Reply Cloud Terms of Service
Effective date: January 1, 2020

These Terms of Service (the “TOS”) constitute the entire agreement between Reply Holdings, Inc. (“ReplyCloud”) and you on behalf of yourself and any entity that you represent (“You”), as the user of ReplyCloud’s monitoring services and any associated software and hardware or web-accessible portals. This TOS governs Your use of the Monitoring Services provided by ReplyCloud. These TOS were previously known as the End User License Agreement and Terms of Service; any references to the “End User License Agreement” or the “EULA TOS” in any ReplyCloud publications, notices, or agreements refer to these TOS.

By subscribing to or using Monitoring Services, including those services, features or functionality provided by means of mobile applications, or by downloading installing, or using any associated software or hardware, You agree to these TOS. If You do not wish to accept these TOS, do not subscribe to or use any Monitoring Services or associated software or hardware.

When You accept these TOS by signing up for, subscribing to, downloading and installing any ReplyCloud software or using the ReplyCloud Monitoring Services, You represent and warrant that: (i) You possess the legal right and capacity to enter into the agreement with ReplyCloud and to perform all of Your obligations thereunder; (ii) You are of legal age to enter into this Agreement; (iii) You have full power and authority to execute and deliver any agreement documents and to perform all of Your obligations thereunder; (v) if You accept on behalf of an organization, You are informing ReplyCloud that You are authorized to bind that organization, and references to “You” in these TOS expressly includes without limitation the entity You represent; and (iv) You shall be bound by the agreement.

Any capitalized terms set forth below not otherwise defined have the meanings set forth in Section 20 (“Definitions”) below.

1. Hardware and Service Subscription

A. Purchase of Monitoring Services

Pursuant to these TOS, You are purchasing a subscription for the Monitoring Services set forth in Your initial Order, and agreeing to use and pay for the same as set forth in these TOS for the entire period in the initial Order (the “Initial Term”), and any Renewal Terms, as applicable. You agree to be financially responsible for Your use of the Monitoring Services, including the authorized or unauthorized use of Your Account. In order to use the Monitoring Services, You must have properly configured and working Internet service or broadband connection as set forth in Section 4(a) (IP Network Sufficiency), below. ReplyCloud does not provide any access to the Internet.

B. Account Registration

Upon creating an account and signing up for the Monitoring Services and at subsequent times as requested by ReplyCloud, You or Your End Users may be required to provide certain information, including but not limited to, name, address, phone number, email address, security question and/or answers) in order to begin using or to update the Monitoring Services, activate features, or add or modification of the Reply Sidekick (e.g., activating an Account or End User or provisioning a Sidekick device) (“Registration Information”). You hereby grant to ReplyCloud permission and a perpetual, worldwide, royalty-free, fully paid-up, non-exclusive, non- transferable right and license to copy, reproduce, store, record, disclose, transmit, display, access, and use Registration Information in connection with the activation, provision, support, improvement, administration, or management of Your Monitoring Services, as set forth in these TOS or otherwise permitted by Law. You represent and warrant that all Registration Information provided to ReplyCloud by or on behalf of You or any End User will be true, accurate, current, and complete, and that You will promptly confirm, update, or supplement Registration Information on file upon ReplyCloud’s request or in the event that such Registration Information changes.

C. Account Administrators
The End User(s) You designate as Account Administrator(s) of Your Monitoring Services will have rights to set or modify the settings or preferences of other End Users of Your Account. You are responsible for all acts and omissions of Your Account Administrators, and any other End Users, including without limitation any changes or purchases such individuals may make to Your Account.

E. Term and Automatic Renewal

Your license to the Monitoring Services is provided for the Initial Term and any subsequent Renewal Terms.

The Initial Term for all service plans will renew automatically for successive terms of the same length (each, a “Renewal Term”) without further action by or notice to You; if You wish to cancel or terminate your ReplyCloud services, You must notify ReplyCloud customer service of your intent not to renewal at least thirty (30) days before the end of the Initial Term or then-current Renewal Term. The Initial Term together with any Renewal Terms are collectively the “Term”.

F. Equipment

All Reply Sidekick and/or equipment related to the Reply Sidekick, including but not limited to, power cords, and Ethernet cables, shall be provided to the ReplyCloud customer by either ReplyCloud or a third-party vendor. The terms and conditions that govern any equipment, including but not limited to, purchases, warranties, returns, exchanges and claims, can be found at the web page entitled “Terms and Conditions at https://www.ReplyCloud.com/legal/TOS.html These terms and conditions may be updated at any time with or without notice to You.

2. Customer Security Policy

A. Password Information Security

You agree that You are responsible for all Password Information and Access Codes that You or any End User use with the Monitoring Services. You further agree to ensure that all such Password and Access Code Information: (i) shall be immediately changed in the event that You or Your End Users learn of or suspect that any Account Security Incident has occurred; (ii) shall not be not transmitted or stored in any unsecure manner (including without limitation through any auto-storage, caching, “remember,” or auto-fill feature); and (iii) shall be protected from theft or unauthorized access, use, or disclosure with at least a reasonable degree of care and diligence.

B. End-Point Security

You agree to protect all End Points using, at minimum, generally accepted security measures, including without limitation: (i) effective passwords or other credentials; (ii) network segmentation and access restrictions utilizing an accurate and up-to-date access control list; (iii) session time-out and/or locking screen saver features; and (iv) use of an effective and up-to-date firewall for all networks to or through which any End Point might connect. YOU ACKNOWLEDGE

AND AGREE THAT THESE REQUIREMENTS APPLY TO MONITORING HARDWARE (eg: REPLY SIDEKICK), WHICH UTILIZE THE SAME CONNECTIVITY – AND ARE SUBJECT TO THE SAME SECURITY RISKS – AS COMPUTERS.

C. Update of Security Features

You acknowledge that some Monitoring Services security features may require activation or installation of software or firmware updates, and software may be de-activated or uninstalled by Reply during the life of your subscription of services to support or update operation or security features.

D. Account and End User Management

You acknowledge and agree that End Users You designate as Account Administrators may have the ability to make purchases and enter into transactions on Your behalf and/or to perform acts related to Your Monitoring Services, or Your Account, including any individual line or extension or ancillary services, that may significantly affect You or the operation of Your Monitoring Services, including without limitation adding, removing, or modifying Reply Sidekick devices or Location assignments to Your Account as well as payment method(s). You are responsible for any such changes made to Your account. You agree to maintain sole and exclusive control over Your Monitoring Services or Your Account at all times and to ensure that all Account rights, permissions, and settings, and all use and Usage, are effectively managed as necessary to prevent any unauthorized access to, use or Usage of, or transaction or activity through or relating to Your Monitoring Services, including without limitation by implementing the following measures and practices:

E. Distribution of Access Codes within Your company

Access Codes are generated by the Reply system upon site activation and are required for Sidekick activation via the Admin Portal or remote mobile application. Distribution of these codes from Administrator to any installation resource, person, staff or contractor is the sole responsibility of You. Reply does not warrant, protect or secure these codes once transmitted to these resources by You.

3. Service Requirements and Limitations

A. IP Network Sufficiency

You acknowledge and agree that: (i) the Monitoring Services require a properly-configured, high performance, enterprise-grade broadband IP network and connection; (ii) use of the Monitoring Services with any lesser network, services, or connection may result in partial or complete unavailability, interruption, or underperformance of the Monitoring Services or other services utilizing the same network, services, or connection; Accordingly, You agree to provide and maintain, at Your cost, an IP network, services, and connection meeting the foregoing standard and all equipment necessary for the Monitoring Services to connect to and use such network, services, and connection. ReplyCloud is not liable for any unavailability, interruption, or underperformance of the Monitoring Services related to Your IP network or connection and will report network outages when the Sidekick is Unreachable.

IMPORTANT INFORMATION: If Your IP network or connection fails, Your Monitoring Services will also fail, or report the location or event as unreachable in alerts. Your Monitoring Services may cease to function if there is a power cut or failure. These failures may be caused by reasons outside of ReplyCloud’s control.

B. Use of Mobile Application

The ReplyCloud Mobile Application can be used for Installation, Troubleshooting, and ongoing Reporting and Alterts and will use Your 3G, LTE, or 4G network using Your data service when installed on Your mobile device and may result in additional data usage fees from Your mobile service provider.

4. Use Policies

A. High Risk Use

YOU ACKNOWLEDGE THAT THE MONITORING SERVICES ARE NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. YOU REPRESENT AND WARRANT THAT YOU WILL NOT USE THE MONITORING SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT.

B. Acceptable Use

NEITHER YOU NOR ANY OF YOUR END USERS SHALL USE THE MONITORING SERVICES FOR ANY ILLEGAL, FRAUDULENT, IMPROPER, OR ABUSIVE PURPOSE OR IN ANY WAY THAT INTERFERES WITH REPLYCLOUD’S ABILITY TO PROVIDE HIGH QUALITY SERVICES TO OTHER CUSTOMERS, PREVENTS OR RESTRICTS OTHER CUSTOMERS FROM USING THE SERVICES, OR DAMAGES ANY REPLYCLOUD’S OR OTHER CUSTOMERS’ PROPERTY.

A breach of obligations in this Section 4 (Use Policies) constitutes a material breach of these TOS, such that ReplyCloud may suspend service, or take any other action ReplyCloud deems necessary to provide the Monitoring Services to you and others; to protect you, the Monitoring Services, and the ReplyCloud networks; and to enforce the terms of this Section.

Neither You nor any End User may use or allow use of the Monitoring Services in any of the following ways:

  • (i) Illegal or inappropriate behavior. Using the Monitoring Services in any manner that is in violation of applicable Law, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious, or invasive of another’s privacy.
  • (ii) Network Interference. Interfering with, or disrupting, networks or systems connected to the Monitoring Services.
  • (iii) Avoiding compliance. Using or employing methods and/or devices that are designed or likely to take advantage of, bypass, exploit, or otherwise avoid compliance with the Agreement or applicable Law.
  • (iv) Granting rights to third parties with respect to the Monitoring Services. Selling; reselling; distributing; leasing; exporting; importing; or otherwise granting or purporting to grant rights to third parties with respect to the Monitoring Services, and any software or hardware used in conjunction with the Monitoring Services or any part thereof without ReplyCloud’s prior written consent.
  • (v) Unauthorized usage. Undertaking, directing, attempting, causing, permitting, or authorizing the copying, modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Monitoring Services or any software and hardware used in conjunction with the Monitoring Services, or part thereof.
  • (vi) Circumvention of security measures. Defeating, disabling, or circumventing any security mechanism related to the Monitoring Services.
  • (vii) Interception. Intercepting, capturing, sniffing, monitoring, modifying, emulating, decrypting, or redirecting, any communication or data for any purpose, including, without limitation, by causing any product to connect to any computer server or other device not authorized by ReplyCloud or in any manner not authorized in advance in writing by ReplyCloud.
  • (viii) Unauthorized repair. Allowing any service provider or other third party – with the sole exception of ReplyCloud’s authorized maintenance providers acting with ReplyCloud’s express, prior authorization – to use or execute any software commands that facilitate the

maintenance or repair of any software or hardware used in conjunction with the Monitoring

Services.
• (ix) Unauthorized Access. Gaining access to or using (or attempting to gain access or use) any

device, system, network, account, or plan in any unauthorized manner (including without limitation through password mining).

E. Export Restrictions

You acknowledge and agree that the software and/or hardware used in conjunction with the Monitoring Services may be subject to Canada, United States and other foreign Laws and regulations governing the export, re-export, and/or transfer of software by physical or electronic means. You agree, represent, covenant, and warrant that: (i) neither You nor any End User (nor any entity or person that controls You or any End User): (a) is located in an Embargoed Area or listed on any Export Control List or (b) will export or re-export any ReplyCloud software or hardware into any Embargoed Area or to any person, entity, or organization on any Export Control List, or to any person, entity, or organization subject to economic sanctions due to ownership or control by any such person, entity, or organization, without prior authorization by license, license exception, or license exemption; and (ii) the Monitoring Services and ReplyCloud software and/or hardware will not be Used or accessed from any Embargoed Area.

F. Reports Data Not Being Stored

Reply will store Your location data, IP Phone MAC Address and assigned extension data, and temporary private IP addresses of the IP Phones. Monitoring Services only capture VoIP header packet data (by default) and do not capture, record or store media data associated with VoIP calls. Reply does NOT access, transmit, or store any PHI/PII/PCI data under any operational profile.

5. Charges and Plan Credits

A. Pricing

Please note that all prices, taxes, surcharges, and fees are subject to change at any time, except to the extent such charges are set by agreement between You and ReplyCloud for a specified term. You are responsible for paying all charges for Your Account, including but not limited to hardware and Monitoring Service fees. Customers with a past due balance on previous or multiple accounts will be charged the full balance, including but not limited to any Taxes or Fees as defined in this TOS, any late fees, service change fees upon opening a new account or updating their credit card information on file.

B. Service Availability

You acknowledge and agree that the products or services, including without limitation the Monitoring Services, may not be available one hundred percent (100%) of the time. Credit allowances for interruption of the Monitoring Services may only be provided on a case-by-case basis at the sole discretion of ReplyCloud and shall be Your sole remedy for any Monitoring Services interruptions or other issues with the Monitoring Services.

C. Discounts

From time to time in its sole discretion, ReplyCloud may offer promotions or discounts. Any promotion or discount codes must be provided to ReplyCloud upon purchase of the Monitoring Services. You are not entitled to a subsequent credit for any promotions or discounts if You do not request the promotion or discount credit at the time of Account creation or change of service. Promotions and/or discounts may not be used cumulatively or retroactively.

6. Billing and Payment

A. Monitoring Services Fees.

The initial Order sets forth one-time payment for equipment and the base recurring fees for the Monitoring Services assigned to an Account for each monthly billing cycle and are billed in advance of service delivery. If additional services have been negotiated for inclusion, these charges, support charges, as well as applicable taxes are billed in full in advance. Upon termination of Your Account for any reason, all unused Account Credits shall expire in their entirety on the termination date. No refund, transfer or proration shall be made of any unused Account Credits.

B. Taxes and Fees.

All fees for Services advertised or otherwise listed on the ReplyCloud website are exclusive of any Taxes. You agree to pay all Taxes and similar liabilities that may now or hereafter be levied on the Monitoring Services and related hardware and shipping services by any federal, state, provincial, local, or international law or regulation. Should ReplyCloud pay or be required to pay such liabilities (including any Taxes that were due but not charged or previously collected), You agree that ReplyCloud may charge Your credit card on file or invoice You, as applicable, for such payments upon receipt of an invoice and showing of indebtedness to ReplyCloud.

C. Billing for Mid-Cycle Transactions

In the event that any purchase, transaction, or event involving or resulting in a monthly-incurred Monitoring Service(s) amount occurs subsequent to the beginning of a monthly billing cycle, ReplyCloud may at that time bill You a pro-rated amount for the remainder of the then-current cycle and thereafter bill You conterminously with each subsequent cycle.

D. Late Fees

You agree and acknowledge that time is of the essence for payment of all fees and charges. Any fees or charges not paid when due shall incur interest at a rate of the lesser of: (i) eighteen percent (18%) per annum; or (ii) the highest rate allowed by Law. ReplyCloud’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)) shall not waive, limit, or prejudice in any way ReplyCloud’s rights to collect any amount due. ReplyCloud may terminate the Monitoring Services these TOS for non-payment if any fees or charges are not paid within thirty (30) days of the due date.

E. Form of Payment

All fees and charges are payable to ReplyCloud by check, ACH, credit card, or pre-approved invoice and due upon receipt by either You. You agree to be liable for a processing fee in the amount of the lesser of: (i) fifty dollars ($50.00); or (ii) the highest amount allowed by Law for any credit card chargeback or check or other payment returned for nonpayment.

When You subscribe to Monitoring Services, You will provide us with a payment method, such as a valid credit card or information for invoicing (if You are pre-approved by ReplyCloud in its sole discretion to be billed via invoice, and ReplyCloud reserves the right to revoke such approval and switch You to credit card billing in its sole discretion), and, if applicable, authorize us to collect from the payment method provided. Any authorization to charge a provided credit card will remain valid until thirty (30) days after You withdraw the authorization, or immediately upon provision of a replacement valid credit card. Upon termination of this Agreement, we will charge You any fees and any other outstanding charges and disconnect Your service. You agree to advise and notify us of any changes to Your payment method, such as credit card account number or expiration date changes. If the credit card or other payment method on Your Account is declined or fails for any reason, ReplyCloud will use reasonable efforts to contact You and advise You of the failed billing attempts. Notwithstanding the foregoing, ReplyCloud reserves the right to disconnect Your Service and terminate Your Account if Your payment method is declined or fails for any reason, or if You withdraw authorization to charge a valid credit and do not provide an

alternative payment method, and ReplyCloud reserves the right to continue to attempt charging Your credit card for any outstanding Service charges and additional fees and pursue any other legal remedies available to ReplyCloud.

F. Disputed Amounts

You will waive the right to dispute any billed amount if You do not dispute such amount within thirty (30) days of the date of its billing. If You fail to provide a written statement explaining in reasonable detail Your reasons for disputing the charge within such time period, You hereby irrevocably waive any objection and further recourse with regard to such charges. In the event that You timely dispute a billed amount and ReplyCloud confirms that You were over-billed, ReplyCloud shall credit the applicable Account in the amount of the over-billing (“Billing Credits”). Billing Credits shall be ReplyCloud’s sole and exclusive obligation and Your sole and exclusive remedy with respect to any erroneous billing.

Notwithstanding the foregoing, if You request that Your bank or credit card company perform a chargeback or decline to process a check without first contacting ReplyCloud to dispute the charge, and ReplyCloud subsequently determines that the charges at issue are not erroneous, ReplyCloud reserves the right to terminate Your Account immediately.

You are solely liable for any transactions or usage on Your Account, whether by You, any End User, or any other user of Your Monitoring Services, and in no event shall ReplyCloud be liable for any unauthorized use of Your Account.

7. Data Privacy, Access, and Retention

A. Data Privacy

The Parties acknowledge and agree that: (i) ReplyCloud’s role with respect to any personal identifiable information You or Your End Users transmit, receive, and/or store through the Plan (“Customer Personal Data”) is governed by the ReplyCloud Privacy Policy.

B. Disclaimer of Data Storage Responsibilities

You acknowledge and agree that: (i) neither ReplyCloud nor any ReplyCloud affiliated entity or third-party service provider shall have any obligation to store, retain, back-up, or ensure the availability of any stored Customer Communications, Customer Personal Data or Account Data; (ii) to the extent that You wish to retain any Customer Communications, Customer Personal Information or Account Data or other information relating to Your Monitoring Services or Your

Account(s), You shall ensure that such information is downloaded, saved, and/or backed-up outside of Your Monitoring Services or Account(s), as necessary or appropriate for Your and/or the End Users’ purposes; (iii) You shall not rely on Your Monitoring Services or Account(s) as a repository for or means by which to retain, store, or back-up Customer Communications, Customer Information Data or Account Data or any other data, information, or materials; (iv) ReplyCloud may delete or purge any and all copies and versions of any stored Customer Communications, Customer Personal Information or Account Data or other data at any time, without notice, including without limitation after You delete any such information from an Account or after termination of the TOS or closure of an Account; and (v) ReplyCloud may, in its sole discretion and option and without notice, implement reasonable limits as to the size or duration of storage of Customer Communications, Customer Personal Information or Account Data.

C. Access to Data

You and Your End Users can obtain any stored Customer Communications, Customer Personal Information or Account Data with Your login credentials in the relevant ReplyCloud Administrative Portal. You acknowledge and agree that, notwithstanding anything to the contrary in these TOS, Neither ReplyCloud nor any ReplyCloud affiliates nor third-party service provider: (i) shall have no obligation to access, view, listen to, watch, or review any stored Customer Communications, Customer Personal Information or to perform any task or undertake any role that would entail or require any of the foregoing; (ii) may not have access to stored Customer Communications, Customer Personal Information or Account Data, or such access may be incomplete, limited, restricted, or subject to certain conditions; and (iii) ReplyCloud, its affiliates shall have the right to limit, restrict, condition, or eliminate the ability of any party to access any stored Customer Communications, Customer Personal Information or Account Data in its sole discretion and without notice.

You acknowledge and agree that the Monitoring Services do not include the performance of any of the following tasks or work by ReplyCloud, and in no event shall ReplyCloud be obligated under these TOS to perform any of the following tasks or work: the investigation, correction, alteration, review, evaluation or reconfiguration of any Account Data, Customer Communications, or any other records, alert history, information, or evidence related to You or Your Monitoring Services or transmitted, received, or stored through an Account.

For the avoidance of doubt, except as provided herein or required by Law, ReplyCloud is not obligated to: (i) determine, prove, or disprove any fact or claim; (ii) pursue or defend against any

claim, allegation, action, lawsuit, demand, or proceeding; (iii) substantiate any party’s compliance with any Law or Legal Process; (iv) respond to or comply with any request or demand; (v) identify any party; or (vi) conduct any surveillance.

D. Export of Data

You acknowledge and agree that: (i) any stored Customer Communications, stored Customer Personal Information or Account Data, or other information or materials that You export will not be under ReplyCloud’s control and will not be subject to or protected by ReplyCloud’s security controls; (ii) linking or integrating Your Monitoring Services or Accounts(s) to or with any external service, environment, account or repository (including without Dropbox, Box, Google DriveTM, and OneDrive®) constitutes such exportation and ReplyCloud shall have no responsibility for, and makes no representation or warranty regarding, the security, privacy, or functionality of any such linked or integrated external service, environment, account or repository. You any Your End Users, as applicable, shall comply with all applicable Law relating to the use, disclosure, access, or export of data from Your Account(s).

E. Release.

You hereby release, discharge, and hold harmless ReplyCloud from and against any and all liability relating to or arising from its acts or omissions in accordance with this Section entitled “Treatment of Customer Communications, Content, and Account Data.”

8. ReplyCloud and HIPAA

A. No Storage of Personal Health Information.

You acknowledge and agree that the use of Monitoring Services provides no access to VoIP media and as such are not designed, intended, or recommended for use as a means by which to monitor, gather or store “protected health information,” as defined under the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and similar legislation in other jurisdictions, and the regulations promulgated pursuant thereto (such laws and regulations, “HIPAA”; such information, “PHI”), and You represent and warrant that neither Your Monitoring Services nor any ancillary product or service that is a part thereof will be used for such purpose. REPLYCLOUD SPECIFICALLY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT YOUR MONITORING SERVICES, THE ACCOUNT(S), OR THE PRODUCTS (OR THE USE OF ANY OF THE FOREGOING BY ANY PARTY) COMPLIES OR WILL COMPLY WITH HIPAA OR ANY OTHER LAW OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA OR ANY OTHER LAW.

9. Account Disputes

The Account owner shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Monitoring Services with ReplyCloud. If no legal entity is provided upon sign-up, the Account owner shall be the owner of the credit card used to open the Account. Subsequent changes to ownership must be supported by appropriate legal documentation.

A. Account Disputes

You agree that in no event shall ReplyCloud be obligated to – and in no event shall You request that ReplyCloud – participate in or act as the arbiter, adjudicator, or intermediary with respect to any claim or dispute relating to the ownership or control of, or rights relating to, Your Monitoring Services, any Account, any numbers assigned to an Account, or any Account Data or other information related to an Account or Your Monitoring Services (“Account Ownership Disputes”). In the event of any Account Ownership Dispute, ReplyCloud is authorized to take any course of action that it deems to be appropriate, including without limitation declining to take any action.

B. Access to Account Data or Customer Communications

As permitted or required by Law, ReplyCloud may access, monitor, use or disclose Your Account Data, Customer Communications, and/or Customer Personal Information for the purposes including but not limited to (i) comply with the Law or respond to lawful requests or legal process; (ii) protect the rights or property of ReplyCloud, ReplyCloud’s agents, ReplyCloud’s Affiliates, ReplyCloud’s customers, and other third-parties including to enforce ReplyCloud’s agreements, policies and terms of use; (iii) respond to emergencies; (iv) initiate, render, bill, and collect for services; or (v) facilitate or verify the appropriate calculation of Taxes, fees, or other obligations due or pursuant to a local, state, provincial, federal, or foreign government requirement.

C. Release

You agree to release, discharge, and hold harmless ReplyCloud from and against any and all liability relating to or arising from their acts or omissions related to any Account Ownership Dispute or in seeking to comply with any Law or any Legal Process.

10. Customer Support and Feedback
If You have a customer support issue, You may visit http://support.ReplyCloud.com. Any End User contacting Customer Care may be required to provide certain verifying information (e.g., the

answer to a security question on file) to receive support from Customer Care, and Customer Care may limit the level of support that it will provide or scope of information that it will disclose or confirm to any inquiring End User based on the scope of his or her Account rights or permissions.

A. Basic Customer Support Services

ReplyCloud will make basic customer support available to its customers via its call center, which will be available to attempt to resolve technical issues with and answer questions regarding the implementation or use of the Monitoring Services. Basic customer support services shall not include, and ReplyCloud shall have no obligation hereunder to perform, any of the following: (i) on-site support; (ii) implementation of any software or hardware; (iii) configuration of any device; (iv) dedicated representative support; or (v) network or third-party equipment support.

B. Customer Support Surveys and Feedback

From time to time, ReplyCloud may send its customers surveys, comment cards, customer satisfaction forms, or other requests to provide feedback. You hereby grant ReplyCloud, its licensors, and suppliers a perpetual, unlimited, worldwide fully-paid up, royalty free license to use all feedback, answers, ideas, comments, or other information You provide to ReplyCloud in response to any such requests.

11. Service and Promotional Communications and Publications

A. Erroneous Product Information

In its marketing, advertising, offering, and sale of the Monitoring Services, ReplyCloud attempts to describe the Monitoring Services as accurately as possible. Nevertheless, ReplyCloud does not warrant that any such information about Monitoring Services, including related software and hardware, is accurate, complete, reliable, current, or error-free. It is possible that such may be inaccurate or out-of-date, such as listing erroneous or out-of-date pricing information or referring to services or features that are no longer available. Such information is provided only for customers’ convenience and is not part of these TOS, any agreement for the purchase of Monitoring Services, or any other agreement with ReplyCloud.

B. ReplyCloud Communications

You agree that ReplyCloud may send, or have sent, to You, Account Administrators, contacts, and/or End Users Service Communications, and Marketing Communications. ReplyCloud shall not send Marketing Communications to You or Your End Users without providing prior notification and the right to opt out. You hereby consent to ReplyCloud’s distribution of Service and Marketing Communications in accordance with this Sub-Section 11(B) entitled “ReplyCloud Communications”. In the event that You or any End User provides ReplyCloud with any feedback, answers, ideas, comments, or other information in connection with any of the foregoing communications, You hereby grant ReplyCloud a perpetual, irrevocable, unlimited, worldwide, fully-paid up, royalty free right and license to use the same.

12. Copyright Infringement

Pursuant to the Digital Millennium Copyright Act of 1998 (17 U.S.C. § 512) (the “DMCA”) upon good faith belief that copyrighted content transmitted via ReplyCloud is infringed, the copyright owner or its agent may send ReplyCloud a notice requesting removal of the infringing content or blocking access to it. Also, the DMCA allows a party against whom a notice of copyright infringement has been filed to submit a counter-notice. Notices and counter-notices must meet the then-current statutory requirements implemented by the DMCA. Notices and counter- notices may be sent to ReplyCloud’s registered copyright agent at the following postal address or optionally our email address:

Reply Holdings, Inc. 5830 Granite Parkway Suite 100-237
Plano, TX 75024

USA

[email protected]

The notice must include: (i) an electronic or physical signature of the owner (or person authorized to act on behalf of the owner) of the copyrighted work; (ii) a description of the copyrighted work that is claimed to have been infringed upon; (iii) information reasonably sufficient to permit ReplyCloud to locate the copyrighted work; (iv) address, telephone number, and e-mail address of the owner of the copyrighted work; (v) a statement by the owner of the copyrighted work or its agent asserting good-faith belief that the use in question is not authorized by the copyright owner, its agent, or the Law; and (vi) a statement by the owner of the copyrighted work or its agent, made under penalty of perjury, that the foregoing information in the notice is accurate and affirming ownership of the copyright or authorized to act on the copyright owner’s behalf.

Any notice or counter-notice must be truthful and must be submitted under penalty of perjury. A false notice or counter-notice may give rise to personal liability. Parties should seek the advice of legal counsel before submitting a notice or counter-notice. Upon receipt of the notice, ReplyCloud may make a good faith attempt to transmit the notice to the party who has transmitted or received the allegedly infringing copyrighted work, and to transmit any counter- notification to the complaining party. ReplyCloud may, at its sole discretion, suspend, terminate, or disconnect ’s access to and use of the Monitoring Services or Account if it is deemed that such party has engaged in more than one instance of copyright infringement.

13. End User License and Restrictions

A. Limited License.

ReplyCloud grants You and Your End Users a limited, personal, revocable, non-exclusive, non- sub-licensable, non-assignable, non-transferable, non-resellable license to use the software and hardware provided in conjunction with the Monitoring Services during the Term in strict accordance with these TOS and solely for Your own internal business use. In the event of any expiration or termination of your subscription to the ReplyCloud Monitoring Services or termination of pursuant to these TOS, all license rights granted herein or in connection with any software or hardware provided under these TOS, immediately terminate. Any IP Rights in the Monitoring Services or in any technology used in the provision thereof are and shall remain the sole and exclusive property of ReplyCloud and its licensors. All rights not expressly granted herein are reserved and retained by ReplyCloud and its licensors, and no IP Rights or other rights or licenses are granted, transferred, or assigned to You, any End User, or any other party by implication, estoppel, or otherwise. You acknowledge that misuse of the Monitoring Services may violate third party IP Rights in the software and/or hardware provided in conjunction with the Monitoring Services. You may not use or disclose any Intellectual Property or IP Rights in the Monitoring Services or any hardware or software related to the same except as expressly contemplated by this section.

B. ReplyCloud’s IP Rights.

You agree that all rights, title and interest in and to all Intellectual Property in the Monitoring Services, any software, firmware or hardware used in conjunction with the Monitoring Services, and any materials provided in connection with the Monitoring Services are owned exclusively by ReplyCloud or its licensors. Except as expressly provided herein, the limited license granted to You under the Monitoring Services does not convey any ownership or other rights, express or

implied, in the Monitoring Services, any materials provided in connection with the Monitoring Services, or in any Intellectual Property.

C. Use and Disclosure of Intellectual Property.

You represent, warrant, covenant and agree that You shall not disclose or use any of the Intellectual Property in the Monitoring Services, any software or hardware used in conjunction with the Monitoring Services, or any marketing materials for any purpose following termination of the Monitoring Services or the limited license granted thereunder to use the Monitoring Services. You further represent and warrant that neither You nor any End User shall reverse engineer, disassemble or decompile any prototypes, software or other tangible object which embody ReplyCloud’s Intellectual Property.

D. New Versions of the Software

ReplyCloud, in its sole discretion, reserves the right to add, remove, or modify features or functions, and to provide fixes, updates and upgrades to the Monitoring Services without notification to you. You acknowledge and agree that ReplyCloud has no obligation to make available to You any subsequent versions of the Monitoring Services; provided, however, ReplyCloud shall make available to You any such features, functions, fixes, updates and upgrades and subsequent versions of the Monitoring Services that ReplyCloud makes generally available at no additional charge to customers who subscribe to the same edition of the Monitoring Services purchased by You. In addition, You and ReplyCloud acknowledge that no third-party has any obligation whatsoever to furnish maintenance or support services with respect to the Monitoring Services and that ReplyCloud is solely responsible for the provision of maintenance and support as provided in these TOS and to the extent such maintenance and support is required under applicable Law.

E. Publicity Rights

You agree that ReplyCloud may identify You as a user of the Monitoring Services in its business deals, press releases, marketing materials, electronic, printed, and broadcast advertising, newsletters, mailings, tradeshows, other promotional materials, on ReplyCloud’s website, or any other third-party website where ReplyCloud or its designated agents may promote the Services. You hereby grant ReplyCloud and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.

14. Change

A. Service Changes

You understand and agree that ReplyCloud may make upgrades or changes to the Services which will not materially diminish the functionality of the Services without prior notice to You. In the event that a change to the Services would, in ReplyCloud’s reasonable discretion and judgment, permanently and materially diminish or impair the functionality of the Services (a “Change”), and such Change is unacceptable to You, You may terminate the Services without penalty within thirty (30) days of becoming aware of the Change by calling ReplyCloud at 844-311-3012. Any use of the Services after the such date will be deemed Your acceptance of the Change.

B. Future Changes to these TOS

We may change the terms of these TOS from time to time upon delivery of electronic or written notices to You. ReplyCloud generally provides written notice of changes to Your account, including these TOS and any other legal agreements, via email, electronic notice on the ReplyCloud Website or Your Account Page, or on Your billing statements, or as otherwise required by applicable Law. You agree to carefully read and review each such e-mail notice, electronic notice, and billing statement from ReplyCloud fully regarding any such notices of changes to Your Account.

Subject to applicable Law, the modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of these TOS and become binding on You on the later of the date they are posted on the ReplyCloud website (www.ReplyCloud.io) or as otherwise indicated in the notice to You. You agree that You are solely responsible for: (i) making sure that Your registered email account is current and functional: (ii) checking Your registered email account regularly; (iii) checking the ReplyCloud Website and Your Account page regularly; and (iv) making sure that ReplyCloud communications are not blocked or rendered undeliverable by You, Your computer, any software installed on Your computer, Your Internet service provider, or for any other reason. Continued use of the Monitoring Services will constitute Your acceptance of the modified terms. If the terms of these TOS are amended and You do not wish to accept the modified terms, You may terminate these TOS as provided for in Section 19 entitled “Termination”.

C. Promotional Services

You acknowledge and agree that in the event that ReplyCloud offers or provides You discounts or promotional services for Your Monitoring Services or an Account, ReplyCloud may terminate

or modify the scope of such promotional services at any time without notice, unless ReplyCloud specifically agrees otherwise in writing in connection with its provision of the discounts or promotional services.

15. Termination

A. Monthly Plan Customers.

For monthly plan customers, You may cancel or terminate Your use of the Monitoring Services with or without cause at any time by calling customer service at 844-311-3012, subject to the restrictions and fees provided in these TOS, and any additional agreements governing the products or services.

B. Contracted Term Customers.

For Contracted Term Customers, You are purchasing the Plan Service for the full length of the applicable Term which may or may not include Sidekick units. You have thirty (30) days from the date of purchase for a prorated refund. After thirty (30) days, if You terminate the Monitoring Services prior to the end of Your Term, subject to applicable Law, You are responsible for all charges for any remaining time left on the Term as if You remained a customer through the end of the then-current Term, including, without limitation, outstanding charges, unbilled charges, Taxes, and fees, including any applicable disconnection fee. In addition, You will not be entitled to a refund for any unused portion of prepaid Term charges.

C. Generally.

You understand and agree that ReplyCloud may at any time, and without additional notice to You, terminate, modify, suspend, disconnect, discontinue, or block access to some or all of the features of the Monitoring Services if :

  • I. ReplyCloud determines or reasonably suspects that You have materially breached these TOS;
  • II. ReplyCloud determines that You have used a fraudulent credit card to pay for Service charges on Your Account;
  • III. ReplyCloud determines that You have verbally insulted, abused, or harassed any of its employees, contractors, agents, or other representatives;
  • IV. You did not or will not reasonably comply or cooperate with any applicable Law or regulation, or ReplyCloud is made aware of allegations of the same;
  • V. ReplyCloud is ordered by law enforcement or other government agencies to suspend or terminate Service to Your Account;
  • VI. You bring any legal action or proceeding, including without limitation in any court, regulatory, or administrative body, arbitral body, or mediator, against ReplyCloud, or participate in any class action lawsuit against ReplyCloud;
  • VII. Except to the extent prohibited by applicable Law, You file a petition in bankruptcy or if a petition in bankruptcy is filed against You and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over any of Your relevant property;
  • VIII. ReplyCloud determines that such action is necessary to protect, maintain, or improve the Services; to prevent fraud or misrepresentation by affirmative acts and/or omissions; to protect ReplyCloud, its customers, or other third parties affiliated with ReplyCloud; or for any other good cause;
  • IX. You violate applicable Law; or
  • X. As otherwise contemplated by these TOS.

Upon any termination or suspension of Your Account, ReplyCloud may immediately deactivate or delete Your Account and all related information and files in Your Account and/or restrict any further access to such files, information, or the Monitoring Services.
ReplyCloud shall not be liable to You or any third party for any reason for terminating or suspending Your use or access to the Monitoring Services.

If You or ReplyCloud terminate or suspend Your right to use the Services, You shall not be entitled to any refund or pro ration of any pre-paid amounts, Account Credits, or other amounts paid to ReplyCloud prior to the termination or suspension date.

D. 30-Day Cancellation for New Purchases

Customer may cancel any services purchased under this Agreement with written notice to ReplyCloud within thirty (30) days of the date in which the purchase becomes effective. In the event of a timely cancelation, Customer shall not owe any fees or charges for the services being canceled in respect of any period subsequent to the date of such written notice (except those arising from continued Usage), and shall be entitled to a pro-rata refund of any prepaid and unused fees for the services subject to the cancelation. All purchases are final after 30 days.

16. Warranty Disclaimer

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE MONITORING SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND REPLYCLOUD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, 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. SPECIFICALLY AND WITHOUT LIMITING THE FOREGOING IN ANY WAY, REPLYCLOUD SPECIFICALLY DISCLAIMS ANY WARRANTY: (i) THAT ANY PRODUCT WILL MEET ANY PARTICULAR REQUIREMENTS; (ii) THAT ANY PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN ANY PRODUCT WILL BE CORRECTED; OR (iii) RELATING TO THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF YOUR OFFICE PLAN, ANY ACCOUNT, OR ANY PRODUCT OR ANY CUSTOMER COMMUNICATIONS, DATA, INFORMATION, OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF ANY OF THE FOREGOING. THE PARTIES AGREE, AND IT IS THEIR INTENTION, THAT IN NO EVENT SHALL ANY WARRANTY PROVIDED BY LAW APPLY UNLESS REQUIRED TO APPLY BY APPLICABLE STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. TO THE EXTENT THAT REPLYCLOUD CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT REPLYCLOUD CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

17. Limitation of Liability

A. Consequential Damages
IN NO EVENT SHALL REPLYCLOUD BE LIABLE TO YOU OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT, COVER, OR SUBSTITUTION GOODS OR SERVICES; LOSS OF USE, DATA, EQUIPMENT, PRODUCTS, BUSINESS OPPORTUNITIES, OR PROFITS; INTERRUPTION OF BUSINESS; TRANSACTIONS ENTERED INTO OR NOT ENTERED INTO; OR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, REPUTATIONAL, OR PUNITIVE DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF REPLYCLOUD HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF – OR COULD HAVE FORESEEN — SUCH COSTS, LOSSES, OR DAMAGES.

B. Direct Damages Cap
EXCEPT AS SET FORTH BELOW, REPLYCLOUD’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED THE MONITORING SERVICES FEES PAYABLE HEREUNDER DURING THE ONE (1) MONTH

IMMEDIATELY PRIOR TO THE DATE OF THE EVENT(S) GIVING RISE TO THE LIABILITY. THE LIMITATION OF LIABILITY SET FORTH IN THIS SUB-SECTION DOES NOT APPLY TO: (i) LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (ii) YOUR LIABILITY ARISING FROM YOUR ACTUAL OR ALLEGED BREACH OF SECTIONS 1 (OPERATION AND LIMITATIONS OF THE REPLYCLOUD 911 SERVICE), 5 (USE POLICIES), 6 (NUMBER POLICIES), OR 3 (CUSTOMER SECURITY POLICY) OF THESE TOS.

C. Scope and Exceptions
THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 17.B. (Direct Damages):

  • I. SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW,
  • II. SHALL NOT DISCLAIM, LIMIT, OR CAP CUSTOMER’S OBLIGATION TO PAY ANY FEES ORCHARGES OR OTHER AMOUNT OWED TO REPLYCLOUD OR ANY DAMAGES TO WHICHREPLYCLOUD IS ENTITLED UNDER APPLICABLE LAW FOR INFRINGEMENT OF IP RIGHTS,
  • III. REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES, AND
  • IV. SHALL SURVIVE TERMINATION OR EXPIRATION OF THE MONITORING SERVICES ANDAPPLY IN ANY AND ALL CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION IN THE EVENT OF ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY PROVIDED HEREIN.

SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.

18. Indemnification

To the maximum extent permitted by applicable Law, You shall indemnify and hold harmless, individually and collectively, ReplyCloud, its affiliates, agents, resellers, and other providers who furnish goods and services to You in connection with the Services, and their officers, directors, managers, employees, and shareholders (the “Indemnified Parties”) from and against any and all liability, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys’ fees and dispute resolution expenses) arising from or related to: (i) the use of or reliance upon the Monitoring Services by You or any third party acting with Your permission, knowledge, authority or direction; (ii) a breach of these TOS by You, or any End User; (iii) any negligent acts, omissions to act or willful misconduct by You or any third party acting with Your permission, knowledge, authority or direction; (iv) the inability to use the Monitoring Services or failure or outage of the Monitoring Services for any reason; (v) the use of the Monitoring Services in connection with a violation of any applicable law, code, regulation, or ordnance; or (vi) the misappropriation, breach, violation, or infringement of any right, title or interest of any third

party, including but not limited to, contractual rights, Intellectual Property rights, rights of privacy, and rights of publicity and personality.

19. General Terms

A. Relationship of the Parties

The Parties’ relationship under these TOS is that of independent contractors. Nothing in these TOS shall constitute or create any employment, partnership, association, joint venture, agency, or fiduciary relationship between the Parties. Neither Party shall have the authority to bind or obligate the other Party in any way.

B. Notices

Notices to You shall be effective on the date sent to Your registered electronic mail address when sent by email or, at ReplyCloud’s option, three (3) days following the date deposited in regular United States Mail, postage prepaid, and addressed to Your current address on Your Account. You are responsible for notifying ReplyCloud of any changes in Your contact information or address through Your Account settings page or by contacting customer service at 844-311-3012.

Written notice to ReplyCloud shall be effective when directed to ReplyCloud’s Legal Department and received at ReplyCloud’s then-current address as posted on ReplyCloud’s Website, available here. Your notice must specify Your name, Account information, and security verification question and answer. All notices from You to ReplyCloud must be made in writing.

C. Force Majeure

Excluding either Party’s payment obligations under the Agreement, neither Party shall 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; riot; war; terrorism; governmental act or direction; Laws; breach, delay, act, or omission of any supplier, carrier, contractor, subcontractor, or business partner; failure, outage, or unavailability of third party network(s) or system(s); fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; criminal acts of third parties, earthquake; storm; hurricane; flood, fire, or other natural disaster; or strike or labor disturbance (each a “Force Majeure”). In the event that a Force Majeure prevents a Party’s performance for more than forty-five (45) consecutive days, either Party may terminate the particular agreement document(s) impacted.

D. Third Party Beneficiaries

Nothing in these TOS, express or implied, is intended to or shall confer upon any person or entity other than the Parties themselves any right, benefit, claim, or remedy as a third-party beneficiary or by any other nature whatsoever under or by reason of these TOS.

E. Choice of Law

These TOS and Your use of the Monitoring Services shall be governed by and construed under the laws of the State of Texas and the United States without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these TOS or Your sign up or use of the Monitoring Services.

F. Dispute Resolution and Optional Arbitration

In the event of any dispute, claim, question, or disagreement between You and ReplyCloud (“Dispute”), You and ReplyCloud shall first use reasonable best efforts to settle the dispute, claim, question, or disagreement. To this end, You and an authorized member of ReplyCloud’s legal department (or other representative of ReplyCloud designated by the legal department) shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither You nor ReplyCloud shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.

Notwithstanding the adjudication requirement above, for any Disputes involving ten thousand dollars ($10,000) or less, either party may choose to resolve such Dispute through binding, non- appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution provider mutually agreed upon by the parties, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision shall be final and legally binding.

In the event of any litigation (including arbitration) between You and ReplyCloud, the non- prevailing party shall reimburse the prevailing party for all reasonable and documented attorneys’ fees, costs, and expenses relating to the Dispute.
Some jurisdictions may place limits on governing law, venue, and/or dispute resolution provisions, so certain of the foregoing requirements in this section may not apply to You.

G. Venue

You agree that any Disputes shall be adjudicated in the state and federal courts of the State of Texas, U.S.A. Venue for any Disputes shall be the court of proper jurisdiction in the City of Plano and County of Collin, Texas. You agree to submit to the exclusive jurisdiction of such courts with respect to any Disputes and agree not to bring any Disputes in any other court or adjudicative body. You hereby consent to venue and personal jurisdiction in such courts with respect to such Disputes and irrevocably waive any right that You may have to assert that such forum is not convenient or that any such court lacks jurisdiction.

H. Equitable Relief

You agree that any breach of ReplyCloud’s IP Rights will cause ReplyCloud irreparable harm for which monetary damages will be inadequate and ReplyCloud 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.

I. Class Action Waiver.

Any actions, lawsuits, or shall 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 proceeding in which any party acts or proposes to act in a representative capacity.

J. No Waiver

In no event shall any failure or delay by ReplyCloud to: (i) assert or exercise any right; (ii) demand fulfillment or performance of any obligation; or (iii) avail itself of any remedy under these TOS, in whole or in part, be deemed a waiver of any right or remedy under these TOS on such occasion or any other occasion. Except as otherwise expressly stated in these TOS or an agreement document duly executed by both ReplyCloud and You, all rights and remedies stated in these TOS are cumulative and in addition to any other rights and remedies available under these TOS, any agreement document, at Law, or in equity.

K. Interpretation

These TOS, including the documents incorporated herein, constitutes the entire agreement between You and ReplyCloud with respect to the Monitoring Services and supersedes all prior or contemporaneous understandings regarding such subject matter.
If any part of these TOS is held invalid or unenforceable, that portion shall be construed to reflect the parties’ original intent, and the remaining portions shall remain in full force and effect.

The failure of ReplyCloud to exercise or enforce any right or provision of these TOS shall not constitute a waiver of such right or any other provision.

The section titles in these TOS are for convenience only and have no legal or contractual effect.

This electronic document and any other electronic documents, policies, and guidelines incorporated herein will be: (i) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents; and iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation, or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.

L. Assignment

Either party may assign these TOS and any of its rights and obligations hereunder with the other party’s prior written consent (which such consent shall not be unreasonably withheld), except that ReplyCloud may, without notice, assign the TOS and all of ReplyCloud’s rights and obligations hereunder to: (i) an affiliate; or (ii) ReplyCloud’s successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets, or the transfer or disposition of more than fifty percent (50%) of a ReplyCloud’s voting control or assets. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, these TOS shall be binding on and inure to the benefit of the parties, their successors, permitted assigns, and legal representatives.

M. Severability

If any provision or portion of the Agreement is determined to be invalid, unlawful, illegal, void, or unenforceable, in whole or in part, then (i) that provision or portion shall be construed in such a manner as to render the provision or portion enforceable and, to the extent possible, to reflect the Parties’ original intent and (ii) the remaining provisions and portions of the Agreement shall remain in full force and effect.

N. Survival

The following provisions of these TOS will survive termination or expiration of these TOS for the maximum term allowed by Law: (i) Your payment obligations; (ii) terms relating to intellectual property ownership, customer representations, confidentiality, storage of user information, publicity rights, non-disparagement, indemnification, warranty disclaimers, limitations of liability, dispute resolution and arbitration, and choice of law; and (iii) all provisions that are intended by their nature to survive termination of this agreement.

O. Language

The parties confirm that it is their express wish that the TOS, as well as any other documents relation to this TOS, including notices, schedules and authorizations, have been and shall be drawn up in the English language.

P. Currency

All dollar amounts are expressed in United States dollars for American customers, or as agreed by the parties.

20. Definitions

All capitalized terms used in these TOS shall be defined in accordance with the following definitions or as otherwise defined herein.

  • A. “Account” means the numbered account established with ReplyCloud that contains any of the following information: Your true, accurate, current, and complete personal name or business name, administrator name, billing address, shipping address, the address where the Monitoring Services will primarily be used, the records of Your IP Phones, Telephone / Extension numbers, MAC addresses, user names and any Monitoring Services that You have purchased from ReplyCloud. Multiple location services, Administrators or End Users may be included in a single account.
  • B. “Account Data” means Registration Information, and the ReplyCloud-generated logs of calling activity and site availability logs stored within that Account.
  • C. “Account Security Incident” means any actual or suspected unauthorized activity, erroneous billing, or breach or compromise of any Password Information or the security or privacy Your Office Plan, an Account, or any Account Data.
  • D. “Admin Portal” means the website through which the customer enters Registration Information, may purchase and register additional IP Desk Phones Sidekicks or activate Monitoring Services, purchase additional products or services, or make modifications to or control the customer’s ReplyCloud Account in any other way.
  • E. “Customer Communications” means the content of alerts, emails, calls, facsimiles, SMS messages, voicemails, conferences or other communications transmitted or stored through the Monitoring Services.
  • F. “Embargoed Area” means a country or region that is subject to a Canadian, United States, United Nations, or European Union embargo or economic sanctions, including without limitations destinations designated by Foreign Affairs, Trade and Development Canada, the United States Government in Country Group E or Part 746 of the Export Administration Regulations (15 CFR Part 730-774), or otherwise subject to territorial sanctions under regulations administered by the Foreign Affairs, Trade and Development Canada, the United States Department of the Treasury, Office of Foreign Assets Control, or other governmental authorities with jurisdiction.
  • G. “End User” means the user of Your local area network or any IP device attached to that network.
  • H. “Export Control List” means any list maintained by the government of Canada, the United States or any other country of entities or individuals that are subject to export controls or economic sanctions, including without limitation the Foreign Affairs, Trade and Development Canada Export Control List, the United States Commerce Department’s Denied Parties List, Entity List, or Unverified List; the United States Department of the Treasury’s or the United States Office of Foreign Assets Control’s Specially Designated National List; Sectoral Sanctions List; Foreign Sanctions Evaders List; and similar lists of entities, organizations, or individuals subject to export control restrictions or economic sanctions that are maintained by other agencies of the Canadian Government, the United States Government, the United Nations, the European Union, or any other governmental authority with jurisdiction.
  • I. “Intellectual Property” means mean all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (i) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (ii) copyrights and copyright registrations, and “moral” rights; (iii) the protection of trade and industrial secrets and confidential information; (iv) other proprietary rights relating to intangible property; (v) trademarks, trade names and service marks; (vi) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (vii) analogous rights to those set forth above; and (viii) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).
  • J. “IP Desk Phone” means a telephony hardware device that uses VoIP to place and transmit telephone calls over an IP network.
  • K. “IP Rights” means any and all patents, copyrights, trademarks, service marks, trade secrets, and other Intellectual Property rights in the Monitoring Services or in any technology used in the provision thereof.
  • L. “Law” means any federal, national, municipal, local, state, or international law, statute, regulation, code, ordinance, or restriction; treaty or convention; or court or administrative ruling.
  • M. “Legal Process” means any court or administrative order, subpoena, civil investigationdemand, warrant, or other official request, order, or process.
  • N. “Marketing Communications” means occasional non-bulk sales-related communications, andany other communications solely or primarily designed to market products.
  • O. “Office Services” means the voice, online meeting, video conferencing, and related services,applications, and product integrations, together referred to as ReplyCloud Office.
  • P. “Order” means any physical contract, order form, purchase order, or order for additionalservices placed through http://www.replycloud.io or Admin Portal.
  • Q. “Password Information” means any and all passwords, PINs, IVR PIN codes, security questions or answers, and other access-related credentials related to Your Monitoring Services or an Account.
  • R. “Monitoring Services” means the services purchased under these TOS or any contract between the customer and ReplyCloud, including but not limited to monitoring services, alerts and performance reports and communications in support thereof, and any software or hardware provided by ReplyCloud and used in conjunction with those services.
  • S. “Registered Address” means the address of the physical location where You will use the ReplyCloud Office service, including the MAC address of each IP Desk Phone or ATA device attached to the local area network for that location.
  • T. “Registration Information” means any information You or Your End Users may be required to provide in order to begin using or to update the Monitoring Services, activate features, or add or modify an individual line or extension (e.g., activating an Account or End User or provisioning a device).
  • U. “ReplyCloud Mark” means a United States and foreign trademark, service mark, copyright, or logo of ReplyCloud.
  • V. “ReplyCloud Mobile Application” the ReplyCloud Office application for mobile devices.
  • W. “Service Communications” means any communications related in whole or in part to the administration, support, use, Usage, development, or improvement of its services (including without limitation communications related to billing, payment, Usage, purchases and other transactions, Customer Communications, upgrades, updates, installations, new products,security issues, support cases, and/or customer satisfaction
  • X. “Taxes” means all federal, state, provincial, local, and municipal sales, international excise,value-added, transactional, regulatory, and other taxes and assessments and other governmental fees, surcharges, levies or amounts (including without limitation charges related to the recovery of amounts contributed to any contribution, universal service or other governmental fund or entity, whether or not such recovery is mandated by any Law).
  • Y. “Third Party Mark” means a United States and foreign trademark, service mark, copyright, or logo of a third party.