MAVENIR BUSINESS MESSAGING SOLUTION TERMS AND CONDITIONS
IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITE AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE “SERVICES”) OF MAVENIR SYSTEMS, INC. (“MAVENIR”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
THESE TERMS AND CONDITIONS GOVERN YOUR USE OF THE SERVICE. YOU MAY BE REQUIRED TO ENTER INTO A SEPARATE DEFINITIVE AGREEMENT FOR FURTHER USE OF THE SERVICE, AND THOSE TERMS SHALL GOVERN SUCH USE.
BY CLICKING/CHECKING THE “I AGREE” BUTTON/BOX, ACCESSING THE MAVENIR BUSINESS MESSAGING SOLUTION ADMINISTRATION WEBSITE, OR BY UTILIZING THE MAVENIR SERVICES YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE (THE “AGREEMENT” OR “TOS”). THE MAVENIR SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS OF SERVICE.
1.1 Terms and expressions used in this Agreement have the meanings below.
“Mavenir Infrastructure” means any equipment and software of Mavenir (or its third party suppliers) used by Mavenir to provide the Services.
“Cloud Software” means Mavenir proprietary software that may be accessed by Customer solely in connection with the use of the Services but excluding any Third Party Software.
“Affiliate” means a parent company, a subsidiary company, or a subsidiary of a parent company, which has a direct or indirect ownership interest of not less than 50% of voting shares in a party.
“Applicable Law” means all laws, rules and regulations, and all orders, judgments, decrees or other determinations of any governmental authority or arbitrator that are applicable to, or binding upon, Mavenir, its suppliers, or Customer, or to which the parties are subject.
“Confidential Information” means secret, proprietary, or confidential commercial, financial, marketing, technical, or other information of either party or its Affiliates, excluding the content of any mobile messages, but including, without limitation: the terms of this Agreement, information relating to a party’s business, functional and technical documentation relating to the Services, know-how, trade secrets, and other proprietary information in any form or medium whether disclosed orally or in writing before or after the Effective Date of this Agreement, together with any reproduction of this information.
“Customer Data” means any content or data originating with, provided by, or supplied by or through Customer, its Subscribers, or its third party suppliers, this includes, but is not limited to: (i) any patent, trademark, copyright or other Intellectual Property Rights therein; (ii) any Customer Confidential Information; or (iii) any personal data, personally identifiable information, or any information that could, considered individually or in combination with other information, identify a natural person.
“Customer Infrastructure” means any equipment, software (other than Mavenir supplied equipment or software) that is provided by or in the control of Customer or is otherwise introduced by Customer including any Third-Party Software that Customer acquires, implements or controls.
“Intellectual Property Rights” means any and all rights anywhere in the world in or to any patents, registered designs, trade marks and service marks (whether registered or not), copyrights, database rights, design rights, and all similar enforceable property rights including those subsisting in inventions, designs, drawings, performances, computer programs, code, semi-conductor topographies, confidential information, business names, goodwill and the style and presentation of goods or services and in applications for protection of any of these rights.
“Services” or “Cloud Services” means the cloud based services as more particularly described in the Mavenir Business Messaging Solution Service Description to be provided after the acceptance of these Terms of Service.
“Subscriber” means any individual or corporate customer of Customer who subscribes for Customer services which utilize the Services, but excludes all: resellers of Customer services, competitors of Customer, time sharing companies, Affiliates of Customer, and any party not purchasing Customer services for internal consumption.
“Territory” means globally.
“Third Party Software” means any software provided by or proprietary to a third party (other than Customer or Mavenir and independently of either of Customer or Mavenir) in connection with the provision of Services to the Customer.
2.1 Mavenir will provide the Services to Customer: (i) in accordance with the terms and conditions of this Agreement; and (ii) in compliance with Applicable Law. However, Mavenir accepts no responsibility or liability for the content, subject matter, accuracy or lawfulness of any data or information, including but not limited to Customer Data, transmitted through the Services.
2.2 Mavenir shall use reasonable efforts to ensure the availability of the Services at the agreed times and up to the agreed capacity; provided, however, that Mavenir makes no warranty or other commitment with respect to, and takes no responsibility for the availability of Internet based services through the web.
2.3 Mavenir has the right, in its sole discretion, to immediately suspend or restrict any part of the Services if the Services are being used for unlawful purposes. Mavenir will provide notice and opportunity to cure, if practical, depending on the nature of the harm.
3. Use and Customer Obligations
3.1 Customer will receive a subscription to use the Services, up to the purchased capacity, solely in order to allow Customer to provide its services (which utilize the Services) to Subscribers.
Eligibility for this subscription and continued use of the Services is subject to compliance with all material terms of this Agreement, including but not limited to, the terms of this Section 4, and timely payment of all fees when due.
If Customer fails to comply with any of these terms (including a failure to ensure that its Subscribers do the same), Mavenir may, in addition to any other rights or remedies available, at its election, terminate or suspend this Agreement and any subscription to use the Services as permitted herein.
3.2 Neither Customer (nor its Subscribers, if applicable) shall:
(a) use the Services in breach of any Applicable Law; in breach of the AUP; or in a manner intended to cause harm to any third parties;
(b) use the Services in any way intended to cause damage to or adversely interfere with the Services, or the ability of Mavenir or its third party suppliers to provide the Services;
(c) resell the Services (other than as provided in Section 3.1 above) or any part thereof;
(d) make the Services, any Services documentation, or related access codes and user names available to anyone, except to employees with a “need to know” in order to use the Services for permitted purposes in accordance with this Agreement;
(e) lease, rent, pledge as security, or transfer its rights to use the Services to any third party; or
(f) use the Services to provide any kind of bureau services.
3.3 The Customer shall:
(a) furnish, in a form reasonably specified by Mavenir, information necessary for Mavenir to carry out its obligations under this Agreement, including technical data for interfaces with Customer Infrastructure; and
(b) be solely responsible for any obligation or liability arising out of transactions of any kind between the Customer and a Subscriber or any other third party accessing or acting in reliance on the Services or in reliance on the Customer Data. (Mavenir is not a party to and is in no way responsible for any transaction between the Customer and any Subscriber or other third party.)
3.4 Customer represents and warrants that it has all legal right and authority to use or transmit, and to authorize Mavenir and its suppliers to use or transmit all Customer Information in connection with providing the Services, and this use or transmission will not cause a breach of any third party agreement, violate any third party Intellectual Property Right, or violate any Applicable Law.
All Intellectual Property Rights to the Cloud Services, the Mavenir Infrastructure, the Cloud Software, and all components, modifications, derivatives, and developments thereof belong to Mavenir and its suppliers. Customer shall not assert any claim of ownership in or to the Cloud Services, the Mavenir Infrastructure, or the Cloud Software.
All Intellectual Property Rights to the Customer Infrastructure, and all components, modifications, derivatives, and developments thereof belong to Customer and its suppliers. Mavenir shall not assert any claim of ownership in or to the Customer Infrastructure.
5.1 Customer shall indemnify Mavenir from any claims arising from or based on:
(a) any misuse, unauthorized use, unauthorized access, or modification or combination of the Cloud Services by Customer or its Subscribers;
a breach of the AUP by Customer, its Subscribers, or its suppliers;
any written specification supplied by Customer to Mavenir that is used to provide the Cloud Services;
(d) Customer’s infringement of third party Intellectual Property Rights; or
the Customer Data.
6.1 Nothing in this Agreement excludes or limits a party’s liability for (i) death or personal injury caused by its negligence, (ii) any liability under Section 6 or any other indemnity obligation herein, (iii) its breach of Intellectual Property Rights or confidentiality obligations; or (iv) any liability that may not be excluded or limited by Applicable Law.
6.2 Except as provided otherwise herein, the aggregate liability of Mavenir in any calendar year under or in connection with this Agreement, howsoever arising, and irrespective of the basis of claim, is limited to the total fees received by Mavenir from Customer in the most recent 12 months preceding the claim.
6.3 EXCEPT AS PROVIDED OTHERWISE HEREIN, AND EXCEPT FOR ANY OUTSTANDING FEES PAYABLE FOR THE SERVICES, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OR LOST PROFITS, BUSINESS REVENUE, GOODWILL, DATA OR ANTICIPATED SAVINGS, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
6.4 MAVENIR EXPRESSLY EXCLUDES AND DISCLAIMS ANY LIABILITY TO CUSTOMER’S SUBSCRIBERS FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF USING THE SERVICES OR THEIR NON-AVAILABILITY.
7.1 MAVENIR MAKES NO WARRANTY, EXPRESS OR IMPLIED, THAT THE CLOUD SERVICES WILL BE UNINTERRUPTED, OR ERROR, OR DEFECT FREE AND, EXCEPT FOR ANY EXPRESS WARRANTIES MADE HEREIN, MAVENIR EXPRESSLY EXCLUDES AND DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY COURSE OR DEALING OR USAGE OF TRADE.
8. Personal Data Privacy
8.1 Definitions: (i) ”Data Protection Directives” means The General Data Protection Regulation (EU) 2016/679 (“GDPR” Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data; (ii) For the purposes of this Section, “personal data”, “special categories of data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority” shall have the same meaning as in the Data Protection Directives; and (iii) “Data Protection Legislation” means any legislation in force from time to time which implements the Data Protection Directives and is applicable to the provision of the Services pursuant to the Agreement.
8.2 With respect to the processing of personal data, Customer retains the position of data controller and Mavenir will process personal data in accordance with Customer’s instructions (subject to compliance with Applicable Law). Customer will indemnify Mavenir against any costs and losses incurred by Mavenir as a result of any claim or action against Mavenir in respect of the processing of personal data in accordance with Customer’s instructions.
8.3 In relation to all personal data that the Customer controls or is in possession of or processes, the Customer shall at all times comply with the Data Protection Legislation, as a data controller, including maintaining a valid and up to date registration or notification in each country in which the Customer is established and from which the personal data is transferred, all as required by relevant Data Protection Legislation. Mavenir agrees to comply with the provisions of the Data Protection legislation applicable to it. Customer acknowledges and agrees that the data, including personal data, that it communicates to Mavenir hereunder, may be used by Mavenir and its suppliers in connection with the provision of Services and its affiliates and communicated or transferred, if necessary for the performance of the Services, by Mavenir. Customer shall defend and hold harmless Mavenir against any recourse by third parties connected to any damages suffered as a result of such data, their processing or communication.
8.4 With respect to any personal data that Mavenir receives from Customer or is responsible for while providing the Services hereunder, Mavenir agrees to use and process the personal data only on behalf of Customer and in accordance with Customer’s written instructions and the terms of this Agreement.
8.5 Customer represents and warrants that it has any and all necessary legal right and authority to use and to authorize Mavenir and its third party suppliers to use all Customer Data and Customer Infrastructure as contemplated by this Agreement and in connection with the provision of the Services, and that such use will not cause a breach of any third party agreement, violate any third party intellectual property, privacy, or publicity right or Applicable Law, or unreasonably interfere with use of the Services.
9.1 This Agreement constitutes the entire agreement between the parties relating to the subject matter herein and supersedes any previous agreements, arrangements, undertakings or proposals, whether written or oral, between the parties relating to this subject matter. This Agreement may only be amended in a writing signed by the parties.
9.2 The failure or delay of a party to exercise or enforce any rights under this Agreement is not a waiver of any of these rights and does not operate as to bar the exercise or enforcement these rights at any time.
9.3 The invalidity or unenforceability of any provision of this Agreement does not affect or prejudice the validity or enforceability of the remainder of this Agreement.
9.4 This Agreement shall be governed by the laws of the State of Delaware.