 7.1 are expressly conditioned on: (i) Customer providing prompt notice to Dialpad of any applicable claim; (ii) Dialpad retaining the unconditional option to control the defense and settlement of any such claim; and (iii) Customer providing reasonable assistance (at Dialpad’s expense) in the defense and settlement of such claim. Dialpad will have no indemnification obligation for Claims arising from: (x) Customer’s or any Authorized User’s use of the Services other than as permitted under this Agreement; (y) the combination of the Services with any products, services, hardware, data, or business process not provided by Dialpad; or (z) 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 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 are expressly conditioned on: (i) Dialpad providing prompt notice to Customer of any applicable claim; (ii) Customer retaining the unconditional option to control the defense and settlement of any such claim; and (iii) Dialpad providing 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, EVEN IF THE A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S LIABILITY ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM, THIS AGREEMENT WILL 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 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, third-party telecommunications networks, subprocessor failure, Internet virus attack, insurrection, riot, invasion, strikes, or lockouts (each, a “Force Majeure Event”), then it shall be excused from further performance under this Agreement for the duration of such Force Majeure Event 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. For purposes of clarification, the occurrence of a Force Majeure Event shall not excuse Customer’s obligation to pay for the Services under this Agreement unless Dialpad is unable to provide such Services as a result of such Force Majeure Event.

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. PUBLICITY RIGHTS
. Customer agrees that Dialpad may identify Customer as a user of the Services on Dialpad’s website or any third-party website where Dialpad or its designated agents may promote the Services, in its business deals, press releases, marketing materials, advertising, newsletters, mailings, tradeshows, other promotional materials, and on Dialpad’s website or any other third- party website where Dialpad or its designated agents may promote the Services. Customer hereby grants Dialpad and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Customer's name, trademarks, service marks, designs, logos, and symbols (collectively, “Marks”) in connection with such purpose. Upon successful implementation of the Services by Customer: (a) Dialpad may issue a press release regarding Customer’s use of Dialpad’s Services after thirty (30) days of successful implementation; and (b) Customer agrees to participate in a Dialpad customer case study, help with customer references, and provide quotes for marketing purposes. All participation and content will be pre-approved by Customer, which consent shall not be unreasonably withheld.

13. OTHER PROVISIONS


13.1 Governing Law & Venue
. This Agreement is subject to and is governed by and construed in accordance with the laws of the State of California, USA, without regard to its conflicts of laws provisions. Any dispute arising from or relating to the subject matter of this Agreement 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.

13.2 Waiver.
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.

13.3 Assignment.
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.

13.4 Notice.
All notices, requests, demands, and determinations under the Agreement and Order (other than routine operational communications), shall be in writing and shall be deemed duly given upon receipt and may be delivered by: (i) hand; (ii) express courier with a reliable system for tracking delivery; (iii) electronic mail with confirmed receipt by the other party, or (iv) United States mail, registered or certified mail, return receipt requested, postage prepaid, and addressed to the parties as set forth in the Order. Notices to Dialpad shall be addressed to: Dialpad, Inc., 3001 Bishop Dr., Suite 300, San Ramon, CA 94583, Attn: Legal, with a copy to legal@dialpad.com.

13.5 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 General Terms and Conditions and the terms of an Order, the Order shall prevail, but only as limited to the specific provision which conflicts with the General Terms and Conditions. Furthermore, if 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.

Last Updated September 2, 2021