SIGNALWIRE CLOUD AGREEMENT

Please read carefully this SignalWire Cloud Agreement (this “Agreement”), which contains the terms and conditions that govern your access to and use of the SignalWire Services (as defined below) and is an agreement between SignalWire, Inc., a Delaware Corporation with offices at 228 Hamilton Ave, 3rd Fl, Palo Alto, CA 94301, USA (also referred to as “SignalWire,” “we,” “us,” or “our”) and you or the entity you represent (“Customer,” “you,” or “your”).

By clicking the check box presented with these terms or by accessing or using the SignalWire Services (“Acceptance”), you will create a legally enforceable contract where you agree to be bound by all terms and conditions of this agreement without modification. This Agreement takes effect on Acceptance (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 12 for definitions of certain capitalized terms used in this Agreement.

IN ADDITION, DISPUTES ABOUT THESE TERMS OR RELATING TO SIGNALWIRE SERVICES GENERALLY MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY. For more details, please see Section 17.

IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, YOU SHOULD NOT CLICK THE CHECK BOX PRESENTED WITH THESE TERMS AND YOU ARE PROHIBITED FROM ACCESSING OR USING THE SIGNALWIRE SERVICES.

TERMS AND CONDITIONS

1. SIGNALWIRE SERVICES.
   1. This Agreement will be implemented through one or more Order Forms. Any change to the terms of this Agreement within an Order Form will apply only to the SignalWire Service described therein.
   2. Subject to all terms and conditions of this Agreement, we will use commercially reasonable efforts to operate the SignalWire Services in accordance with the service levels set forth on the SignalWire Service Level Agreement (“SLA”). You may use the Documentation solely in connection with the Hosted Service. We reserve the right to modify the Hosted Service (in whole or in part) at any time, provided that we will not materially reduce the functionality of the SignalWire Services.
   3. We will not be responsible or liable for any failure in the SignalWire Services resulting from or attributable to (a) usage in excess of the usage for which you have ordered pursuant to an applicable Order Form, (b) failures in any telecommunications, network or other service or equipment that are not within our reasonable control, (c) your products, services, negligence, acts or omissions, (d) any force majeure or other cause beyond our reasonable control, (e) scheduled maintenance or (f) unauthorized access, breach of firewalls or other hacking by third parties, except to the extent such access, breach or hacking is caused by our negligence or willful misconduct.
      
2. CHANGES.
   1. To the SignalWire Services. We may change or discontinue any or all of the SignalWire Services or change or remove functionality of any or all of the SignalWire Services from time to time. We will notify you of any material change to or discontinuation of the SignalWire Services.
   2. To the APIs. We may change or discontinue any APIs for the SignalWire Services from time to time. For any discontinuation of or material change to an API for a SignalWire Service, we will use commercially reasonable efforts to continue supporting the previous version of such API for 12 months after the change or discontinuation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) would cause us to violate the law or requests of governmental entities).
   3. To the SLA. We may change or discontinue the SLA from time to time in accordance with Section 10.
      
3. LICENSES AND PROPRIETARY RIGHTS.
   1. Except for the licenses explicitly granted in this Agreement, all right, title and interests in and to the intellectual property and proprietary rights of whatever nature in the SignalWire Services, including derivative works, are and shall remain the exclusive property of SignalWire and/or our licensors, and nothing in this Agreement should be construed as transferring any aspects of such rights to you or any third party. We and our licensors reserve any and all rights not expressly granted in this Agreement. SignalWire, SignalWire Cloud, SignalWire Stack, and FreeSwitch are trademarks of SignalWire, Inc., and shall not be used by you without our express authorization.
   2. Except as expressly permitted in this Agreement, you shall not directly or indirectly: (a) use any of SignalWire’s business, technical and financial information, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed to create any service, software, documentation or data that is similar to any aspect of the SignalWire Services; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Platform, or the underlying ideas, algorithms or trade secrets therein; (c) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the SignalWire Services; (d) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; (e) use or attempt to use the SignalWire Services to (i) send harassing messages, (ii) knowingly call numbers that have been listed on any municipality's or federal “Do Not Call” registry, (iii) access or allow access to emergency services, such as 911-types of communication, (iv) engage in fraud or phishing of sensitive data, or (v) misrepresent your identity; (f) violate a country’s or a state’s law by using the SignalWire Services to record a telephone conversation without ensuring all parties are informed. You may not use the recording capability of SignalWire Services unless you have determined that your use is legal;.or (g) permit any third party to engage in any of the foregoing proscribed acts.
   3. All your (a) suggestions for correction, change or modification to the SignalWire Services, (b) evaluations, (c) benchmark tests, and (d) other feedback, information and reports provided to us hereunder (collectively, “Feedback”), will be the property of SignalWire and you shall and hereby do assign any rights in such Feedback to SignalWire. You agree to assist us, at our expense, in obtaining intellectual property protection for such Feedback, as we may reasonably request.
4. PAYMENTS AND TAXES.
   1. Your credit card shall be charged the amount set forth in the Order Form and deposited into your account. We shall deduct the applicable fees and charges for use of the SignalWire Services as described on the SignalWire Website. 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 we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing SignalWire Services you are using by giving you at least 30 days’ prior notice. If your account reaches the minimum balance specified in the Order Form, your credit card on file shall be automatically billed with the reload amount designated in the Order Form. We will endeavor to notify you that the credit card on file has been charged the reload amount, but your credit card will be charged regardless of whether we notify you. Payment shall be made without any right of set-off or deduction. All payments made pursuant to this Agreement shall be made in the quoted currency and are nonrefundable.
   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 (eighteen percent (18%) per annum) 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. You shall reimburse SignalWire for all costs incurred by us in collecting any late payment of amounts due or related interest, including attorneys' fees, court costs, and collection agency fees.
   3. All fees are exclusive of applicable local, state, federal and international sales, value added, withholding and other taxes and duties of any kind. You shall be responsible for payment of such taxes, withholdings and duties of any kind, provided however that we shall be responsible for payment of taxes levied or imposed based upon SignalWire’s net income. Without limitation, you will be responsible for all applicable sales taxes unless you first claims a sales tax exemption by providing us with an exemption certificate acceptable to the applicable authorities.
5. TEMPORARY SUSPENSION.
   1. Generally. We may suspend your right to access or use any portion or all of the Service Offerings immediately upon notice to you if we determine: (a) your use of the SignalWire Services (i) poses a security risk to the SignalWire Services or any third party, (ii) could adversely impact our systems, the SignalWire Services, or the systems of any other SignalWire customer, (iii) could subject us, our affiliates, or any third party to liability, or (iv) could be fraudulent; (b) you are in breach of this Agreement, (c) you are in breach of your payment obligations under Section 4; or (d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
   2. Effect of Suspension. If we suspend your right to access or use any portion or all of the SignalWire Services: (a) you remain responsible for all fees and charges you incur during the period of suspension; and (b) you will not be entitled to any service credits under the SLA for any period of suspension.
6. TERM AND TERMINATION.
   1. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 6. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in this Section 6.
   2. You may terminate this Agreement for any reason by providing us notice and closing your account for all SignalWire Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you at least 60 days’ advance notice.
   3. 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.
   4. We may terminate this Agreement upon written notice to you in the event of your (a) unauthorized use of the SignalWire Services, (b) failure to make timely payment to us, (c) violation of Section 7, or (d) should the SignalWire Services become, or in our reasonable opinion is likely to become, the subject of a claim of intellectual property infringement or trade secret misappropriation.
   5. Sections 3, 4, 6.4, 7, 8, 9, 11, and 12 of this Agreement shall survive the termination of this Agreement for any reason.
7. CONFIDENTIALITY.
   1. SignalWire and you 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.
   2. Notwithstanding Section 7.1, SignalWire and you 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 confidentiality under this Agreement 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.
8. WARRANTY AND DISCLAIMER. The SignalWire Services are provided to you "as is," without any warranties of any kind, including, but not limited to, warranties concerning the installation, use or performance of the SignalWire Services. We and our suppliers disclaim all warranties, either express or implied, including but not limited to any warranty of merchantability, non-infringement and/or fitness for a particular purpose. We and our suppliers do not warrant that the SignalWire services will meet your requirements or that the operation thereof will be uninterrupted or error-free, or that errors will be corrected.
   
9. LIMITATION OF LIABILITY.
   1. In no event shall SignalWire 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 we have been advised of the possibility of such damages.
   2. In any event, and notwithstanding any other provision in this agreement, the aggregate liability of Signalwire for any reason and upon any cause of action under this Agreement shall be limited to the amount paid to us during the ninety (90) days prior to when the cause of action arose.
      
10. MODIFICATIONS TO THE AGREEMENT. We may modify this Agreement (including any Policies) at any time by posting a revised version on the SignalWire Website or by otherwise notifying you in accordance with Section 11.6; provided, however, that we will provide at least 60 days’ advance notice in accordance with Section 11.6 for adverse changes to any Service Level Agreement. Subject to the 60 day advance notice requirement with respect to adverse changes to Service Level Agreements, the modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the SignalWire Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the SignalWire Website regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.
    
11. MISCELLANEOUS.
    1. 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.
    2. Assignment. You 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 our prior consent (at our sole discretion). Any attempt by you to assign this Agreement without our 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.
    3. 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 you more than one (1) year after the cause of action has accrued.
    4. Governing Law and Venue. The enforceability and interpretation of Section 12 (Agreement to Arbitrate) will be determined the Federal Arbitration Act (including its procedural provisions). Apart from Section 12, these Terms will be governed by and interpreted according to the laws of the State of California without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 12 (Agreement to Arbitrate), any legal suit, action or proceeding arising out of or related to these Terms or our Services shall be instituted in either the state or federal courts of Palo Alto, California, and we each consent to the personal jurisdiction of these courts.
    5. Disputes. Any dispute or claim relating in any way to your use of the SignalWire Services will be resolved by binding arbitration rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we and you waive any right to a jury trial. Notwithstanding the foregoing we and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
    6. Notices.
       1. To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the SignalWire Website; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the SignalWire Website will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
       2. To Us. To give us notice under this Agreement, you must contact SignalWire by personal delivery, overnight courier or registered or certified mail to mailing address, as applicable, listed for SignalWire on the SignalWire Website. We may update the address for notices to us by posting a notice on the SignalWire Website. Notice shall be deemed to have been received by us, and shall be effective: (a) on the fifth business day after which such Notice is deposited prepaid in the local postal system or (b) on the day received, if sent with a reputable, expedited overnight or international courier or hand delivered.
    7. Export Law Assurances. You acknowledge that the SignalWire Services may be subject to export and import control laws, and agree to comply fully with those laws in connection with the SignalWire Services. You agree that neither 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. You hereby certifies that it is not prohibited by the U.S. government from participating in export or re-export transactions.
    8. 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.
    9. 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, or any causes beyond the reasonable control of that party.
    10. Publicity and Endorsement. During the Term of this Agreement, we may issue a press release in which we announce you have subscribed to the SignalWire Services. You, at your 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. You hereby consent to inclusion of your name and logo in client lists and marketing materials that may be published as part of SignalWire’s marketing and promotional efforts.
    11. Entire Agreement. This Agreement together with all applicable Order Forms, 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 you. You agree that such reasonable notice may be provided by posting on the SignalWire Website; your 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. Our acceptance of any document submitted by you to us 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.
12. DEFINITIONS. Certain capitalized terms used herein are set forth below. Other terms shall have the respective meanings set forth elsewhere in this Agreement, the applicable Order Form, or the Exhibits .

“Documentation” means any user guide, help information and other documentation and information regarding the SignalWire Services that is delivered by SignalWire to you in electronic or other form, if any, including any updates provided by SignalWire from time to time.

“Hosted Service” means the SignalWire Cloud service hosted by SignalWire and provided to you from time to time. The Hosted Service includes any change, improvement, extension or other new version thereof that is developed or otherwise made available to you.

“Order Form” means the order page on the SignalWire Website to which the SignalWire Services relate.

“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 Services.

“SignalWire APIs” means the SignalWire application programming interface, scripts, widgets, embeddable snippets and other tools that allow you to integrate with SignalWire’s system.

“SignalWire Services” means, collectively, the Hosted Service, Platform, SignalWire APIs, and Documentation.

“SignalWire Website” means the website located at https://www.signalwire.com/.

Last Updated October 30, 2018