The terms and conditions contained herein (the “Agreement”) between Ribbon Communications Inc. and its operating Affiliates, successors and assigns (hereafter “Ribbon”) and the Customer 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 Services”), installation, configuration and other professional services (“Professional Services”), and education training services (together, the “Services”). Ribbon Products and Services are described in the applicable proposal, quote, price list, Product description, Service description and/or a Statement of Work (“SOW”) as provided or made available by 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”) 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 purchase orders or other forms submitted to Ribbon (“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”). “Affiliate” means an entity controlling, controlled by, or under common control with another entity.
1. DELIVERY, TITLE AND RISK OF LOSS. All shipments are F.O.B. Origin Ribbon facility, or FCA (Incoterms 2020) 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 a limited right to use the software) passes to Customer upon delivery to the carrier, except as otherwise may be agreed by Ribbon in writing. Orders shall reference this Agreement and specify as applicable the quantity, price, serial number, billing instructions, installation location, requested delivery dates, identification of any Services being ordered, requested commencement date for Services and any other instructions as applicable. All Orders shall be governed by this Agreement. An Order shall bind Ribbon only after Ribbon’s formal written acceptance of such Order. Ribbon reserves the right to reject an Order. 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 carriers 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 and IP and Optical 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, quote or as otherwise agreed by Ribbon in writing. Except as otherwise may be agreed Ribbon 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 each Service (except for recurring Professional Services for which payment will be due monthly in advance). Subject to Ribbon credit approval, Customer will pay invoices in US dollars within thirty (30) days of invoice date, except as otherwise may be agreed by Ribbon in writing. Ribbon may require payment in advance if a Customer does not have Ribbon credit approval or exceeds its Ribbon credit line. In the event Customer breaches its payment obligations under this Agreement, 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 applicable taxes of any kind due in respect of the purchase transactions contemplated by this Agreement.
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 licenses (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 as applicable, 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 Ribbon Branded (a) Hardware Products will be free from material defects in the product materials and workmanship and will substantially conform to Ribbon’s published user documentation on the date of purchase, and (b) Software Products will substantially conform to Ribbon’s published user documentation on the date of purchase. Except as otherwise may be agreed by Ribbon in writing, the warranty period for Ribbon Branded Hardware Products is twelve (12) months from the product shipment date. (Although there is an exception (i) for the Ribbon EdgeMarc Products, the Hardware warranty period is sixty (60) months from the product shipment date, and (ii) for the Ribbon packet and optical Hardware Products the warranty period is twelve (12) months from completion of the final acceptance test, but not more than eighteen (18) months after delivery, whichever comes first). The warranty period for the Ribbon Branded Software Products is ninety (90) days from the applicable shipment date or access date for Customer download. (Although there is an exception for the Ribbon packet and optical Software Products for which the Software warranty period is ninety (90) days from completion of final acceptance, but not more than nine (9) months from the applicable shipment date or access date for Customer download). The foregoing Ribbon limited product warranties are subject to Customer providing written notice to Ribbon of an alleged defect during the applicable warranty period. Ribbon’s support team will notify Customer whether Ribbon elects to replace the allegedly defective product or to use commercially reasonable efforts to repair, correct or work around the problem by means of telephone support including patches, corrective software releases or other means reasonably determined by Ribbon.
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’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, COSTS, LOSSES INCLUDING 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, COSTS AND LOSSES 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 solely defend and settle any claim against Customer alleging that the Ribbon Branded Products directly infringe any patent, copyright, trade secret or trademark of a third party in a country where the applicable product is available for sale. 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 or compromise made without Ribbon’s written consent. Ribbon will defend Customer against any such claim brought against Customer by counsel retained at Ribbon’s own expense. Subject to sub section (b) above, Customer may retain its own counsel in connection with any such claim at its own expense. This section 7 shall not apply to any infringement or misappropriation claims arising from (1) designs, specifications or modifications originated or requested by Customer, (2) the combination of any Product with other equipment, software or products not supplied by Ribbon if such infringement or misappropriation would not have occurred but for such combination, (3) Customer’s failure to install an update provided at no additional charge (including an update provided as part of a maintenance or service agreement), where same would have avoided such claim, (4) modification of the Product by a party other than Ribbon, (5) use of the Product other than for its intended original use or (6) allegations of infringement made by a non-practicing entity. Customer will indemnify and hold Ribbon harmless from and against claims that are the subject of clauses (1)-(5). If the use or sale of the Products is enjoined, or, in Ribbon’s judgment may be enjoined, Ribbon will either: (i) procure (to the extent commercially reasonable) for Customer the right to continue to use the Product, or to the extent commercially reasonable (ii) replace or modify the infringing or misappropriating Product so that it becomes non-infringing with functional equivalent product. If Ribbon determines that the foregoing alternatives cannot be reasonably accomplished, Ribbon shall direct Customer to return the Product to Ribbon and upon receipt of the Product(s), Ribbon shall reimburse Customer for the price originally paid by Customer, less an amount for depreciation determined on a five year straight line depreciation basis. Upon Ribbon’ fulfillment of any of the alternatives set out in this Section 7, Ribbon shall be relieved of any further obligation or liability to Customer as a result of any such infringement or misappropriation. THIS SECTION 7 STATES RIBBON’S ENTIRE LIABILITY TO CUSTOMER AND CUSTOMER’S SOLE REMEDY FOR ANY INFRINGEMENT CLAIMS CONCERNING THE RIBBON BRANDED PRODUCTS.
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 3-14 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. TRADE COMPLIANCE. Customer agrees to comply with all applicable local country import and export laws and regulations. For United States (U.S.) imports and exports, Customer agrees to comply with all import and 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. Where Customer requests Ribbon to export Products and materials to certain designated countries, Customer agrees to provide Ribbon, prior to shipment, an End-User Statement (EUC) to certify that Customer is the final recipient of the exported Products and materials and Customer has no intention of re-exporting such Products and materials to another party.
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. Notwithstanding the foregoing, certain Ribbon Software Products as licensed requires the Customer’s agreement to monthly or other periodic audits or usage reporting in accordance with the applicable Software Product description.
15. GENERAL. This Agreement 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 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 or project agreement hereunder as expressly agreed by the parties in writing, the terms and conditions of the statement of work or project agreement shall prevail. No modification or waiver of any provision hereof is effective unless in writing and signed by each party. 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 (i) assign this Agreement in connection with a merger or consolidation or the sale of all or substantially all of its assets or stock or (ii) assign its rights to collect and receive payments hereunder to any insurance company or other financial institution. All notices, requests, demands, or other communications hereunder shall be in writing, in English, and sent by 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 issue to Ribbon Communications Operating Company, Inc., this Agreement will be governed by the laws of the state of Delaware without regard to principles of conflict of laws, and the exclusive jurisdiction and venue shall be the courts of Delaware. For Orders issued to Ribbon Communications International Limited, this Agreement will be governed by the laws of Ireland and the exclusive jurisdiction and venue shall be the courts of Ireland. For Orders issued to ECI Telecom Ltd., this Agreement will be governed by the laws of Israel and the exclusive jurisdiction and venue shall be the courts of Israel. For all other Orders, this Agreement will be governed by and construed in accordance with the laws of the applicable country where the Ribbon Selling Entity is located and the exclusive jurisdiction and venue shall be the courts of such country, except as otherwise may be agreed in writing by the parties. 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) nor be deemed to have defaulted under or breached this Agreement, due to any causes beyond the party’s reasonable control including acts of God; flood, fire, earthquake, war, hostilities, terrorist threats or acts, civil unrest; new governmental law or regulations, strikes, pandemics and other similar force majeure events.