1 PACKET FUSION, INC.
ZOOM SERVICES RESELLER CUSTOMER AGREEMENT
This Zoom Services Reseller Customer Agreement (the “Agreement” or “Packet Fusion Master Services Agreement”) sets forth terms under which Packet Fusion, Inc., a California corporation (“Company” or “PFI”) shall distribute, resell or refer the Zoom Service(s) to City of Foster City, (“Customer”). This agreement is effective as of the date of signing and will remain in effect for all future orders or purchases of Zoom Services or other services from Company. Capitalized terms shall have the meanings defined in the Agreement. In consideration of the mutual promises and obligations in the Agreement, the sufficiency of which is hereby acknowledged, the parties agree as follows.
1. S
ERVICES AND TERMS OF SERVICE
1.1. Zoom Service(s). Company is authorized to resell or distribute Zoom Meeting Services, Zoom Phone Services and other Zoom Services as more fully described in the Zoom Services Description available at https://explore.zoom.us/en/services-d escription/. Each Customer’ s purchase of Zoom Services shall be placed with Company on one or more Orders in accordance with this Agreement and the Reseller Customer Terms of Service. Each Order shall be deemed to be included in the Agreement as an attachment to Exhibit 1 of this Agreement.
1.2. Professional Services. Company is authorized to resell Zoom professional services or may provide its own installation and other professional services as requested by the Customer. Such services shall be described on one or more Statements of Work signed by Company and Customer that reference this Agreement (“SOW” or “Statement of Work”). Each such SOW shall be deemed to be included in the Agreement as an additional attachment to Exhibit 2 of this Agreement.
1.3. Delivery and Installation. All risk of loss passes to customer upon delivery of any purchased equipment to the installation site. The equipment delivery date shall be at a time to be mutually agreed upon by the parties. Title to any equipment purchased from PFI shall pass to customer upon the date that the equipment is delivered to the installation site.
1.4. Zoom Reseller Customer Terms of Service. Customer’s use of and access to Zoom’s website, products, services and associated software is conditioned upon compliance with and acceptance of the Reseller Customer Terms of Service. By signing this Agreement Customer acknowledges that is has read, understands and will comply with these Reseller Terms of Service and all other Zoom notices and terms.
The full Zoom Reseller Customer Terms of Service are available at https://explore.zoom.us/en/eula- terms-of-service.
1.5. Zoom Phone Native Services. If Customer chooses to procure Zoom Phone Native Service, such choice is said to be a directive and mandate to the Company to procure Zoom Phone Native on Customer’s behalf for the benefit of the Customer and its end users (the “Mandate”). All Zoom Phone Native Services are subject to Mandatory Flow Down Terms which are included in this Agreement as Exhibit 3.
2. SERVICE FEES, BILLING AND PAYMENT
2.1. Service Fees. Shall mean the fees that Zoom charges for the Service(s) for each Customer.
2.2. Metered and Variable Billings. Zoom Phone Native Services that are subject to metered/variable billing and are billed based on the Customer’s use and consumption. For clarity, metered/variable billings are considered additional Service Fees. Company shall bill in arrears for usage on a metered/variable billing plan based on the number of call minutes the Customer utilizes in the prior month, multiplied by the applicable Zoom Phone Native Services calling rates set forth at https://zoom.us/billing/pbx/rates. 2 2.3. Professional Services Billing. Customer will be invoiced for the Professional Services Fees as set forth in each SOW.
2.4. Reimbursable Expenses. Customer will reimburse all pre-approved travel and other expenses incurred in connection with the delivery of services under this Agreement.
2.5. Payment Terms. Unless otherwise stated in any services or sales order, Customer will pay all invoices within thirty (30) days of the date of the applicable invoice by check, ACH or wire transfer. All payments are non-refundable and PFI will charge an administrative fee for returned checks.
2.6. Cost of Collection. Customer shall be liable for any reasonable expenses incurred by Company in collecting any amount due under this Agreement and any Orders, or in enforcing any obligation under this Agreement or any Orders, including without limitation collection agency costs, reasonable attorney’s fees, and court costs.
3. TERM AND TERMINATION
3.1. Term; Automatic Renewal. Each Order Form will specify your Initial Subscription Term and any applicable Renewal Term for the Services. Unless your Order Form expressly states otherwise or applicable Law prohibits automatic renewal, each Renewal Term for the Services will begin automatically at the end of the then-current Initial Subscription Term or Renewal Term; as the case may be, unless either party provides written notice of termination at least sixty (60) calendar days prior to commencement of a Renewal Term.
4. WARRANTIES; DISCLAIMERS
4.1. Where Company acts as a reseller of third-party technology, Company represents and warrants that any third-party technology provider has authorized Company to grant licenses or sublicenses to use their products, including but not limited to the third-party technology, for use in Company’s performance of the solution and Customer’s use in connection therewith.
4.2. The Company technology and third-party technology may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Company is not responsible for any delays, delivery failures, or other damage resulting from such problems.
4.3. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” ‘WHERE IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PACKET FUSION MAKES NO
REPRESENTATIONS OR WARRANTIES THAT USE OF THE CLOUD SERVICES WILL BE UNINTERRUPTED, TIMELY, COMPLETE, OR FREE FROM ERROR OR DEFECT.
4.4. Company warrants that any Professional Services or other Services provided by the Company will be performed in a professional and workmanlike manner and in accordance with applicable requirements of each SOW.
5. LIMITATION OF LIABILITY AND INDEMNIFICATION
5.1. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
WILL PACKET FUSION AS RESELLER OF ZOOM SERVICES BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR
INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER
SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER 3 LEGAL THEORY, EVEN IF ZOOM, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE INDEMNIFCATION OBLIGATION PROVIDED IN SECTION 5.2.2 OF THIS AGREEMENT AND IN ANY CASE, ZOOM’S, ITS AFFILIATES’, SUPPLIERS’ AND RESELLERS’ MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS
ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO FIFTY THOUSAND DOLLARS ($50,000.00). Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
5.2. INDEMNIFICATION.
5.2.1. You agree to indemnify, defend and hold harmless Packet Fusion as Reseller, its officers, directors, employees, consultants, agents, and Zoom from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from Your use of the Zoom Services, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity or applicable law.
5.2.2. To the fullest extent permitted by law, Packet Fusion shall indemnify, hold harmless, release and defend Customer, its officers, employees, and agents from and against any and all actions, claims, demands, damages, disabilities, fines, penalties, losses, costs, expenses (including consultants' and attorneys' fees and other defense expenses) and liabilities of any nature that may be asserted by any person or entity, in whole or in part arising out of Packet Fusion's performance or activities hereunder, including the performance or activities of other persons employed or utilized by Packet Fusion in the performance of this Agreement, excepting liabilities due to the negligence, recklessness or willful misconduct of Customer. This indemnification obligation shall continue to bind Packet Fusion after the termination of this Agreement.
6. GENERAL
6.1. Confidentiality. During the course of reselling Zoom Services and any other products or services hereunder, Company may have access to confidential and proprietary information and materials of Customer (“Confidential Information”). Confidential Information includes and is not limited to, information related to past, present or future research, development or business affairs, any proprietary products, software, materials or methodologies, trade secrets or any other information which provides Company with a competitive advantage. Confidential Information shall be used by Company only in conjunction with the provision or performance of this Agreement and shall not be disclosed to any third party. No rights or licenses under patents, trademarks or copyrights are granted or implied by any disclosure of Confidential Information. Upon Customer’s request or completion or termination of this Agreement, Company shall return all Confidential Information to Customer.
Company shall only disclose Customer Confidential Information to subcontractors, employees, officers, directors or affiliates (collectively, “Affiliated Persons”) who have a need to know such Customer Confidential Information in order to perform or provide the Services or other products or services for Customer related to Customer's systems, provided that such Affiliated Persons are subject to written confidentiality obligations with Company protecting Customer’s Confidential Information.
6.2. Security and Data Protection. Customer is solely responsible for instituting and maintaining security safeguards to protect Customer’s systems and data.
6.3. Independent Contractors. Neither party is an employee, agent or representative of the other party.
Neither party shall have any right, power, or authority to enter into any agreement for or on behalf of the other party, or to incur any obligation or liability or otherwise bind the other party. This agreement does not create an association, joint venture, or partnership between the parties nor imposes any partnership liability upon either party.
4 6.4. Force Majeure. Neither party shall be liable or otherwise responsible for any nonperformance or delay in performance of any of obligations under this Agreement during any period in which performance is prevented or hindered by any Force Majeure event, including by way of example but without limitation, lightning strike and any other acts of God, fire, flood and other severe catastrophic weather conditions, pandemic, war, embargo, union strikes, explosions or riots.
6.5. Assignment and Subcontracting. This Agreement, including any order entered into hereunder, is assignable by either party with the other party’s prior written consent, which consent shall not be unreasonably withheld. Either party may assign this Agreement and orders entered hereunder, in whole or in part, to an affiliate, subsidiary, joint venture, or third party into which said party is merged or which acquires substantially all of a party’s assets or control of said party. Company may freely subcontract any or all of the work hereunder, provided that Company shall retain responsibility for the work subcontracted.
6.6. Notices; Party Representatives. All notices, demands or other writings to be made, given or sent hereunder or which may be so given or made or sent by Customer or Company to the other shall be deemed to have been given in writing and personally delivered or if mailed on the third (3 rd) day after
being deposited in the United States mail, certified or registered, postage prepaid, and addressed to the respective Parties at the following addresses:
If to Company:
Packet Fusion, Inc.
4301 Hacienda Drive, Suite 400
Pleasanton, CA. 94588
ATTN: Legal
If to Customer:
City of Foster City
610 Foster City Blvd
Foster City, CA 94404
6.7. Authority. Each individual executing this Agreement on behalf of a corporation, nonprofit corporation, partnership or other entity or organization, represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms.
6.8. Disputes. Any controversy, dispute or claim arising out of, or relating to, the interpretation of this Agreement shall be first subject to a thirty (30) day negotiation period between the parties in which each party shall disclose to the other all non-confidential documents, facts, statements and any other relevant information which may have any bearing on this dispute. Should such negotiations fail to resolve the dispute, either party may refer the dispute to arbitration in accordance with the Commercial Arbitration rules of the American Arbitration Association. The decision of the Arbitrator shall be based, exclusively, upon only this Agreement and the information disclosed by the parties during the negotiation period, and the law of the state in which the equipment is located. The Arbitrator’s decision shall be final and binding, and judgment upon the award rendered may be entered in any court having jurisdiction thereof.
6.9. Governing Law; Entire Agreement. This Agreement, will be governed by the laws of the state of the State of California, constitutes the entire Agreement between the parties and supersedes all prior oral and written proposals and communications. This Agreement takes precedence over the language of any implementing Customer purchase order or similar document. No modification to this Agreement is effective unless in writing and signed by both parties.
5 6.10. Severability. If any provision of this Agreement is found to be illegal or unenforceable, then such provision shall be modified to the minimum extent necessary, in conformance with the intention of the parties, to cure such invalidity or unenforceability, and the remaining provisions shall continue in full force and effect.
6.11. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Signatures of parties on copies transmitted by facsimile or electronic signature shall be considered as signed original documents.
6.12. Construction; Section Headings. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor or against either party, and that any ambiguity shall not be interpreted against the drafting party. The section headings in this Agreement have been inserted merely for convenience, are not a part of this Agreement, and shall not affect the rights and obligations of the parties or the meaning of the language in this Agreement.
6.13. Survival. Sections 4-6 shall survive the expiration or termination of this Agreement.
Packet Fusion, Inc.
By:
Name: Sarah Ashley
Title: Vice President – Operations & Finance
Date:
City of Foster City
By:
Name: Stacy Jimenez Mayor
ATTEST
By:
Name: Priscilla Schaus, City Clerk
APPROVED AS TO FORM
By:
Name: Benjamin Stock, City Attorney
6 EXHIBIT 1
ZOOM SERVICES ORDERS
Exhibit 1 is comprised of all Zoom Services Orders entered into between the parties.
7 EXHIBIT 2
STATEMENT(S) OF WORK
Exhibit 2 is comprised of all SOWs entered into between the parties pursuant to this Agreement.
8 EXHIBIT 3
ZOOM PHONE NATIVE SERVICES – MANDATE
(MANDATORY FLOW DOWN TERMS)
1. Customer Agreement. Company shall state in writing, in each Customer Agreement, the following word for word, and where the word “Company” appears below, that means the party to this Schedule with Zoom:
Customer Mandate for Zoom Phone Native Services (Confidential Information). a. Customer has directed and mandated Packet Fusion, Inc. (“Company”) to procure the single supply of Zoom Phone Native Service on Customer’s behalf, for the benefit of Customer and its end users (the “Mandate”).
b. Company has entered into an agreement with Zoom pursuant to the Mandate, whereby Company matches the Customer to Zoom, and requests Zoom to provide Zoom Phone Native Service for Customer’s benefit and use.
c. Pursuant to the Mandate, Company is responsible for all contracting, billing, and payment collection on behalf of Zoom and related document administration for and from Customer. d. Per telecommunications regulations, Zoom is the provider of the Zoom Phone Native Services to Customer.
2. Customer Agreement for Zoom Phone Native Service. Company must include the following terms in the Customer Agreement for ordering Zoom Phone Native Service:
a. Zoom Phone Numbering Policy. Customer’s use of Zoom Phone Native Services is subject to the Zoom Phone Numbering Policy published at
https://explore.zoom.us/docs/doc/Zoom-Phone-Numbering- Policy.pdf. b. Zoom Terms and Policies. Customer’s use of the Zoom Phone Native Service is subject to all applicable Zoom Notices & Policies published at https://zoom.us/legal, and the Zoom Reseller Customer Terms of Service published at: https://zoom.us/docs/en-u s/EULA- terms-of-service.html ( notwithstanding the title of such Reseller Customer Terms of Service, they also apply to Customers of partners acting under Mandate). c. Emergency Services.
i. All applicable emergency calling notices and terms as published on Zoom’s website at https://zoom.us/legal apply to Customer’s use of Zoom Phone Native Services.
3. Emergency Services Limitation of Liability. Company must include the following terms in the Customer Agreement for ordering Zoom Phone Native Service:
EMERGENCY SERVICES LIMITATION OF LIABILITY. NOTHING IN THIS CUSTOMER AGREEMENT IS INTENDED TO IMPLY OR CREATE LIABILITY FOR ZOOM FOR:
a. ANY FAILURE OF EMERGENCY SERVICES, OR INABILITY TO REACH OR USE
EMERGENCY SERVICES INCLUDING WITHOUT LIMITATION DUE TO AN OUTAGE OF ZOOM SERVICES; OR THE INABILITY TO PLACE OR COMPLETE EMERGENCY CALLS
FROM ANY ZOOM-ENABLED DEVICE, CUSTOMER LINE, OR CUSTOMER PREMISES,
OR INABILITY TO ACCESS EMERGENCY PERSONNEL
b. ANY FAILURE OF ANY EMERGENCY RESPONDERS TO RESPOND, OR TO RESPOND
TO THE CORRECT LOCATION WHERE THE EQUIPMENT, CUSTOMER, OR CALLER IS PHYSICALLY PRESENT OR WHERE SUCH EMERGENCY SERVICES ARE REQUIRED; AND c. ANY FAILURE OF EMERGENCY SERVICES, OR INABILITY TO REACH OR USE EMERGENCY SERVICES DUE TO CIRCUMSTANCES OUTSIDE OF ZOOM’S CONTROL INCLUDING BUT NOT LIMITED TO: (A) LOSS OF ELECTRICAL POWER; (B) LOSS 9 OF INTERNET CONNECTIVITY; (C) DEFECTIVE OR MISCONFIGURED EQUIPMENT; (D) NETWORK CONGESTION; (E) DELAYS ASSOCIATED WITH UPDATING THE REGISTERED SERVICE LOCATION; (F) RESTRICTIONS CREATED BY NON-VOICE EQUIPMENT; (G) RELOCATED EQUIPMENT, INCLUDING OUTSIDE OF THE TERRITORY; (H) THE SIMULTANEOUS USE OF ONE LINE WITH MULTIPLE PIECES OF EQUIPMENT; (I) FAILURE OF EMERGENCY RESPONSE CENTERS TO ANSWER AN EMERGENCY CALL; (J) FAILURES OF ANY THIRD PARTIES THAT ARE RESPONSIBLE FOR ROUTING EMERGENCY CALLS; (K) THE USE OF NON -NATIVE TELEPHONE NUMBERS; (L) FAILURE OF ANY EMERGENCY SERVICE PERSONNEL TO CALL BACK DIRECTLY TO
THE NUMBER FROM WHICH AN EMERGENCY CALL WAS MADE OR FAILURE OF EQUIPMENT TO RECEIVE CALLBACKS FROM EMERGENCY SERVICE PERSONNEL; OR (M) NATURAL DISASTERS, FIRES, FLOODS, STORMS, EARTHQUAKES, ACCIDENTS,
WAR, TERRORIST ACTS OR OTHER ACTS OF INSURRECTION, LABOR DISPUTE WITH
REGIONAL IMPACT, OR MALFUNCTION OF UTILITY, COMMUNICATION OR TRANSPORTATION SYSTEMS.