Terms of Use for the Parlay Services

(Canadian Business Customers)

Terms of Use

These Terms of Use, together with the relevant Order(s), End User License Agreement, Acceptable Use Policy, Privacy Notice and Emergency Support Notice which are incorporated by reference hereby (the “Agreement”), are entered into by STACK8 TECHNOLOGIES INC., a corporation incorporated under the laws of Canada and having an office at 1550 Metcalfe, Suite 500, Montreal, Quebec, H3A 1X6 (“Stack8”), and the legal entity identified in the Order (“Customer”). Stack8 and Customer may be individually referred to as a “Party” or collectively as the “Parties”.

Stack8 shall provide Customer with cloud-based unified communications services that include enterprise-class voice over Internet Protocol, fax, text, call handling, mobile apps, and BYOD capability in the quantity, form and manner prescribed in the Order (the “Services”).

Subject to inventory availability, Stack8 shall also provide equipment for use with the Services in the quantity, form and manner prescribed in the Order (the “Equipment”). The description of the equipment that may be purchased by Customer and any technical specification of the Equipment are available at https://www.cisco.com.

Customer acknowledges and agrees that Stack8 acts as licensee and re-seller of the Services and re-seller of the Equipment for Cisco Systems (“Cisco”).

The Services and Equipment are intended solely for business use, and not for individual consumers. By signing this Agreement, Customer (a) accepts this Agreement and agrees that Customer is legally bound by its terms and conditions; and (b) represents and warrants that: (i) it is a Canadian business or other legal entity; (ii) its representative is 18 years of age or of legal age to enter into a binding agreement; and (ii) has the right, power, and authority to enter into this Agreement on behalf of the Customer, and to bind Customer to this Agreement.

Compliance of the Customer with this Agreement is a condition to the provision of the Services and the Equipment by Stack8. If Customer does not agree to the terms of this Agreement, neither Customer nor its End Users may download, install, or use the Services or equipment.

1.    Definitions

Capitalized terms used in this Agreement but otherwise not defined have the meaning ascribed to them in Schedule A (Definition) of this Agreement.

2.    Ordering and Term

2.1. Ordering Equipment and Services

Customer may order Services by executing an Order in the format provided by Stack8 and submitting electronically on the Stack8 website or, for subsequent Orders, via the Administrative Portal. The Order will identify the Services requested by Customer together with: (i) the price for each service included in the Services; (ii) the Order date and; (iii) Equipment leased, licensed or sold to Customer, if any. An Order will become binding when it is executed by the Customer and accepted by Stack8. Stack8 may accept an Order by commencing performance of the requested Services or by delivering the Equipment. The Services will begin on the Effective Date. Customer may order additional Services and Equipment through Orders via the Administrative Portal.

2.2. Term of this Agreement

The Term of this Agreement will commence on the Effective Date and continue until the last Order is terminated or expires, unless terminated earlier in accordance with its terms.

2.3. Services Term and Automatic Renewal

The Services Term will begin on the Effective Date of the initial Order and continue for the initial term set forth in the initial Order (“Initial Term”). Upon expiration of the Initial Term, recurring Services will automatically renew for successive periods of one (1) year from the end date of the Initial Term or from the end date of any such successive period of one (1) year (each a “Renewal Term”) unless a Party gives the other Party notice of non-renewal at least thirty (30) days before the expiration of the Initial Term or the then-current Renewal Term. Any such Renewal of recurring Services shall be upon the same terms and conditions as per the initial Order, save and except for any price for Services under the initial Order, which shall be subject to an annual increase of 2.5% per Renewal Term, at Stack8’s sole discretion. The term of any recurring Services added to the Account after the initial Order is submitted will start on the Effective Date of the subsequent Order, will run coterminously with the then-current Term of any pre-existing Services, and will be billed on the same billing cycles as the pre-existing Services.

2.4. Expiration of the Term

Expiration of the Term or termination of this Agreement does not excuse the Customer from paying all unpaid accrued charges due to Stack8 under this Agreement.

3.    Customer’s Account

3.1. Customer shall create one (1) Account and shall provide all the information required by Stack8, including but not limited to the relevant information with regard to the Account Administrator.

3.2. Customer shall not use any false, inaccurate or misleading information when creating the Account.

3.3. Customer will be asked to create a password in order to gain access to the Account and the Account Data or when contacting Stack8. Customer agrees to create an adequately secured password for the Account to keep any and all passwords and Account Data confidential. Customer is solely responsible for any liability or damages resulting from failure by Customer to maintain the confidentiality of the Account password and for all activities that may occur under the password, including without limitation usage by unauthorized third-parties.

3.4. Customer agrees to notify Stack8 immediately if Customer suspects any breach of security such as loss, or unauthorized disclosure or use of the password and Account information of the Customer.

3.5. 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 Stack8.

3.6. Accounts shall not be assigned or transferred, except with the prior written consent of Stack8, which Stack8 may withhold at its sole discretion.

4.    Invoicing and Payment

4.1. Prices and Charges

All prices are identified in Canadian dollars on the Stack8 website or Administrative Portal. 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.

Recurring charges for the Services begin on the Effective Date, and will continue for the Term. Recurring charges will, once incurred, remain in effect for the then-current Term. Stack8 will provide notice of any proposed increase in such charges no later than thirty (30) days before the end of the Initial Term or then-current Term, and any such increase will be effective on the first day of the next Renewal Term. Administrative Fees that Stack8 is entitled to pass on to its customers as a surcharge pursuant to Applicable Laws may be increased on thirty (30) days’ written notice.

Outbound International Long Distance calling rates will be applied based on the rate in effect at the time of use. Customer may locate the currently effective rates in the Administrative Portal.

4.2. Billing and Payment

Recurring charges are billed monthly to the Account of Customer, in advance for those Services and equipment in the following month. Customer is responsible for all fees associated to any refused or rejected payment that Stack8 is entitled to charge under this Agreement.

Unless otherwise stated at the time of purchase or on the billing statement, payment is due in full, without deduction or set-off, within thirty (30) days of the date on the billing statement. Any payment not made when due may be subject to a late payment fee equivalent to one and a half percent (1.5%) per month (eighteen percent (18%) annually). Stack8’s acceptance of late or partial payments, regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly, will not waive, limit, or prejudice in any way Stack8’s rights to collect any amount due. Stack8 may terminate the Services and this Agreement for non-payment if any fees or charges are not paid within thirty (30) days of the due date.

4.3. 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. Taxes, access fees, universal service or other recovery fees, or similar charges will be adjusted on the date in which those increases become effective as mandated by competent authority. If any withholding tax is levied on the payments, then Customer must increase the sums paid to Stack8 so that the amount received by Stack8 after the withholding tax is deducted is the full amount Stack8 would have received if no withholding or deduction had been made.

4.4. Billing Disputes

If a Customer reasonably and in good faith disputes any portion of Stack8’s charges, it must provide written notice to Stack8 within thirty (30) days of the billing date, identifying the reason for the dispute and the amount being disputed. Dispute raised by the Customer as to any portion of the billing statement will not excuse any obligation of the Customer to timely pay the undisputed portion of the billing statement. Upon resolution, Customer must pay any 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 charges. Customer will be reimbursed any such outstanding billing credits at the expiration or termination of this Agreement.

5.    Provision of the Services and Equipment

5.1. General Terms

Subject to this Agreement, Stack8 will provide the Services and Equipment to Customer as described in the relevant Order.

5.2. Technical requirements for the provision of the Services and Equipment

5.2.1. The provision of the Services and Equipment are dependent upon the Customer providing appropriate access, facilities and systems for any installation required for Services and Equipment. The Services are dependent upon maintenance by Customer of sufficient Internet access, broadband, networks and power (the “Technical Requirements”), which Stack8 does not provide.

5.2.2. Stack8 shall not incur any fee or expense to ensure that the Technical Requirements are met. Customer is sole responsible for meeting the Technical Requirements and is sole responsible for any deficiencies, delays, interruptions, losses or damages resulting from not meeting the Technical Requirements in connection with the provision of the Services and Equipment for the duration of the Term.

5.3. Incompatibility with Services or Equipment

5.3.1. The Services and Equipment may not be compatible with certain systems, machines, configurations, or any other third-party hardware or software installed or used by the Customer or End User of Customer which may impact the Services. Stack8 does not warrant that its Services or Equipment will be compatible with all of the services, facilities or equipment of the Customer.

5.3.2. Customer is sole responsible for any such incompatibility and is sole responsible for any deficiencies, delays, interruptions, losses or damages resulting from such incompatibility in connection with the provision of the Services and Equipment for the duration of the Term.

5.4. Update and removal of Services and Equipment

5.4.1. Stack8 may enhance, replace, and/or change the features of the Services or stop providing certain features of the Services or access to third-party services, but Stack8 will not materially reduce the core features, functions, or security of the Services during the Term without consent of the Customer.

5.4.2. Stack8 may from time to time push software updates and patches directly to device(s) of the Customer for installation and Customer shall not prevent Stack8 from doing so. Customer must implement promptly all fixes, updates, upgrades and replacements of software and third-party software that may be provided by Stack8. Stack8 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.

5.4.3. Stack8 has no obligation to make available to Customer or End User of Customer any subsequent versions of Services or Equipment.

5.5. Customer Care

5.5.1. Customer must provide all first-tier support to End User of Customer. Stack8 may require Customer’s Helpdesk support personnel to complete a series of training courses on the Services.

5.5.2. Stack8 will make second-tier remote support available to Customer’s Helpdesk personnel and/or Account Administrators via Stack8 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. Onsite and implementation services are not included in the Stack8 Customer Care support.

5.5.3. For the purpose of benefiting from customer care and technical support, Customer acknowledges and agrees that it shall allow Stack8 or any of its Affiliates to have remote access to network of the Customer for troubleshooting purposes.

5.5.4. Customer may open a case with Stack8 Customer Care at https://portal.stack8.com 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 Stack8’s authentication protocol.

5.5.5. Stack8 will not provide support for third-party services, hardware, software, PC repair services, equipment, wiring, network infrastructure, data network connectivity, data and network rights and privileges, IP address changes, power, enhancements, upgrades or modifications that are not purchased, provided, rented or licensed from Stack8.

5.6. Subcontracting

Stack8 may provide any of the Services hereunder through any of its Affiliates or subcontractors. Stack8 will bear the same degree of responsibility for acts and omissions for those subcontractors acting on Stack8’s behalf in the performance of its obligations under this Agreement as it would bear if such acts and omissions were performed by Stack8 directly under the terms of this Agreement.

5.7. Data storage and erasure

Stack8 may destroy any and all Customer and End User data stored or managed by Stack8 in connection with the Services within thirty (30) days after the deactivation of Customer’s subscription to Services or the termination or expiration of the Agreement.

6.    Acceptable Use Policy

Customer is solely responsible for use by any and all End users of the Services and the Equipment leased or for which remain any amount owing. Customer agrees to comply and to cause any and all End Users to comply with the policies and procedures associated with the use of the Services and Equipment as provided in Stack8’s Acceptable Use Policy available at https://www.stack8.com/en/company/acceptable-use-policy-parlay-can/

Notwithstanding anything to the contrary in this Agreement, Stack8 may act immediately and without notice to suspend or limit the Services if Stack8 reasonably suspects fraudulent or illegal activity in the Account of the Customer, material breach of the Acceptable Use Policy, or use of the Services that could interfere with the functioning of the Stack8 Network provided such suspension or limitation may only be to the extent reasonably necessary to protect against the applicable condition, activity, or use. Stack8 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 Stack8 Support in advance to avoid any Services disruption.

Stack8 may update the Acceptable Use Policy from time to time, and will provide notice to Customer at the email address on file with the Account. Such updates will become effective thirty (30) days after such notice to Customer.

7.    Use of the Service

7.1. Compliance with Agreement and policies

The Services and Equipment may only be used by the Customer, End User and all persons having the permission of the Customer to use the Services and Equipment, subject to those persons complying with the terms of this Agreement, the Acceptable Use policy and the End User License Agreement. Customer may not use, or permit the use of the Services, to interfere with the use of Stack8’s Services by others or with the operation of the Stack8 Network. Customer may not resell the Services. Any breach of this section 7.1 will be deemed a material breach of this Agreement.

The Customer is solely responsible for use by any and all End users of the Services. Customer must ensure that its End Users comply with the Acceptable Use policy and End User License Agreement and Customer shall be responsible for the enforcement of this Agreement, the End User License Agreement and Acceptable Use Policy.

If Customer becomes aware of a material breach of this Agreement, the End User License Agreement and Acceptable Use Policy as it relates to the provision of the Services, Customer shall promptly notify Stack8 and will institute legal action against the End User if requested by Stack8. Stack8 shall be entitled to enforce this Agreement, the End User License Agreement and the Acceptable Use policy directly against the End User at Stack8’s sole discretion.

7.2. EMERGENCY SUPPORT FOR THE SERVICE

THIS SECTION CONTAINS IMPORTANT PROVISIONS REGARDING 9-1-1 SERVICE.

The Services allow Customer to make or receive telephone calls over the Internet to or from the public switched telephone network. The nature of telephone calls under the Services, while appearing similar to traditional telephone calling services, create unique limitations and circumstances, including the lack of traditional 9-1-1 emergency services. For additional information regarding 9-1-1 service, Customer will refer to Stack8’s Emergency Support Notice, available at https://www.stack8.com/en/company/emergency-services-policy-parlay-can/

Customer and its End Users (hereinafter collectively referred to as “you” for the purpose of this section 7.2) are advised to review this section with respect to 9-1-1 services:

9-1-1 service: Because of the unique nature of VoIP telephone calls, emergency calls to 9-1-1 through your VoIP service will be handled differently than traditional phone service. The following provisions describe the differences and limitations of 9-1-1 emergency calls, and you hereby acknowledge and understand the differences between traditional 9-1-1 service and VoIP calls with respect to 9-1-1 calls placed to emergency services from your Account as described below.

Placing 9-1-1 calls: When you make a 9-1-1 emergency call, the VoIP service will attempt to automatically route your 9-1-1 call through a third-party service provider to the Public Safety Answering Point (“PSAP”) corresponding to your address of record on your Account. However, due to the limitations of the VoIP telephone services, your 9-1-1 call may be routed to a different location than that which would be used for traditional 9-1-1dialling. For example, your call may be forwarded to a third-party specialized call centre that handles emergency calls. This call centre is different from the PSAP that would answer a traditional 9-1-1 call which has automatically generated your address information, and consequently, you may be required to provide your name, address, and telephone number to the call centre.

How your information is provided: The VoIP service will attempt to automatically provide the PSAP dispatcher or emergency service operator with the name, address and telephone number associated with your Account. However, for technical reasons, the dispatcher receiving the call may not be able to capture or retain your name, phone number or physical location. Therefore, when making a 9-1-1 emergency call, you must immediately inform the dispatcher of your location (or the location of the emergency, if different). If you are unable to speak, the dispatcher may not be able to locate you if your location information is not up to date.

Correctness of information: You are responsible for providing, maintaining, and updating correct contact information (including name, residential address and telephone number) with your Account. If you do not correctly identify the actual location where you are located, or if your account information has recently changed or has otherwise not been updated, 9-1-1 calls may be misdirected to an incorrect emergency response site.

Disconnections: You must not disconnect the 9-1-1 emergency call until told to do so by the dispatcher, as the dispatcher may not have your number or contact information. If you are inadvertently disconnected, you must call back immediately.

Connection time: For technical reasons, including network congestion, it is possible that a 9-1-1 emergency call will produce a busy signal or will take longer to connect when compared with traditional 9-1-1 calls.

9-1-1 calls may not function: For technical reasons, the functionality of 9-1-1 VoIP emergency calls may cease or be curtailed in various circumstances, including but not limited to failure of service or your service access device – if your system access equipment fails or is not configured correctly, or if your VoIP service is not functioning correctly for any reason, including power outages, VoIP service outage, suspension or disconnection of your service due to billing issues, network or Internet congestion, or network or Internet outage in the event of a power, network or Internet outage; you may need to reset or reconfigure the system access equipment before being able to use the VoIP service, including for 9-1-1emergency calls; and changing locations – if you move your system access equipment to a location other than that described in your account information or otherwise on record with Stack8.

Inform other users: You are responsible for notifying, and you agree to notify, any End user or potential End user of your VoIP Services of the nature and limitations of 9-1-1 emergency calls on the VoIP Services as described herein.

Liability: You are advised to review this section with respect to Stack8’s limitations of liability. Stack8 does not have any control over whether, or the manner in which, calls using our 9-1-1 Dialing service are answered or addressed by any local emergency response center. Stack8 disclaims all responsibility for the conduct of local emergency response centers and the national emergency calling center. Stack8 relies on third-parties to assist Stack8 in routing 9-1-1 calls to local emergency response centers and to a national emergency calling center. Stack8 disclaims any and all liability or responsibility in the event such third-party data used to route calls is incorrect or yields an erroneous result. Neither Stack8 nor its Affiliates, officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 9-1-1 Dialing service unless such claims or causes of action arose from Stack8’s gross negligence or willful misconduct. You shall defend, indemnify, and hold harmless Stack8, its Affiliates, officers, directors, employees and agents and any other service provider who furnishes services to you in connection the Services, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, legal fees and expenses) by, or on behalf of, you or any third-party relating to the absence, failure or outage of the Services, including 9-1-1 Dialing, incorrectly routed 9-1-1 Dialing calls, and/or the inability of any user of the Services to be able to use 9-1-1 Dialing or access emergency service personnel.

Alternate 9-1-1 Arrangements: If you are not comfortable with the limitations of the 9-1-1 emergency services, you should consider having an alternate means of accessing traditional 9-1-1 or E9-1-1 emergency services or terminating the Services.

7.3. Numbering and porting policy.

7.3.1. Customer acknowledges and agrees that Customer does not own or have any right to retain any number which may have been provided or assigned to Customer in connection with this Agreement. Any number that is provided or assigned to Customer by Stack8 may be assigned to another customer at Stack8’s sole and absolute discretion, subject to Applicable Law.

7.3.2. Customer acknowledges and agrees that Customer does not own or have any right in dial numbers, “IP” numbers or domain names provided or assigned to Customer by Stack8. Stack8 may change such numbers or domain names if requested to do so by a legal or regulatory authority, including but not limited to the Canadian Radio-television and Telecommunications Commission, the Federal Communications Commission or a court order. Stack8 will promptly notify the Customer of any such change.

7.3.3. Stack8 does not automatically provide directory listings, which may only be available in select serving areas and by request only.

7.3.4. Customer agrees throughout the Term and provides Stack8 with express consent of the Customer to: (i) transfer the phone number of the Customer to Stack8’s partners and vendors as may be required from time-to-time without any further consent by Customer; (ii) transfer the phone number of the Customer to Stack8 upon request by Customer; (iii) transfer the phone number of the Customer from Stack8 to an alternate provider upon Customer’s request.

7.3.5. If Customer requests to transfer the phone number of the Customer from Stack8 to an alternate provider or “port” the phone number supplied by Stack8 to such other provider, the Services will be terminated with respect to such number after the successful completion of the port. Customer shall remain fully responsible for any and all charges and fees associated with that number up to the termination of the Services, as well as for any applicable Early Termination Fees or recovery fees that may be applicable. If the port was unsuccessful for any reason, the Services and the Agreement will not terminate and Customer shall remain responsible for any charges and fees associated with the Services and Account of the Customer.

7.4. Services availability and interruptions

For the purpose of calculating any delay, interruption or disruption of the Services, service availability measurements do not include periods of outages due in whole or in part to the following causes:

7.4.1. any act or omission on the part of Customer, End User or any third-party to this Agreement;

7.4.2. any event or occurrence that results in “no trouble found” resolution to troubleshooting or other trouble tickets;

7.4.3. force Majeure events beyond the reasonable control of Stack8, including, but not limited to, acts of God, natural disasters, cable cuts, government acts and regulation and national emergency;

7.4.4. trouble tickets associated with new installations including when End Users are being added to Account of the Customer, or when a new device is testing provided to an existing End User; or

7.4.5. any delay, disruption or interruption where Customer or the End User elects not to release the Services for testing and repair and continues to use the Services on an impaired basis.

8.    Use of the Equipment

With regard to all and any Equipment leased or for which remain any amount owing:

8.1. Customer shall operate and cause the Equipment to be operated in compliance with the general operating specifications and standards of the manufacturer and all Applicable Laws.

8.2. At all times, Customer will use the Equipment only in the manner for which it is designed and as a prudent and careful owner would.

8.3. Customer will not sell, lease or otherwise dispose of the Equipment (or any part thereof) and will keep the Equipment free of all encumbrances. In the case of Equipment purchase, the Customer may only sell, lease or otherwise dispose of the Equipment after all amounts owing have been satisfied.

8.4. Customer will bear the risk of loss, destruction or confiscation of the Equipment from the time the Equipment is delivered to Customer. Customer is responsible for insuring the Equipment as of the date of delivery.

9.    Intellectual Property

9.1. Limited License

9.1.1. Stack8 grants to Customer, and its End User, a limited, personal, revocable, non-exclusive, non-transferable (other than as permitted under this Agreement), non-assignable, non-sublicensable license to use any software provided or made available by Stack8 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 of the Term and subject to Customer’s compliance with this Agreement (including being current on its payment obligations).

9.1.2. Customer will not, and will not allow its End Users, to:

9.1.2.1. Sublicense, resell, distribute, transfer, or assign its rights under the license granted under this Agreement to any other person or entity;

9.1.2.2. assign, transfer, lease, rent or engage in any time-sharing of any third party software component that is part of the Services;

9.1.2.3. copy, modify, adapt or create derivative work of the Software or any associated Documentation;

9.1.2.4. de-compile, de-crypt, reverse assemble, disassemble, reverse engineer or otherwise attempt to derive source code, underlying ideas, algorithms structure, organization, or otherwise attempt to reduce same to human-readable form, or otherwise attempt to derive the source code for the Software;

9.1.2.5. use the Software or part thereof for infringement analysis, benchmarking, or for any purpose other than as necessary to use the Services Customer is authorized to use;

9.1.2.6. create any competing Software or services; or

9.1.2.7. remove any copyright or other proprietary or notices of any proprietary rights set forth in the Software or third party software components.

9.2. IP Rights

9.2.1. Stack8’s Rights

Except as expressly provided in this Agreement, the limited license granted to Customer under section 9.1 does not convey any ownership or other rights or licenses, express or implied, in the Services, any related materials, or in any Intellectual Property. No IP Rights or other rights or licenses are granted, transferred, or assigned to Customer, any End User or any other party. All rights not expressly granted herein are reserved and retained by Stack8 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 Stack8 Services may violate third-party IP Rights.

9.2.2. Customer Rights

As between Stack8 and Customer, Customer retains title to all IP Rights in and to the Customer Data. Customer hereby grants a royalty-free, fully paid-up, worldwide, limited, non-assignable, non-sublicenseable right and license to Stack8 and its affiliates and subcontractors to copy, duplicate, transmit, process, and use Customer Data to provide services to Customer in connection with the use of the Services by the Customer.

9.3. 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.

10.  Notice to Stack8

Customer is responsible for monitoring End User’s use of the Services for possible unlawful or fraudulent usage. Customer shall immediately notify Stack8 if Customer becomes aware or has reason to believe that: (i) Services are being stolen or fraudulently used; or that (ii) End User is using the Services in violation of this Agreement, the EULA or the Acceptable Use Policy. Customer acknowledges and agrees that Customer’s failure to notify Stack8 may result in the termination of Services and additional charges to Customer. Stack8 shall not be liable for any damages whatsoever resulting from fraudulent or unauthorized use of Customer’s Account or End User’s account. Customer shall be liable for all use of Services through its subscription, including any and all stolen Services or fraudulent use of Services.

11.  Confidentiality and Data Privacy

11.1. 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 Applicable 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 or expiry 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.

11.2. Data Privacy

Stack8 respects the privacy of the Customer and will only use the information provided by Customer to Stack8 or collected in the provision of the Services in accordance with: (a) the Privacy Notice available at https://www.stack8.com/en/company/privacy-policy/, which is incorporated in this Agreement by reference. Stack8 may update the Privacy Notice from time to time, and will provide notice of such update to Customer at the email address on file with the Account. Such updates will be effective thirty (30) days after such notice to Customer.

11.3. Data Security

Stack8 will take commercially reasonable precautions, including, without limitation, technical, administrative and physical measures, to help safeguard the Account, Account Data, and Customer Data of the Customer against unauthorized use, disclosure, or modification.

Customer must protect all End Points using industry-standard 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 Stack8 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 Stack8 may result in the suspension or termination of the Services and additional charges to Customer resulting from such use. Stack8 will not be liable for any charges resulting from unauthorized use of Account of the Customer.

12.  Termination

12.1. Termination by either Party

Either Party may terminate this Agreement and any Services purchased hereunder in whole or part by giving written notice to the other Party if the other Party: (i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of a written notice; (ii) at the written recommendation of a government or regulatory agency following a change in Applicable Law; (iii) if Stack8 decides to generally cease offering the Services in the area or jurisdiction of the Customer; or (iv) 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.

12.2. Termination for cause

Stack8 may terminate the Agreement and any Services purchased hereunder in whole or part, without any prior notice, if:

12.2.1. Customer fails to comply with the terms of payment or credit as determined in this Agreement;

12.2.2. Customer’s use of the Services or Equipment poses a danger to the Stack8’s services, equipment, facilities or network in Stack8’s reasonable opinion;

12.2.3. Customer charges any other person or resells the Services or allows an End User to charge any other person or resell the Services without Stack8’s prior written consent;

12.2.4. Stack8 reasonably suspects that Customer is using the Services or Equipment to break the law or infringe third-party rights;

12.2.5. Stack8 reasonably suspects that Customer is trying to unfairly exploit or misuse any of the policies that are part of this Agreement;

12.2.6. Stack8 reasonably suspects that Customer is using Stack8’s Services or Equipment fraudulently or that the Account of the Customer is being used by a third-party fraudulently.

12.3. Consequence of Termination for Cause and Early Termination

Customer acknowledges and agrees that Stack8, in its capacity as re-seller of the Services, is liable towards Cisco for the cost of the Services subscribed by Customer for the entire duration of the Term. In consideration of the foregoing, Customer acknowledges and agrees that this Agreement is a fixed term contract, and Customer is purchasing the Services for the entire duration of the Term. If Customer attempts to terminate the Services prior to the end of the then-current Term, without Stack8 being in material breach under section 12.1 of this Agreement (hereinafter, “Early Termination”) or if Stack8 terminates the Services, part of the Services or this entire Agreement under section 12.2, Customer will be responsible for fees and charges in full up to the end of the then-current Term, including, without limitation, unbilled charges plus any applicable early termination fee, disconnection fee and reasonable expenses in connection with the Early Termination, all of which immediately become due and payable by Customer. Customer hereby irrevocably waives the application of sections 2125 and 2129 of the Civil Code of Québec. Stack8 and the Customer may only terminate this Agreement in accordance its terms, to the exclusion of any other right, warranty or remedy required or imposed by Applicable law.

12.4. Effect of Termination

12.4.1. If Customer terminates the Services, a portion of the Services, or this Agreement in its entirety due to Stack8’s material breach under section 12.1, 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 Stack8 will provide Customer a pro-rata refund of all any prepaid and unused fees or charges paid by Customer for terminated Services.

12.4.2. If this Agreement or any Services are terminated for any reason other than expiry of the Term or as provided under sections 12.1, 12.2, 12.3 or 12.4.1, the Customer must, to the fullest extent permitted by Applicable Law and without limiting any other right or remedy of Stack8, immediately pay 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.

13.  Limitation of Liability

13.1. Excluded Damages

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ANY THIRD-PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL OR PUNITIVE DAMAGE, WHETHER FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OF SERVICES OR ANY OTHER SERVICE, LOSS OR CORRUPTION OF DATA, LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITIES, GOODWILL, OR SAVINGS, WHETHER, IN ANY OF THE FOREGOING, ARISING UNDER CONTRACTUAL LIABILITY, EXTRACONTRACTUAL LIABILITY, PRODUCT 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 APPLICABLE LAW. IN ADDITION TO AND NOT IN LIMITATION OF THE FOREGOING, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ORACLE, TO THE EXTENT ANY ORACLE COMPONENT IS EMBEDDED IN THE SERVICES, SHALL HAVE NO LIABILITY TO CUSTOMER FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTION, OR FOR ANY LOSS OF PROFIT, REVENUE, DATA OR DATA USE, ARISING FROM THE USE OF THE SERVICES OR ANY COMPONENT THEREOF.

13.2. Direct Damages

IN NO EVENT SHALL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT ARISING FROM THE PROVISION OF THE SERVICES, THE EQUIPMENT OR THE USE OF EITHER, WHETHER BASED ON CONTRACTUAL LIABILITY, EXTRACONTRACTUAL LIABILITY, PRODUCT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AGGREGATE AMOUNT THAT CUSTOMER PAID TO STACK8 UNDER THIS AGREEMENT WITHIN THE SIX (6) MONTHS PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF SUCH CLAIM. LIMITATIONS UNDER THIS section 13 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, WILLFUL OR CRIMINAL MISCONDUCT; OR IV) CUSTOMER’S LIABILITY RESULTING FROM USE OF THE SERVICES IN BREACH OF THE ACCEPTABLE USE POLICY, THE END USER LICENSE AGREEMENT OR EMERGENCY SERVICES POLICY. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED OR EXCLUDED PURSUANT TO APPLICABLE LAW.

13.3. Survival

The limitations of liability contained in this section 13 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.

14.  Indemnification

14.1. Indemnification Obligations

Customer agrees to indemnify and defend Stack8 and its Affiliates at the expense of the Customer, 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) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of Stack8, or (iv) claims relating to Customer Data. Further, Customer will indemnify and hold harmless Stack8 against all damages, costs, and legal fees finally awarded against Stack8 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.

14.2. 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: (i) prompt written notice of the third-party claim, (ii) sole control over the defense and settlement of the third-party claim, and (iii) 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 14, 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.

15.  Disclaimer of Warranty

EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER STACK8 OR ITS AFFILIATES, EMPLOYEES, AGENTS, VENDORS OR REPRESENTATIVES MAKE ANY WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF ANY NATURE WHATSOEVER, EITHER EXPRESS OR IMPLIED, REGARDING ANY SERVICES OR EQUIPMENT PROVIDED BY STACK8 TO THE CUSTOMER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NETWORK TRANSMISSION CAPACITY; THAT THE ERROR-FREE OR UNINTERRUPTED OPERATION OF THE SERVICES OR EQUIPMENT; THE SECURITY OF ANY USE OR TRANSACTION; THE FAULT TOLERANCE OF THE SERVICES OR EQUIPMENT OR THE SUITABILITY OF SAME FOR HIGH RISK ACTIVITIES; OR THE RELIABILITY OR COMPATIBILITY OF THE STACK8 SERVICES AND EQUIPMENT OR SOFTWARE OF THIRD-PARTIES WHICH MAY BE UTILIZED BY STACK8 IN PROVIDING, OR BY THE CUSTOMER IN USING, THE SERVICES OR EQUIPMENT, AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, ARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXCLUDED. THE CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE MADE BY STACK8. NOR SHALL STACK8 OR ITS AFFILIATES, EMPLOYEES, AGENTS, VENDORS OR REPRESENTATIVES BE LIABLE FOR ANY FAILURE, BREAKDOWN, DELAY, INTERRUPTION, OR DEGRADATION IN A SERVICE OR IN THE NETWORK OR ANY OTHER NETWORK OR CONNECTION INVOLVED IN THE PROVISION OR USE OF THE SERVICES WHATEVER THE CAUSE OF SUCH FAILURE, BREAKDOWN, DELAY, INTERRUPTION OR DEGRADATION AND HOWEVER LONG IT LASTS; OR ANY UNAUTHORIZED ACCESS TO STACK8, CUSTOMER OR END USER’S EQUIPMENT OR DATA OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER OR END USER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD.

16.  Dispute Resolution

16.1. 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 with the other Party before either Party brings legal action, to make a reasonable and good faith effort to settle or otherwise resolve such Dispute.

16.2. 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 the Courts of the Province of Québec, in the judicial district of Montréal. 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.

16.3. 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 under Applicable Law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement, in additional to any other relief to which such Party may be entitled under Applicable Law.

16.4. Limitations

Except for actions for nonpayment or liability arising from section 14, no claim, suit, action or proceeding relating to this Agreement may be brought by either Party more than one (1) year after 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.

17.  Miscellaneous

17.1. Relationship of the Parties

Stack8 and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Stack8 and Customer.

17.2. 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), provided 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.

17.3. 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, email (with confirmation of delivery), confirmed facsimile, or five days after deposit with an reputable overnight courier service, and addressed as follows: to Stack8 at STACK8 TECHNOLOGIES INC., Legal Department, 1550 Metcalfe, Suite 500, Montreal, Quebec, H3A 1X6, 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 upon written notice given to the other Party pursuant to this section or by Customer in the Administrative Portal.

17.4. 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; third-party 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 labor disturbance; or other cause, whether similar or dissimilar to the foregoing, not resulting from the actions or inactions of such Party.

17.5. Third-Party Beneficiaries

Stack8 and Customer agree that there will be no third-party beneficiaries to this Agreement.

17.6. Internal Customer Activities

Stack8 does not have any obligation to assist in or otherwise mediate in the event of any dispute between Customer representatives or Customer and any third-party with respect to ownership or control of any Account or Account Data. All information within Stack8’s records regarding the ownership or control of an Account or Account Data, Services ordered, and numbers assigned to an Account will be definitive and controlling for purposes of administering the Account. In the event of any such dispute, Stack8 may take any course of action that it deems appropriate based on the information available, which include declining to take any course of action.

Stack8 may access the Account of the Customer and related data as required to provide the Services. However, Stack8 has no obligation to access Account of the Customer, Account Data or any Customer Data for any other purposes. Services do not include or consist of any investigation, review, verification, production, compilation, modification, or other similar services for any Account Data or Customer Data. Services do not include the provision of any legal, accounting or other professional services.

17.7. 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. Stack8 and Customer both 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).

17.8. Governing Law

The Agreement is governed by the laws of the Province of Québec and the laws of Canada applicable thereon. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or use of the products or Services by the Customer the End User of Customer.

17.9. 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 national and international applicable anti-bribery laws and regulations.

17.10. 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 Canadian export Laws and regulations. Customer will not use distribute, transfer, or transmit either in part or in whole any of the Services, Equipment, software, or technical information (even if incorporated into other products) except in compliance with Canadian and other applicable export regulations.

17.11. Entire Agreement

The Agreement, together with the relevant policies and other agreements mentioned as being incorporated by reference in this Agreement, constitutes the entire agreement between Stack8 and Customer 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.

17.12. 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; (ii) Acceptable Use Policy and Privacy Notice incorporated by reference in this Agreement; (iii) the main body of this Agreement; (iv) the End User License Agreement; (v) the applicable Service and Pricing Schedule, if any; and (vi) and any other document expressly referred to in this Agreement which governs the Services.

17.13. Amendments

Except as otherwise provided, this Agreement may only be modified by a written amendment (provided electronically or otherwise) executed by authorized representatives of both Parties. In no event will handwritten changes to any terms or conditions, including in the applicable Order, be effective. Notwithstanding the foregoing, Stack8 may update this Agreement or any of its 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 thirty (30) days after such notice to Customer. In the event that any such update would be of material detriment to Customer and is not required under Applicable Law, Customer must inform Stack8 of its objection within ten (10) days of receiving the notice provided under this provision. If the Parties, negotiating in good faith cannot reach agreement within thirty (30) days, Customer may terminate the portion of the Services affected by the change without penalty by written notice to Stack8. Any use of the Services after the effective date will be deemed acceptance of the change by the Customer.

17.14. 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.

17.15. Publicity

Notwithstanding anything to the contrary in this Agreement, Stack8 may identify Customer as a customer (including use of any Customer’s logo and 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.

17.16. Electronic Signature and Counterparts

This Agreement may be executed electronically and in separate counterparts each of which when taken together will constitute one in the same original. 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.

17.17. 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 will survive expiration or termination of this Agreement or the Order, including without limitation payment obligations, warranty disclaimers, indemnities, limitations of liability, definitions and miscellaneous.

17.18. Language

The Parties hereby acknowledge that they have required that the present Agreement be drafted in the English language only; les parties reconnaissent avoir requis que le présent contrat soit rédigé en langue anglaise seulement.

SCHEDULE A – DEFINITIONS

Capitalized terms used in the Agreement but otherwise not defined have the following meaning:

17.19. “Account” means the numbered account established with Stack8 and associated with Customer and the Services provided to Customer under this Agreement. Multiple End Users may be under a single Customer Account.

17.20. “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.

17.21. “Account Data” means any business contact information provided with the Account; Stack8-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.

17.22. “Administrative Fees” means any administrative recovery fees, 9-1-1 cost recovery fees and the like separately charged by Stack8 to Customer.

17.23. “Administrative Portal” means the online administrative portal through which Account Administrators control settings and/or make additional purchases for the Account.

17.24. “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 great than fifty percent (50%) of an entity’s then-outstanding voting securities or ownership interests.

17.25. “Applicable Law(s)” means any applicable foreign, federal, provincial, local, or other law (statutory, common or otherwise), constitution, treaty, convention, ordinance, equitable principle, code, edict, decree, rule, order, requirement, regulation, guidance, executive order, or other similar authority issued, enacted, adopted, promulgated, implemented, applied, or otherwise put into legal effect by or under the authority of any governmental entity with jurisdiction over the Services.

17.26. “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.

17.27. “Customer” has the meaning set forth in the preamble to this Agreement.

17.28. “Customer Data” means information provided by Customer to Stack8, including without limitation agent names, phone numbers, text messages, email addresses, skills, and work performance metrics, the content of calls, facsimiles, SMS messages, voicemails, voice recordings, shared files, conferences or other communications transmitted or stored through the Services.. It shall also be defined as the contact history, which is a record of the transactions processed by Stack8. Items in contact history may include automatic number identification, caller identification, point of contact information, the contents of any recorded call and other miscellaneous information from contact types such as chat, text, e-mail, or other work items.

17.29. “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.

17.30. “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.

17.31.  “Dispute” has the meaning set forth in section 16.1.

17.32. “Documentation” means documentation and similar materials concerning Parlay Services that Stack8 distributes generally to Customers and End Users licensed in connection with their use of the Services, including without limitation, manuals, descriptions, user and/or installation instructions, diagrams, printouts, listings, flowcharts and training materials, together with any modifications and updates of such materials.

17.33. “Early Termination fees” has the meaning set forth in section 11.4 of the Terms of Use agreement.

17.34. “Effective Date” means the date on which Customer places an Order for the Services via the website or the Administrative Portal or the date on which Customer’s payment is processed, whichever is later.

17.35. “Electronic Signature” 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.

17.36. “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.

17.37. “End User” means an individual user, whether authorized or unauthorized by Customer, to whom Customer makes the Services and Equipment 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.

17.38. “Helpdesk” means first-tier support provided to End Users by Customer.

17.39. “Indemnifying Party” and “Indemnified Party” have the meanings set forth in section 14.2.

17.40. “Initial Term” has the meaning set forth in section 2.3 of the Terms of Use.

17.41. “Intellectual Property”, “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 (whether patentable or not), industrial designs, discoveries, developments, databases, designs, know-how, licenses, literature, software, software codes, computer programs, business methods, and processes; (b) copyrights and copyright registrations, including any moral rights attributable thereto; (c) the protection of trade and industrial secrets and Confidential Information; (d) trademarks, trade names and service marks, including domain names and logos, and the goodwill associated therewith; (e) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (f) other proprietary rights relating to intangible property; (g) analogous rights to those set forth above; and (h) any and all applications for, registrations of, and divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).

17.42. “Order(s)” means a request or order 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 may be presented and executed on the Stack8 website or via the Administrative Portal.

17.43. “Marks” means United States and foreign trademarks, service marks, copyrights, patents, trade dress, logos, and product and service names.

17.44. “Party” or “Parties” means Stack8 and/or Customer, as the case may be.

17.45. “Receiving Party” means the Party or its agents, including, but not limited to its Affiliates, officers, directors, employees and attorneys receiving Confidential Information.

17.46. “Renewal Term” has the meaning set forth in section 2.3.

17.47. “Representatives” means, with respect to any Person, the officers, directors, employees, users, subcontractors, and agents of such Person, acting within the ordinary scope of their employment or services to such Person.

17.48. “Stack8 Customer Care” means Stack8’s Customer support operations, available at https://portal.stack8.com/#/sign-in

17.49. “Stack8 Network” means the network and supporting facilities between and among the Stack8 points of presence (“PoP(s)”), up to and including the interconnection point between the Stack8’s network and facilities, and the public Internet, private IP networks, and the Public Switched Telephone Network (PSTN). The Stack8 Network does not include the public Internet, a Customer’s own private network, or the PSTN.

17.50. “Service(s)” means all services provided under this Agreement, and set forth in one or more Order(s).

17.51. “Stack8 Marks” means Marks of Stack8.

17.52. “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 9-1-1 taxes and fees.

17.53. “Term” means the Initial Term plus any Renewal Terms.

17.54. “Terms of Use” has the meaning set forth in the Preamble to the Terms of Use agreement.

17.55. “Third Party Marks” means Marks of any third party.

 

Last Updated July 1, 2019