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The terms and conditions contained herein between Ribbon Communications Inc. and its operating Affiliates, successors and assigns, (hereafter “Ribbon”) and the Customer (the “Agreement”) apply to the purchase and license of Ribbon hardware products (“Hardware Products”) and software products (“Software Products”; together, “Products”) and related services including hardware maintenance and software support (“Maintenance”), installation, configuration and other professional services (“Professional Services”) and training services (together, the “Services”). “Affiliate” of a party means an entity controlling, controlled by, or under common control with, that party. For the avoidance of doubt, Ribbon Communications Operating Company, Inc., Ribbon Communications International Limited, Sonus Networks, Inc., GENBAND US LLC and GENBAND Ireland Ltd are Ribbon Affiliates under this Agreement. Ribbon Products and Services are described in Ribbon’s quote, standard price list, standard service description and/or a statement of work (“SOW”) as provided or made available from Ribbon and in effect at the time of Ribbon's acceptance of Customer’s purchase order or other forms submitted to Ribbon (“Orders”). Customer may purchase from a Ribbon Affiliate (“Selling Entity”), including Ribbon Communications Operating Company, Inc., Ribbon Communications International Limited, Sonus Networks, Inc., GENBAND US LLC or GENBAND Ireland Ltd, subject to the terms and conditions of this Agreement through the issuance of an Order referencing this Agreement and a quote, proposal or statement of work for the Products and Services provided by such “Selling Entity”. All Orders shall be subject to acceptance by the Selling Entity and incorporated into this Agreement by reference. Upon the acceptance of an Order by a Selling Entity, the terms of this Agreement will apply between the Selling Entity and the Customer. The references to “Ribbon” under the Agreement will be deemed to be references to the Selling Entity accepting the Order. Each Selling Entity is solely and exclusively responsible for the delivery and performance under the accepted Order and any claims arising under such Order. This Agreement shall become effective as of the date of any Order (the “Effective Date”).
1. DELIVERY, TITLE AND RISK OF LOSS. All shipments are F.O.B. Ribbon facility and FCA (Incoterms 2010) for international shipments. Unless otherwise requested, Ribbon will select the carrier. Packaging is in accordance with standard industry practices. Customer bears all costs of transportation, shipping, and insurance, as well as all applicable taxes, import license(s), customs charges and paying all duties, and other charges imposed by a governmental authority. Such taxes will be invoiced in addition to the price, if applicable, unless a valid exemption certificate is furnished by the Customer to Ribbon prior to Ribbon’s acceptance of the Product Order. If any tax claim arises based upon a failure to provide a valid tax exemption certificate, due to an invalid tax exemption certificate, or other reasons attributable to the Customer, the Customer will be responsible for any tax, penalties and interest associated with any additional tax assessment by a taxing authority and such taxes, interest, late payment charges and/or penalties assessed on such tax will be invoiced by Ribbon and paid by the Customer in accordance with the payment term set forth in the Agreement. Risk of loss and title (except for software) passes to Customer upon delivery to the carrier. Ribbon will use reasonable efforts to ship Products on the scheduled shipment date, but is not liable for failures to meet such date. Ribbon may allocate shipment of Products among purchasers and may make partial shipments. Customer may cancel any shipment without charge with at least thirty (30) days’ prior written notice to the scheduled ship date. Any cancellation notice received by Ribbon within thirty (30) days of the scheduled shipment date shall be subject to a cancellation charge of five percent (5%) of the cancelled Product Order amount as a restocking fee. Product Orders may not be cancelled after shipment. Notwithstanding the foregoing, Product Orders for customized Products may not be cancelled after Order acceptance. Ribbon’s reasonable delay or refusal to ship due to export or import issues shall not constitute default.
2. PRICING AND PAYMENT. The prices for Products and Services are set forth in the then current Ribbon price list or as otherwise agreed in writing. Subject to credit approval and except as may otherwise be agreed in writing, Ribbon will invoice Customer for Products upon shipment, for Maintenance (which commences upon product shipment) annually in advance, and for Professional Services upon completion of the service (except for recurring Professional Services for which payment will be due monthly in advance). Customer will pay invoices in US dollars within thirty (30) days of invoice date. Ribbon may withhold shipments and cease providing Maintenance and other Services until past-due payments for Products or Services are made, and may require subsequent orders to be paid for in advance. Late payments are subject to a charge of the lesser of 1.5% per month or the maximum allowed by law for each month, or partial month, payment is late as well as collection costs, including reasonable collection and attorney’s fees. Unless otherwise directed by Ribbon, all such invoices will be payable by wire transfer, to the remittance address set forth in the Ribbon invoice. Prices do not include and Customer shall be responsible for all taxes of any kind due in respect of the transactions contemplated by this Agreement, except taxes on Ribbon's net income.
3. LICENSE GRANT. Subject to Customer's compliance with the terms of this Agreement (including payment of all applicable fees), Ribbon grants Customer a nonexclusive, nontransferable and perpetual (except for Software licensed on a subscription or limited term basis per the applicable Product or Service description) license to use the Software Products object code solely for its internal business purposes. Software may only be used with the specific Hardware Product device with which it is was first purchased or other authorized device for which an entitlement was granted (excluding Software only Products and network-wide license (NWL) Software Products per the applicable Software Product description). Customer may not permit use of the Software Products by another party (including but not limited to network, remote computing services or timesharing use) without the prior written consent of Ribbon; provided, however, that Customer may use the Software Products to provide voice, fax, data, video and other communications management services to those clients of Customer that obtain such services from Customer under the provisions of a separate communications services Agreement as part of Customer’s business. Ribbon (and its licensors) retain all rights, title and interest, including all intellectual property rights, in the Software Products. Customer may reproduce one copy of the Software Products solely for back-up purposes. Customer may not copy, translate, modify or adapt the Software Products or incorporate them, in whole or any part, in any other product, create derivative works based on the Products, or license others to reproduce any copies of the software Products, and may not decompile, disassemble or reverse engineer the Products, or any component thereof. For each Software licensed Product, Customer and all authorized users are bound by the terms and conditions of the Software licensed Product description. Customer will ensure that all proprietary notices affixed to or displayed on the Products will not be removed or modified. Upon expiration of a limited term license, Customer will immediately cease use of the Software Products and related documentation and return all copies to Ribbon. For any and all deliverables provided by Ribbon in performance of a Service under this Agreement, Ribbon grants Customer a non-exclusive, non-transferable, royalty-free right to use the deliverables solely for Customer’s internal use. Software updates and upgrades as provided under this Agreement may change the performance characteristics of the Ribbon systems due to the incremental software. Customer is responsible for updating and expanding its systems as may be required to accommodate the incremental software including the purchase of any hardware upgrades as may be required to run the new or updated Software. For any and all third-party software provided by Ribbon under this Agreement (“Third Party Software”), the applicable Third Party Software license terms shall solely apply and govern such software. Ribbon’s suppliers and licensors are hereby deemed to be third party beneficiaries of this Agreement with the right to enforce the obligations and benefits of the protections with respect to the Customer as set forth herein.
4. LIMITED WARRANTY. Ribbon warrants that (a) Hardware Products will be free from material defects in material and workmanship and will conform substantially to Ribbon’s published user documentation as of the date of Product shipment; (b) Software Products will conform substantially to Ribbon’s published user documentation as of the date of Product shipment and (c) media containing Software Products will be free from material defects, in each case for a warranty period as follows from the date of shipment: for Hardware Products, twelve (12) months; for Software Products, ninety (90) days; and for media, thirty (30) days. Provided Customer gives notice to Ribbon of an alleged defect during the applicable warranty period and within thirty (30) days of its discovery, Ribbon’s Technical Assistance Center will notify Customer whether Ribbon elects to replace the allegedly defective goods or to use commercially reasonable efforts to repair, correct or work around the problem by telephone support.
Ribbon will have no obligation hereunder if its tests disclose that the alleged defect is due to causes not within Ribbon’s control, including alteration or abuse of the Hardware and/or Software Product. This limited warranty is void if failure of the Hardware and/or Software Product has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Hardware and/or Software Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Ribbon will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with Ribbon’s warranty remedy procedures. Neither these remedies nor any product support services offered by Ribbon are available without proof of purchase upon request. Software Products are not warranted to be error free. Ribbon’s sole liability, and Customer's sole and exclusive remedy, for Product defects, is limited to the express remedies set forth herein. Ribbon warrants that for Services, it will perform the Services using generally recognized commercial practices and standards. Ribbon warrants that the Service will substantially conform to the applicable service description. Ribbon will remedy non-conforming Service provided Customer notifies Ribbon of any non-conformance within thirty (30) days after the performance of the non-conforming Service. If in Ribbon’s opinion, Ribbon is unable to otherwise remedy the non-conforming Service, Ribbon will refund the applicable portion of the purchase price for that portion of the Service which was non-conforming. For Deliverables related to the Services, Ribbon warrants for a period of thirty (30) days from the delivery of the Deliverable to Customer that the Deliverable will substantially conform to the applicable description under the applicable service description or SOW. In the event the Deliverable fails to substantially conform to such description, then Ribbon may, at its option, repair or replace the non-conforming Deliverable or refund to Customer the amount paid for the non-conforming Deliverable. ”Deliverable” means the specified deliverable related to a Service as set forth under the applicable service description or SOW. Ribbon’s sole liability and Customer’s sole and exclusive remedy, for any and all warranty claims, is limited to the express remedies set forth herein. RIBBON MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION WITH THIS AGREEMENT. ALL OTHER WARRANTIES AS TO THE QUALITY, CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED. Third party products and services purchased from Ribbon shall be solely and exclusively covered by the applicable third party warranty.
5. CONSEQUENTIAL DAMAGE WAIVER. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOST PROFITS, FORESEEABLE OR UNFORESEEABLE, OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL, LOST OR DAMAGED DATA OR SOFTWARE, LOSS OF USE OF PRODUCTS, OR DOWNTIME), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, ARISING FROM THE SALE AND DELIVERY OF PRODUCTS OR SERVICES OR ANY OTHER ACT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE PROVIDED UNDER SECTION 7, RIBBON’S MAXIMUM LIABILITY FOR DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WILL IN NO EVENT EXCEED THE PRICE PAID FOR THE AFFECTED PRODUCT SUBJECT TO THE CLAIM OR THE PRICE PAID FOR THE AFFECTED SERVICE during the twelve (12) month period preceding the date of the initial event GIVING RISE TO THE claim. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY EXCLUSIVE REMEDIES.
7. INTELLECTUAL PROPERTY INDEMNITY. Ribbon will defend and settle any claim against Customer alleging that the Ribbon Branded Products directly infringe any United States patent, copyright, trade secret or trademark of a third party. Ribbon Branded means Products bearing a trademark or service mark of Ribbon. Ribbon’s indemnification obligation is subject to Customer’s compliance with the following procedures: (a) Customer will notify Ribbon within ten (10) days in writing of any claim or the commencement of any suit, action, proceeding or threat that Customer believes may result in losses for which it will be entitled to indemnification; (b) Customer will immediately upon such written notice tender to Ribbon (and its insurer) full authority to defend or settle any such claim; and (c) Customer shall cooperate in the defense of such claim. Ribbon has no obligation to indemnify Customer in connection with any settlement made without Ribbon’s written consent. Ribbon will defend Customer against any such claim brought against Customer in the
8. TERM AND TERMINATION. This Agreement shall have a term that starts on the Effective Date and continues through the completion of any open Orders. Either party may terminate this Agreement for cause in the event of: (i) a breach of material term (including payment), of this Agreement which remains uncured within thirty (30) days from receipt of written notice of such breach by the non-defaulting party, or (ii) Ribbon may immediately terminate this Agreement upon notice if the other party breaches Section 3. Notwithstanding the foregoing, Customer’s obligations under Section 3 hereunder shall survive termination of this Agreement until such time as all of Customer’s payment obligations under this Agreement are satisfied. Sections 4-14 will survive any termination hereof
9. US GOVERNMENT RESTRICTED RIGHTS NOTICE. Distribution and use of products including computer programs and any related documentation and derivative works thereof, to and by the US Government, are subject to the Restricted Rights provisions of FAR 52.227-19, paragraph (c)(2) as applicable, except for purchases by agencies of the Department of Defense (DOD). If the software is acquired under the terms of a Department of Defense or civilian agency contract, the software is “commercial item” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) of the DoD, FAR Supplement and its successors. All U.S. Government end users acquire the software with only those rights set forth herein. Manufacturer is Ribbon Communications Inc. and its Affiliates, 4 Technology Park Drive, Westford, MA 01886, USA. Unpublished - rights reserved under US copyright laws.
10. PUBLICITY. Neither party will publicize nor disclose to any third party either the existence or terms of this Agreement without the consent of the other party, except as may be necessary to comply with the law or with other obligations in this Agreement. Notwithstanding the foregoing, Ribbon shall be permitted to issue a press release, in form reasonably satisfactory to Customer announcing this Agreement. Customer shall not unreasonably withhold or delay approval of such press release.
11. PRODUCT ROADMAP. From time to time during the term of this Agreement, Ribbon may disclose to Customer information related to future products, features or enhancements in order to support and obtain feedback for the Customer’s vision and strategy for development efforts and plans (“Product Roadmap”). Ribbon’s development efforts and plans are subject to change at any time, without notice. Ribbon provides no assurances that Ribbon will introduce future products, features or enhancements described in a presentation containing Product Roadmap information, and Ribbon assumes no responsibility to introduce such products, features or enhancements. Customer further acknowledges: (i) current purchasing decisions are not made based on the reliance on the timeframes or specifics outlined in the Product Roadmap information; and (ii) If Ribbon delays or never introduces future products, features or enhancements, Customer’s current purchasing decisions would not be affected
12. CONFIDENTIALITY. The Product contains proprietary and confidential information of Ribbon as well as trade secrets owned by Ribbon (together with all pricing, specifications, forecasts, roadmap or other confidential information of Ribbon provided to Customer, the “Confidential Information”). Customer agrees to hold the Confidential Information in strict confidence and not to use or disclose the Confidential Information in any way except as expressly permitted hereunder. Customer agrees to protect the Confidential Information at least to the same extent that Customer protects its similar confidential information, but in no event less than reasonable care.
13. EXPORT. Customer agrees to comply with all U.S. export laws and regulations including without limitation the U.S. Bureau of Industry and Security’s (“BIS”) Export Administration Regulations (“EAR”) and any other U.S. agency regulations which restrict export, re-exports and release of Ribbon Products, their related technical data and the direct products of such technical data. Customer will not, directly or indirectly, export or re-export to entities on the most current U.S. export exclusion lists, to any country subject to U.S. embargo or terrorist controls, and will not use or provide Products, Services, or technical data for nuclear, missile, or chemical biological weaponry end uses as specified in the U.S. export laws and regulations
14. AUDIT. Ribbon reserves the right to audit Customer’s use of the Software Products no more than once annually at Ribbon’s expense. Ribbon shall schedule any audit at least thirty (30) days in advance. Any such audit shall be conducted during regular business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s business activities. If such audit reveals that Customer has underpaid fees to Ribbon, Customer shall promptly pay to Ribbon such fees at the prices previously agreed to for such Software Products.
15. GENERAL. This Agreement (and any applicable Third Party Software shrink-wrap licenses) contains the entire agreement of the parties with respect to the transactions contemplated by this Agreement and supersedes all prior and contemporaneous Agreements, representations and understandings, whether written or oral. No boilerplate terms under a Customer purchase order, acknowledgment form, or other ordering document shall vary the terms and conditions on this Agreement. It is the express intent of the parties that this Agreement and each purchase order submitted hereunder constitute one transaction that shall be governed by the terms hereof. In the event of any conflict between the terms and conditions of this Agreement and those of any statement of work hereunder as expressly agreed by the parties in writing, the terms and conditions of the statement of work shall prevail. No modification or waiver of any provision hereof is effective unless in writing and signed by each party. No failure or delay by either party in exercising any right or remedy hereunder will operate as a waiver of same. This Agreement is binding upon and inures to the benefit of the parties, their successors and permitted assigns. Neither party will gain by virtue of this Agreement any rights of ownership of copyrights, patents, trade secrets, trademarks or any other intellectual property rights owned by the other party. Neither party may assign or transfer its rights hereunder without the other party’s prior written consent, provided that Ribbon may assign this Agreement in connection with a merger or consolidation or the sale of all or substantially all of its assets or stock. All notices, requests, demands, or other communications hereunder shall be in writing, in English, and sent by facsimile transmission, recognized overnight delivery service that provides evidence of receipt or registered or certified mail, postage prepaid, to the other party at its address as set forth herein or any other address as such party may provide to the sending party in writing. Changes to an Order may also be transmitted via e-mail to Order Management. For Orders with Ribbon Communications Operating Company, Inc. acting as the Selling Entity, (i) this Agreement and the rights and obligations of the parties will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to principles of conflict of laws, rule or provision that would result in the application of the substantive law of any other jurisdiction; and (ii) the parties agree the exclusive jurisdiction and venue shall be the federal and state courts of competent jurisdiction. located in the State of Massachusetts. For Orders with Ribbon Communications International Limited acting as the Selling Entity, (i) this Agreement will be governed by and construed in accordance with the laws of Ireland and (ii) the exclusive jurisdiction and venue shall be the courts of competent jurisdiction located in Ireland. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application hereunder. The failure of either party to enforce any of the terms hereof will not be construed as a waiver of future enforcement of that or any other term. Neither party is responsible for any delays or failure in performance (except for payment of money) due to any cause beyond the party’s reasonable control.