MASTER SERVICES AGREEMENT
This Master Services Agreement (including any Exhibits, Order Forms, and Statements of Work, as amended and in effect from time to time, the “Agreement”), is between SignalWire, Inc. (“SignalWire” or “we”) and the entity identified as placing the order in the applicable Order Form (“Order Form”) (“Customer” or “you”) and is effective as of the effective date set forth (or if none, then the date of last signature) in the applicable Order Form (“Effective Date”). By executing an Order Form that incorporates this Agreement by reference, SignalWire and Customer agree to the terms of this Agreement. In the event of any conflict between the terms of this Agreement and those of the applicable Order Form, the terms of this Agreement shall control, unless the Order Form expressly overrules any terms of this Agreement, in which case the exception applies to only that Order Form and only to the overruled terms. SignalWire and Customer agree as follows:
SignalWire may change or modify the terms of this Agreement, and any other policies or agreements posted to the SignalWire Website (as defined in Section 1 below), from time to time without notice. Such changes or modifications shall be effective immediately upon posting to the SignalWire Website. Customer acknowledges and agrees that it is Customer's responsibility to review any updates to this Agreement and to be aware of any modifications. Customer’s use of the SignalWire Services (as defined in Section 1 below) after such changes or modifications shall constitute Customer's acceptance of this Agreement as of the last revised date above. If Customer does not agree to be bound by the terms of this Agreement as of the last revised date, Customer may not use or continue to use the SignalWire Services.
1. DEFINITIONS. Certain capitalized terms used herein are set forth below. Other terms shall have the respective meanings set forth elsewhere in this Agreement or any supplemental Order Forms.
“Documentation” means any user guide, help information, and other documentation and information regarding the SignalWire Services that SignalWire delivers to Customer in electronic or other form, if any, including any updates SignalWire provides from time to time.
“Enhancement” means any modification or addition that, when made or added to the SignalWire Licensed Services, materially changes its utility, efficiency, functional capability, or application, but does not constitute solely an Error Correction. SignalWire may designate enhancements as minor or major, depending on SignalWire’s assessment of such enhancements value or the functionality added to the preexisting SignalWire Licensed Services.
“Error” means any catastrophic failure of the SignalWire Licensed Services to conform in all material respects to the Documentation published from time to time by SignalWire.
“Error Correction” means either a software modification or addition that, when made or added to the SignalWire Licensed Services, established material conformity of the SignalWire Licensed Services to the Documentation, or a procedure or routine that, when observed in the regular operation of the SignalWire Licensed Services, eliminates the practical adverse effect of such nonconformity.
“Fees” means the then-current license and services fees as set forth on the applicable Order Form(s), Statement(s) of Work and any other fees set forth on www.signalwire.com/pricing.
“Normal Working Hours” means the hours between 8:00 AM and 8:00 PM EST on Monday through Friday, excluding regularly scheduled holidays of SignalWire.
“Platform” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by SignalWire in providing the SignalWire Licensed Services.
“Releases” means new versions of the SignalWire Licensed Services, which new versions may include Error Corrections and/or Enhancements.
“SignalWire API” means the SignalWire application programming interface, scripts, widgets, embeddable snippets and other tools that allow Customer to integrate with SignalWire’s system.
“SignalWire Licensed Services” means, collectively, the SignalWire FreeSWITCH Advantage Software and Documentation.
“SignalWire Open-Source Software” means the SignalWire Software specified as “open-source software” in the Order Form and provided to Customer from time to time. The SignalWire Open-Source Software includes any Releases, Enhancements or Error Corrections to the SignalWire Open-Source Software that are developed or otherwise made available to Customer.
“SignalWire Proprietary Software” means the SignalWire Software specified as “proprietary software” in the Order Form and provided to Customer from time to time. The SignalWire Proprietary Software includes any Releases, Enhancements or Error Corrections to the SignalWire Proprietary Software that are developed or otherwise made available to Customer.
“SignalWire Services” means, collectively, the SignalWire Licensed Services and the SignalWire Support Services.
“SignalWire Software” means SignalWire FreeSWITCH Advantage, which consists of SignalWire Open-Source Software and/or the SignalWire Proprietary Software.
“SignalWire Website” means the website located at https://www.signalwire.com/.
“Term” means the Initial Term and any Renewal Term, as applicable.
2. GENERAL This Agreement will be implemented through one or more written Order Forms and/or Statements of Work. Any change to the terms of this Agreement within an Order Form and/or Statement of Work will apply only to the SignalWire Services described therein.
3. SIGNALWIRE LICENSED SERVICES.
3.1. License Grant.
SignalWire recognizes that it is Customer's business prerogative to not upgrade to a new Release of the SignalWire Licensed Services as soon as such Release becomes available; however, SignalWire shall only provide development support (including Error Correction services) for the most recent unmodified Release of any SignalWire Licensed Services. The foregoing restriction shall apply even if Customer elects to install a Release other than the then-currently shipping version. In the event that Customer does not have the most recent Release of any such SignalWire Licensed Services, Customer shall be given a ten (10) day grace period to allow time to acquire the latest Release.
SignalWire, in its sole discretion, shall determine the amount of time it will need to spend to attempt to resolve any Errors.
SignalWire shall provide SignalWire Support Services by telephone, video conference, Slack, or any other electronic means during Normal Working Hours.
4.2. SignalWire shall use commercially reasonable efforts to provide SignalWire Support Services as set forth in Exhibit A, as applicable. Notwithstanding the foregoing, Customer acknowledges that the time needed to resolve any Errors is unknown.
4.3. Limitations.
Errors. SignalWire has the sole right to determine, in its discretion: (a) what constitutes an Error; and (b) when an Error is deemed to be resolved.
Response Time and Resolution. SignalWire will use commercially reasonable efforts to: (a) respond within the estimated response time provided in the applicable Order Form (for the SignalWire Software); and (b) resolve identified Error; provided, however, that it does not guarantee that it will be able to respond within that specific time period or that any Error will be resolved.
Effect of Customer Failure or Delay. SignalWire is not responsible or liable for any delay or failure of performance caused in whole or in part by any delay or failure to perform any of Customer’s obligations under this Agreement or any corresponding agreements entered into between Customer and SignalWire.
4.4. Exceptions.SignalWire has no obligation to provide SignalWire Support Services relating to Errors that, in whole or in part, arise out of or result from any of the following:
programs that are modified or damaged by or on behalf of Customer or any third party;
any negligence, abuse, misapplication, or misuse of the SignalWire Licensed Services other than by SignalWire’s personnel;
any use of the SignalWire Licensed Services by or on behalf of Customer other than as directed by SignalWire;
any failure by Customer to properly install any Releases that SignalWire has previously made available to Customer;
any relocation, installation, or integration of the SignalWire Licensed Services other than by SignalWire’s personnel;
any breach of or noncompliance with any provision of this Agreement or any related agreements entered into between the parties that relates directly to the SignalWire Licensed Services;
any force majeure event as further specified in Section 11.8; or
any nonconformity resulting from misuse or improper use of such SignalWire Licensed Services or combining or merging such SignalWire Licensed Services with any hardware or software not authorized to be so combined or merged by the SignalWire.
5.1. Notification. Customer shall promptly notify SignalWire of any Error and provide SignalWire with reasonable detail of the nature and circumstances of the Error. Notification shall be made via email to support@signalwire.com.
5.2. Compliance. Customer shall comply with all terms and conditions of this Agreement with respect to the SignalWire Support Services and any other agreements entered into between the parties that relates directly to the SignalWire Licensed Services.
5.3. Environment. Customer shall set up, maintain, and operate in good repair and in accordance with SignalWire’s directions all environmental conditions and components, including all networks, systems, and hardware, in or through which the Customer accesses or uses any of the SignalWire Licensed Services.
5.4. Access. In connection with the performance of the SignalWire Support Services, Customer shall provide SignalWire’s personnel with all such cooperation and assistance as they may reasonably request, or otherwise may reasonably be required, to enable SignalWire to perform its obligations (including the provision of the SignalWire Support Services), and exercise its rights, under and in accordance with the terms and conditions of this Agreement, including:reasonable, uninterrupted access, both physical and virtual, to the SignalWire Licensed Services and Customer's premises, systems, networks, and facilities;
a safe working environment;
reasonable access to the appropriate Customer personnel, including network, systems, operations, and applications personnel; and
all necessary authorizations and consents, whether from third parties or otherwise, in connection with any of the foregoing.
6. PAYMENTS AND TAXES.
6.1 Customer must pay the Fees according to the terms of SignalWire’s invoice. Payment shall be made without any right of set-off or deduction. Fees and charges for any new SignalWire Services or new feature of SignalWire Services will be effective when we post updated fees and charges on the SignalWire Website, unless expressly stated otherwise in a notice. SignalWire may increase or add new fees and charges for any existing SignalWire Services Customer is using at any time. All payments made pursuant to this Agreement shall be made in the quoted currency and are nonrefundable.
6.2 Any amount not paid when required to be paid under this Agreement shall accrue interest at the rate of one and one-half percent (1.5%) per month on the remaining amount required to be paid, or at the highest amount permitted by applicable law (if lower), such interest to accrue on a daily basis from the payable date until the remaining amount is paid. Customer shall reimburse SignalWire for all costs incurred by SignalWire in collecting any late payment of amounts due or related interest, including attorneys' fees, court costs, and collection agency fees. SignalWire shall have the right, in its sole discretion to suspend performance of the SignalWire Support Services until all past due amounts, including interest, have been paid, without incurring any obligation or liability to Customer or any other person by reason of such suspension.
6.3 All fees are exclusive of applicable local, state, federal and international sales, value added, withholding and other taxes and duties of any kind. Customer shall be responsible for payment of such taxes, withholdings and duties of any kind, provided however that SignalWire shall be responsible for payment of taxes levied or imposed based upon SignalWire’s net income. Without limitation, Customer will be responsible for all applicable sales taxes unless it first claims a sales tax exemption by providing SignalWire with an exemption certificate acceptable to the applicable authorities.
7. TERM AND TERMINATION.
7.1 This Agreement shall commence on the start date contained in an applicable Order Form and/or Statement of Work and continue for twelve (12) months thereafter (“Initial Term”), unless terminated earlier as set forth below. Thereafter, this Agreement shall renew for successive twelve (12) month periods (each, a “Renewal Term”), unless either party gives at least sixty (60) days’ notice of non-renewal prior to the expiration of the Initial Term or the then-applicable Renewal Term.
7.2 Either party may terminate this Agreement immediately in the event the other party commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of notice of material breach. Any pre-paid fees corresponding to the period after the termination date shall be refunded to Customer within thirty (30) days of the date of termination, solely in the event of a termination by Customer pursuant to this Section 7.2.
7.3 SignalWire may terminate this Agreement upon written notice to Customer (a) in the event of Customer’s (i) unauthorized use of the SignalWire Support Services (including a breach of the Mozilla License), (ii) failure to make timely payment to SignalWire, or (iii) violation of Section 8, or (b) should the SignalWire Licensed Services become, or in SignalWire’s reasonable opinion is likely to become, the subject of a claim of intellectual property infringement or trade secret misappropriation.
7.4 Sections 1, 3.2, 3.3, 3.4, 5.5, 6, 7.5, 8, 9, 10, and 11 of this Agreement shall survive the termination of this Agreement for any reason.
8. CONFIDENTIALITY. SignalWire intends to fully comply with the Communications Assistance for Law Enforcement Act (“CALEA”). By using the SignalWire Services, Customer hereby agrees and consents to SignalWire’s right to monitor and otherwise disclose the nature and content of Customer’s communications if and as required by CALEA without any further notice to Customer. Any lawful intercept requests must be forwarded to support@signalwire.com.
8.1 SignalWire and Customer will retain in confidence all information and know-how transmitted by the other party to it that is clearly designated as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought reasonably to be treated as proprietary and/or confidential, and will make no use of such information and know-how except to further the purposes set forth in this Agreement.
8.2 Notwithstanding Section 8.1, SignalWire and Customer shall not have an obligation to maintain the confidentiality of information that (a) is now or subsequently becomes generally known or available by publication, commercial use or otherwise through no fault of the recipient; (b) is known by the recipient at the time of disclosure and is not subject to restriction; (c) is independently developed by the recipient without use of the discloser’s confidential information; or (d) is lawfully obtained from a third-party who has the right to make such disclosure. Further, the recipient may disclose confidential information as required by government or judicial order, provided the recipient gives the disclosing party written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. The terms of Section 8.1 shall not be construed to limit either party’s right to independently develop or acquire products without use of the other party’s confidential information.
9. DISCLAIMER. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE SIGNALWIRE SERVICES ARE PROVIDED TO CUSTOMER "AS IS," WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES CONCERNING THE INSTALLATION, USE OR PERFORMANCE OF THE SIGNALWIRE SERVICES. SIGNALWIRE AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT AND/OR FITNESS FOR A PARTICULAR PURPOSE. SIGNALWIRE AND ITS SUPPLIERS DO NOT WARRANT THAT THE SIGNALWIRE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
10. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) ANY LOST PROFIT, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT IN CONNECTION WITH (A) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) BODILY INJURY, DEATH OR TANGIBLE PERSONAL PROPERTY DAMAGE, OR (C) INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION OBLIGATIONS, THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY REASON AND UPON ANY CAUSE(S) OF ACTION UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID TO SIGNALWIRE DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE CAUSE OF ACTION AROSE
11. MISCELLANEOUS.
Severability. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced.
Assignment. Customer may not assign this Agreement or its rights or obligations under this Agreement to any person or party, whether by operation of law or otherwise, without SignalWire’s prior consent (at SignalWire’s sole discretion). Any attempt by Customer to assign this Agreement without SignalWire’s prior consent, where such consent is required, shall be null and void. Subject to the foregoing conditions, this Agreement shall be binding upon and inure to the benefit of each party and its respective successors and assigns. There are no intended third-party beneficiaries of this Agreement.
No Waiver; Limitations. Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy. To the extent permitted by applicable law, no action, regardless of form, arising out of this Agreement may be brought by Customer more than one (1) year after the cause of action has accrued.
Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to the conflict of laws provisions thereof. In no event shall either the United Nations Convention on Contracts for the International Sale of Goods or any adopted version of the Uniform Computer Information Transactions Act apply to, or govern, this Agreement. In the event either party initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Santa Clara County, California. The prevailing party in any action to enforce this Agreement shall be entitled to recover reasonable attorneys' fees and costs.
Notices. Unless otherwise agreed to by the parties, any notice, authorization, or consent (“Notice”) required or permitted to be given or delivered under this Agreement shall be in writing and addressed and delivered to SignalWire at the address specified on the SignalWire Website or to Customer at the contact information provided in the Order Form. Notice shall be deemed to have been received by a party, and shall be effective: (a) on the fifth business day after which such Notice is deposited prepaid in the local postal system; (b) on the day received, if sent with a reputable, expedited overnight or international courier or hand delivered or (c) one business day after being sent electronically with a confirmed delivery receipt. Either party may change its address for receipt of Notice purposes upon issuance of Notice thereof in accordance with this Section.
Export Law Assurances. Customer acknowledges that the SignalWire Services may be subject to export and import control laws, and agrees to comply fully with those laws in connection with the SignalWire Services. Customer agrees that the SignalWire Services are not being, and will not be, acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will it be used for: nuclear activities, chemical or biological weapons, or missile projects unless authorized by the U.S. government. Customer hereby certifies that it is not prohibited by the U.S. government from participating in export or re-export transactions.
U.S. Government Restricted Rights. If the SignalWire Services are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (“DOD”) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government's rights, including its rights to use, modify, reproduce, release, perform, display or disclose software or any documentation, will be subject in all respects to the license rights and restrictions provided in this Agreement.
Force Majeure. Except for performance of a payment obligation, neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, an outbreak of infectious disease, epidemic or pandemic, or any causes beyond the reasonable control of that party.
Publicity and Endorsement. During the Term of this Agreement, SignalWire may issue a press release in which SignalWire announces that Customer is using the SignalWire Services. Customer, at its discretion, may also issue a press release about the mutually agreed content. Neither party shall release its press release without first providing such press release to the other party for its review and approval, which approval shall not be unreasonably withheld or delayed. Customer hereby consents to inclusion of its name and logo in client lists and marketing materials that may be published as part of SignalWire’s marketing and promotional efforts.
Entire Agreement. This Agreement together with all applicable Order Forms, Statements of Work and the Exhibits comprise the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. SignalWire reserves the right to amend or modify this Agreement at any time and in any manner by providing reasonable notice to Customer. Customer agrees that such reasonable notice may be provided by posting on the SignalWire Website; Customer’s start, registration, or download pages; email; or other written notice. Except as otherwise set forth herein, this Agreement may be amended or modified only in a writing executed by both parties. SignalWire’s acceptance of any document submitted by Customer to SignalWire shall not be construed as an acceptance of provisions which are in any way in conflict or inconsistent with, or in addition to, this Agreement, unless such terms are separately and specifically accepted in writing by an authorized representative of SignalWire.
EXHIBIT A
SignalWire FreeSWITCH Advantage Support Plan
Introduction
Customer’s SignalWire FreeSWITCH Advantage Support Plan (“Plan”) is subject to the terms and conditions of the Agreement. Capitalized terms used herein but not otherwise defined will have the meanings specified in the Agreement. SignalWire reserves the right to change the terms of this Plan in accordance with the Agreement. Customers will be notified via their registered email address about any change in terms.
TECHNICAL SUPPORT.
SignalWire shall, depending on the specific Plan level designated in the applicable Order Form, each of which levels carries a different annual fee, furnish the following types of support for FreeSWITCH Advantage set forth in the table immediately below. Customer’s Plan-specific rights, benefits, restrictions, and limitations shall be set forth in the applicable Order Form.
SignalWire shall use commercially reasonable efforts to correct all Errors reported by Customer via support ticket and confirmed by SignalWire.
| Support Plan Variable or Feature | Further Information (where applicable) |
|---|---|
| Maximum number of servers/cores on which FreeSWITCH Advantage may be installed | As set forth in the applicable Order Form |
| Number of included FreeSWITCH Advantage software releases per year | As set forth in the applicable Order Form |
| Number of support tickets permitted per year | As set forth in the applicable Order Form |
| Response time per support ticket | As set forth in the applicable Order Form |
| Targeted resolution time per support ticket | SignalWire’s support team will create a fix/patch to resolve ticket (within reason) |
| Must bring carrier traffic | Where SignalWire supports localized traffic |
| Real-time security notifications | Once SignalWire identifies a security threat and addresses it in the SignalWire Software |
| Access to FreeSWITCH Advantage custom development | SignalWire may, at its discretion and only for certain Plans, accept custom development projects requested by Customer |
1.3
If Customer requests a software engineer at Customer’s site(s), use of such engineer shall be subject to a daily fee as set forth in the Order Form and/or Statement of Work. Any travel costs and related expenses shall be subject to Customer’s prior written approval.
EXHIBIT B
Mozilla Public License Version 1.1
1. Definitions.
1.0.1. "Commercial Use" means distribution or otherwise making the Covered Code available to a third party.
1.1. "Contributor" means each entity that creates or contributes to the creation of Modifications.
1.2. "Contributor Version" means the combination of the Original Code, prior Modifications used by a Contributor, and the Modifications made by that particular Contributor.
1.3. "Covered Code" means the Original Code or Modifications or the combination of the Original Code and Modifications, in each case including portions thereof.
1.4. "Electronic Distribution Mechanism" means a mechanism generally accepted in the software development community for the electronic transfer of data.
1.5. "Executable" means Covered Code in any form other than Source Code.
1.6. "Initial Developer" means the individual or entity identified as the Initial Developer in the Source Code notice required by Appendix A.
1.7. "Larger Work" means a work which combines Covered Code or portions thereof with code not governed by the terms of this License.
1.8. "License" means this document.
1.8.1. "Licensable" means having the right to grant, to the maximum extent possible, whether at the time of the initial grant or subsequently acquired, any and all of the rights conveyed herein.
1.9. "Modifications" means any addition to or deletion from the substance or structure of either the Original Code or any previous Modifications. When Covered Code is released as a series of files, a Modification is:
a. Any addition to or deletion from the contents of a file containing Original Code or previous Modifications.
b. Any new file that contains any part of the Original Code or previous Modifications.
1.10. "Original Code" means Source Code of computer software code which is described in the Source Code notice required by Appendix A as Original Code, and which, at the time of its release under this License is not already Covered Code governed by this License.
1.10.1. "Patent Claims" means any patent claim(s), now owned or hereafter acquired, including without limitation, method, process, and apparatus claims, in any patent Licensable by grantor.
1.11. "Source Code" means the preferred form of the Covered Code for making modifications to it, including all modules it contains, plus any associated interface definition files, scripts used to control compilation and installation of an Executable, or source code differential comparisons against either the Original Code or another well known, available Covered Code of the Contributor's choice. The Source Code can be in a compressed or archival form, provided the appropriate decompression or de-archiving software is widely available for no charge.
1.12. "You" (or "Your") means an individual or a legal entity exercising rights under, and complying with all of the terms of, this License or a future version of this License issued under Section 6.1. For legal entities, "You" includes any entity which controls, is controlled by, or is under common control with You. For purposes of this definition, "control" means (a) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (b) ownership of more than fifty percent (50%) of the outstanding shares or beneficial ownership of such entity.
2. Source Code License.
2.1. The Initial Developer Grant.
The Initial Developer hereby grants You a world-wide, royalty-free, non-exclusive license, subject to third-party intellectual property claims:
a. under intellectual property rights (other than patent or trademark) Licensable by Initial Developer to use, reproduce, modify, display, perform, sublicense and distribute the Original Code (or portions thereof) with or without Modifications, and/or as part of a Larger Work; and
b. under Patents Claims infringed by the making, using or selling of Original Code, to make, have made, use, practice, sell, and offer for sale, and/or otherwise dispose of the Original Code (or portions thereof).
c. the licenses granted in this Section 2.1 (a) and (b) are effective on the date Initial Developer first distributes Original Code under the terms of this License.
d. Notwithstanding Section 2.1 (b) above, no patent license is granted: 1) for code that You delete from the Original Code; 2) separate from the Original Code; or 3) for infringements caused by: i) the modification of the Original Code or ii) the combination of the Original Code with other software or devices.
2.2. Contributor Grant.
a. under intellectual property rights (other than patent or trademark) Licensable by Contributor, to use, reproduce, modify, display, perform, sublicense and distribute the Modifications created by such Contributor (or portions thereof) either on an unmodified basis, with other Modifications, as Covered Code and/or as part of a Larger Work; and
b. under Patent Claims infringed by the making, using, or selling of Modifications made by that Contributor either alone and/or in combination with its Contributor Version (or portions of such combination), to make, use, sell, offer for sale, have made, and/or otherwise dispose of: 1) Modifications made by that Contributor (or portions thereof); and 2) the combination of Modifications made by that Contributor with its Contributor Version (or portions of such combination).
c. the licenses granted in Sections 2.2 (a) and 2.2 (b) are effective on the date Contributor first makes Commercial Use of the Covered Code.
d. Notwithstanding Section 2.2 (b) above, no patent license is granted: 1) for any code that Contributor has deleted from the Contributor Version; 2) separate from the Contributor Version; 3) for infringements caused by: i) third-party modifications of Contributor Version or ii) the combination of Modifications made by that Contributor with other software (except as part of the Contributor Version) or other devices; or 4) under Patent Claims infringed by Covered Code in the absence of Modifications made by that Contributor.
3. Distribution Obligations.
3.1. Application of License.
The Modifications which You create or to which You contribute are governed by the terms of this License, including without limitation Section 2.2. The Source Code version of Covered Code may be distributed only under the terms of this License or a future version of this License released under Section 6.1, and You must include a copy of this License with every copy of the Source Code You distribute. You may not offer or impose any terms on any Source Code version that alters or restricts the applicable version of this License or the recipients' rights hereunder. However, You may include an additional document offering the additional rights described in Section 3.5.
3.2. Availability of Source Code.
Any Modification which You create or to which You contribute must be made available in Source Code form under the terms of this License either on the same media as an Executable version or via an accepted Electronic Distribution Mechanism to anyone to whom you made an Executable version available; and if made available via Electronic Distribution Mechanism, must remain available for at least twelve (12) months after the date it initially became available, or at least six (6) months after a subsequent version of that particular Modification has been made available to such recipients. You are responsible for ensuring that the Source Code version remains available even if the Electronic Distribution Mechanism is maintained by a third party.
3.3. Description of Modifications.
You must cause all Covered Code to which You contribute to contain a file documenting the changes You made to create that Covered Code and the date of any change. You must include a prominent statement that the Modification is derived, directly or indirectly, from Original Code provided by the Initial Developer and including the name of the Initial Developer in (a) the Source Code, and (b) in any notice in an Executable version or related documentation in which You describe the origin or ownership of the Covered Code.
3.4. Intellectual Property Matters
(a) Third Party Claims
If Contributor has knowledge that a license under a third party's intellectual property rights is required to exercise the rights granted by such Contributor under Sections 2.1 or 2.2, Contributor must include a text file with the Source Code distribution titled "LEGAL" which describes the claim and the party making the claim in sufficient detail that a recipient will know whom to contact. If Contributor obtains such knowledge after the Modification is made available as described in Section 3.2, Contributor shall promptly modify the LEGAL file in all copies Contributor makes available thereafter and shall take other steps (such as notifying appropriate mailing lists or newsgroups) reasonably calculated to inform those who received the Covered Code that new knowledge has been obtained.
(b) Contributor APIs
If Contributor's Modifications include an application programming interface and Contributor has knowledge of patent licenses which are reasonably necessary to implement that API, Contributor must also include this information in the LEGAL file.
(c) Representations.
Contributor represents that, except as disclosed pursuant to Section 3.4 (a) above, Contributor believes that Contributor's Modifications are Contributor's original creation(s) and/or Contributor has sufficient rights to grant the rights conveyed by this License.
3.5. Required Notices.
You must duplicate the notice in Appendix A in each file of the Source Code. If it is not possible to put such notice in a particular Source Code file due to its structure, then You must include such notice in a location (such as a relevant directory) where a user would be likely to look for such a notice. If You created one or more Modification(s) You may add your name as a Contributor to the notice described in Appendix A. You must also duplicate this License in any documentation for the Source Code where You describe recipients' rights or ownership rights relating to Covered Code. You may choose to offer, and to charge a fee for, warranty, support, indemnity or liability obligations to one or more recipients of Covered Code. However, You may do so only on Your own behalf, and not on behalf of the Initial Developer or any Contributor. You must make it absolutely clear than any such warranty, support, indemnity or liability obligation is offered by You alone, and You hereby agree to indemnify the Initial Developer and every Contributor for any liability incurred by the Initial Developer or such Contributor as a result of warranty, support, indemnity or liability terms You offer.
3.6. Distribution of Executable Versions.
You may distribute Covered Code in Executable form only if the requirements of Sections 3.1, 3.2, 3.3, 3.4 and 3.5 have been met for that Covered Code, and if You include a notice stating that the Source Code version of the Covered Code is available under the terms of this License, including a description of how and where You have fulfilled the obligations of Section 3.2. The notice must be conspicuously included in any notice in an Executable version, related documentation or collateral in which You describe recipients' rights relating to the Covered Code. You may distribute the Executable version of Covered Code or ownership rights under a license of Your choice, which may contain terms different from this License, provided that You are in compliance with the terms of this License and that the license for the Executable version does not attempt to limit or alter the recipient's rights in the Source Code version from the rights set forth in this License. If You distribute the Executable version under a different license You must make it absolutely clear that any terms which differ from this License are offered by You alone, not by the Initial Developer or any Contributor. You hereby agree to indemnify the Initial Developer and every Contributor for any liability incurred by the Initial Developer or such Contributor as a result of any such terms You offer.
3.7. Larger Works.
You may create a Larger Work by combining Covered Code with other code not governed by the terms of this License and distribute the Larger Work as a single product. In such a case, You must make sure the requirements of this License are fulfilled for the Covered Code.
4. Inability to Comply Due to Statute or Regulation.
If it is impossible for You to comply with any of the terms of this License with respect to some or all of the Covered Code due to statute, judicial order, or regulation then You must: (a) comply with the terms of this License to the maximum extent possible; and (b) describe the limitations and the code they affect. Such description must be included in the LEGAL file described in Section 3.4 and must be included with all distributions of the Source Code. Except to the extent prohibited by statute or regulation, such description must be sufficiently detailed for a recipient of ordinary skill to be able to understand it.
5. Application of this License.
This License applies to code to which the Initial Developer has attached the notice in Appendix A and to related Covered Code.
6. Versions of the License.
6.1. New Versions
Netscape Communications Corporation ("Netscape") may publish revised and/or new versions of the License from time to time. Each version will be given a distinguishing version number.
6.2. Effect of New Versions
Once Covered Code has been published under a particular version of the License, You may always continue to use it under the terms of that version. You may also choose to use such Covered Code under the terms of any subsequent version of the License published by Netscape. No one other than Netscape has the right to modify the terms applicable to Covered Code created under this License.
6.3. Derivative Works
If You create or use a modified version of this License (which you may only do in order to apply it to code which is not already Covered Code governed by this License), You must (a) rename Your license so that the phrases "Mozilla", "MOZILLAPL", "MOZPL", "Netscape", "MPL", "NPL" or any confusingly similar phrase do not appear in your license (except to note that your license differs from this License) and (b) otherwise make it clear that Your version of the license contains terms which differ from the Mozilla Public License and Netscape Public License. (Filling in the name of the Initial Developer, Original Code or Contributor in the notice described in Appendix A shall not of themselves be deemed to be modifications of this License.)
7. DISCLAIMER OF WARRANTY
COVERED CODE IS PROVIDED UNDER THIS LICENSE ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE COVERED CODE IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE COVERED CODE IS WITH YOU. SHOULD ANY COVERED CODE PROVE DEFECTIVE IN ANY RESPECT, YOU (NOT THE INITIAL DEVELOPER OR ANY OTHER CONTRIBUTOR) ASSUME THE COST OF ANY NECESSARY SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. NO USE OF ANY COVERED CODE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
8. Termination
8.1. This License and the rights granted hereunder will terminate automatically if You fail to comply with terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses to the Covered Code which are properly granted shall survive any termination of this License. Provisions which, by their nature, must remain in effect beyond the termination of this License shall survive.
8.2. If You initiate litigation by asserting a patent infringement claim (excluding declaratory judgment actions) against Initial Developer or a Contributor (the Initial Developer or Contributor against whom You file such action is referred to as "Participant") alleging that:
a. such Participant's Contributor Version directly or indirectly infringes any patent, then any and all rights granted by such Participant to You under Sections 2.1 and/or 2.2 of this License shall, upon 60 days’ notice from Participant terminate prospectively, unless if within 60 days after receipt of notice You either: (i) agree in writing to pay Participant a mutually agreeable reasonable royalty for Your past and future use of Modifications made by such Participant, or (ii) withdraw Your litigation claim with respect to the Contributor Version against such Participant. If within 60 days of notice, a reasonable royalty and payment arrangement are not mutually agreed upon in writing by the parties or the litigation claim is not withdrawn, the rights granted by Participant to You under Sections 2.1 and/or 2.2 automatically terminate at the expiration of the 60 day notice period specified above.
b. any software, hardware, or device, other than such Participant's Contributor Version, directly or indirectly infringes any patent, then any rights granted to You by such Participant under Sections 2.1(b) and 2.2(b) are revoked effective as of the date You first made, used, sold, distributed, or had made, Modifications made by that Participant.
8.3. If You assert a patent infringement claim against Participant alleging that such Participant's Contributor Version directly or indirectly infringes any patent where such claim is resolved (such as by license or settlement) prior to the initiation of patent infringement litigation, then the reasonable value of the licenses granted by such Participant under Sections 2.1 or 2.2 shall be taken into account in determining the amount or value of any payment or license.
8.4. In the event of termination under Sections 8.1 or 8.2 above, all end user license agreements (excluding distributors and resellers) which have been validly granted by You or any distributor hereunder prior to termination shall survive termination.
9. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL YOU, THE INITIAL DEVELOPER, ANY OTHER CONTRIBUTOR, OR ANY DISTRIBUTOR OF COVERED CODE, OR ANY SUPPLIER OF ANY OF SUCH PARTIES, BE LIABLE TO ANY PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SUCH PARTY'S NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
10. U.S. Government End Users
The Covered Code is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire Covered Code with only those rights set forth herein.
11. Miscellaneous
This License represents the complete agreement concerning subject matter hereof. If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. This License shall be governed by California law provisions (except to the extent applicable law, if any, provides otherwise), excluding its conflict-of-law provisions. With respect to disputes in which at least one party is a citizen of, or an entity chartered or registered to do business in the United States of America, any litigation relating to this License shall be subject to the jurisdiction of the Federal Courts of the Northern District of California, with venue lying in Santa Clara County, California, with the losing party responsible for costs, including without limitation, court costs and reasonable attorneys' fees and expenses. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any law or regulation which provides that the language of a contract shall be construed against the drafter shall not apply to this License.
12. Responsibility for Claims
As between Initial Developer and the Contributors, each party is responsible for claims and damages arising, directly or indirectly, out of its utilization of rights under this License and You agree to work with Initial Developer and Contributors to distribute such responsibility on an equitable basis. Nothing herein is intended or shall be deemed to constitute any admission of liability.
13. Multiple-Licensed Code
Initial Developer may designate portions of the Covered Code as "Multiple-Licensed". "Multiple-Licensed" means that the Initial Developer permits you to utilize portions of the Covered Code under Your choice of the MPL or the alternative licenses, if any, specified by the Initial Developer in the file described in Appendix A.
Appendix A - Mozilla Public License.
"The contents of this file are subject to the Mozilla Public License Version 1.1 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at
Software distributed under the License is distributed on an "AS IS" basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See the License for the specific language governing rights and limitations under the License.
The Original Code is ______________________________________.
The Initial Developer of the Original Code is ________________________.
Portions created by ______________________ are Copyright (C) ______
_______________________. All Rights Reserved.
Contributor(s): ______________________________________.
Alternatively, the contents of this file may be used under the terms
of the _____ license (the "[___] License"), in which case the
provisions of [______] License are applicable instead of those
above. If you wish to allow use of your version of this file only
under the terms of the [____] License and not to allow others to use
your version of this file under the MPL, indicate your decision by
deleting the provisions above and replace them with the notice and
other provisions required by the [___] License. If you do not delete
the provisions above, a recipient may use your version of this file
under either the MPL or the [___] License."
EXHIBIT C
Beta Services
If Customer elects to participate in any evaluation or test of any Beta Services, then the following conditions shall apply. “Beta Services” shall mean any pre-production version of any SignalWire Services that are offered by SignalWire to Customer for the sole purpose of testing and evaluating such SignalWire Services. As to the Beta Services specifically, the terms of this Exhibit C shall control over any conflicting provision of the Agreement.
Customer acknowledges that: (i) such Beta Services are provided "AS IS, AS AVAILABLE" with no warranty whatsoever; (ii) the Beta Services are a pre-release, pre-production version and may not work properly and that Customer’s use of the Beta Services may expose it to unusual risks of operational failures; (iii) Beta Services should not be used in a live production environment; and (iv) Customer must not use the Beta Services where their use could affect any systems relating to the control of hazardous environments, life support, or weapons systems.
Customer agrees to provide prompt feedback regarding its experience with the Beta Services in a form reasonably requested by SignalWire, including information necessary to enable it to duplicate errors or problems that Customer may experience. Customer agrees that all information regarding its beta test, including its experience with and opinions regarding the Beta Services, will be deemed SignalWire’s confidential information, subject to protection under Section 8, and Customer agrees not to disclose such testing results or experiences with any third party or use them for any purpose other than providing feedback to SignalWire.
Customer agrees that SignalWire may use Customer’s Beta Services feedback for any purpose whatsoever, including product development purposes. At SignalWire’s request, Customer will provide SignalWire with comments that it may use publicly for press materials and marketing collateral. Any intellectual property inherent in Customer’s feedback or arising from its testing of the Beta Services will be owned exclusively by SignalWire.
The commercially released version of the Beta Services may change substantially from the pre-release version, and programs that use or run with the pre-release version may not work with the commercial release or subsequent releases.
Customer is not entitled to any Service Credits under the SignalWire SLA for downtime or other problems that may result from its use of the Beta Services. Subject to the foregoing limitations, the maximum aggregate liability of SignalWire and any of its employees, agents, affiliates, or suppliers, under any theory of law (including breach of contract, tort, strict liability, and infringement) for harm to Customer arising from its use of the Beta Services will be a payment of money not to exceed One Hundred Dollars ($100.00).
SignalWire may terminate the Beta Services at any time without notice, in its sole discretion.