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TERMS AND CONDITIONS

BY USING ALINE PHONE SYSTEMS SERVICES, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF ALINE PHONE SYSTEMS SERVICES, INCLUDING THE USE OF THE COMMUNICATOR DESKTOP AND MOBILE APP (COLLECTIVELY, THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.  THEN HE/SHE SHOULD NOT ACCEPT THESE TERMS, ENTER INTO ANY ORDER, OR ORDER, ACCESS, OR USE THE Phone Services OR AUTHORIZE OR PERMIT ANY OTHER PERSON TO DO SO.

  1. AGREEMENT AND CONFLICT

THESE TERMS SHOULD BE READ CAREFULLY, AS THEY AFFECT THE PARTIES‘ LEGAL RIGHTS BY, AMONG OTHER THINGS, LIMITING ALINE PHONE SYSTEMS LIABILITY UNDER THE AGREEMENT AND REQUIRING ARBITRATION OF CERTAIN DISPUTES.

On the first occasion that the legal entity in whose name Aline Phone Systems agrees to provide Services (“Customer”) performs any of the following acts, such entity thereby enters into a legally binding contract with Aline Phone Systems (“Aline Phone Systems”), an Ohio corporation, that applies to and governs all sale, provision, acquisition, and/or use of Ordered Products (the “Agreement”): (a) entering into an agreement, order, or other document that incorporates these Aline Phone Systems Terms or otherwise agreeing to or accepting these Aline Phone Systems Terms or (b) accessing or using any Phone Services after being notified that these Aline Phone Systems Terms apply to such Phone Services or to such accessing or use thereof.

The Agreement shall consist of these Aline Phone Systems Terms and all content expressly incorporated herein (these “Terms”) and all Orders, SOWs, and other documents entered into by or on behalf of Customer and Aline Phone Systems or its Affiliate in respect of Customer’s acquisition and/or use of Ordered Products.

These Terms apply with respect to all Orders, all SaaS and Project Services (“Services”), and all equipment ordered or provided under the Agreement (such equipment, “Ordered Equipment”; such Services and equipment together, “Ordered Products”). In the event of any conflict among the documents that comprise the Agreement, the following order of precedence shall apply: (i) an Order (solely as to type, quantity, and pricing of the Services or equipment ordered thereunder); (ii) an SOW (solely as to the performance of the Project Services ordered thereunder and the billing of amounts related thereto); (iii) these Terms; and (iv) Orders and SOWs (as to all other terms).

  1. Phone Services

2.1. Ordering Phone Services. Customer may order Phone Services under the Agreement, in each case by entering into an Aline Phone Systems-prepared written or electronic order for the same with Aline Phone Systems or its Affiliate pursuant to the Agreement (such orders, “Orders”; such Phone Services, the “Ordered Phone Services”).  Orders shall be (a) deemed entered into by, and shall become effective and legally binding on, the Parties upon execution or completion of an electronic Aline Phone Systems process by Customer and (b) coterminous with the Agreement (i.e., shall terminate, renew, and/or expire at the same time as the Agreement, in accordance with Sections 11 (Term and Renewal) and 12 (Termination)).  Upon placement of an Order, the applicable Ordered Phone Services shall be provisioned, a tenant and account shall be automatically created for Customer, and Customer’s designated administrator shall receive email instructions and credentials necessary to access such Ordered Phone Services, assign lines and/or seats to individual users, and otherwise enable Customer to access and use such Ordered Phone Services (“Provisioning”).

2.2. Aline Phone Systems Responsibilities With Respect to Phone Services

2.2.1. Phone Services Availability. Aline Phone Systems shall, itself or through one or more of its vendors, subcontractors, or other service providers (each, a “Partner” of Aline Phone Systems) or Affiliates, (a) make the Ordered Phone Services (which shall substantially conform to the applicable Documentation) available to Customer during the Effective Period as set forth in, and subject to the terms and conditions of, the Agreement and (b) provide standard support for Ordered Phone Services via telephone and web chat during Aline Phone Systems regular business hours.

2.2.2. Phone Services Pricing Commitment. The Service Fee and Regulatory Fee rates for Ordered Phone Services shall be as set forth in the applicable Order, and, during the Initial Term, Aline Phone Systems may not increase any such rates.  Aline Phone Systems may, at the start of any renewal term, increase such rates by up to five percent (5%) above the rates in effect at the end of the immediately preceding Term, provided that Aline Phone Systems may increase Regulatory Fee rates up to then-current list price where Aline Phone Systems related costs have substantially increased.  In addition, Aline Phone Systems may, by providing notification to Customer at least sixty (60) days prior to the commencement of such renewal term, increase Service Fee and/or Regulatory Fee rates for any renewal term up to as much as the then-current list price for the applicable Ordered Phone Services.  Finally, when Customer orders Ordered Phone Services for the first time in a country, such order shall establish the Service Fee rates that Aline Phone Systems must offer for future Orders of the same Ordered Phone Services in that country, provided that such established rates shall increase in parallel with any rate increases under the immediately preceding sentence.

2.2.3. Changes to Ordered Phone Services. Aline Phone Systems may not change Ordered Phone Services in any way that materially reduces their overall functionality or security (based on customary usage in the United States (“US”), except with Customer’s written approval.  Aline Phone Systems may, however, make other changes or perform upgrades to Ordered Phone Services, provided that Aline Phone Systems shall provide advance notification to Customer of any such change or upgrade if reasonably practicable or otherwise promptly thereafter.

2.2.4. Content and Data Protection. Aline Phone Systems shall implement and maintain commercially reasonable administrative, physical, and technical safeguards to protect the content of all communications transmitted, received, and/or stored through any Ordered Phone Services (Customer’s “Content”) from unauthorized access and use. The customer shall remain the owner of its Content. The Parties acknowledge and agree that (a) Aline Phone Systems and its Affiliates’ role with respect to Customer’s Content, if any, shall be that of a passive conduit and (b) neither Aline Phone Systems nor any of its Affiliates or Partners shall be responsible for or have any involvement in determining or creating such Content or determining the recipients or destinations of any communications through Ordered Phone Services.

2.3. Customer Responsibilities With Respect to Phone Services

2.3.1. Customer Subscription Commitment. AS A MATERIAL COMMITMENT UPON WHICH PRICING AND OTHER TERMS OF THE AGREEMENT ARE BASED, CUSTOMER SHALL BE OBLIGATED TO PAY (IN ACCORDANCE WITH SECTION 7 (BILLING AND PAYMENT)) ALL SERVICE FEES, REGULATORY FEES, AND TAXES RELATED TO ORDERED PHONE SERVICES FOR THE ENTIRE PERIOD BEGINNING ON THE EFFECTIVE DATE OF CUSTOMER’S FIRST ORDER AND CONTINUING FOR THE NUMBER OF MONTHS IDENTIFIED THEREIN AS THE “TERM,” “INITIAL TERM,” OR SIMILAR PERIOD (OR, WHERE NO SUCH PERIOD IS SO IDENTIFIED, FOR THIRTY-SIX (36) MONTHS) THEREAFTER) (THE “INITIAL TERM”) AND EACH RENEWAL TERM (CUSTOMER’S “SUBSCRIPTION COMMITMENT”), provided that Customer may reduce in quantity or downgrade (e.g., to a tier with a lower Service Fee rate) Ordered Phone Services for the next renewal term by providing notice of the same to Aline Phone Systems at least forty-five (45) days before the start of such renewal term (“Reduce” or a “Reduction”).

2.3.2. Usage. Customer shall be responsible for and shall pay in accordance with Section 7 (Billing and Payment), any applicable usage charges of the sort set forth at the time of such usage at www.Alinevoice.com/terms/usage.

2.3.3. Use Policy Compliance. The customer accepts and agrees to the Use Policy and shall fulfill all of its obligations, representations, warranties, and covenants thereunder.

2.3.4. Registration Information. Customer shall be responsible for the accuracy and legality of all account, Agent, and registration information (including without limitation Customer’s legal name and payment information, Customer/Agent contact information, and any personal data included therein) (“Registration Information”) and the means of its acquisition.

2.3.5. Network Requirements. The customer shall be responsible for ensuring that all aspects of the applicable network environment(s) adhere to the applicable standards and requirements specified in the Documentation and are configured appropriately to its proposed use of Ordered Phone Services.

2.4. Phone Services Limitations. Customer acknowledges and agrees that (a) the Ordered Phone Services will not be uninterrupted, error-free, or available one-hundred percent (100%) of the time (e.g., they may be unavailable during periods of planned or unplanned downtime and communications may not always be delivered to their intended destination or without loss of data), (b) a single log-in is provided for each Aline Phone Systems extension, and, except with respect to conference and other extensions specifically designed for conference or multi-party use (“Conference Extensions”), such log-in and extension is provided solely for use by a single Agent, (c) data transmitted or stored through the Phone Services may be exported by or on behalf of Customer, Agents, or other users therefrom in a variety of ways (including without limitation via third-party integrations, other features that interoperate with third-party offerings, or local or external download), (d) the Phone Services are not intended to and should not be used for back-up or long-term storage of data, and (e) Aline Phone Systems shall not be responsible for any such exported data or any loss of such stored data.  Use of Aline Phone Systems mobile applications may utilize underlying third-party cellular and/or data services and thus may use such services’ allotted units and/or result in usage or other charges associated with such third-party services.

2.5. Third-Party Offerings and Integrations. Customer’s relationship and dealings (including without limitation any collection or use of data) with providers of non-Aline Phone Systems offerings that interoperate with the Phone Services (e.g., third-party applications for which Phone Services integrations are available) or that are used in connection with the Phone Services (e.g., broadband, MPLS, and equipment leasing services) (“Providers”) shall in each case be governed by Customer’s agreement with the applicable Provider and shall be outside the scope of the Agreement. In no event shall Aline Phone Systems be liable or responsible (a) under any such agreement or for any act or omission of any Provider or any operation of its offering (e.g., any accessing, modification, or deletion of data), regardless of whether Aline Phone Systems endorses, refers Customer to, approves of Customer’s use of, or agrees to bill and/or collect behalf of such Provider or designates any such offering as “certified,” “approved,” “recommended,” etc., (b) for supporting any such third-party offering, or (c) (except as expressly set forth in an SOW) for ensuring the continued availability or operation of any such offering or any Phone Services integrations or other features designed to interoperate therewith, which such integrations or features may be discontinued at any time.

2.6. Suspension and Restriction. In addition to Aline Phone Systems other rights and remedies under the Agreement, Aline Phone Systems may (a) suspend some or all of the Ordered Phone Services where (i) Aline Phone Systems reasonably determines that such suspension is necessary to avoid actual or likely harm or damages to, or liability for, any party, provided that Aline Phone Systems shall promptly notify Customer of such suspension (in advance, if practicable) and Customer shall not be liable for any fees for such Ordered Phone Services for the period of such suspension if not due to Customer’s breach of the Agreement or (ii) Customer has materially breached the Agreement and, if such breach is reasonably capable of cure, has not cured such breach within thirty (30) days of Aline Phone Systems notification to Customer of such suspension and/or (b) place reasonable limitations or restrictions on the use of any Ordered Phone Services that are being used in violation of the Use Policy.  Except as set forth in the foregoing clause (a), no such action by Aline Phone Systems shall relieve Customer of any of its obligations under the Agreement.

  1. EQUIPMENT

3.1. Ordering Equipment. Customer may order equipment, in each case by entering into an Order. The pricing for Ordered Equipment shall be as set forth in the Order under which it was ordered. Equipment-related pricing, discounts, and promotions (e.g., free shipping) provided in an Order shall apply solely to the particular equipment ordered under that Order, and Aline Phone Systems makes no commitment and shall have no obligation with respect to future pricing for or availability of equipment.

3.2. Aline Phone Systems Responsibilities With Respect to Equipment. Aline Phone Systems shall, itself or through its Affiliates or Partners, provide the Ordered Equipment to Customer and pass through to Customer a twelve- (12-) month warranty (or an extended warranty if permitted by the manufacturer) therefor. Customer may return any defective Ordered Equipment covered by warranty by obtaining a return authorization number from Aline Phone Systems and thereafter returning the Ordered Equipment in its original packaging or equivalent to the address specified by Aline Phone Systems, in which case Aline Phone Systems shall replace the Ordered Equipment at no charge and pay the reasonable associated shipping costs.

3.3. Customer Responsibilities With Respect to Equipment. Customer shall, in accordance with Section 7 (Billing and Payment), pay for all Ordered Equipment at the pricing set forth in the applicable Order and for all shipping and related charges. All shipments of Ordered Equipment shall be F.C.A. (free carrier), and title and risk of loss or damage shall pass to Customer upon delivery to the carrier. Customer shall be deemed the importer of Ordered Equipment for all purposes. Customer shall be responsible for all lost, stolen, or broken equipment (except to the extent covered by warranty), and for ensuring that any externally-acquired equipment used with Ordered Phone Services is in reasonable working condition and configured in accordance with Aline Phone Systems technical requirements.

  1. PROJECT SERVICES

Aline Phone Systems may from time to time, in each case in its sole discretion, offer to perform work for Customer related to the configuration or customization of Ordered Phone Services, network assessments, Agent training, or similar work or services (“Project Services”).  Customer may order Project Services under the Agreement (“Ordered Project Services”), in each case by entering into an Order and/or written statement of work for the same with Aline Phone Systems or its Affiliate (an “SOW”).  Aline Phone Systems shall, itself or through its Affiliates or Partners, perform the Ordered Project Services in a professional and workmanlike manner, with reasonable skill and care, and in accordance with the terms of the applicable SOW (which shall set forth the other terms and pricing related to the Ordered Project Services ordered thereunder), provided that Customer’s sole and exclusive remedies for Aline Phone Systems breach of this sentence shall be as set forth in the applicable SOW.  The customer shall pay all fees and other amounts set forth in the applicable Order and/or SOW for Ordered Project Services, in accordance with Section 7 (Billing and Payment) and any other terms set forth in such SOW.

  1. ORDERS AND PARTY AFFILIATES; ALINE PHONE SYSTEMS SUBCONTRACTING

Aline Phone Systems may, in each case in its sole discretion, (a) permit an Affiliate of Customer to order Ordered Products, in which case, with respect to such orders, (i) references to “Customer” in the Agreement shall be deemed to include such Customer Affiliate (as well as Customer) and (ii) Customer shall remain fully, including jointly and severally, liable under the Agreement, (b) designate an Aline Phone Systems Affiliate to enter into one or more Orders or SOWs with Customer, in which case, with respect to such Orders or SOWs (unless otherwise agreed in writing by the Parties), (1) the Agreement’s references to “Aline Phone Systems” shall include such Aline Phone Systems Affiliate (as well as Aline Phone Systems) (provided that the Aline Phone Systems Affiliate shall be deemed to be the service provider under such Orders or SOWs) and (2) Aline Phone Systems shall remain fully, including jointly and severally, liable under the Agreement, and/or (c) subcontract for the performance of Aline Phone Systems obligations under the Agreement, provided that Aline Phone Systems shall remain responsible for performance of such obligations and for such subcontractors’ actions or omissions in performing such obligations.

  1. TAXES

Customer shall be liable and responsible for, and shall pay in accordance with Section 7 (Billing and Payment), all taxes, levies, imports, exports, customs, duties, charges, fees or similar governmental assessments, including value-added tax, sales, use, withholding, public utility, or universal service taxes or fees, and emergency services surcharges (i.e., 911, E911, 999, etc.) assessed or accessible by any governmental, fiscal, or other authority, or recoverable by Aline Phone Systems, in respect of Ordered Products, other than those accessible against Aline Phone Systems based solely on its income (collectively, “Taxes”).  Any Taxes set forth in the Agreement or any quote shall be solely non-binding estimates.  In order to assert an exemption from any Tax, the Customer must deliver to Aline Phone Systems a valid tax exemption certificate authorized by the appropriate taxing authority, in which case Customer shall still be liable for any Taxes assessed prior to such delivery.  To the extent required by law, Customer may deduct amounts from its payment of Billed Amounts for or on account of any Tax and/or withholding imposed by any governmental or fiscal authority, provided that Customer shall (a) provide notice of such requirement to Aline Phone Systems at least thirty (30) days prior to making the deduction, (b) furnish Aline Phone Systems with receipts evidencing remittance of the deducted amounts, and (c) pay such additional amounts to Aline Phone Systems, as applicable, as are necessary to ensure receipt by Aline Phone Systems of the full amount that it would have received but for the deduction.  The customer acknowledges and agrees that Aline Phone Systems may not charge value-added, goods and services, or similar Taxes in certain jurisdictions (such as Australia) that permit reverse charge of such Taxes.  Customer shall account for and remit any such Taxes on Ordered Products in such jurisdictions.

  1. BILLING AND PAYMENT

7.1. Billing of Billed Amounts. Service Fees and other monthly-recurring charges shall start to be billed as of the effective date of the applicable Order. Except to the extent otherwise provided in an Order, such amounts shall be billed monthly, at or near the beginning of the applicable calendar month, provided that when Ordered Phone Services are ordered, Aline Phone Systems or its Affiliate may bill the first thirty (30) days of such amounts for such Ordered Phone Services at or near the time of order. One-time Services charges, including Project Services fees, shall be incurred on the effective date of the applicable Order. Equipment-related charges shall be incurred upon shipment of the Equipment.

7.2. Payment of Billed Amounts. Except as set forth in this Section 7.2 (Payment of Billed Amounts) and Section 6 (Taxes), Customer shall pay all amounts billed to Customer by or on behalf of Aline Phone Systems or its Affiliate in respect of Ordered Products (“Billed Amounts”) without counter-claim, set-off, withholding, or deduction of any sort. If Customer believes in good faith that a Billed Amount was not actually incurred under the Agreement (i.e., was overbilled), then Customer may dispute such Billed Amount by providing notice to Aline Phone Systems by email to billing@alinephonesystems.com within seven (7) days of the date of the first posting of the Billed Amount in the relevant account (where payment is not By Invoice) or the date of the first invoice in which the Billed Amount was invoiced (where payment is By Invoice), which such notice must specify the particular Billed Amount(s) in dispute and the basis of the dispute in reasonable detail. Failure to so dispute a Billed Amount within such period shall constitute a complete and irrevocable waiver of Customer’s right to dispute such Billed Amount. If payment of a Billed Amount is By Invoice and Customer disputes such Billed Amount in good faith in accordance with this Section 7.2 (Payment of Billed Amounts), then Customer may, at its option, either (a) pay such Billed Amount expressly under protest or (b) withhold payment of such Billed Amount, in which case such Billed Amount, if (and only if) actually incurred under the Agreement (i.e., not actually over billed), shall not become due until ten (10) days after Aline Phone Systems determination of the same (if such due date is later than the original due date for such amount). Delinquent Billed Amounts shall begin upon delinquency, accrue interest at the rate of the lesser of one-point-five percent (1.5%) per month or the maximum rate permitted by applicable law. Except as expressly provided otherwise in the Agreement, all payments to Aline Phone Systems or its Affiliate shall be non-refundable and non-creditable.

7.3. Up-Front Payment. At all times during the Effective Period other than those periods for which payment of all Billed Amounts is By Invoice, Customer shall maintain on file with Aline Phone Systems or the billing Aline Phone Systems Affiliate (as applicable) complete, accurate, and up-to-date information for at least one valid, working credit card. Payment of all Billed Amounts shall be by a charge to such credit card(s), at or near the time of billing, and Customer hereby authorizes Aline Phone Systems to make such charges or withdrawals. Where payment is by such charge, (a) Aline Phone Systems shall post a statement of the Billed Amounts in the relevant account at or near the time of the first attempted charge or withdrawal and shall thereafter make commercially reasonable efforts to notify Customer by email and/or telephone if the charge or withdrawal is not successful and (b) Billed Amounts shall be due within fourteen (14) days of such posting.

7.5. Promotions. Promotion, discount, or related codes must be provided to Aline Phone Systems at the time of the relevant order(s), may not be used cumulatively or retroactively, and may be changed or discontinued by Aline Phone Systems at any time in its sole discretion. In no event shall promotional rates or pricing apply for a period longer than a single Term or extend beyond the Term for which they were provided.

  1. CHANGE IN TERMS

Aline Phone Systems may not change these Terms in any manner that would materially reduce Customer’s rights or benefits, or materially increase Customer’s obligations or liability, under the Agreement (i.e., any such change shall not apply to the Agreement), except where Aline Phone Systems provides Customer with at least thirty (30) days’ notice of such change and Customer fails to object (via notice to Aline Phone Systems) to such change before the end of such notice period (in which case the change shall take effect at the end of such period).  Aline Phone Systems may make other changes to these Terms (including without limitation adding Regional Terms for a new country or region) by posting such changes to https://www.alinevoice.com/terms or this web page, which changes shall be effective upon such posting.

  1. GENERAL REPRESENTATIONS AND WARRANTIES; WARRANTY DISCLAIMER

Each Party represents and warrants that it is a bona fide business, has the power and authority to enter into and perform its obligations under the Agreement, and is not relying upon any statements, commitments, representations, or warranties other than those expressly set forth in the Agreement. Customer represents and warrants that its orders or purchases are not contingent on the delivery of any future functionality or feature. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED BY ALINE PHONE SYSTEMS IN THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALINE PHONE SYSTEMS MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES IN RELATION TO THE SERVICES, EQUIPMENT, AND/OR THE AGREEMENT, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE.

  1. RIGHTS IN AND TO THE SERVICES AND FEEDBACK

To the maximum extent permitted by law, all intellectual property and other rights, title, and interest in or to the Documentation or the Services and related software, applications, functionalities, APIs, tools, and interfaces (the “Aline Phone Systems Platform”) – and all configuration designs, code, deliverable, and other work product produced or developed by Aline Phone Systems or its Affiliates or Partners in the course of performing under the Agreement (except to the extent such work product embodies Customer’s pre-existing intellectual property) – shall remain with, and belong exclusively to, Aline Phone Systems, its Affiliates, and/or their licensors. Customer hereby assigns to Aline Phone Systems all intellectual property and other rights, title, and interest in or to any improvement, enhancement, recommendation, correction, or other feedback that Customer may provide to Aline Phone Systems or its Affiliates relating to their operations or the Services or Equipment, and agrees that Aline Phone Systems shall be free to use, license, assign, and exploit any ideas, concepts, know-how, or techniques contained therein for any purpose without restriction or compensation.

  1. TERM AND RENEWAL

The Agreement shall become effective on the date that the Parties enter into the Agreement and continue in full force and effect until the earlier of (a) the date terminated in accordance with Section 12.1 (Exclusive Termination Rights) and (b) the date of expiration as set forth in the next sentence (the “Effective Period”). At the end of each Term, the Agreement, if not earlier terminated in accordance with these Terms, shall:

(i) expire if either Party has elected not to renew the Agreement via express election in an amendment or similar document entered into by the Parties or notice to the other Party at least thirty (30) days prior to the end of such Term;

(ii) automatically renew for a twelve- (12-) month renewal term if neither of the foregoing applies.

  1. TERMINATION

12.1. Exclusive Termination Rights. The Agreement may be terminated:

(a) by either Party with thirty (30) days’ notice to the other Party in the event of the other Party’s material breach of the Agreement (which shall include without limitation any Customer payment delinquency or Customer breach of the Use Policy) and, if such breach is reasonably capable of cure, failure to cure such breach within such notice period, provided that such cure requirement shall not apply with respect to a Customer payment delinquency where there have been two or more such delinquencies;

(b) immediately by either Party upon notice to the other Party where the other Party experiences a Solvency Event;

(c) by Aline Phone Systems with thirty (30) days’ notice to Customer in the event that any Phone Services become subject to an actual or threatened Claim of infringement (an “Infringement Claim”) and avoidance of the alleged infringement via procurement of a license or modification or replacement of the applicable Phone Services (either or both of which may be exercised by Aline Phone Systems, at its sole option and expense, in the event of any Infringement Claim) is not commercially feasible;

(d) by Aline Phone Systems with thirty (30) days’ notice to Customer in the event that Customer objects to any change to these Terms proposed or made by Aline Phone Systems under Section 8 (Change in Terms);

(e) by Aline Phone Systems with thirty (30) days’ notice to Customer in the event that Aline Phone Systems determines in good faith that such termination is necessary to comply with a law, regulation, or court or administrative order or ruling; or

THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 12 (TERMINATION) STATES THE PARTIES’ SOLE AND EXCLUSIVE RIGHTS TO TERMINATE THE AGREEMENT, AND THE AGREEMENT MAY NOT OTHERWISE BE TERMINATED BY EITHER PARTY.  IF TERMINATED BY CUSTOMER FOR ANY OTHER REASON, IMMEDIATE PAYMENT OF THE REMAINING MONTHS BALANCE WILL BE DUE IN FULL UPON RECEIPT OF TERMINATION REQUEST.

12.2. Effect of Termination. Upon any termination of the Agreement for any reason, subject to any continuing Customer financial obligations under the Agreement, all Orders, SOWs, and EPPs shall immediately terminate. In the event that the Agreement is terminated by Customer under and in accordance with clause (a) or (b) – or by Aline Phone Systems under clause (c), (d), or (e) – of Section 12.1 (Exclusive Termination Rights), Customer shall be relieved of its Subscription Commitment for any post-termination period, and Aline Phone Systems shall refund any amounts un-used and pre-paid for Ordered Phone Services for any such period. For clarity, (a) no other termination of the Agreement shall relieve Customer of such commitment (which shall survive any such termination) or entitle Customer to any refund and (b) in no event shall termination or expiration of the Agreement relieve Customer of its obligation to pay any amount incurred thereunder prior to such termination or expiration.

  1. INDEMNIFICATION

Aline Phone Systems shall (a) defend Customer, its Affiliates, and their personnel (collectively, the “Customer Parties”) from and against any Indemnified IP Claim threatened or brought against any of them by any third party and (b) indemnify and hold harmless the Customer Parties against any damages, attorneys’ fees, defense costs, and other losses (collectively, “Losses”) payable by them pursuant to the adjudication or settlement of any Indemnified IP Claim. Customer shall (i) defend Aline Phone Systems, its Affiliates, and their personnel (collectively, the “Aline Phone Systems Parties”) from and against any action, claim, demand, suit, investigation, inquiry, or proceeding (each a “Claim”) threatened or brought against any of them by any third party that arises out of or results from Customer’s Content or any actual or alleged breach of the Agreement by Customer and (ii) indemnify and hold harmless the Aline Phone Systems Parties against any Losses payable by any of them pursuant to the adjudication or settlement of any such Claim. An indemnified party shall (1) provide the indemnifying Party prompt notice upon becoming aware of such a Claim, (2) permit the indemnifying Party to have sole and exclusive control over the defense and settlement of any such Claim, if it elects, and (3) provide reasonable assistance to the indemnifying Party in connection therewith; provided that the indemnifying Party shall not enter into any settlement agreement that would result in any payment or other obligation, or restriction on the business of, the indemnified party without its prior written consent.

  1. EXCLUSIONS AND LIMITATIONS OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (a) NONE OF THE Aline Phone Systems PARTIES SHALL BE LIABLE UNDER THE AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR COVER DAMAGES; LOSS OF PROFITS, REVENUES, OR GOODWILL; OR LOSS OR INTERRUPTION OF BUSINESS, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE AND (b) THE MAXIMUM LIABILITY OF THE Aline Phone Systems PARTIES UNDER THE AGREEMENT, WHETHER ARISING FROM A THEORY OR CLAIM OF BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL IN NO CASE EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAYABLE UNDER THE AGREEMENT FOR THE TWELVE- (12-) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.  THE FOREGOING EXCLUSION AND LIMITATION SHALL APPLY REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND ON A CUMULATIVE (RATHER THAN PER-INCIDENT) BASIS.  CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PRICING AND OTHER TERMS UNDER THE AGREEMENT ARE BASED ON THE FOREGOING EXCLUSION AND LIMITATION.

  1. DISPUTE RESOLUTION

15.1. Pre-Filing Notice. Each Party shall, before initiating an arbitration, court or other action, suit, or proceeding against the other Party, its Affiliate, or their personnel in respect of any Covered Claim (each a “Proceeding”), provide written notice to the other Party describing in reasonable detail its contentions and the specific provisions of the Agreement, if any, allegedly breached. The Parties shall work diligently and in good faith for thirty (30) days following such notice to attempt to resolve the dispute, including without limitation by ensuring that knowledgeable executives of each Party hold at least one meeting (in person or by video- or teleconference) to such end. If the Parties fail to resolve the dispute within such thirty- (30-) day period, either Party may thereafter initiate the Proceeding in accordance with these Terms (and without satisfying any further notice or cure period under the Agreement). FAILURE TO COMPLY WITH THIS SECTION 15.1 (PRE-FILING NOTICE) MAY BE PLEADED AS A FULL AND COMPLETE BAR AND DEFENSE TO AND MAY BE USED AS A BASIS FOR AN INJUNCTION AGAINST, ANY PROCEEDING INSTITUTED IN CONTRAVENTION THEREOF.

15.2. Mandatory Arbitration. (IF CUSTOMER IS DOMICILED IN THE US, THIS SECTION 15.2 (MANDATORY ARBITRATION) SHALL APPLY TO ALL COVERED CLAIMS; OTHERWISE, IT SHALL APPLY TO ONLY COVERED CLAIMS RELATING TO SERVICES PROVIDED IN THE US.) COVERED CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION ADMINISTERED BY AMERICAN ARBITRATION ASSOCIATION (“AAA”). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services provided or billed to Customer if Claims are asserted against Aline Phone Systems in the same proceeding. The arbitration will be conducted under AAA’s published commercial arbitration rules. Customer and Aline Phone Systems agree to bear their own fees, costs, and expenses, including those for any attorneys, experts, and witnesses. The place of arbitration shall be Santa Clara County, California. The language of the arbitration shall be English.

  1. MISCELLANEOUS

16.1. Notices. Except as expressly provided otherwise in the Agreement, any notice to be provided thereunder shall be provided as follows: (a) to Customer – via email to the email address specified by Customer in connection with its initial order of Services or via personal service, overnight courier, or US certified mail (return receipt requested and postage prepaid) (collectively, “Delivery”) to any postal address provided by Customer in connection with such order and (b) to Aline Phone Systems – via email to billing@alinephonesystems.com (for notices of Claims or termination) or Support@alinephonesystems.com (for all other notices) or via Delivery to “Aline Phone Systems, Attn: Customer Service, 3139 Republic Blvd N, Toledo, OH  43615”. Either Party may change any of its designated notice addresses via a notice to the other Party. Notices shall be deemed effective and received as follows: (i) via Email – the first business day after the date sent (without any deliverable notification being returned), (ii) via Personal Service – the first business day after the date delivered to the noticed Party, (iii) via Overnight Courier – the first business day after the date delivered to the overnight courier, and (iv) via US Certified Mail – the fifth (5th) day after the date sent.

16.2. Governing Law; Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of Ohio, without regard to its choice or conflicts of law rules. The Parties agree to submit to the jurisdiction of the state and federal courts within Toledo, Ohio (which jurisdiction shall be exclusive if Customer is domiciled in the US) and waive any objection as to venue or inconvenient forum in such courts.

16.3. Force Majeure. Neither Party shall be considered in breach of, or have any liability under, the Agreement as the result of any failure or delay in such Party’s performance thereunder caused by events beyond such Party’s reasonable control, including without limitation act of God; fire, flood, hurricane, earthquake, tsunami, or other natural disaster; riot; war; terrorism; government action or intervention; embargo; strike; destruction of facilities; late or failed delivery by suppliers; unavailability of power or Internet services; or network or carrier issues, provided that the foregoing shall not apply to either Party’s payment obligations under the Agreement.

16.4. Entire Agreement; Amendment. The documents comprising the Agreement constitute the entire agreement between the Parties in respect of the Ordered Products and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to thereto. The Agreement may not be amended, except via both Parties’ execution of a written amendment thereto or as otherwise expressly provided in these Terms. In no event shall the terms of any purchase order or similar document delivered by or on behalf of Customer or its Affiliate to Aline Phone Systems or its Affiliate in connection with the Agreement (to which Aline Phone Systems hereby objects) become part of, apply to, or modify or supersede the Agreement’s terms.

16.5. Severability. If any provision of the Agreement is deemed illegal, invalid, or unenforceable, in whole or in part, under applicable law, the Agreement shall be deemed amended as and to the extent necessary to render its terms valid, enforceable under applicable law, and, to the greatest extent possible, consistent with the Parties’ original intent.

16.6. Waiver. Except to the extent expressly otherwise provided in the Agreement, (a) either Party’s failure to exercise or enforce any right or remedy under the Agreement shall not constitute a waiver of such right or remedy and (b) no waiver of any right or remedy shall be enforceable against a party unless in writing and otherwise conforming with these Terms.

16.7. Assignment; Binding Effect. The Agreement shall be binding upon the Parties’ heirs, successors, and permitted assigns.  Customer may not assign the Agreement or assign its rights or delegate its obligations thereunder, in whole or in part, except (a) (to the extent in connection with a bona fide sale of Customer or substantially all of its assets to a third party) with ten (10) days’ prior notice to Aline Phone Systems or (b) with Aline Phone Systems prior express written consent.  In connection with any such proposed or actual assignment or delegation by Customer, Customer shall provide such information and documentation concerning the assignee or delegee as Aline Phone Systems might reasonably request.  Aline Phone Systems may assign its rights and/or delegate its obligations under the Agreement, in part or in full, to one or more of its Affiliates.

16.8. No Third-Party Beneficiaries. Except as expressly stated in the Agreement, the Agreement is intended for the sole benefit of, and shall only be enforceable by, each Party and its permitted assigns. Without limiting the foregoing, Aline Phone Systems shall have no obligation or liability hereunder to any Agent or other end-user of Ordered Phone Services.

16.9. Document Execution/Acceptance. Use of PandoDoc, or any other widely-used method of verifiable electronic signature and delivery, shall be a valid method of execution and/or delivery of all documents under the Agreement.  Any document or other content related to or proposed for addition to the Agreement that is prepared by Aline Phone Systems and sent to Customer for acceptance via completion of an electronic Aline Phone Systems process shall be deemed accepted and entered into by Customer upon Customer’s completion of such process.

16.10. Interpretation. The headings in the documents comprising the Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of thereof. References in the Agreement to a web address (URL) shall be deemed to include (a) any sub-pages that are accessible through one or a series of clearly-labeled hyperlinks and (b) such successor sites as may be designated by the owner or controller of the web site.

16.11. Survival. Sections 2.3.1 (Customer Subscription Commitment), 13 (Indemnification), 14 (Exclusions and Limitations of Liability), and 15 (Dispute Resolution) shall survive termination or expiration of the Agreement, as shall any other provision that by its nature is intended to so survive.

16.12. Definitions. When used in these Terms, the following capitalized terms shall have the following meanings:

“Affiliate” – an entity that directly/indirectly controls or is controlled by or under common control with the applicable person.

“Agent” – an individual authorized to use, administer, or perform actions with respect to Ordered Phone Services through Customer’s account (as an agent, administrator, or otherwise), as identified through a unique log-in.

“Covered Claim” – a Claim that one Party intends to assert against the other Party, its Affiliates, or any of their personnel, other than (a) provisional remedies related to Claims related to infringement or misappropriation of intellectual property, (b) Claims of Aline Phone Systems or its Affiliate relating to Billed Amounts not disputed in accordance with Section 7.2 (Payment of Billed Amounts), and (c) Claims that the other Party is expressly required to defend under the Agreement.

“Documentation” – user manuals and technical documentation related to the Phone Services posted to www.Alinevoice.com or otherwise made available by Aline Phone Systems to its customers from time to time, but excluding marketing or promotional materials.

“Indemnified IP Claim” – a Claim alleging that the Phone Services, as used in accordance with the Agreement and the Documentation, infringe any patent, trademark, or copyright enforceable under the laws of the Primary Market or the European Community, excluding any Claim based upon (a) the combination, operation, or use of Phone Services with any non-Aline Phone Systems product, device, service, or software; (b) the alteration or modification of Phone Services other than by Aline Phone Systems or its authorized subcontractors; or (c) Aline Phone Systems or its Partner’s alteration or modification of Phone Services at Customer’s request.

“Party” – each of Aline Phone Systems and Customer (together, the “Parties”).

“Regulatory Fees” – monthly fees (which are not Service Fees, Taxes, or government-imposed charges), including Emergency Services Fees (or E911 Service Fee in the US) and Regulatory Recovery Fees (in the US), charged by Aline Phone Systems or its Affiliate for each number (including without limitation toll free and virtual numbers) associated with telephony Ordered Phone Services, to offset costs incurred by Aline Phone Systems and its Affiliates in complying with inquiries from, and obligations imposed on them by, regulatory bodies and/or governmental agencies.

“Phone Services” – the Aline Phone Systems Phone Service and Communicator App, including all components thereof.

“Service Fees” – the base recurring fees for Ordered Phone Services.

“Solvency Event” – a bankruptcy, reorganization, insolvency, or similar proceeding not dismissed within thirty (30) days; dissolution; becoming insolvent or bankrupt; or the making of an assignment for the benefit of creditors.