2RING SERVICE TERMS (Calabrio Marketplace)

Updated: October 12, 2020

THESE 2RING SERVICE TERMS (THESE “TERMS”) CONSTITUTE THE ENTIRE AGREEMENT BETWEEN 2RING AMERICA, INC. (“2RING" OR “DEVELOPER”) AND THE END CUSTOMER (“CUSTOMER”  OR “YOU”) FOR  SERVICES PERFORMED OR TO BE PERFORMED BY 2RING OR ANY OF ITS AFFILIATES ON BEHALF OF 2RING (COLLECTIVELY, THE “2RING SERVICES”) IN CONNECTION WITH 2RING SOFTWARE LICENSES PURCHASED ON CALABRIO, INC.’S MARKETPLACE AT https://developer.calabrio.com/marketplace/ (THE “CALABRIO MARKETPLACE”) .  IF YOU DO NOT AGREE TO ANY OF THE TERMS OR CONDITIONS SET FORTH HEREIN, PLEASE DO NOT PLACE AN ORDER FOR, OR PURCHASE, ANY 2RING SERVICES.

  1. Scope: These Terms apply to all orders for 2Ring Services placed on the Calabrio Marketplace  or otherwise submitted to 2Ring in connection with 2Ring software licenses purchased by you on the Calabrio Marketplace (such software, together with the associated documentation made available by 2Ring, the “2Ring Products”), and all related quotations and acknowledgments relating to 2Ring Services.  You acknowledge and agree that acceptance of any order for 2Ring Services by 2Ring is made only on the express condition that these Terms shall govern your purchase of 2Ring Services and associated deliverables. 2Ring’s failure to object to provisions contained in any communication from, on behalf of, or in connection with, Customer will not be deemed a waiver of any provision herein. Any additional or different terms proposed by, on behalf of, or in connection with, Customer are hereby deemed material, are objected to, and are rejected by 2Ring unless specifically accepted in a signed writing by an authorized representative of 2Ring.

  2. Taxes, Payment: If payment is made directly to 2Ring, prices are exclusive of all withholding, excise, sales, use and similar taxes, fees, or charges in each case imposed now or in the future by any governmental authority on the transactions or amounts payable hereunder. Customer will reimburse 2Ring for any such tax, fee or charge, at the time of sale or thereafter. Terms of payment are net thirty (30) days from date of invoice. All payments will be made in U.S. dollars unless otherwise agreed in writing by 2Ring. All payments are non-refundable and non-cancellable to the maximum extent permitted by applicable law. 2Ring has the right to charge interest on late payments at the rate of 1.5% per month, or the maximum amount allowed by law, if lower, from the due date until paid. If Customer’s financial condition changes or Customer’s payment history makes it advisable, 2Ring may at any time change payment terms, including, without limitation, requiring payment prior to delivery. If any proceeding is brought by or against Customer under bankruptcy or insolvency laws, 2Ring has the right to cancel any outstanding orders.

  3. Cancellation and Rescheduling: If you placed an order directly with 2Ring, that order may not be rescheduled or cancelled by Customer within thirty (30) days prior to the delivery date confirmed by 2Ring. Customer may reschedule or cancel any order submitted directly to 2Ring prior to such thirty (30) day period, subject to the payment by Customer to 2Ring of 2Ring's then-current rescheduling or cancelation charges. If Customer cancels any order, Customer will have no rights to receive any ordered 2Ring Services or related deliverables.

  4. Delivery; Acceptance; Risk of Loss: Notwithstanding anything contained in these Terms, Customer acknowledges and agrees that all delivery and performance dates are estimates only. All 2Ring Services, and any deliverables delivered pursuant to 2Ring Services, will be deemed accepted upon delivery and Customer waives any right of revocation. Any deliverables associated with the 2Ring Services will be delivered electronically (“Electronic Transmission”). Risk of loss to such deliverables shall pass to Customer upon the deliverable being electronically transmitted to Customer. If any other mode of delivery is requested, Customer will be responsible and will reimburse 2Ring for any shipping charges incurred by 2Ring, including but not limited to, transportation charges and all taxes, duties, and any other governmental assessment applicable to any shipment, and Customer shall be responsible to provide insurance against loss or damage. All sales are made Ex Works (Incoterms 2000) 2Ring’s designated shipping point. In the event of any default by Customer, 2Ring may decline to make further delivery or provision of 2Ring Services and related deliverables without in any way affecting 2Ring's rights under these Terms.

  5. Proprietary Rights: Any deliverables provided by 2Ring pursuant to the 2Ring Services are owned by 2Ring and licensed to Customer on the same terms as the associated 2Ring Products, except to the extent otherwise agreed in a signed writing by an authorized representative of 2Ring. Customer’s use of related 2Ring Products will be subject to the terms of 2Ring’s end user license agreement accompanying the applicable 2Ring Product on the Calabrio Marketplace (“2Ring End User License Agreement”). In the event of any conflict, ambiguity, or inconsistency between these Terms and the 2Ring End User License Agreement, the terms of the 2Ring End User License Agreement shall govern with respect to 2Ring Products and any deliverables provided hereunder.

  6. Assignment: Customer shall not assign or transfer these Terms or any rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of 2Ring. Any assignment in violation hereof shall be void.

  7. Governing Law and Venue: These Terms shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without regard to any conflicts of laws principles that would require the laws of another jurisdiction to apply. Customer and 2Ring consent to the exclusive jurisdiction of, and venue in, the state court of Santa Clara County, California, U.S.A., or the federal court of the Northern District of California, U.S.A., except that nothing shall restrict 2Ring from seeking relief to protect its intellectual property rights in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.

  8. Limited Warranty: 2Ring Services shall be performed in a professional and workmanlike manner (“2Ring Services Limited Warranty”). Customer’s sole and exclusive remedy and 2Ring’s entire liability for a breach of the 2Ring Services Limited Warranty will be for 2Ring to use commercially reasonable efforts to re-perform the nonconforming 2Ring Services; provided that Customer notifies 2Ring in writing of the nonconformity within thirty (30) days of the performance of such 2Ring Services along with a description of the nature of the nonconformity. Any such re-performance will not extend the 2Ring Services Limited Warranty. Notwithstanding the foregoing, 2Ring shall have no liability or obligation for any services provided by anyone who is not authorized in writing by 2Ring to provide the 2Ring Services. 2Ring Products are only subject to the warranty (if any) in the 2Ring End User License Agreement. Except for the express warranty stated in THIS Section 8 AND ANY EXPRESS WARRANTY FOR 2RING PRODUCTS STATED IN THE 2RING END USER LICENSE AGREEMENT, ALL 2RING SERVICES, 2RING products, AND DELIVERABLES are provided “AS IS” AND “AS AVAILABLE” without warranty of any kind, WHETHER EXPRESS, IMPLIED, OR STATUTORY. 2RING EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, INTEGRATION, COURSE OF CONDUCT, AND COURSE OF DEALING. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS RELIED ON NO WARRANTIES NOT EXPRESSLY SET FORTH OR EXPRESSLY REFERENCED IN THIS SECTION 8.

  9. Limitation of Liability: 2RING SHALL NOT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, PRODUCTS, OR DELIVERABLES, OR FOR ANY LOSS OF BUSINESS, LOSS OF USE OR OF LOSS OF DATA, INTERRUPTION OF BUSINESS, LOST PROFITS OR LOST GOODWILL, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THE 2RING SERVICES, DELIVERABLES, OR 2RING PRODUCTS, OR THESE TERMS, EVEN IF 2RING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. 2RING’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER ARISING FROM OR RELATED TO THESE TERMS SHALL IN NO EVENT EXCEED THE PRICE PAID BY CUSTOMER FOR THE 2RING SERVICES TO WHICH THE CUSTOMER’S CLAIM RELATES. CUSTOMER ACKNOWLEDGES AND AGREES THAT 2RING'S AFFILIATES AND SUPPLIERS SHALL NOT HAVE ANY LIABILITY UNDER THESE TERMS.

  10. Export Control: Deliverables (including 2Ring Products), technical data and/ or information provided by 2Ring hereunder may be subject to U.S. export control laws and regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such laws and regulations and obtain all required licenses to export, re-export, or import the deliverables (including 2Ring Products), technical data and information provided hereunder.

  11. Entire Agreement: These Terms, together with any 2Ring End User License Agreement and any statement of work for 2Ring Services (each, an “SOW”), constitutes the entire agreement between 2Ring and Customer, and supersedes all previous communications, course of dealing representations and agreements, whether oral or written, between Customer and 2Ring with respect to the subject matter hereof; provided, however, that if the authorized representatives of 2Ring and Customer have executed a separate written agreement (other than any purchase order or pre-printed terms from, on behalf of or in connection with Customer) for the purchase of 2Ring Services, then such executed agreement shall govern the purchase of 2Ring Services, and not these Terms. For the avoidance of doubt, any SOWs executed by and between 2Ring and the Customer shall be deemed to be made under these Terms, unless such SOW expressly references, and rejects, these Terms. These Terms may not be modified, supplemented, qualified, or interpreted except in writing signed by Customer and an authorized representative of 2Ring. The failure by 2Ring to enforce at any time any of the provisions in these Terms will in no way be construed as a waiver of such provisions. If any provision of these Terms is unenforceable as written, the remainder of these Terms will remain in effect and the unenforceable provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of these Terms.

  12. Questions or Additional Information. If Customer has questions regarding these Terms, please send an e-mail to legal@2Ring.com with the subject line: 2Ring Service Terms (Calabrio Marketplace).

 

© 2020 2Ring. All Rights Reserved