These Terms of Service apply to all services that Koda Voice LLC (“Koda” or “We”), a Delaware limited liability company with its principal place of business in Houston, Texas, provides to a Customer (”Customer” or “You”) pursuant to an Order Form, online sign-up, or other agreement that incorporates these Terms.
WHEREAS, Customer wishes to procure from Koda the Koda Services (“Services”) described herein and any expressly incorporated exhibits and amendments (collectively, the “Agreement”);
WHEREAS, the Services include the SIP trunking, numbering, VoIP and related services identified in the Order Form or any other written agreement entered into between Koda and Customer that incorporates these Terms; and
WHEREAS, Koda wishes to provide such Services to Customer, each on the terms and conditions set forth in these Terms, including, without limitation, Customer’s agreement hereto and Koda’s Acceptable Use Policy, which is attached as Exhibit A and incorporated herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Koda’s Services
A.The specific Services to which Customer is subscribing under this Agreement are identified in the Cover Sheet, which is attached hereto and incorporated by reference. Customer understands and agrees that it may only receive the Services while it remains a Koda subscriber in good standing with an outstanding balance at or below the Services Credit Limit, as defined below and set forth in the applicable Order Form. Customer understands and agrees that it must obtain its own Internet connection in order to use the Services, and that we do not control your Internet access or the quality of your Internet connection or service. Customer further understands and agrees that the default Service offering is a non-interconnected VoIP Service that does not enable two-way calling or e911 Services, which must be separately ordered and paid for under the terms of this Agreement. WE ARE NOT RESPONSIBLE FOR ANY THIRD-PARTY PRODUCTS OR SERVICES, OR FOR PROBLEMS IN THE SERVICES CAUSED BY YOUR INTERNET CONNECTION OR THIRD PARTY PRODUCTS OR SERVICES.
B.Additional Koda Services can be purchased by users you designate as administrators through the Koda user interface or portal or by calling Koda Customer Support. You hereby authorize those users with administrative privileges to (i) add these Services to your Koda account and (ii) commit you to pay for these Services in accordance with the terms of your order and this Agreement.
C.You may designate one or more users to be an account administrator (“Administrator”) with full administrative control of your account from the Koda user interface or portal. Upon creation of your account, the individual assigned to be the Administrator is the individual who entered into an agreement with Koda through our online sign-up process or, if the agreement was not entered into online, the individual whose name is identified on your order form. The Administrator: (i) can make any changes to the account (e.g., service additions, service deletions, assignment of users, account cancellations, updates to credit cards, etc.); and (ii) is the authorized individual on your account with respect to porting of your telephone numbers to a carrier other than Koda. The Administrator may assign one or more additional administrators on the account and may re-assign “Administrator” status to another user. In the event that you wish to re-assign the Administrator designation on your account and the Administrator is unable to make the change, you must submit an email from the Administrator’s email address that is on file with Koda or otherwise provide a written request via facsimile, on your letterhead and executed by an officer or owner of the company that you represent.
D.If you want Koda to provide information on your account relating to a customer service record or call log details (other than through any available user interface), such request may be made by the Administrator, but information provided by Koda will only be transmitted to the email address on file for the Administrator. The Administrator may designate one or more “Company Contacts” for the account. The Company Contact is the individual(s) who will receive all messages from Koda concerning matters of general relevance to the account (notices of updates to the account, billing notices, maintenance alerts, etc.); such notices are typically provided through email. Koda will initially assign the Administrator to be the Company Contact. A Company Contact may or may not be the Administrator for the account. In all events, except as reasonably necessary to provide the Services and perform its duties under this Agreement, or as required by law or other legal process, Koda understand and it agrees that it is precluded from retaining, using, or disclosing the personal information of Customer’s customers for any purpose other than for the specific purpose of performing the services specified in this Agreement.
E.Koda reserves the right, from time to time, to change the terms and modify service plans and features, provided that such changes are consistently applied in a manner and degree to similarly situated customers. Koda will use commercially reasonable efforts to provide 24 hours’ notice of changes to price terms, and thirty days’ notice of non-price-related changes. Koda also reserves the right to increase pricing in the event of legislative or regulatory changes applicable to VoIP providers, which increase the cost of VoIP services, and to include/exclude certain international calling destinations at any time based on its commercial or legal judgment.
F.The Parties understand and agree that, notwithstanding any publicly available terms and conditions relating to Koda’s Services available on Koda’s website, this confidential Agreement shall be the exclusive agreement between the parties relating to Koda’s Services.
Term of Agreement
As reflected in the applicable Order Form, this Agreement will commence on the Effective Date and continue for one (1) year (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive additional one (1) year periods unless terminated in writing by either Party at least thirty (30) days prior to the end of the then-applicable Term. Either party may, however, terminate this Agreement for any reason whatsoever provided they provide the other party 90 days’ written notice. Customer remains liable for all charges and fees incurred up through and including any such termination date.
Service Pricing and Changes
A.Customer agrees to pay Koda the rates, fees and other charges incurred in connection with this Agreement in accordance with the payment and billing terms more fully described below.
B.With the exception of those rates specifically identified in any applicable Order Form as being fixed for the duration of the Initial Term, you understand and agree that Koda can prospectively change the rates and charges for its Services, including those designated as “Managed LCR” in any applicable Cover Sheet, and you agree to pay the then-applicable rates and charges for the Services you use in accordance with this Agreement. Koda will publish applicable rates and rate changes via your portal, by emailing rate decks to your Company Contact email address, or through other commercially reasonable means. Koda will use commercially reasonable means to provide you with prior notice of any rate changes, but Customer acknowledges and agrees that it is responsible to review the then-applicable rates before using any Koda Service, and to pay all then-applicable fees and charges based on your usage of the Services.
C.Koda may change any of the other non-price terms of these Terms of Service, but only on a prospective basis after providing notice to you. Koda will provide Customer thirty days’ written notice of any such changes that would have a materially adverse effect on you. Changes will become effective on the next business day following the 30-day notice period and, unless Customer has objected to any changes by delivering written notice to Koda, Customer agrees to be bound by any changes after such 30-day notice period.
Billing, Payment, and Customer’s Credit Limit
A.Koda is principally a prepaid service. Customer hereby authorizes Koda to apply all applicable charges and fees incurred under this Agreement to the payment account(s) Customer associates with this Agreement. Prepaid service requires the Customer’s account to have sufficient funds at all times. All Services will be subject to immediate suspension without further notice at any time the account does not have sufficient funds. At the inception of Service, Customer agrees to deposit, via a wire transfer or PayPal payment, a fixed amount into its Koda account to establish its initial prepaid value. Thereafter, as Customer’s use of the Services depletes its initial value through applicable Fees to the low-balance threshold (the default of which is $100.00), Customer agrees to restore its account value above the low-balance threshold based on its Fees incurred. All charges and payments will be in United States dollars.
B. Except for usage-based fees, which deplete Customer’s account balance as they are incurred, all fees are due in advance on the first day of each billing period. Fees may include monthly recurring charges (“Service Fees”), and other non-recurring charges including, but not limited to, activation fees, porting fees, early termination fees, regulatory compliance fees (“Regulatory Recovery Fees”) and government-mandated pass through fees such as, but not limited to, Universal Service Fund fees (“USF”) and e911 fees (“Fees”). Customer agrees to pay for all equipment and set-up fees at the time Services are ordered.
C. Failure to pay in full will result in immediate account suspension and Koda shall have no liability for such suspension. Koda will assess an additional 1.5% per month (or the highest amount allowed by law, whichever is higher) late charge if your payment is more than thirty (30) days past due. Customer is responsible and liable for any and all fees, including reasonable attorneys’ and collection fees and costs, that Koda may incur in its efforts to collect any outstanding balances. Customer also agrees to pay any outstanding balances if you cancel the Services.
D. During any period of suspension for non-payment, Services will be unavailable until the account balance is paid in full. In the event Services are terminated for reason of non-payment or otherwise, Customer understands and agrees that no Services will be provided and its assigned telephone numbers will be reclaimed immediately and no longer available to Customer.
After each billing month, Koda will invoice Customer for all charges that Customer incurred in the billing month, or, if greater than such actual accrued charges, then the Minimum Monthly Commitment charge reflected in the Cover Sheet. In addition to usage-specific charges, Koda fees may include monthly recurring charges, and other non-recurring charges including, but not limited to, activation fees, porting fees, regulatory fees, applicable taxes, and government-mandated pass-through fees such as, but not limited to, Universal Service Fund (“USF”), TRS, NANP, and e911 fees, along with a regulatory recovery fee designed to collect a reasonable estimate of Koda’s estimated costs of legal and regulatory compliance (collectively, “Fees”). All usage-based charges, Fees, and any other non-recurring charges are due and payable in accordance with this Agreement.
E.If Customer believes it was assessed any incorrect charges, Customer will notify Koda in writing of the disputed charges within sixty (60) days of receiving the applicable charge or invoice, and provide reasonable detail for the basis of the dispute. If the Parties cannot resolve the disputed charges, the dispute will be resolved under the dispute-resolution process described in this Agreement. Customer’s failure to provide notice of any disputed charges within sixty (60) days will constitute Customer’s agreement that the charges in question are legitimate and payable, and Customer waives any right to dispute such invoices or charges. All other charges invoiced that are not part of the dispute must be paid when due.
F. Koda calculates billable call duration from the time we receive the initial “INVITE” packet to the time we receive the final “BYE” packet. All usage is billed in the time increments identified in any applicable Order Form and in accordance with the type of traffic at issue, with usage measurement beginning upon the initiation of the first “INVITE” packet.
Actual and Fraudulent Use
A.Customer shall be responsible for the costs incurred by all inbound and outbound call traffic regardless of their source, authorization or scope (“Actual Use”). Should Customer’s equipment be breached by an unauthorized third party, Customer shall be responsible for all costs, fees and other charges associated with the unauthorized traffic.
B.Customer agrees to bear the risk of loss and assume all liability arising from prohibited, unauthorized or fraudulent usage of Services under your Koda account. Any such prohibited, unauthorized or fraudulent use by you is a material breach of the Agreement by Customer. Customer is solely responsible for securing all credentials used to access the Services, including credentials used by telephones or softphones and credentials used by end users or administrators, as well as the media access control (MAC) address of telephones used by you or your End Users. You acknowledge that placing telephones on a publicly accessible IP address or a publicly accessible network will subject you and your End Users to a higher level of risk for fraudulent activity. Customer shall not be excused from paying for Services or any portion thereof on the basis that fraudulent usage or calls occurred. If we discover fraudulent usage, you consent to Koda taking actions it deems reasonably necessary (including blocking access to particular calling numbers or geographic areas), without notice to you, to prevent such usage from taking place. Customer acknowledges and agrees that it is solely responsible for all charges incurred in connection with the use of the Services associated with Customer’s account, whether authorized, unauthorized, fraudulent or otherwise, and that Koda: (a) has no duty to investigate the authenticity of usage charged to Customer’s account, (b) has no duty to take action to prevent fraudulent usage from occurring in connection with your account, and (c) is not liable for any fraudulent usage billed to Customer’s account.
E911, Emergency Services & 911 Dialing
A. Non-Availability of Traditional 911 or E911 Dialing Service: At Koda, 911 dialing service operates differently than traditional 911 service. You agree to inform any business invitees, guests, and other third persons who may be present at the physical location where you utilize the Services of the non-availability of traditional 911 or E911 dialing from your Koda Services and equipment. The physical location where you advise us you are utilizing the Service for each phone number that could make a 911 emergency call must be registered as the actual physical street address where your calling equipment is located—and thus where you would expect emergency personnel to come if you called 911—not a P.O box, mail drop, or similar address.
B. Description of 911-Type Dialing Capabilities – Activation Required: Koda offers 911-type dialing that differs from traditional 911 services. When you dial 911, your call is routed from the Koda network to its underlying 911-routing service provider to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the physical address that you listed for that phone number at the time of activation (or updated thereafter). If you make changes to your 911 address using the Koda support ticket system, via email to support@smartvoicetelecom.com, your call may be routed to a different PSAP or local emergency service personnel, who may ask you to provide your location and other information.
Calls dialed by handset extensions included in your account with Koda will be routed from the Koda’s network to Koda’s underlying 911 service provider to the PSAP or local emergency service personnel designated for the address that you listed at the time of activation. In the event that your equipment is used in multiple locations, or in the event that one or more items of equipment are used in multiple locations, end users designated as administrators on your account may, at your option, create additional service locations and associate your equipment to specific locations for the purposes of routing calls to the local PSAPs for such locations. Individual end users may assign and re-assign their current location on an as-needed basis, provided, however, that your system administrator has previously activated that functionality. It is your sole responsibility to make any necessary or appropriate changes and to ensure that all business invitees, residents, guests and other third persons who may be present at the physical location(s) where you utilize the Services are aware of this option. For any Koda extensions assigned to a non-US 911 location (subject to applicable local law), calls placed to 911 will be routed to a US-based call center that may not be able to offer local emergency assistance to the caller.
C. Service Outages—Power and Internet are Essential: You acknowledge and agree that (a) 911 dialing does not work in the event of a power failure or disruption. If an interruption in the power supply occurs, the Services and 911 dialing will not work until power is restored and you may have to reset or reconfigure equipment prior to using the Services or 911 dialing; (b) service outages or suspension or termination of service by your broadband provider and/or ISP will prevent all Services, including 911 dialing, from working; (c) service outages due to suspension of your account as a result of billing issues will prevent all Services, including 911 dialing, from functioning; (d) if there is a service outage for any reason, such outage will prevent all Service, including 911 dialing; and (e) Koda’s liability is strictly limited and waived for any Services outage and/or inability to dial 911 from your line or to access emergency service personnel.
D. Possibility of Network Congestion and/or Reduced Speed for Routing or Answering 911: You acknowledge and agree that (a) network congestion and/or reduced speed in the routing of a 911 communication made utilizing your equipment may be greater than that experienced when using traditional 911 dialing over traditional public telephone networks; (b) 911 dialing from your equipment will be routed to the general telephone number for the local emergency service Koda (which may not be answered outside business hours), and may not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local Koda’s facilities when such calls are routed using traditional 911 dialing; and (c) the general telephone number for the local emergency service Koda may produce a busy signal or may take longer to answer, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.
E. Automated Number Identification: Technical limitations may make it impossible for the PSAP and the local emergency personnel to identify your phone number when you dial 911. The local emergency operators answering the call may not see your telephone number or your registered address. The emergency center may not be equipped to receive, capture or retain your telephone number and registered address, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is dropped or disconnected, or if you are unable to speak. Koda’s system is configured to send the automated number identification information; however, one or more telephone companies that route the traffic to the PSAP, and the PSAP itself, may not be able to receive the information and pass it along. You acknowledge and agree that PSAP and emergency personnel may or may not be able to identify your phone number in order to call you back if (a) the call is unable to be completed; (b) the call is dropped or disconnected; c) you are unable to speak to tell the dispatcher the location of your phone number and/or (d) the Service is not operational for any reason.
F. Limitation of Liability and Indemnification Related to 911 Services: Koda relies on third parties for the forwarding of information underlying such 911 routing. Koda and its third party providers disclaim any and all liability in the event such forwarded information or routing is incorrect. Koda and its officers, directors, employees, contractors and suppliers may not be held liable for any claim, damage, loss or other cause of action, and you hereby waive any and all claims, damages, loss or causes of action, arising from or relating to Koda’s 911 dialing. You further agree to defend, indemnify and hold harmless Koda, its officers, directors, employees, affiliates, agents and its third party Koda(s) from any and all third party claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of, or resulting from (a) your failure to correctly activate 911 calling; (b) your provision to Koda of incorrect information in connection with your 911 calling or service; (c) misrouted 911 or E911 calls; or (d) the absence, failure or outage of the Services, including 911 dialing and/or inability of any user of your Service to be able to dial 911 or to access emergency service personnel.
Number Porting
Customer agrees to the following:
A. During the term of this Agreement, Customer grants Koda and its agents authority to initiate porting requests on its behalf as Koda determines is reasonably necessary for the provision of the Services. Koda may place Customer’s phone numbers with a new peer without further notice to Customer, provided however that Koda will not place Customer’s phone numbers, or otherwise enter into any agreement, with any peer or other person which would directly result in Customer’s loss of its phone numbers.
B. Koda, and its agents, are authorized to initiate changes to telephone service and for the purpose of obtaining service records, initiate or terminate ports, or to make changes to the ways in which Customer’s telephone numbers are routed to the extent necessary for the provision of the Services.
C. Customer agrees to display as its caller ID(s) only those numbers that it is assigned to it by Koda under this Agreement or numbers that it ports into Koda’s control under the terms of this Agreement.
D. Customer agrees to release Koda from damages of any kind, including, without limitation, direct, consequential and exemplary or punitive damages, in connection with any losses Customer may experience as a result of Koda facilitating number porting requests Customer makes of Koda, provided that such losses are outside the scope of Koda’s reasonable control.
Suggestions and Custom Development
If Customer makes any suggestions regarding improvements, changes, or new features or
functions relating to the Koda Services (collectively, “Suggestions”), Customer irrevocably assigns to Koda all right, title, and interest in and to the Suggestions.
Reverse Engineering and Use Restrictions
The Koda infrastructure is a collection of data centers, public cloud providers and other third party services and connections that collectively provides high availability for VoIP Services. This Infrastructure is highly confidential and proprietary to Koda. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer agrees to not (i) reverse engineer, decompile, disassemble or otherwise attempt to derive techniques, processes, algorithms, know-how or other information from the Services or permit or induce another to attempt or perform the foregoing; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; or (iii) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Confidentiality
Apart from publicly available terms and conditions, Koda and Customer agree that the following types of information are confidential and proprietary under this Agreement: the rates, fees, and other charges offered, charged, and/or paid under this Agreement; Koda’s network, software and service delivery platform; Customer’s usage under this Agreement; and any other non-public information and data exchanged between the parties under this Agreement. The parties agree that such confidential information will not be disclosed, either directly or indirectly, by any means, to any third person(s) without the prior express written permission of the other party during the term of this Agreement or at any time during the 1-year period following the end of the term.
You will take all reasonable measures to avoid disclosure, dissemination, or unauthorized use of Koda’s confidential information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature, and further agree to solely use Koda’s confidential information in connection with your use of Koda’s Services and your performance of this Agreement.
In the event disclosure is requested by court order, subpoena, a governmental authority, Traceback request or otherwise under law, Customer understands and agrees that Koda can produce all reasonably requested or ordered information and that only under limited circumstances may Customer have an opportunity to obtain any protective order or other form of confidentiality protection.
All information that Koda collects about your use of Koda’s website, its online user portal, and its Services are subject to our CPNI Policy, which is available upon request, subject to the Confidentiality terms of this Agreement.
Notwithstanding the foregoing, Koda may, but is under no obligation to, monitor use of the Services (only to the extent allowed by applicable law): (a) to comply with applicable law, regulation, or other governmental request or order, including disclosing Customer Data in accordance with such law, regulation, request or order; (b) to verify Customer’s compliance with the Agreement; (c) to protect the integrity of Koda’s systems and networks and those of its suppliers; (d) as necessary to provide and support the Service; or (e) as otherwise approved or requested by Customer. Further, Customer shall promptly provide any information as Koda may request relating to Customer Data or Customer’s use of the Service to determine Customer’s compliance with this Agreement, or in response to any request made by any regulatory or governmental or statutory body. Customer understands, agrees, and consents to Koda’s monitoring, which under certain circumstances, involves Koda’s application of proprietary, internal analytics tools or third-party-provided analytics-based tools to identify potentially unlawful use of the Services, which in some instances may involve certain calls either being declined for further carriage or routed and handled separately for further monitoring, but in no event does Koda’s Services change the form or content of any given call. Customer agrees that this Agreement is sufficient notice to Customer of such monitoring to the extent any notice is required under applicable law. In the event Koda is required by court order, statute, government regulation, subpoena, traceback request, or other governmental request to disclose Customer information (including, but not limited to, CPNI) to the authorities, Customer understands and consents to Koda’s cooperation with such efforts.
Koda works cooperatively with the communications industry, law enforcement, governmental entities, regulatory bodies, their designees, including the Industry Traceback Group (“ITG”), and other carriers to address alleged issues related to illegality, fraud, and abuse of voice service providers’ voice services (“Traceback Requests”). In accordance with laws applicable to Koda and the Services, and notwithstanding anything to the contrary contained in the Agreement between the Parties, Customer understands and agrees that Koda may disclose Customer’s information and such disclosure will not be a violation of this Agreement or applicable law, including 47 U.S.C. § 222. Customer agrees and warrants that it will participate in any traceback efforts by the ITG or other pertinent authority without the need for a subpoena or formal legal demand. Customer agrees that it will timely respond to Traceback Requests in good faith and shall indicate if it is in the call path as (i) the originating provider of the calls (i.e., Customer received the calls from Customer’s end user) or (ii) an intermediate provider (i.e., Customer received the calls from another voice service provider), and if so, whether Customer was acting as a gateway provider for such traffic. The response shall also, if and as requested, identify the source of the calls, on-file KYC data, the results of Customer’s investigation into such traffic, and any other information reasonably requested by Koda in connection with such Traceback Requests, inquiries and investigations.
License to Customer’s name, trademark and logos
Customer agrees that Koda may, with Customer’s prior written consent, identify you using your name, trademarks and/or logos in its marketing collateral, presentations, websites, and other promotional materials.
Arbitration
The parties agree that Koda may bring suit in court to enjoin infringement or other misuse of its intellectual property rights. With that sole exception, any controversies or disputes between the parties, whether arising out of or relating to this Agreement or otherwise, shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association and pursuant to the Federal Arbitration Act. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such the selection of an arbitrator, each party agrees to submit the selection of an arbitrator to the rules of the AAA. Arbitration shall take place in Houston, Texas. The rules of discovery under the Federal Rules of Civil Procedure shall apply. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be enforced in any competent court of law.
Waiver of Jury Trial
The parties understand and agree that they are waiving their right to a trial by jury in light of their agreement to arbitrate any disputes between them. But if, for any reason, a claim proceeds in court rather than in arbitration, the parties agree to waive any right to a jury trial.
Limitation of Liability
EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT OR FOR LIABILITY DIRECTLY CAUSED BY KODA’S RECKLESS OR INTENTIONAL MISCONDUCT, KODA WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, DATA, OR PATENT INFRINGEMENT OR VIOLATION OF ANY OTHER INTELLECTUAL PROPERTY RIGHT, EVEN IF CUSTOMER CLAIMS TO HOLD SUCH RIGHTS), EVEN IF KODA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, BY ENTERING INTO THIS AGREEMENT YOU AGREE THAT KODA WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES, (II) ANY CLAIM, DEMAND OR SUIT BY CUSTOMER ALLEGING THAT THE KODA SERVICES, IN WHOLE OR IN PART, INFRINGE OR OTHERWISE VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT IN WHICH YOU CLAIM AN INTEREST (III) KODA’S DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (IV) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR DATA OR OTHER DATA.
KODA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR KODA’S SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INTELLECTUAL PROPERTY INFRINGEMENT OR OTHERWISE, WILL NOT EXCEED THE TOTAL OF THE AMOUNT YOU ACTUALLY PAID KODA UNDER THIS AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PARTIES ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION, AND THAT THESE PROVISIONS REFLECT AN ALLOCATION OF THE RISK BETWEEN THE PARTIES AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE PARTIES’ BARGAIN.
Warranty
EXCEPT TO THE EXTENT EXPRESSLY PROVIDED HEREIN, KODA DOES NOT WARRANT THE SERVICES HEREUNDER OR THE ACCURACY OR CORRECTNESS OF THE RESULTS OF THE SERVICES, AND KODA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF: (1) MERCHANTABILITY, (2) FITNESS FOR PARTICULAR PURPOSE, (3) EFFORT TO ACHIEVE PURPOSE, (4) QUALITY, (5) ACCURACY, (6) NON-INFRINGEMENT, (7) TITLE, (8) MARKETABILITY, (9) PROFITABILITY, (10) SUITABILITY, AND OR (11) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. THE KODA SERVICES AND ANY MATERIALS, SOFTWARE, OR EQUIPMENT ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW.
Indemnification
CUSTOMER HEREBY AGREES TO HOLD HARMLESS, INDEMNIFY AND DEFEND KODA, ITS OWNERS, OFFICERS, DIRECTORS, AND EMPLOYEES, FROM AND AGAINST ANY CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS, FINES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) ARISING OUT OF OR RELATING TO ANY THIRD-PARTY CLAIM RELATING TO CUSTOMER’S USE OF THE KODA SERVICES OR THEIR ALLEGED BREACH OF THIS AGREEMENT, INCLUDING ANY CLAIM THAT THE INDEMNIFYING PARTY HAS VIOLATED ANY TERM OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING SECTION (“COMPLIANCE WITH LAWS”).
Compliance with Laws and Acceptable Use Policy
You agree that you shall only use the Services in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights, and all laws, regulations, and applicable court and agency decisions and orders concerning call recording, call monitoring, caller ID usage, use of call technology, and/or direct marketing or telemarketing, including, without limitation, Section 5 of the FTC Act (15 U.S.C. § 45), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108), the Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. § 310 et seq.), the Telephone Consumer Protection Act (47 U.S.C. § 227), the Federal Communications Commission regulations (47 C.F.R. § 64.1200 et seq.) and orders implementing the Telephone Consumer Protection Act, all federal and state Do Not Call and calling-time restriction laws and regulations, and similar state laws in which you use the Services or direct your phone calls. You are solely responsible for ensuring that your use of the Services is in compliance with all applicable laws and regulations. You may only use the Services for your own use. You may not use the Services in any way to provide, or as part of, any commercial service or application or in any way interfere with the users, services or equipment of the network. In addition to any other remedies available in equity or law to Koda, failure to comply with any of the terms and conditions in this Section shall result in immediate termination of the Services.
You further agree that you have reviewed and will only use the Services consistent with Koda’s Acceptable Use Policy, which is attached as Exhibit A and incorporated herein by reference.
Any use of the Services or any other action in violation of this Section or that causes a disruption in the Koda network integrity, or in Koda’s determination threatens or compromises the security of Koda, its vendors, its other customers, or the Services, whether directly or indirectly, is strictly prohibited and permits Koda to suspend or terminate the Services without prior notice at the sole discretion of Koda and further permits Koda to disclose any information, including Customer’s confidential information, to necessary authorities or other affected parties. Koda shall have the right, in its sole, but reasonably exercised discretion, not to accept, transmit or deliver any messages or content that it reasonably believes contains inappropriate content or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including a law enforcement proceeding, process, or inquiry. As part of its enforcement of this provision and its duty to mitigate potentially unlawful use of its network, Customer understands and agrees that Koda may share Customer network-usage and call-related data with applicable government agencies, bodies, and other communications providers to investigate and enforce the terms of this Agreement and applicable law. Any use found to be inconsistent with the restrictions of this Section, including the Acceptable Use Policy, may result in suspension and/or termination of the Services without prejudice to any other Koda rights or remedies, and you agree to cooperate fully in any investigation into your use of the Services.
Non-Solicitation of Employees
During the term of this Agreement and for one (1) year thereafter, neither party will recruit, solicit or retain employees, agents, or independent contractors of the other party.
Force Majeure
Neither party will be held responsible for a delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by a Force Majeure Event. “Force Majeure Event” means an event beyond the reasonable control of the party affected by it (the “Non-performing Party”) which could not have reasonably been anticipated by the Non-performing Party including, but not limited to: fire; flood; earthquake; storm; acts of God; war, riots, civil disorders or acts of terrorism; strikes, lockouts, and labor disputes (but excluding strikes, lockouts and labor disputes involving employees of the Non-performing Party or its Affiliates or subcontractors); malicious damage (but excluding malicious damage caused by the employees of the Non-performing Party or its Affiliates or subcontractors); and general and widespread internet or telecommunications failures.
Governing Law
This Agreement shall be construed in accordance with the laws of the State of Texas, without regard to its conflict-of-laws provision.
Correspondence
During the course of the Agreement, Customer may make service requests of Koda via e-mail, ticket submission, or phone call. The parties further agree that Customer may make certain changes to the Services it subscribes to via Koda’s user interface, including the addition or deletion of users and the addition or deletion of telephone numbers.
Entire Agreement
This Agreement, together with any exhibits, attachments and addenda hereto, contains the entire agreement between the parties, and there are no other oral promises or conditions with respect to the parties. This agreement supersedes any other written or oral agreements between the parties.
Severability
If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable.
Waiver
The failure of either party to enforce a provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to enforce those provisions in the future.
Survivability
All provisions that logically ought to survive termination of this Agreement shall survive, including, without limitation, the sections relating to confidentiality, arbitration, indemnification, and limitations of liability.