Altigen Terms of Service

The Cloud and SIP Services Terms of Service (the “Agreement”) is a legal agreement between Altigen Communications, Inc. and its suppliers and licensors (collectively “Altigen”) and a business entity (“Customer”) using the Altigen Cloud and SIP Services (collectively the “Services”).

ALTIGEN IS NOT RESPONSIBLE FOR ISSUES WITH THE CLOUD AND/OR SIP SERVICES CAUSED BY CUSTOMER INCLUDING, BUT NOT LIMITED TO: CUSTOMER’S INTERNET CONNECTION, DATA NETWORK OR THIRD PARTY PRODUCTS OR SERVICES.

GENERAL TERMS

1. Confidentiality

a. Confidential Information. Includes all information provided in writing by one party to the other party, marked “Confidential” or “Proprietary” or with words of similar meaning. Whether or not marked “Confidential,” (including without limitation), the Software, Services, pricing, inventions, algorithms, know-how and ideas relating thereto (whether patentable or not), the operation of the Services, and all associated Documentation, shall constitute Confidential Information of Altigen. Any records provided by Customer which are marked “Confidential,” shall constitute Confidential Information of Customer. Confidential Information shall not include information which is (i) generally known or readily ascertainable from public sources (other than as a result of a breach of confidentiality), (ii) independently developed by the receiving party without reliance upon any Confidential Information of the disclosing party, or (iii) obtained from an independent third party who created or acquired such information without reliance on Confidential Information, and without breach of any obligation of confidentiality.

b. Non-Use and Nondisclosure. Neither party shall disclose Confidential Information to any third party for any reason and shall only disclose Confidential Information to its employees or contractors who are under a legally binding obligation of confidentiality. Each party shall, and have its employees and contractors, keep all Confidential Information of the other party confidential and shall not copy or disclose the same, or authorize its employees or contractors to copy or disclose the same, without the prior written consent of the disclosing party. Each party may use Confidential Information only for the purpose of exercising its rights and performing its obligations pursuant to this Agreement. Each party shall use no less than a reasonable degree of care to ensure the protection of the Confidential Information disclosed by the other party. Unauthorized use or disclosure of Confidential Information is considered a breach of this agreement. These obligations of confidentiality and nondisclosure shall be in effect for the term of this Agreement and for a period of three (3) years thereafter.

c. Required Disclosure. Notwithstanding the foregoing, Altigen and Customer may make such disclosures as may be required by order of a court of competent jurisdiction, administrative agency or other government body, or by any law, rule or regulation, provided, however, that to the extent possible, each party gives the other prior written notice of such requirement.
Return of Confidential Information. Upon request by either party, the receiving party shall return to the disclosing party all originals, reproductions and copies of all Confidential Information, printed or otherwise, delete all Confidential Information from its records, and certify to the disclosing party that it has done so, in writing, by an officer of the receiving party; notwithstanding the forgoing, the receiving party may retain a copy of those records necessary to establish rights of payment, or which must be retained to satisfy reporting or legal obligations, provided that such copy is kept confidential until destroyed.

d. Specific Performance. Each party acknowledges and agrees that the rights and obligations of each party set forth in this Section 1 are unique and that, if this Section 1 is not performed in accordance with its terms or is otherwise breached, a non-breaching party will be damaged irreparably and have no adequate remedy at law. Accordingly, the parties agree that any such non-breaching party will have the right, in addition to any other rights and remedies existing in its favor at law or in equity, to enforce such party’s rights and the breaching party’s obligations under this Section 1, by bringing an action or actions for specific performance, injunctive or other equitable relief (without posting of bond or other security).

2. Indemnification

a. Customer’s Indemnity. Customer hereby agrees to indemnify and hold harmless Altigen from and against any and all claims, liabilities, damages, costs and expenses (collectively, “Damages”), however stated, resulting from, relating to or arising out of (i) any breach by Customer of any of its representations, warranties, covenants, or agreements in this Agreement, (ii) any unauthorized use of the Services, or (iii) any fraud, gross negligence, or intentional misconduct of Customer or any of its officers, agents, or employees.

b. Altigen’s Indemnity. Altigen hereby agrees to indemnify and hold harmless Customer from and against any and all Damages, however stated, resulting from, relating to or arising out of (i) any breach by Altigen of any of its representations, warranties, covenants, or agreements in this Agreement, or (ii) any fraud, gross negligence, or intentional misconduct of Altigen or any of its officers, agents, or employees.

c. Claim Procedure. An indemnified party shall notify the indemnifying party of, and describe in reasonable detail, any claim for indemnification under Section 2.a or 2.b, as applicable (each, a “Claim”) within fourteen (14) days of becoming aware of the matter giving rise to such Claim. An indemnifying party may undertake the defense of any such Claim brought against the indemnified party by a third party (a “Third Party Claim”); provided that upon assuming the defense of such Third Party Claim, the indemnifying party shall give the indemnified party reasonable notice of any material developments in the defense of such Third Party Claim and shall permit the indemnified party to participate in the defense of such Third Party Claim at such indemnified party’s cost and expense. Provided that after so assuming the defense of a Third Party Claim an indemnifying party continues to actively defend such Third Party Claim, the settlement of Third Party Claim by an indemnified party without the indemnifying party’s prior written consent, (not to be unreasonably withheld, conditioned, or delayed) shall release the indemnifying party from its obligations hereunder with respect to such Third Party Claim.

3. Limitation of Liability

a. NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING LOSS OF PROFITS, OR LOSS OF DATA, AND BUSINESS INTERRUPTION) OR COSTS OF PROCURING SUBSTITUTE SERVICES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR CUSTOMER’S UNDISPUTED PAYMENT OBLIGATIONS, EACH PARTY’S MAXIMUM LIABILITY WHETHER FOR BREACH OF THIS AGREEMENT OR IN TORT (INCLUDING NEGLIGENCE) OR FOR ANY OTHER COMMON LAW OR STATUTORY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE IS LIMITED IN THE AGGREGATE TO TWO TIMES THE VALUE OF THE SERVICES PAID FOR THE PAST TWELVE (12) MONTHS GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING CONTRARY HEREIN, NOTHING HEREIN SHALL OPERATE TO LIMIT OR EXCLUDE: (i) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

b. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ALTIGEN’S LIABILITY IS LIMITED FOR ANY SIP SERVICES OUTAGE AND/OR INABILITY TO DIAL 911 FROM CUSTOMER’S LINE OR TO ACCESS EMERGENCY SERVICE PERSONNEL, AS SET FORTH IN THIS DOCUMENT. CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS ALTIGEN, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF CUSTOMER’S SIP SERVICES RELATING TO THE ABSENCE, FAILURE OR OUTAGE OF THE SIP SERVICES, INCLUDING 911 DIALING AND/OR INABILITY OF CUSTOMER OR ANY THIRD PERSON OR PARTY OR USER OF CUSTOMER’S SIP SERVICES TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL.

c. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF A CLAIM RESULTS FROM, ARISES OUT OF, OR ALLEGES THAT THE SERVICES OR ANY PORTION THEREOF INFRINGES, VIOLATES OR MISAPPROPRIATES ANY INTELLECTUAL PROPERTY RIGHT, ALTIGEN SHALL HAVE THE OPTION TO: (I) OBTAIN FOR CUSTOMER A LICENSE TO CONTINUE TO USE THE SERVICES; (II) REPLACE OR MODIFY THE SERVICES OR ANY PORTION THEREOF TO MAKE IT NON‐INFRINGING, PROVIDED THAT SUCH MODIFIED SERVICES ARE SUBSTANTIALLY SIMILAR OR FUNCTIONALLY EQUIVALENT TO THE SERVICES PROVIDED TO CUSTOMER; OR (III) WITHOUT LIABILITY OR PENALTY, TERMINATE THE SERVICE(S) PROVIDED THAT ALTIGEN PROMPTLY REFUNDS TO CUSTOMER ANY UNUSED CHARGES AND FEES FOR THE AFFECTED SERVICE(S) AND PROVIDES REASONABLE ASSISTANCE AT CUSTOMER’S REQUEST IN TRANSITIONING TO A REPLACEMENT SERVICE PROVIDER.

d. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABLITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ALTIGEN TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE REMEDIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

e. NOTWITHSTANDING ANY OTHER TERM HEREIN, THE SOLE AND EXCLUSIVE REMEDIES OF THE PARTIES ARISING OUT OF, RELATING TO OR RESULTING FROM THIS AGREEMENT WILL BE STRICTLY LIMITED TO THOSE CONTAINED IN SECTIONS 1.e, 2 AND 3, AND THE ONLY LEGAL ACTION THAT MAY BE ASSERTED BY ANY PARTY WITH RESPECT TO ANY MATTER THAT IS SUBJECT OF SECTION 3 OR 4 WILL BE A CONTRACT ACTION TO RECOVER DAMAGES PURSUANT TO SECTION 3 AND 4 (EXCEPT TO THE EXTENT EXPRESSLY STATED IN SECTION 4.b). IN FURTHERANCE OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY WAIVES ALL CLAIMS, CAUSES OF ACTION AND OTHER REMEDIES OF SUCH PARTY AGAINST THE OTHER PARTY AS A MATTER OF CONTRACT, TORT, EQUITY, STRICT LIABILITY, UNDER OR BASED UPON ANY APPLICABLE LAW OR OTHERWISE (INCLUDING FOR RESCISSION), EXCEPT TO THE EXTENT EXPRESSLY STATED IN SECTION 1.e, SECTION 2, OR THIS SECTION 3.

4. Warranty

a. Warranty. Altigen hereby represents and warrants that the Services will perform substantially in accordance with the Documentation. In the event of a warranty claim, Customer’s sole remedy shall be as provided in the attached Service Level Agreement. Customer shall be solely responsible for, and shall indemnify and hold Altigen harmless from, and against, any claims, warranties or representations made by Customers in any way relating to the Services used by Customer.

b. Disclaimers. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND ALTIGEN DOES NOT WARRANT OR REPRESENT THAT THE FUNCTIONS OR FEATURES PROVIDED WILL MEET CUSTOMER REQUIREMENTS, OR WILL OPERATE IN ANY COMBINATION WHICH MAY BE SELECTED FOR USE BY CUSTOMER, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT ALL DEFECTS THAT MAY EXIST IN THE SERVICES WILL BE CORRECTED. EXCEPT AS EXPRESSLY SET FORTH IN THE FIRST SENTENCE OF THIS SECTION 4.b, ALTIGEN DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES, REPRESENTATIONS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

5. SIP SERVICE USAGE AND RESTRICTIONS

a. Per Minute Metered Service Plan. The Per Minute Metered Service Plan is rated based on the number of minutes used for inbound and outbound calls. Altigen calculates minute-of-use rates based on the detection of an answer supervision signal until the receipt of a disconnect signal, billed in six (6) second minimums and six (6) second increments. Applicable FCC, Federal and State Universal Fund Taxes and Fees apply to all SIP Services.

b. Unlimited Plan and Fair Usage. In the event Customer selects the Unlimited SIP Service Plan, all users must be licensed for the Unlimited SIP Service Plan. Fair Usage is capped at 500 minutes per month per User (twice the average monthly minutes used by a User of the Altigen SIP Services). Minutes from all of your Unlimited SIP Service Plan users are pooled to establish your Total Unlimited SIP Service Plan Minutes. If your Total Unlimited Service Plan Minutes threshold is exceeded, based on the Fair Usage policy, all additional calls will be billed at the then current per minute charges. The Unlimited SIP Service Plan is for Normal Business Use Only. Use of the Unlimited SIP Service Plans for activities including, but not limited to, any Auto or Predictive dialing (i.e., non-manual dialing or other means to continuously place outbound calls), continuous or extensive call forwarding or connectivity, fax broadcast, blasting, spamming, or any other activity that would be inconsistent with Normal Business Use is prohibited.

c. Release of Numbers. Customer acknowledges that in the event of any account termination or cancellation, all telephone numbers associated with Customer’s account are released and may not be available to Customer upon reactivation. Similarly, the cancellation of SIP Services which have associated telephone numbers will result in the release of such numbers. Customer acknowledges that it is Customer’s responsibility to port out each such number prior to termination or cancellation of this Service Agreement or termination of the SIP Services.

d. Security of Customer Premise Equipment. Customer is responsible to secure all credentials used to access the SIP Services, including credentials used by telephones or softphones and credentials used by Customers or administrators to access the Altigen SIP Trunk network. Customer acknowledges that placing telephones on a publicly accessible internet protocol address or a publicly accessible network will subject the Customer to a higher level of risk for fraudulent activity, as will use of the Services using a network that has not been secured using best practice measures. Customer acknowledges that Customer bears the risk of loss arising from any unauthorized or fraudulent usage of the Service

e. Payphone Surcharge. In the event the Customer’s 800/Toll-Free telephone number receives any inbound calls originating from a Payphone, these calls will be subject to a charge per call. The charges are based on regulated FCC Payphone Compensation rules. These regulatory charges ($0.95 per call) will be passed through directly to the customer.

f. Ancillary Services. Listing and publishing caller name identification (i.e., caller ID with name) services are provided by Altigen are based on availability of such services from Altigen’s underlying providers. We do not guarantee that such services are available for all numbers in all serving areas.

g. Non-Voice Systems. Customer acknowledges that the SIP Services are not set up to function with outbound-dialing systems including home security systems, medical monitoring equipment, satellite television systems, credit card terminals and some facsimile systems. Customer will have no claim against Altigen for interruption or disruption of such systems.

h. Disclaimer of Warranty and Limited Liability. The SIP Services are provided As-Is without warranty of any kind. To the maximum extent permitted by applicable law, Altigen further disclaims all warranties, including without limitation, any implied warranties of merchantability, fitness for a particular purpose, and noninfringement. Customer assumes the entire risk arising out of the use of the SIP Services. To the maximum extent permitted by applicable law, in no event shall Altigen be liable for any direct, consequential, incidental, indirect, special, punitive, or other damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, computer failure, loss of business information, or other pecuniary loss) arising out of this Service Agreement or the use or inability to use the SIP Services even if Altigen has been advised of the possibility of such damages. Customer’s sole and exclusive remedy for any dispute with Altigen related to this Service Agreement or the SIP Services shall be cancellation of this Service Agreement. In the event a court awards direct damages despite the foregoing, such damages shall not exceed the amount Customer has paid for the SIP Services for the immediately preceding six (6) month period. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply.

6. TELEPHONE NUMBER PORTING

a. Request for Altigen to Port-in numbers. If Customer requests that Altigen port a number from an existing service provider to Altigen, Altigen will use commercially reasonable efforts to assist Customer in porting that number. Customer acknowledges that service providers require verification of identity, as well as authorization and other reasonable information in order to port any numbers to Altigen. Customer must correctly complete a letter of authorization, provide Altigen with a copy of a recent bill from such service provider, and provide Altigen with any other information required by such service provider to port Customer’s number. Failure to provide any information requested by Altigen will delay the porting of the number to Altigen, and Altigen will not provide credit for any such delays.

b. Port-out of Telephone Numbers. Customer may be able to take, or “port,” Customer’s current telephone number(s) to another service provider at the conclusion of Customer’s SIP Services term. Customer will remain responsible for all charges and fees for the SIP Services until Altigen or Customer’s Authorized Altigen Partner has been notified in writing of Customer’s election to cancel the SIP Services in accordance with this Section 2. Until such notification, the SIP Services and the Service Agreement will not terminate, and Customer will continue to be responsible for all associated charges and fees. Customer will not receive any refund or partial refund or any credits for any charges and fees previously billed to Customer’s account.

c. Number Port Cancellation. For cancelled number port requests more than 48 hours before FOC, a non-recurring charge of $15 per telephone number will be charged. For cancelled number port requests within 48 hours of FOC, a non-recurring charge of $100 per telephone number will be charged. For any request to reinstate, within 24 hours, a newly ported telephone number to the original carrier, a nonrecurring charge of $300 per number will be assessed.

7. EMERGENCY SERVICES – 911 DIALING

a. Minimum Requirements. Due to FCC rulings and regulations, all Customers using Altigen SIP Services as their primary business telephone carrier must activate 911 Emergency Services on at least one (DID) per location.

b. Non-Availability of Traditional 911 or E911 Dialing Service Customer acknowledges and understands that SIP Services do NOT support traditional 911 or E911 access to emergency services. Customer agrees to inform any employees, guests and other third persons who may be present at the physical location where Customer utilizes the SIP Services of the non-availability of traditional 911 or E911. Altigen does offer a limited 911-type service which is different from traditional 911 service (as generally, but not all inclusively, described in section 3.3).

c. Description of 911-Type Dialing Capabilities – Activation Required. Altigen through its service provider partner does offer a 911-type dialing service in certain areas within the U.S. (but may not offer such service in certain areas of the U.S. or non-U.S. locations) that is different in a number of important ways from traditional 911 services, as follows:

i. With Altigen SIP Services, when a Customer dials 911, the call is routed from the Altigen SIP Services to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the address that Customer listed at the time of activation.

ii. Customer acknowledges and understands that when dialing 911 you will be routed to the general telephone number for the PSAP or local emergency service provider (which may not be answered outside business hours) and may not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.

iii. Customer acknowledges and understands that the 911 call may not be routed to a PSAP but instead may be routed to a central call center where Customer will have to provide Customer’s location.

iv. In the event that the Customer uses the SIP Services in multiple locations, Customer’s personnel designated as administrators on Customer’s account may, at Customer’s option, create additional service locations and associate the SIP Services to specific locations for the purposes of routing calls to the local PSAPs for each such location.

v. Customer may assign and re-assign current location information on an as needed basis. It is Customer’s sole responsibility to make such changes and to ensure that all employees, guests and other third parties who may be present at the physical location(s) where Customer utilizes the SIP Services are aware of this option.

vi. As described above, this 911-type dialing currently is NOT the same as traditional 911 or E911 dialing, and at this time, does not necessarily include all of the capabilities of traditional 911 dialing.
vii. Altigen and our partner service provider rely on third parties for the forwarding of information underlying such routing, and accordingly Altigen and its third party provider(s) disclaim any and all liability or responsibility in the event such information or routing is incorrect.

viii. Neither Altigen nor its officers or employees may be held liable for any claim, damage, or loss, and Customer hereby waives any and all such claims or causes of action, arising from or relating to 911 dialing. Customer agrees to indemnify and hold harmless Altigen and its third party provider from any claim or action arising out of misroutes of 911 calls, including but not limited to Customer’s failure to follow correct activation procedures for 911 calling or Customer’s provision to Altigen of incorrect information in connection therewith.

d. Service Outage/Power Failure or Disruption. Customer acknowledges and understands that 911 dialing does not function in the event of a power failure or disruption. Should there be an interruption in the power supply, the Service and 911 dialing will not function until power is restored. A power failure or disruption may require Customer to reset or reconfigure equipment prior to utilizing the SIP Service or 911 dialing.

e. Broadband Service / ISP Outage or Termination. Customer acknowledges and understands that service outages or suspension or termination of service by your broadband provider and/or ISP will prevent access to ALL SIP Services including 911 dialing.

f. Service Outage Due to Suspension of Your Account. Customer acknowledges and understands that service outages due to suspension of your account will prevent access to ALL SIP Services, including 911 dialing.

g. Other Service Outages. Customer acknowledges and understands that if there is a service outage for ANY reason, such outage will prevent access to ALL SIP Services, including 911 dialing. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Service Agreement.

h. Failure to Designate the Correct Physical Address When Activating 911 Dialing. Failure to provide the current and correct physical address(es) and location(s) of Customer’s equipment will result in any 911 communications Customer may make being routed to the incorrect local emergency service provider. Customer shall identify the actual physical street address where the equipment is located, not a post office box, mail drop or similar address.

i. Requires Notification if You Change Your Number or Add or Port New Numbers. Customer acknowledges and understands that 911 dialing does not function if Customer changes the phone number or (for such newly added or ported numbers) if Customer adds or ports new numbers to Customer’s account, unless and until Customer has successfully notified Altigen of the correct address for Customer’s changed, newly added or newly ported number. To ensure any E911 call is routed properly, Customer must set Customer’s outbound caller ID value to the specific 10-digit number (DID) for which Customer has purchased E911 service.

NOTE: Failure to set the correct caller ID value will result in a non-refundable $75 surcharge per each incorrectly configured E911 call.

j. Requires Notification if You Move or Change Location. Customer acknowledges and understands that 911 dialing does not function properly or at all if Customer moves or otherwise changes the physical location of Customer’s equipment to a different street address, unless and until Customer has successfully notified Altigen of such change in location with the correct street address. Failure to provide the current and correct physical address(es) and location(s) of Customer’s equipment will result in any 911 dialing you may make being routed to the incorrect local emergency service provider.

NOTE: Failure to register a valid physical address to the number the Customer is calling from will result in a non-refundable $75 surcharge per each incorrectly configured E911 call.

k. Possibility of Network Congestion and/or Reduced Speed for Routing or Answering 911. Due to the technical constraints on the manner in which it is possible to provide the 911 dialing feature for the SIP Services at this time, Customer acknowledges and understands that there is a greater possibility of network congestion and/or reduced speed in the routing of a 911 communication made utilizing Customer’s equipment as compared to 911 dialing over traditional public telephone networks. Customer acknowledges and understands that 911 dialing from Customer’s equipment will be routed to the general telephone number for the local emergency service provider (which may not be answered outside business hours), and will not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider’s facilities when such calls are routed using traditional 911 dialing. Customer acknowledges and understands that there may be a greater possibility that the general telephone number for the local emergency service provider will produce a busy signal or will take longer to answer, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing. Customer acknowledges and accepts that Altigen relies on third parties for the forwarding of information underlying such routing, and accordingly Altigen and its third party provider(s) disclaim any and all liability or responsibility in the event such information or routing is incorrect. Altigen or its officers or employees, may not be held liable for any claim, damage, or loss, and Customer hereby waives any and all such claims or causes of action, arising from or relating to 911 dialing unless it is proven that the act or omission proximately causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of Altigen.

l. Automated Number Identification. At this time in the technical development of VoIP 911 dialing, it may or may not be possible for the Public Safety Answering Point (PSAP) and the local emergency personnel to identify your phone number when you dial 911. Altigen’s, or its third party provider, systems are configured in most instances to send the automated number identification information; however, one or more telephone companies, and not Altigen, route the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and PSAPs are not yet always technically capable of doing so. Customer acknowledges and understands that PSAP and emergency personnel may or may not be able to identify the Customer’s phone number in order to call the Customer back if the call is unable to be completed, is dropped or disconnected, or if Customer is unable to speak to tell them the Customer’s phone number and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.

m. Automated Location Identification. At this time in the technical development of VoIP 911 Dialing, it is not possible to transmit identification of the address that Customer has listed to the Public Safety Answering Point (PSAP) and local emergency personnel for Customer’s area when the Customer dials 911. Customer acknowledges and understands that Customer will need to state the nature of Customer’s emergency promptly and clearly, including Customer’s location, as PSAP and emergency personnel will NOT have this information. Customer further acknowledges and understands that PSAP and emergency personnel will not be able to find Customer’s location if the call is unable to be completed, is dropped or disconnected, if Customer is unable to speak to tell them Customer’s location and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.

n. Alternative 911 Arrangements. Customer acknowledges that Altigen does not offer primary line or lifeline services. Customer should always have an alternative means of accessing traditional E911 services. Customer acknowledges that the equipment and Services do not support 911 emergency dialing or other emergency functions. Customer agrees to notify any user of the Services, who may place calls using Customer’s phone services, of the 911 limitations. Altigen advises Customer to maintain an alternative means of accessing traditional 911 services such as traditional telephones and cellular phones.

o. Acknowledgement. You affirm and acknowledge that you have read and understand these 911 limitations, and to the extent you are reselling Altigen’s SIP Services, you will maintain similar affirmative acknowledgements from your Customers. Each of the obligations set forth in this acknowledgement extend in each instance to Customer and its End Users.

8. OTHER PROVISIONS

a. Legal Compliance and Export Prohibition. Customer shall comply with all applicable laws and regulations in performing under this Agreement, including without limitation those regarding exports as set forth in this paragraph. Altigen provides services and uses cloud technology that may be subject to the United States export control administered by the U.S. Department of Commerce, the United States Department of Treasury office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. Customer acknowledges and agrees that the Services shall not be used in, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to, countries as to which the U.S., Switzerland and/or the European Union maintains an embargo (collectively “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. You represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply with all U.S, Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The Services may use encryption technology that is subject to licensing requirements under the U.S. Export Admin. Regulations 15 D.F.R. parts 730-774 and Council Regulation (EC) No. 1334/2000. Altigen makes no representations that the Services is appropriate or available for use in other locations. If Customer or its Customers use the Services from outside the U.S., Switzerland and/or the European Union, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.

b. Force Majeure. Neither party shall be liable for any loss or damage resulting from any delay or failure to perform all or any part of its obligations under this Agreement, excepting payment obligations, to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the reasonable control, and without the negligence of, the responsible party. Such events, occurrences, or causes include, without limitation, acts of God, telecommunications or power outages, strikes, riots, acts of war, floods, earthquakes, fires and explosions.

c. Waiver. Any waiver of any right or remedy or limit on liability under this Agreement must be in writing and signed by the party to be bound to be effective. No delay or omission in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. Any waiver by any party of a condition, or of the breach of any provision, term, covenant, representation or warranty contained in this Agreement, in any one or more instances, shall not be deemed to be nor construed as furthering or continuing waiver of any such condition, or of the breach of any other provision, term, covenant, representation or warranty of this Agreement.

d. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall be given full force and effect and be interpreted as broadly as possible to give full effect to the intentions of the parties in entering into this Agreement. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION. FURTHER, IN THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SHALL REMAIN IN EFFECT.

e. Survival. All terms and provisions herein which by their nature should survive expiration or termination of this Agreement shall so survive.

f. Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Address for notice may be changed by a party providing proper notice thereof to the other party per the terms of this Section 8.f.

g. Assignment. Customer may not transfer, assign or delegate any of its rights or obligations under this Agreement, in whole or in part, whether voluntarily, by operation of law, by merger or sale of all its assets, or otherwise, without the prior written consent of Altigen, which may withhold its consent in its sole discretion. Altigen may assign this Agreement or its right to receive some or all of the payments due to Altigen pursuant to this Agreement at any time. Any attempted transfer or assignment in violation of this Section 5.h. shall be void and of no force and effect. Subject to the foregoing, this Agreement shall inure to the benefit of and shall be binding upon the permitted successors and assigns of the parties.

h. Governing Law, Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the United States of America, without reference to conflicts of law provisions. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with this Agreement shall be only in a United States Federal or State Court located in Santa Clara County, California, and the parties hereby consent to the jurisdiction and venue of such courts. In any action between the parties to enforce any of the terms of this Agreement, the prevailing party shall be entitled to recover reasonable expenses, including reasonable attorney’s fees.