MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (together with its Attachments, the “Agreement”) between RingCentral, Inc., with its primary office at 20 Davis Drive, Belmont, CA 94002 (“RingCentral”) , entering into this Agreement through its agent Avaya, City of Redondo Beach, a chartered municipal corporation and having its registered office at 415 Diamond Street, Redondo Beach, CA 90094 (“Customer”) and, for the purposes of Section 15, Avaya Inc., with its primary office at 4655 Great America Parkway, Santa Clara, CA 95054 , is effective as of the last date of signature below (“Effective Date”). RingCentral and Customer may be individually referred to as a “Party” or collectively as the “Parties.”
BACKGROUND
A. RingCentral is a provider of cloud-based unified communications and collaboration services, including voice, online meeting, video conferencing, contact center and related services, applications and product integrations.
B. Customer wants to receive certain RingCentral services and products as the Parties may agree in writing from time to time, described more fully in the relevant Attachments.
C. This Agreement sets forth the terms and conditions under which RingCentral will provide such services and products to Customer.
D. RingCentral has granted Avaya the authority to bind RingCentral to this Agreement as RingCentral’s agent.
The Parties (and Avaya, for the purpose of Section 15 below) agree as follows:
1. Definitions
Capitalized terms not defined have the meaning given to them in Exhibit A.
RingCentral and Customer are together referred to as the “Parties” and each individually as a “Party”.
The Master Services Agreement (“Agreement”) consists of the terms and conditions contained herein and the Service Attachments applicable to Customer’s Services, and any other Attachments agreed by the parties, are incorporated into and form a part of this Agreement.
Exhibit A – Definitions
Service Attachment A – Avaya Cloud Office Services
Service Attachment B – Professional Services Agreement
Attachment C- Service Level Agreement for Avaya Cloud Office THE PARTIES AGREE AS FOLLOWS:
2.Ordering and Term
A.Ordering Services. Customer may order the Services set forth in the relevant Attachments, attached hereto, by executing an Order Form in the format provided by RingCentral. Customer must submit the Order Form to RingCentral either in writing or electronically via the Administrative Portal.
The Order Form will identify the Services requested by Customer together with: (i) the price for each Service; (ii) scheduled Start Date; (iii) and products rented, licensed or sold to Customer, if any. An Order Form will become binding when it is executed by the Customer and accepted by RingCentral.
RingCentral may accept an Order Form by commencing performance of the requested Services. The Services and invoicing for those Services will begin on the Start Date, as identified in the applicable Order Form or on the day Services are ordered via the Administrative Portal. Customer may purchase additional Services, software, and equipment via the Administrative Portal or by executing additional Order Forms.
B.Equipment. Customer may purchase or rent equipment from RingCentral for use with the Services. The terms and conditions that govern any such transaction can be found at (i) Purchase:
http://www.ringcentral.com/legal/ringcentral-hardware-termsconditions.html ; and (ii) Rental: http://www.ringcentral.com/legal/lease-rental.html C.Term of this Agreement. The Term of this Agreement will commence on the Effective Date and continue until the last Order Form is terminated or expires, unless terminated earlier in accordance with its terms.
D.Services Term. The Services Term will begin on the Start Date of the initial Order Form and continue for the initial term set forth in the initial Order Form (“Initial Term”). Upon expiration of the Initial Term, unless otherwise set forth in the Order Form, recurring Services will automatically renew for
successive periods of the same length as the Initial Term (each a “Renewal Term”) unless either Party gives notice of non-renewal at least thirty (30) days before the expiration of the Initial Term or the then-current Renewal Term. The term of any recurring Services added to your Account after the initial Order Form is executed will start on the Start Date in the applicable Order Form, will run conterminously with the then-current Term of any preexisting Services unless otherwise extended in the applicable Order Form, and will be invoiced on the same billing cycles as the preexisting Services.
3.Invoicing and Payment
A.Prices and Charges. All prices are identified in US dollars on the Administrative Portal or in the applicable Order Form unless otherwise agreed by the Parties. Additional charges may result if Customer activates additional features, exceeds usage thresholds, or purchases additional Services or equipment. Customer will be liable for all charges resulting from use of the Services on its Account. Unless otherwise agreed between the Parties, recurring charges for the Services begin on the Start Date identified in the Administrative Portal or in the applicable Order Form and will continue for the Term. Recurring charges (such as charges for Digital Lines, product licenses, minute bundles, and equipment rental fees) will, unless otherwise agreed between the Parties, once incurred, remain in effect for the then-current Term. RingCentral will provide notice of any proposed increase in such charges no later than sixty (60) days before the end of the Initial Term or then-current Renewal Term, and any such increase will be effective on the first day of the next Renewal Term, provided, however, that the revised price for the first Renewal Term shall in no event exceed the lesser of (a) the then-current merchandised list price; or (b) the increase over the immediately preceding Initial Term’s price by a percentage equal to the then-current 12-month increase in the United States Consumer Price Index.
Administrative Fees that RingCentral is entitled to pass on to its customers as a surcharge pursuant to applicable Law may be increased on thirty (30) days’ written notice. Outbound calling rates will be applied based on the rate then in effect at the time of use. Customer may locate the currently effective rates in the Administrative Portal.
B.Invoicing and Payment. Invoices will be issued in accordance with the payment terms set forth in the Order Form. If Customer chooses to pay by credit or debit card, by providing a valid credit or debit card, Customer is expressly authorizing all Services and equipment charges and fees to be charged to such payment card, including recurring payments billed on a monthly or annual basis.
In addition, Customer’s provided credit card shall be used for any in-month purchases of additional services and products, or where Customer has exceeded usage or threshold limits, any overage charges. Unless otherwise stated in the applicable Order Form, recurring charges are billed in advance in the frequency set forth in the Order Form, and usage-based and onetime charges are billed monthly in arrears. Customer shall make payment in full , without deduction or set-off, within thirty (30) days of the invoice date.
Any payment not made when due may be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month or (ii) if applicable, the highest rate allowed by Law. In no event may payment be subject to delays due to Customer internal purchase order process.
C.Taxes. All rates, fees, and charges are exclusive of applicable Taxes, for which Customer is solely responsible. Taxes may vary based on jurisdiction and the Services provided. If any withholding tax is levied on the payments, then Customer must increase the sums paid to RingCentral so that the amount received by RingCentral after the withholding tax is deducted is the full amount RingCentral would have received if no withholding or deduction had been made. If Customer is a tax-exempt entity, tax exemption will take effect upon provision to and validation by RingCentral of certificate of tax exemption.
D.Billing Disputes. If a Customer reasonably and in good faith disputes any portion of RingCentral’s invoice, it must provide written notice to RingCentral within thirty (30) days of the invoice date, identifying the reason for the dispute and the amount being disputed. Customer’s dispute as to any portion of the invoice will not excuse Customer’s obligation to timely pay the undisputed portion of the invoice. Upon resolution, Customer must pay any validly invoiced unpaid amounts within thirty (30) days. Any amounts that are found to be in error resulting in an overpayment by the Customer will be applied as a billing credit against future invoices. Customer will be reimbursed any outstanding billing credits at the expiration or termination of this Agreement.
E.Use of Third party Billing Agent. The Customer
acknowledges and agrees that RingCentral may use a third party to act as its billing agent for the purposes of billing and collecting the fees set out in this Agreement.
4.Provision of the Service
A.General Terms. RingCentral will provide the
Services as described in the relevant Service Attachment. RingCentral may enhance, replace, and/or change the features of the Services, but it will not materially reduce the core features, functions, or security of the Services during the Term without Customer’s consent.
B.Customer Care
i. Customer must provide Helpdesk Support to Customer’s End Users.
RingCentral may require Customer’s Helpdesk support personnel to complete a designated series of training courses on RingCentral’s Services. Such training will be provided to Customer online in English at no cost. “Helpdesk Support” shall mean the performance of the following tasks:
Standard feature/functionality (“how to”) support for End Users (i.e. call forwarding, voice mail set-up, etc.);
Standard management of the Admin Interface within the
product; and
Support all moves, adds, changes and deletes of employees ii. RingCentral will make remote support available to Customer’s Helpdesk Support personnel and/or Account Administrators via the Customer Care call center, which will be available 24/7, to attempt to resolve technical issues with, and answer questions regarding the use of the Services. Unless otherwise agreed by the parties, Customer Care support will be provided in English, and onsite and implementation services are not included in the Customer Care support. “Customer Care” means Customer
support operations delivered by RingCentral and/or its
subcontractors.
iii. Customer may open a case with Customer Care following the process in place at the time. Any individual contacting Customer Care on behalf of Customer must be authorized to do so on behalf of the Account and will be required to follow applicable authentication protocols.
C.Professional Services. RingCentral offers a broad portfolio of professional services that includes onsite and remote implementation services; extended enterprise services including dedicated proactive network monitoring and premium technical support; and consulting. Any such services are governed by this Agreement, the Professional Services terms, and any applicable Statement of Work (SOW), which may be attached hereto.
D.Subcontracting. RingCentral may provide any of the Services hereunder through any of its Affiliates or subcontractors, provided that RingCentral will bear the same degree of responsibility for acts and omissions for those subcontractors acting on RingCentral’s behalf in the performance of its obligations under this Agreement as it would bear if such acts and omissions were performed by RingCentral directly.
5.Use of the Service
A.Service Requirements. The Services are dependent upon Customer’s maintenance of sufficient Internet access, networks and power as set forth in RingCentral’s Technical Sufficiency Criteria, available at https://www.ringcentral.com/legal/policies/technical-sufficiency-criteria.htm . RingCentral will not be responsible for any deficiencies in the provision of the Services if Customer’s network does not meet RingCentral’s Technical Sufficiency Criteria.
B.Use Policies. Customer and its End Users may use
the Services only in compliance with this Agreement, applicable Law, and the Use Policies referenced below, which are incorporated into and form part of this Agreement. Customer may not use, or permit the use of the Services, to interfere with the use of RingCentral’s service by others or with the operation of the RingCentral Network. Customer may not resell the Services. Customer must ensure that its End Users comply with the Use Policies. Any breach of this Section (Use Policies) will be deemed a material breach of this Agreement. RingCentral may update the Use Policies from time to time and will provide notice to Customer at the email address on file with the Account. Such updates will become effective and form part of this Agreement thirty (30) days after such notice to Customer. i. Acceptable Use Policy. The Services must be used in accordance with RingCentral’s Acceptable Use Policy, available at
https://www.ringcentral.com/legal/acceptable-use-policy.html .
Notwithstanding anything to the contrary in this Agreement, RingCentral may act immediately and without notice to suspend or limit the Services if RingCentral reasonably suspects fraudulent or illegal activity in the Customer’s Account, material breach of the Acceptable Use Policy, or use of the Services that could interfere with the functioning of the RingCentral Network provided such suspension or limitation may only be to the extent reasonably necessary to protect against the applicable condition, activity, or use. RingCentral will promptly remove the
suspension or limitation as soon as the condition, activity or use is resolved and mitigated in full. If Customer anticipates legitimate but unusual activity on its Account, Customer should contact RingCentral Support in advance to avoid any Service disruption.
ii. Emergency Services. RingCentral’s policy governing the provision of emergency services accessed via the Services is available at https://www.ringcentral.com/legal/emergency-services.html. iii. Numbering Policies. The provision, use, and publication of numbers used in conjunction with the Services are governed by RingCentral’s Numbering Policies, available at
https://www.ringcentral.com/legal/policies/numbering-policy.html.
6.Termination
A.Termination for Cause. A. Either Party may terminate this Agreement and any Services purchased hereunder in whole or part by giving written notice to the other Party: i) if the other Party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of such notice; ii) at the written recommendation of a government or regulatory agency following a change in either applicable Law or the Services; or iii) upon the commencement by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings or an assignment for the benefit of creditors.
In the event that RingCentral notifies Customer of a modification to any Use Policy made pursuant to this Agreement, that has a material adverse effect on Customer’s use of the Services and is not required by Law, the Customer could object to the modification by sending written notice (“Objection Notice”) to RingCentral within thirty (30) days from the date such modification is notified. In that case, the Parties shall work in good faith to find a mutually agreeable solution. If after negotiating in good faith the Parties cannot reach agreement, then either Party may terminate the affected Services without penalty with a thirty (30) days written notice to the other party. Any use of the Services after the effective date of such modification will be deemed Customer’s acceptance of the change, unless the Customer has delivered an Objection Notice and the Parties are negotiating in good faith to resolve this issue.
B.Effect of Termination. If Customer terminates the Services, a portion of the Services, or this Agreement in its entirety due to RingCentral’s material breach under Section 6(A) (Termination for Cause), Customer will not be liable for any fees or charges for terminated Services for any period subsequent to the effective date of such termination (except those arising from continued usage before the Services are disconnected), and RingCentral will provide Customer a pro-rata refund of any prepaid and unused fees or charges paid by Customer for terminated Services. If this Agreement or any Services are terminated for any reason other than as a result of a material breach by RingCentral or as otherwise permitted pursuant to Section 6(A) or as set forth in Section 14((Regulatory and Legal Changes) the Customer must, to the extent permitted by applicable Law and without limiting any other right or remedy of RingCentral, pay within thirty (30) days of such termination all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services for the remainder of the then-current Term plus related Taxes and fees.
7.Intellectual Property
A. Limited License
i. Subject to, and conditional upon Customer’s compliance with, the terms of this Agreement, RingCentral grants to Customer and its End User, a limited, personal, revocable, non-exclusive, non-transferable (other than as permitted under this Agreement), non-sublicensable license to use any software provided or made available by RingCentral to the Customer as part of the Services (“Software”) to the extent reasonably required to use the Services as permitted by this Agreement, only for the duration that Customer is entitled to use the Services and subject to the Customer being current on its payment obligations.
ii. Customer will not, and will not allow its End Users, to:
(a)Sublicense, resell, distribute or assign its right under the license granted under this Agreement to any other person or entity; (b) modify, adapt or create derivative works of the Software or any associated documentation; (c) reverse
engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software; (d) use the Software for infringement analysis, benchmarking, or for any purpose other than as necessary to use the Services Customer is authorized to use; (e) create any competing Software or Services; or (f) remove any copyright or other proprietary or confidential notices on any Software or Services.
B.IP Rights
i. RingCentral’s Rights. Except as expressly provided in this Agreement, the limited license granted to Customer under Section 7(A) (Limited License) does not convey any ownership or other rights or licenses, express or implied, in the Services (including the Software), any related materials, or in any Intellectual Property and no IP Rights or other rights or licenses are granted, transferred, or assigned to Customer, any End User, or any other party by implication, estoppel, or otherwise.
All rights not expressly granted herein are reserved and retained by RingCentral and its licensors. The Software and Services may comprise or incorporate services, software, technology or products developed or provided by third parties, including open source software or code. Customer acknowledges that misuse of RingCentral Services may violate third-party IP rights. ii. Customer Rights. As between RingCentral and Customer, Customer retains title to all IP Rights that are owned by the Customer or its suppliers. To the extent reasonably required or desirable for the provision of the Services, Customer grants to RingCentral a limited, personal, non-exclusive, royalty-free, license to use Customer’s IP Rights in the same. Customer must provide (and is solely responsible for providing) all required notices and obtaining all licenses, consents, authorizations or other approvals related to the use, reproduction, transmission, or receipt of any Customer Content that includes personal or Confidential Information or incorporates any third-party IP rights.
C. Use of Marks. Neither Party may use or display the other Party’s trademarks, service mark or logos in any manner without such Party’s prior written consent.
8.Confidentiality
A.Restrictions on Use or Disclosures by Either Party. During the Term of this Agreement and for at least one (1) year thereafter, the Receiving Party shall hold the Disclosing Party’s Confidential Information in confidence, shall use such Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall use at least as great a standard of care in protecting the Confidential Information as it uses to protect its own Confidential Information.
Each Party may disclose Confidential Information only to those of its employees, agents or subcontractors who have a need to it in order to perform or exercise such Party’s rights or obligations under this Agreement and who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. Each Party may disclose the other Party’s Confidential Information in any legal proceeding or to a governmental entity as required by Law.
These restrictions on the use or disclosure of Confidential Information do not apply to any information which is independently developed by the Receiving Party or lawfully received free of restriction from another source having the right to so furnish such information; after it has become generally available to the public without breach of this Agreement by the Receiving Party; which at the time of disclosure was already known to the Receiving Party, without restriction as evidenced by documentation in such Party's possession; or which the Disclosing Party confirms in writing is free of such restrictions.
Upon termination of this Agreement, the Receiving Party will promptly delete, destroy or, at the Disclosing Party’s request, return to the Disclosing Party, all Disclosing Party’s Confidential Information in its possession, including deleting or rendering unusable all electronic files and data that contain Confidential Information, and upon request will provide the Disclosing Party with certification of compliance with this subsection.
Notwithstanding the foregoing, no documents shall be deemed confidential if disclosed pursuant to the Customer’s contract approval process.
9.Data Protection
A.Data Privacy. RingCentral respects Customer’s privacy and will only use the information provided by Customer to RingCentral or collected in the provision of the Services in accordance with (a) the Privacy Notice, which can be found at http://www.ringcentral.com/legal/privacy-notice.html and (b) RingCentral’s Data Processing Addendum, available at
https://www.ringcentral.com/legal/dpa.html , each of which are hereby incorporated by reference.
RingCentral may update the Privacy Notice from time to time and will provide notice ofsuch update to Customer at the email address on file with the Account.
Such updates will be effective and form part of this Agreement thirty (30) days after such notice to Customer.
B.Data Security. RingCentral will take commercially reasonable precautions, including, without limitation, technical (e.g., firewalls and data encryption), administrative and physical measures, to help safeguard Customer’s Account, Account Data, and Customer Content against unauthorized use, disclosure, or modification. Customer must protect all End Points using commercially reasonable security measures. Customer is solely responsible to keep all user identifications and passwords secure. Customer must monitor use of the Services for possible unlawful or fraudulent use.
Customer must notify RingCentral immediately if Customer becomes aware or has reason to believe that the Services are being used fraudulently or without authorization by any End User or third party. Failure to notify RingCentral may result in the suspension or termination of the Services and additional charges to Customer resulting from such use. RingCentral will not be liable for any charges resulting from unauthorized use of Customer’s Account.
C.Software Changes. RingCentral may from time to time push software updates and patches directly to Customer’s device(s) for installation and Customer will not prevent RingCentral from doing so.
Customer must implement promptly all fixes, updates, upgrades and replacements of software and third-party software that may be provided by RingCentral. RingCentral will not be liable for inoperability of the Services or any other Services failures due to failure of Customer to timely implement the required changes.
10.Limitations of Liability
A.Excluded Damages. TO THE FULLEST EXTENT
PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS
AFFILIATES BE LIABLE FOR (1) INDIRECT, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL OR
PUNITIVE DAMAGES OF ANY KIND; (2) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (3) LOSS OF USE, LOSS OR CORRUPTION OF DATA; OR (4) LOSS OF BUSINESS
OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS, WHETHER IN
ANY OF THE FOREGOING, ARISING UNDER CONTRACT,
WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT
LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH
PARTY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR
SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY
TAKEN TO COMPLY WITH LAW.
B.Direct Damages. A. EXCEPT AS SET FORTH
HEREIN, THE TOTAL CUMULATIVE LIABILITY OF THE PARTIES
UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID
OR PAYABLE UNDER THIS AGREEMENT DURING THE PREVIOUS
SIX (6) MONTHS. LIMITATIONS UNDER THIS SECTION 10(B) (DIRECT DAMAGES) WILL NOT APPLY TO: I) CUSTOMER PAYMENT
OBLIGATIONS; II) EITHER PARTY’S LIABILITY FOR INFRINGEMENT OF THE OTHER PARTY’S IP RIGHTS; III) EITHER PARTY’S LIABILITY
RESULTING FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR
CRIMINAL MISCONDUCT; OR IV) CUSTOMER’S LIABILITY
RESULTING FROM USE OF THE SERVICES IN BREACH OF THE
ACCEPTABLE USE POLICY OR EMERGENCY SERVICES POLICY.
NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE A
PARTY’S LIABILITY ARISING FROM DEATH OR PERSONAL
INJURY CAUSED BY NEGLIGENCE, OR FOR ANY OTHER
LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED OR
EXCLUDED PURSUANT TO APPLICABLE LAW.
C. Survival. The limitations of liability contained in this Section 10 (Limitation of Liability) will survive termination or expiration of this Agreement and apply in any and all circumstances (except as expressly set forth above), including without limitation in the event of any failure of the essential purpose of any limited warranty or available remedy provided herein.
11.Indemnification
A.Indemnification by RingCentral
i. RingCentral agrees to indemnify, defend, and hold harmless the Customer at RingCentral’s expense, from and against any and all third-party claims or causes of action, (“Third Party Claim”) alleging that the Services as provided by RingCentral infringe or misappropriate the patent, copyright, trademark or trade secret rights of a third party. Further, RingCentral will indemnify and hold harmless the Customer from all damages, reasonable costs and attorneys’ fees finally awarded against the Customer by a court of competent jurisdiction in connection with such Third-Party Claim or agreed to in a written settlement agreement approved in writing by RingCentral.
ii. RingCentral will have no indemnification obligations under subsection (i) above if the Third Party Claim arises from: (a) use of the Services in combination with data, software, hardware, equipment, or technology not provided or authorized by
RingCentral in writing; (b) modifications to the Services not made by RingCentral; (c) Customer Content; (d) failure to promptly install any updates of any software or firmware or accept or use any modified or replacement items provided by or on behalf of RingCentral, provided free of charge, (e) breach of the Agreement or misuse of the Services, or (f) a Third Party Claim by Customer’s Affiliate, successor, or assignee.
iii. If such a claim is made or appears possible, Customer agrees to permit RingCentral, at RingCentral’s sole discretion, to (a) modify or replace the Services, or component or part thereof, to make it non-infringing, or (b) obtain the right for Customer to continue use. If RingCentral determines that neither alternative is commercially reasonable, RingCentral may terminate this Agreement, in its entirety or with respect to the affected Service, component or part, effective immediately on written notice to Customer in which case Customer will not owe any fees or charges for any period subsequent to the date of such termination, and will be entitled to receive a refund of any prepaid but unused fees for the terminated Services. RingCentral’s obligations under this Sub-Section will be RingCentral’s sole and exclusive liability and Customer’s sole and exclusive remedies with respect to any actual or alleged intellectual property violations.
B.Indemnification by Customer. Customer agrees to indemnify and defend RingCentral and its Affiliates at Customer’s expense, from and against any and all Third Party Claims, arising out of or in connection with:
i) material violation of applicable Law by the Customer or its End Users in connection with the use of the Services; ii) use of the Services in a manner not authorized by this Agreement; (iii) use of non-current or unsupported versions of any software of firmware provided with the Services; or iv) claims relating to Customer Content Further, Customer will indemnify and hold harmless RingCentral against all damages, costs, and attorneys’ fees finally awarded against RingCentral by a court of competent jurisdiction in connection with such Third-Party Claim or agreed to in a written settlement agreement approved in writing by the Customer.
C.Defense and Indemnification Procedures. Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from which it seeks such indemnification or defense (the “Indemnifying Party”) with the following: (a) prompt written notice of the Third-Party Claim, (b) sole control over the defense and settlement of the Third-Party Claim, and (c) reasonable information, cooperation, and assistance in connection with the defense and settlement of the Third-Party Claim. The Indemnified Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party will have the right to participate at its own expense in the defense of such Third-Party Claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each party bringing such Third-Party Claim.
12.Warranties
A.RingCentral Warranty. RingCentral will provide the Services using a commercially reasonable level of skill and care, in material compliance with all applicable Laws and otherwise subject to the terms of this Agreement.
To the extent permitted by Law, RingCentral shall pass through to Customer any and all warranties RingCentral receives in connection with equipment provided to Customer by or on behalf of RingCentral.
B. Customer Warranty. Customer’s and its End Users’ use of the Services must always comply with all applicable Laws and this Agreement.
C .Disclaimer of Warranties. EXCEPT AS
SPECIFICALLY SET FORTH IN THIS AGREEMENT AND TO THE
FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE
PROVIDED “AS IS” AND “AS AVAILABLE,” AND RINGCENTRAL
MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES
OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET
ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND
ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR
USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES,
WHETHER ARISING UNDER ANY LAW OR OTHERWISE. TO THE
EXTENT THAT RINGCENTRAL CANNOT DISCLAIM ANY SUCH
WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE
AND DURATION OF SUCH WILL BE LIMITED TO THE FULLEST
EXTENT PERMITTED BY LAW.
13.Dispute Resolution
A.Good Faith Attempt to Settle Disputes. In the
event of any dispute or claim arising out of or relating to the Agreement (a “Dispute”), each Party will appoint a duly authorized representative which will confer before either Party brings legal action, to make a reasonable and good faith effort to settle or otherwise resolve such Dispute.
B. Venue. In the event that the Parties are unable to
resolve a Dispute, any related action, lawsuit, or proceeding must be brought in and adjudicated exclusively by state or federal
courts located in the city and county of Los Angeles, California, United States of America. Each Party hereby consents to
and agrees to submit to the exclusive venue and personal jurisdiction of such courts with respect to any such actions or lawsuits and irrevocably waives any right that it might have to assert that either forum is not convenient or that any such courts lack jurisdiction.
C.Equitable Relief. Any breach of either
Party’s IP Rights will cause that Party irreparable harm for which monetary damages will be inadequate and such Party may, in addition to other remedies available at Law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement, in the cause of action has accrued. Any actions, lawsuits, or proceedings must be conducted solely on an individual basis and the Parties expressly waive any right to bring any action, lawsuit or proceeding as a class or collective action, private attorney general action or in any other capacity acting in a representative capacity.
14.Miscellaneous
A.Relationship of the Parties. RingCentral and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between RingCentral and Customer.
B.Assignment. Neither Party may assign the Agreement or any portion thereof without the other Party’s prior written consent (which such consent may not be unreasonably withheld or delayed), however either Party may assign the Agreement and all of that Party’s rights and obligations thereunder without consent (a) to an Affiliate; (b) to the Party’s successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets used in connection with the provision of Services under this Agreement; or (c) as part of the transfer or disposition of more than fifty percent (50%) of a Party’s voting control or assets. This Agreement will bind and inure to the benefit of the Parties, and their permitted assigns and successors.
C.Notices. Except where otherwise expressly stated in the Agreement, all notices or other communications must be in English and are deemed to have been fully given when made in writing and delivered in person, upon delivered email, confirmed facsimile, or five days after deposit with a reputable overnight courier service, and addressed as follows: to RingCentral at RingCentral, Inc., Legal Dept., 20 Davis Drive, Belmont, CA 94002 USA , with a copy to [email protected] , and to Customer at either the physical address or email address associated with the Customer Account.
Customer acknowledges and agrees that all electronic
notices have the full force and effect of paper notices. The addresses to which notices may be given by either Party may be changed (a) by RingCentral upon written notice given to Customer pursuant to this Section or (b) by Customer in the Administrative Portal.
D. Force Majeure. Excluding either Party’s payment obligations under the Agreement, neither Party will be responsible or liable for any failure to perform or delay in performing to the extent resulting from any event or circumstance that is beyond that Party’s reasonable control, including without limitation any act of God; national emergency; thirdparty telecommunications networks; riot; war; terrorism; governmental act or direction; change in Laws; fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; earthquake; storm; hurricane; flood, fire, or other natural disaster; strike ; or other cause, whether similar or dissimilar to the foregoing, not resulting from the actions or inactions of such Party.
E. Third-Party Beneficiaries. RingCentral and Customer agree that there will be no third-party beneficiaries to this Agreement F.Headings, Interpretation. The headings,
section titles, and captions used in the Agreement are for convenience of reference only and will have no legal effect. All defined terms include related grammatical forms, and, whenever the context may require, the singular form of nouns and pronouns include the plural, and vice versa.
The Parties agree that this Agreement will be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a Party or Parties on the grounds that the Party or Parties drafted or was more responsible for drafting the provision(s).
G.Governing Law. The Agreement is governed by the Laws of the State of California, excluding its choice of Law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this additional to any other relief to which such Party may be entitled under applicable Law.
D. Limitations. Except for actions for
nonpayment or liability arising from Section 11 (Indemnification), no claim, suit, action or proceeding relating to this Agreement may be brought by either Party more than two (2) years after Agreement or Customer’s use of the products or Services.
E. Anti-Bribery. Each Party represents that in the execution of this Agreement and in the performance of its obligations under this Agreement it has complied and will comply with all applicable anti-bribery Laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and similar applicable Laws.
F. Export Control. Any services, products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export Laws and regulations. Customer will not use distribute, transfer, or transmit the services, products, software, or technical information (even if incorporated into other products) except in compliance with U.S. and other applicable export regulations.
G. Regulatory and Legal Changes. In the event of any change in Law, regulation or industry change that would prohibit or otherwise materially interfere with RingCentral’s ability to provide Services under this Agreement, RingCentral may terminate the affected Services or this Agreement or otherwise modify the terms thereof.
H. Entire Agreement. The Agreement, together with any
exhibits, Order Forms, Use Policies and Privacy Notice and Attachments, each of which is expressly incorporated into this Agreement with this reference, constitutes the entire agreement between the Parties and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise, regarding such subject.
I. Order of Precedence. In the event of any conflict
between the documents comprising this Agreement, precedence will be given to the documents in the following descending order: (i) the applicable Order Form; (ii) the applicable Service Attachment; (iii) the main body of this Agreement; (iv) Use Policies and Privacy Notice incorporated by reference in this Agreement; and (v) and any other document expressly referred to in this Agreement which governs the Services.
J. Amendments. Except as otherwise provided, this
Agreement may only be modified by a written amendment executed by authorized representatives of both Parties. In no event will handwritten changes to any terms or conditions, including in the applicable Order Form, be effective.
K. Severability and Waiver. In the event any
provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, such provision(s) will be stricken and the remainder of this Agreement will remain legal, valid and binding. The failure by either Party to exercise or enforce any right conferred by this Agreement will not be deemed to be a waiver of any such right or to operate so as to bar the exercise or enforcement of any such or other right on any later occasion.
Except as otherwise expressly stated in this Agreement, all rights and remedies stated in the Agreement are cumulative and in addition to any other rights and remedies available under the Agreement, at Law, or in equity.
L. Publicity. Subject to Customer’s prior written approval, in each instance, and notwithstanding anything to the contrary in this Agreement, RingCentral may identify Customer as a customer (including use of any Customer logo or trademark) and may refer to this Agreement during its earnings calls and in connection with its business deals, press releases, and marketing and/or promotional materials.
M. Execution. Each Party represents and warrants that: (a) it possesses the legal right and capacity to enter into the Agreement and to perform all of its obligations thereunder; (b) the individual signing the Agreement and (each executable part thereof) on that Party’s behalf has full power and authority to execute and deliver the same; and (c) the Agreement will be a binding obligation of that Party. Each Party agrees that an Electronic Signature, whether digital or encrypted, is intended to authenticate this Agreement and to have the same force and effect as manual signatures.
N. Counterparts. This Agreement may be executed
electronically and in separate counterparts each of which when taken together will constitute one in the same original.
O. Survival. The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement or an Order Form will survive expiration or termination of this Agreement or the Order Form, including without limitation payment obligations, warranty disclaimers, indemnities, limitations of liability, definitions and miscellaneous.
15. Authority. Avaya represents that is has the
authority as Ring Central’s agent to bind RingCentral to this Agreement (including each Order Form and all other documents incorporated here).
IN WITNESS WHEREOF, the Parties have executed this Agreement below through their duly authorized representatives.
City of Redondo Beach Avaya Inc. for and on behalf of RingCentral, Inc.
By: By:
Name: Name:
Title: Title:
Date: Date:
RingCentral, Inc.
By:
Name:
Title:
Date:
William C. Brand
Mayor
ATTEST:
_____________________________________
Eleanor Manzano, Redondo Beach City Clerk
APPROVED AS TO FORM:
_______________________________________
Michael W. Webb, Redondo Beach City Attorney
EXHIBIT A
DEFINITIONS
Definitions. Capitalized terms used in this Agreement but otherwise not defined have the following meaning:
1. “Account” means the numbered account established with RingCentral and associated with Customer and the Services provided to Customer under this Agreement. For billing and convenience purposes, multiple services, Digital Lines, or End Users may be included in a single billing account, and/or a single Customer may have multiple billing accounts encompassing different geographic locations, business units, or other designations as requested by Customer and accepted by RingCentral.
2. “Account Administrator” means the person(s) who have been granted authority by Customer to set up, amend, or otherwise control settings and/or make additional purchases for the Account via the Administrative Portal. Account Administrators may have varying levels of Account rights, skills, or permissions.
3. “Account Data” means: any business contact information provided with the Account; RingCentral-generated logs of calling or other metadata developed or collected in the provision of the Services; configuration data; and records of Digital Lines and any Services purchased under this Agreement.
4. “Administrative Fees” means any administrative recovery fees, 911 cost recovery fees and the like separately charged by RingCentral to Customer.
5. “Administrative Portal” means the online administrative portal through which Account Administrators control settings and/or make additional purchases for the Account.
6. “Affiliate(s)” means a person or entity that is controlled by a Party hereto, controls a Party hereto, or is under common control with a Party hereto, and “control” means beneficial ownership of greater than fifty percent (50%) of an entity’s then-outstanding voting securities or ownership interests.
7. “Attachment (s)” means documents appended to the contract containing additional terms for products and Services. Attachments are part of this Agreement.
8. “Confidential Information” means any information disclosed by or on behalf of the Disclosing Party) to the Receiving Party that should reasonably be considered as confidential given the nature of the information and the circumstances surrounding its disclosure.
9. “Customer Content” means the content of calls, facsimiles, SMS messages, voicemails, voice recordings, shared files, conferences or other communications transmitted or stored through the Services.
10. “Digital Line” means a phone number assigned to an End User or a specifically designated location (e.g., conference room) and the associated voice service for inbound and outbound calling that permits an End User generally to make and receive calls to and from the public switched telephone network as well as to and from other extensions within the same Account.
11. “Disclosing Party” means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed by such Party’s agents, including but not limited to, its Affiliates, officers, directors, employees and attorneys.
12. “Dispute” has the meaning set forth in Section 13(A) (Good Faith Attempt to Settle Disputes).
13. “Electronic Signatures” means an electronic sound, symbol, or process, including clicking a digital button to accept, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.
14. “End Point” means an application or device through which any End-User might access and/or use any of the Services, including without limitation IP Desk Phones, Desktop Clients, Web Clients, Mobile Applications, and Software Integrations.
15. “End User” means an individual user to whom Customer makes the Services available, and may be a natural person, and may include but is not limited to Customer’s employees, consultants, clients, external users, invitees, contractors and agents.
16. “Indemnifying Party” and “Indemnified Party” have the meanings set forth in Section 11(C) (Defense and Indemnification Procedures).
17. “Initial Term” has the meaning set forth in Section 2(E) (Services Term).
18. “Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (a) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (b) copyrights and copyright registrations, and “moral” rights; (c) the protection of trade and industrial secrets and Confidential Information; (d) other proprietary rights relating to intangible property; (e) trademarks, trade names and service marks; (f) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (g) analogous rights to those set forth above; and (h) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).
19. “Law” means any law, statute, regulation, rule, ordinance, administrative guidance, treaty or convention, or court or administrative order or ruling of any governing Federal, State, local or non- U.S. governmental body with jurisdiction over the Services.
20. “Order Form(s)” means a request for Service describing the type and quantity of Services required by Customer and submitted and accepted by the Parties in accordance with Section 2(A) (Ordering Services). The Order Form may be presented and executed via the Administrative Portal.
21. “Receiving Party” means the Party or its agents, including, but not limited to its Affiliates, officers, directors, employees and attorneys receiving Confidential Information.
22. “Renewal Term” has the meaning set forth in Section 2(D) (Services Term).
23. “RingCentral Network” means the network and supporting facilities between and among the RingCentral points of presence (“PoP(s)”), up to and including the interconnection point between the RingCentral’s network and facilities, and the public Internet, private IP networks, and the Public Switched Telephone Network (PSTN). The RingCentral Network does not include the public Internet, a Customer’s own private network, or the PSTN.
24. “Service(s)” means all services provided under this Agreement, and set forth in one or more Order Form(s).
25. “Start Date” means the date so identified in the relevant Order Form or the date on which Customer orders Services via the Administrative Portal.
26. “Taxes” means any and all federal, state, local, municipal, foreign and other taxes and fees charged or collected from Customers, including but not limited to any Universal Service Fund, TRS and 911 taxes and fees.
27. “Term” means the Initial Term plus any Renewal Terms.
28. “Third Party Claim” has the meaning set forth in Section 11(A) (Indemnification by RingCentral).
29. “Use Policy” refers to any of the policies identified in Section 5(B) (Use Policies).
SERVICE ATTACHMENT A
SERVICE ATTACHMENT – AVAYA CLOUD OFFICE SERVICES
This Service Attachment is a part of the Master Services Agreement (“the Agreement”) that includes the terms and conditions agreed by the Parties under which RingCentral will provide to Customer the Avaya Cloud Office Services as described under the applicable Order Form.
1. Service Overview. Avaya Cloud Office is a cloud-based unified communications service that includes enterprise-class voice, fax, text, call handling, mobile apps, and BYOD capability that integrates with a growing list of applications. Avaya Cloud Office includes:
Voice Services, including extension-to-extension calling and the ability to make and receive calls to and from the public switched telephone network (PSTN)
Video and audio conferencing service, including screen sharing Collaboration Tools, including One-to-One and Team Chat, File Sharing, task management, SMS/Texting (where available) and other innovative tools
Avaya Cloud Office Services may be accessed from a variety of user End Points, including IP Desk Phones, Desktop Clients, Web Clients, Mobile Applications, and Software Integrations.
2. Office Purchase Plans.
A. Tiers of Service. Avaya Cloud Office is made available in several pricing tiers, which are described more fully at
https://www.ringcentral.com/office/plansandpricing.html . RingCentral offers unlimited monthly plans for some of its products and services, RingCentral Services are intended for regular business use. "Unlimited" use does not permit any use otherwise prohibited by the Acceptable Use Policy, available at https://www.ringcentral.com/legal/acceptable-use-policy.html, including trunking, access stimulation, reselling of the Services, etc.
B. Minute and Calling Credit Bundles. Minute Bundles, e.g., Toll Free Minute Bundles, can be purchased in incremental buckets of minute in addition to any number of minutes included with the purchased tier. Inbound Toll Free and minutes are deducted from included minutes, purchased Minute Bundles, or charged as overage at the rates currently in effect.
International Calling Credit Bundles can be purchased in addition to any base amount included with the purchased tier. International External Calls are charged against Calling Credits on the Account per destination rates, or as overage once Calling Credits are exceeded. Currently effective rates are available at https://www.ringcentral.com/support/international-rates.html.
Extension-to-Extension Calls within the Customer account never incur any usage fee and are unlimited, except to the extent that such calls are forwarded to another number that is not on the Customer account. Additional Calling Credits may be purchased through the Auto-Purchase feature, which can be selected for automatic purchase in various increments on the Administrative Portal. Auto-Purchase is triggered when the combined usage of all End Users on an Account exceeds the total Calling Credits or when End Users make calls with additional fees (e.g., 411). Minute Bundles and Calling Credit Bundles expire at the end of month and cannot roll over to the following month.
Auto-Purchased Calling Credits expire twelve (12) months from date of purchase. Bundles may not be sold, transferred, assigned, or applied to any other customer.
3. Operator Assisted Calling, 311, 511 and other N11 Calling. RingCentral does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900, or calling card calls). The Services may not support 211, 311, 411, 511 and/or N11 calling in one or more service areas. Additional charges may apply for these calls.
4.Directory Listing Service. RingCentral offers directory listing (the “Directory Listing Service”). If Customer subscribes to the Directory Listing Service, RingCentral will share certain Customer Contact Data with third parties as reasonably necessary to include in the phone directory (“Listing Information”). This information may include, but is not limited to, Customer’s company name, address, and phone numbers. Customer authorizes RingCentral to use and disclose the Listing Information for the purpose of publishing in, and making publicly available through, third-party directory listing services, to be selected by RingCentral or third-party service providers in their sole discretion. Customer acknowledges and agrees that by subscribing to the Directory Listing Service, Customer’s Listing Information may enter the public domain and that RingCentral cannot control third parties’ use of such information obtained through the Directory Listing Service.
i. Opt Out. Customer may opt out of the Directory Listing Service at any time, however RingCentral is not obligated to have Customer’s Listing Information removed from third-party directory assistance listing services that have already received Customer’s information. ii. No Liability. RingCentral will have no responsibility or liability for any cost, damages, liabilities, or inconvenience caused by calls made to Customer’s telephone number; materials sent to Customer, inaccuracies, errors or omissions with Listing Information; or any other use of such information. RingCentral will not be liable to Customer for any use by third parties of Customer’s Listing Information obtained through the Directory Listing Service, including without limitation the use of such information after Customer has opted out of the Directory Listing Service.
5.RingCentral Global Office. RingCentral Global Office provides a single communications system to companies that have offices around the world, offering localized service in countries for which Global Office is available. Additional information related to Global Office Services is available at
http://www.ringcentral.com/legal/policies/global-office-countries.html .This section sets forth additional terms and conditions concerning RingCentral’s Global Office for customers that subscribe to it.
A. Emergency Service Limitations for Global Office. RingCentral provides access to Emergency Calling Services in many, but not all, countries in which RingCentral Global Office is available, allowing End Users in most countries to access Emergency Services (911 in the United States and Canada, 999/112 in the United Kingdom and throughout the European Union, and any other applicable Emergency Services number).
Emergency Services may only be accessed within the country in which the Digital Line is assigned, e.g., an End User with a Digital Line assigned in Ireland may dial Emergency Services only within Ireland. Access to Emergency Calling Services in RingCentral Global Office countries, where available, is subject to the Emergency Services Policy, available at https://www.ringcentral.com/legal/emergency-services.html . Customer must make available and will maintain at all times traditional landline and/or mobile network telephone services that will enable End Users to call the applicable Emergency Services number. Customer may not use the RingCentral Services in environmentsrequiring fail-safe performance or in which the failure of the RingCentral Services could lead directly to death, personal injury, or severe physical or environmental damage.
B. Global Office Provided Only in Connection with Home Country Service. RingCentral provides Global Office Service only in connection with Services purchased in the Home Country. RingCentral may immediately suspend or terminate Customer’s Global Office Services if Customer terminates its Digital Lines in the Home Country. All invoicing for the Global Office Services will be done in the Home Country on the Customer’s Account, together with other Services purchased under this Agreement, using the Home Country’s currency. Customer must at all times provide a billing address located in the Home Country. RingCentral will provide all documentation, licenses, and services in connection with the Global Office Service in English; additional language support may be provided at RingCentral’s sole discretion.
C. Relationships with Local Providers. In connection with the provision of RingCentral Global Office Services, RingCentral relies on local providers to supply certain regulated communication services; for example (i) for the provision of local telephone numbers within local jurisdictions; (ii) to enable you to place local calls within local jurisdictions; and (iii) to enable You to receive calls from non-RingCentral numbers on Customer’s Global Office telephone number(s), by connecting with the local public switched telephone network. RingCentral’s locally licensed affiliates provide all telecommunications services offered to Customer within the countries in which such affiliates are licensed; in some cases RingCentral may obtain services from locally licensed providers on customers’ behalf. RingCentral, Inc.
RingCentral, Inc. is responsible for all contracting, billing, and customer care related to those services.
6.Definitions. Terms used herein but not otherwise defined have the meanings ascribed to them in the Agreement. For purposes of this Service Attachment, the following terms have the meanings set forth below:
A. “Digital Line” means a phone number assigned to an End User or a specifically designated location (e.g., conference room) and the associated voice service for inbound and outbound calling that permits the End User generally to make and receive calls to and from the public switched telephone network as well as to and from other extensions within the same Account.
B. “End Point” means an application or device through which any End-User might access and/or use any of the Services, including without limitation IP Desk Phones, Desktop Clients, Web Clients, Mobile Applications, and Software Integrations.
C. “Extension-to-Extension Calls” means calls made and received between End Points on the Customer Account with RingCentral, regardless of whether the calls are domestic or international.
D. “External Calls” means calls made to or received from external numbers on the PSTN that are not on the Customer Account with RingCentral.
E. “Home Country” means United States or the country that is otherwise designated as Customer’s primary or home country in the Order Form.
SERVICE ATTACHMENT B
SERVICE ATTACHMENT – RINGCENTRAL PROFESSIONAL SERVICES AGREEMENT This Service Attachment is a part of the Master Services Agreement (the “Agreement”) that includes the terms and conditions agreed by the Parties under which RingCentral will provide the RingCentral Professional Services to Customer.
In the event of any conflict between the provisions of the Agreement and the provisions of this Professional Services Agreement (the “PS Agreement”), such provisions of this PS Agreement will prevail.
1. Service Overview.
RingCentral shall provide the implementation, installation, consulting, configuration services and other professional services (“Professional Services”) as described and agreed upon in writing between the Parties pursuant to a statement of work (“Statement of Work” or “SOW”).
2. Project Phases
The Professional Services may be delivered in one or more phases. The SOW will specify the milestone, objectives, Sites, fees and other components that are included in the scope of each phase (“Project Phase”). The Professional Services may also be provided on a time and material basis (“T&M Services”) paid by the hour based on the then current T&M Services hourly rate offered by RingCentral, as specified in the relevant SOW. Customer agrees that the delivery, installation, testing, acceptance and payment for the Professional Services rendered under any one Project Phase is not dependent on the delivery, installation, testing, acceptance and payment for the Professional Services under any other Project Phase. Each Project Phase will be billed upon Acceptance, and payment for each Project Phase is due in full within the applicable payment period agreed between the Parties and is non-refundable.
3. Customer Sites and Site Visits
In the event the Parties agree that the Professional Services must be performed at one or more Customer facility(ies) (“Site(s)”), the Site(s) will be separately identified in the applicable SOW. Each visit to a separate Customer Site will be considered a separate “Site Visit”. When so stipulated in the SOW, each Site may constitute a Project Phase. Customer has the following obligations with respect to all Site Visits:
a. Customer will maintain and ensure safe working conditions at each Site and shall promptly inform the RingCentral project manager of any known hazardous conditions at any Site prior to any visit by RingCentral Personnel.
b. Customer shall ensure that all Site hardware and network environment meets or exceed the requirements set forth in the Statement of Work and in “RingCentral VoIP Network Requirements and Recommendations” which can found at:
https://support.ringcentral.com/s/article/9233?language=en_US c. Customer shall provide RingCentral with all reasonable information, cooperation, and assistance that RingCentral requests in connection with performing the Services, including without limitation providing RingCentral with access to Customer’s systems and networks and related system and network administrators. Any failure on the part of Customer to provide the cooperation requested by RingCentral, or to provide the information or hardware and software environment required, may result in the need for a Change Order to contemplate additional fees and extended timelines to accommodate Customer’s failure to do so.
d. Customer shall ensure that at least ten (10) business days prior to a Site Visit or as otherwise agreed in the applicable SOW, the Customer Project Manager shall provide to the RingCentral Project Manager the following information for the Site to be visited:
i. the first and last name, extension number, and email address for delivery of message notification emails of each End User for which the Services are to be implemented at the Site and any other information that RingCentral requests to configure the digital lines that are part of such Services to be implemented (this information needs to be in the form of a Microsoft Excel file suitable for use with the Plan Service’s bulk configuration utility); ii. written or illustrated diagrams of Customer’s current and proposed dial plans and data and call flows; and
iii. information related to configurations, equipment, and deployment requirements for the Site, as requested by RingCentral.
4.Late Site Visit Change.
The Parties acknowledge and agree that Customer’s cancellation or change of the dates of a Site Visit at any time during the ten (10) business days immediately prior to the date that the Site Visit is scheduled to take place (a “Late Site Visit Change”) will cause RingCentral to incur expenses and losses (including without limitation RingCentral’s costs in rescheduling the Site Visit and/or loss of opportunity for other business during the period during which such Site Visit was to take place).
Accordingly, Customer agrees that for each Late Site Visit Change, Customer shall incur (at the time of cancellation or change) and be liable for, as liquidated damages, an amount equal to eight (8) hours of RingCentral T&M Services at RingCentral’s then-current T&M Services hourly rate, as well as any Service Expenses that have already been expended by RingCentral. The Parties acknowledge and agree that this amount is a fair, reasonable, and appropriate pre-estimate of the losses that RingCentral will incur as a result of any single Late Site Visit Change.
5.Professional Services Acceptance.
Each SOW will identify the specific criteria required for the completion of each Project Phase (“Completion Criteria”). Unless otherwise agreed between the parties in the SOW, upon RingCentral’s completion of the Professional Services for each Project Phase, RingCentral will review the Completion Criteria with Customer and will present to the Customer the Professional Services Project Completion Signoff Form (“PCF”) for that Project Phase. Notwithstanding anything to the contrary in this PS Agreement or any SOW, RingCentral’s obligations under any Project Phase are deemed accepted and the Professional Services under such Project Phase shall be considered completed in full and billable upon any of the following (“Acceptance”):
a. Customer executes the PCF.
b. If RingCentral presents Customer with the PCF and the Customer fails to execute the PCF within three (3) days, unless the Customer provides to RingCentral, within those three (3) days, with a detailed description of the items that are outstanding or that are materially non- conforming with the Completion Criteria applicable to the specific Project Phase. If RingCentral timely receives a rejection notice, then RingCentral will complete or re-perform any portion of the non-conforming Professional Services and re-submit the PCF for the Project Phase to the Customer for Acceptance as described above. If RingCentral timely receives from the Customer a second rejection notice, and RingCentral, in its reasonable discretion determines that the Professional Services for the Project Phase were properly completed in accordance with the Completion Criteria, Acceptance of the Project Phase will be deemed to have occurred. c. Production Use: Unless otherwise agreed in writing between the Parties, production use will constitute Acceptance for all purposes of this PS Agreement.
d. T&M Services. Acceptance for T&M Services, if applicable and used in a SOW, is deemed to have occurred upon performance.
6.Payment
a. The SOW will set forth the fees that the Customer will pay to RingCentral for each Project Phase, and the rates for T&M Services.
Customer will compensate RingCentral fees and expenses for the Services as set forth in the applicable SOW. Customer acknowledges and agrees that all fees and charges shall be due and payable without any deduction, withholding, or offset of any kind, including without limitation for any levy or tax.
b. Invoicing and Payment of Professional Services fees. Except to the extent otherwise provided in a SOW or this Section, all amounts due under this PS Agreement for Professional Services other than T&M Services, shall be invoiced upon Acceptance of each Project Phase.
T&M Services will be invoiced Monthly in arrears. The payment term for each invoice is set forth in the Agreement.
c. Service Expenses. In addition to the fees and expenses set forth in the applicable SOW, Customer agrees to reimburse RingCentral for its fixed travel, meal, and lodging expenses incurred in connection with any Site Visit (“Service Expenses”). Travel, meal, and lodging expenses shall be invoiced upon Acceptance of each Project phase, alongside all other amounts due under this PS Agreement, on a per-trip/per resource basis. RingCentral shall, after Customer request, provide information verifying the deployment of on-site resources and expenditure of Service Expenses.
d. Additional Fees. Customer agrees to incur and be liable for any additional fees or other amounts not provided for in this PS Agreement or the applicable SOW. These Additional fees may include, but are not limited to the following:
i. For any additional Site Visit(s) not included in the SOW, the Customer agrees to pay on a T&M Services basis, with a minimum fee equal to eight (8) hours per day at the
then-current T&M Services hourly rate.
7.Changes to SOWs
Changes to any applicable SOW shall be made only in a mutually executed written change order between RingCentral and Customer (a “Change Order”), outlining the requested change and the effect of such change on the Services, including without limitation the fees and the timeline as determined by RingCentral in its reasonable discretion. RingCentral shall have no obligation to commence work in connection with any Change Order until the Change Order is agreed upon by both Parties in writing. RingCentral has no obligation to provide any Professional Services outside the scope of an SOW.
8.Enterprise Support
As part of the Professional Services provided, Customer may purchase Enterprise Support services from RingCentral for use with the Services. The terms and conditions that govern the Enterprise Support can be found at:
https://www.ringcentral.com/legal/enterprise-service-attachment.html.
9.Term and Termination
a. Term. This PS Agreement shall remain in effect for as long as the Agreement is in effect, unless terminated in accordance with this Section.
b. Termination. Either Party may terminate this PS Agreement, in whole or in part, with thirty (30) days’ advance written notice to the other Party. Unless otherwise specified in the termination notice, the termination of one SOW or Project Phase shall not necessarily result in the termination of, or otherwise affect, any other SOW or Project Phase.
c. Effect of Termination. In the event that this PS Agreement, a SOW, or a Project Phase is terminated, in whole or in part, for any reason other than for RingCentral’s material breach of this PS Agreement, Customer shall be obligated to pay RingCentral for:
i. any Professional Services and T%26M Services that have been rendered up until the effective date of the termination; ii. all applicable Service Expenses incurred; and
iii. (50%) of the fees for any other Professional Services not yet performed, due under the Project Phase(s) being cancelled, if termination of the PS Agreement, SOW, or a Project Phase occurs within one hundred and eighty (180) days of execution of the applicable SOW. If termination occurs after one
hundred and eighty (180) days of execution of the applicable SOW, Customer shall owe all outstanding fees for any
Professional Services not yet performed pursuant to the SOW, due under the Project Phase being cancelled.
d. Post-Termination Notice Wrap-Up. Upon receiving or
providing notice of termination of this PS Agreement,
RingCentral shall be relieved of and excused from any
obligation to continue to perform Services or to perform under any then-current SOWs or Project Phase.
ATTACHMENT C
SERVICE LEVEL AGREEMENT FOR AVAYA CLOUD OFFICE SERVICES This Service Level Agreement for Office Services (the “Office SLA”) is a part of the Master Services Agreement (the “Agreement”) that includes the Service Availability levels RingCentral commits to deliver on the RingCentral Network for Avaya Cloud Office Services.
1. Overview
RingCentral will maintain the following performance levels:
Performance Level
Voice Services Availability
(Monthly Calculation)
99.999%
Quality of Voice Service
(Monthly Calculation)
3.8 MOS Score
2. Minimum Eligibility
Customer is entitled to the benefits of this Office SLA only to the extent that Customer maintains a minimum of fifty (50) Digital Lines under the Office Service Attachment with a minimum twelve (12) month Term. This Office SLA shall not apply to any period of time where Customer does not meet the foregoing requirements.
3. Service Delivery Commitments
a. Calculation of Service Availability for Voice Services Service Availability = [ 1 – ((number of minutes of Down Time x number of Impacted Users) / (total number users x total number of minutes in a calendar month))] x 100
Availability shall be rounded to nearest thousandth of a percent in determining the applicable credit. Service Credits for Down Time will not exceed 30% MRC.
b. Calculation of Service Credits
Customer is entitled to the Accelerated Service Credits calculated based on the table below:
b.1 Accelerated Service Credit Table
Voice Service Availability Service Credits
≥ 99.999 % 0% MRC
≥ 99.500 and < 99.999% 5% MRC
≥ 99.000 and < 99.500% 10% MRC
≥ 95.000 and < 99.000% 20% MRC
< 95.000% 30% MRC
c. No Cumulative Credits
Where a single incident of Down Time affects Office Services and any other Services provided by RingCentral and covered under a separate service level agreement executed between the parties, resulting in Service Credits under both agreements, Customer is entitled to claim Service Credits under one of the agreements, but not for both.
Service Credits to be paid under this Office SLA will be calculated based on Customer’s Avaya Cloud Office MRC only and will not include any other fees paid by RingCentral for any other Services, (e.g., Contact Center Services).
Service Credits may not exceed the total MRC paid for the relevant Services. d. Qualifying for Service Credits.
Service Credits for Down Time will accrue only to the extent:
i. Down Time exceeds 1 minute;
ii. Customer reports the occurrence of Down Time to RingCentral by opening a Support Case within twenty-four (24) hours of the conclusion of the applicable Down Time period;
iii. RingCentral confirms that the Down Time was the result of an outage or fault on the RingCentral Network; and
iv. Customer is not in material breach of the Agreement, including its payment obligations.
v. Customer must submit a written request for Service Credits to Customer Care within thirty (30) days of the date the Support Case was opened by Customer, including a short explanation of the credit claimed and the number of the corresponding Support Case;
4. Quality of Service Commitments
a. Quality of Service Targets. RingCentral will maintain an average MOS score of 3.8 over each calendar month
for Customer Sites in the Territory, except to the extent that Customer endpoints connect via public WiFi, a low
bandwidth mobile data connection (3G or lower), or
Customer uses of narrowband codecs such as G.729.
b. Quality of Service Report: Customer may request a
Quality of Service Report for the preceding calendar
month by submitting a Support Case. RingCentral will
endeavor to provide the Quality of Service Report within five (5) business days.
c. Diagnostic Investigation: If the Quality of Service
Report shows a failure to meet the target 3.8 average
MOS as calculated under this Section, RingCentral will
use industry-standard diagnostic techniques to
investigate the cause of the failure. Customer shall
cooperate with RingCentral in this investigation fully
and in good faith.
d. Diagnostic Remediation. Based on its investigation,
RingCentral will provide a reasonable determination of
the root cause(s) of any failure for the quality of service to meet the target MOS of 3.8. RingCentral will resolve any root cause(s) on the RingCentral Network; Customer
shall timely implement settings or other resolution
advised by RingCentral to improve the quality of
service.
5. Chronic Service Failures
a. Service Availability: Customer may terminate the Agreement without penalty, and will receive a pro-rata refund of all prepaid, unused fees in the following circumstances if
RingCentral fails to meet a Service Availability of at least
99.9% on the RingCentral Network for Voice Services during any three (3) calendar Months in any continuous 6-Month period, and customer has timely reported Down Time as set forth herein.
b. Quality of Service: Customer may terminate the affected Customers Sites under its Agreement without penalty, and will receive a pro-rata refund of all prepaid, unused fees in the following circumstances if RingCentral fails to meet a
minimum 3.5 MOS, as measured in duly requested Quality of Service Reports, for the affected Customer Sites within four (4) months of the date of Customer’s initial Support Case requesting a Quality of Service Report, except that such right inures only to the extent that Customer has complied fully and in good faith with the cooperation requirements and timely implemented all suggestions from RingCentral, in
RingCentral’s sole reasonable judgment.
c. To exercise its termination right under this Office SLA, Customer must deliver written notice of termination to
RingCentral no later than ten (10) business days after its right to right to terminate under this Section accrues.
6. Sole Remedy
The remedies available pursuant to this Office SLA (i.e. the issuance of credits and termination for chronic service failure) shall be Customer’s sole remedy for any failure to meet committed services levels under this Office SLA.
7. Definitions
Terms used herein but not otherwise defined have the meanings ascribed to them in the Agreement. For purposes of this Service Level Agreement, the following terms have the meanings set forth below:
a) “Down Time” is an unscheduled period during which the Voice Services for Avaya Cloud Office on the RingCentral Network are interrupted and not usable, except that Down Time does not include unavailability or interruptions due to (1) acts or omissions of Customer; (2) an event of a Force Majeure; or (3) Customer’s breach of the Agreement. Down Time begins to accrue after one (1) minute of unavailability, per incident.
b) “Impacted User” means a user with a Digital Line affected by Down Time. In the event that due to the nature of the incident it is not possible for RingCentral to identify the exact number of users with a Digital Lines affected by Down Time, RingCentral will calculate the Impacted Users on a User-Equivalency basis as defined below. c) “MOS” means the Mean Opinion Score, determined according to the ITU-T E-model, as approved in June 2015, rounding to the nearest tenth of a percent. MOS provides a prediction of the expected voice quality, as perceived by a typical telephone user, for an end-to-end (i.e. mouth-to-ear) telephone connection under conversational conditions. MOS is measured by RingCentral using network parameters between the Customer endpoint, e.g., the IP Phone or Softphone, and the RingCentral Network, and will accurately reflect quality of the call to the caller using the Voice Services. d) “MRC” means the monthly recurring subscription
charges (excluding taxes, administrative or government
mandated fees, metered billings, etc.) owed by Customer to RingCentral for Office Services for the relevant
month. If customer is billed other than on a monthly
basis, MRC refers to the pro-rata portion of the recurring subscription charges for the relevant calendar month.
MRC does not include one-time charges such as phone
equipment costs, set-up fees, and similar amounts, nor
does it include any charges or fees for services other than Office Services.
e) “Quality of Service Report” means a technical report provided by RingCentral, detailing MOS and related
technical information.
f) “RingCentral Network” means the network and
supporting facilities between and among the RingCentral points of presence (“PoP(s)”), up to and including the
interconnection point between the RingCentral’s
network and facilities, and the public Internet, and the PSTN. The RingCentral Network does not include the
public Internet, a Customer’s own private network, or
the Public Switched Telephone Network (PSTN).
g) “Service Availability” is the time for which Voice
Services for Avaya Cloud Office are available on the
RingCentral Network, expressed as a percentage of the
total time in the relevant calendar month, and calculated as set forth above.
h) “Service Credits” means the amount that RingCentral
will credit a Customer’s account pursuant to this Office SLA.
i) “Site” means a physical location in the Territory at which Customer deploys and regularly uses at least five (5) RingCentral Digital Lines. A Digital Line used
outside such physical location for a majority of days in the relevant calendar month, such as home offices,
virtual offices, or other remote use, will not be included in the line count for this purpose.
j) “Support Case” means an inquiry or incident reported by the Customer, through its Helpdesk Support, to
Customer Care via the designated Customer Care Portal.
k) “Territory” means those countries in which Customers subscribes to Avaya Cloud Office or Global Office
Services.
l) “User-Equivalency” means the calculation made by
RingCentral to estimate the percentage of the Voice
Services impacted by the Down Time. RingCentral may
use number of calls, network, device information, vendor and customer reports, and its own technical expertise to make these calculations.
m) “Voice Services” means the audio portion of the
Services, across endpoints, including the Softphone, and IP desk phone.