TERMS AND CONDITIONS
These Terms and Conditions (the “T&Cs”) and the Service Level Agreement attached as Exhibit A (the “SLA”) are each expressly and fully incorporated into the services agreement governing the use of the Services (as defined below) to which they relate. Such Services Agreement, including the T&Cs and the SLA, is referred to as this “Agreement.” Capitalized terms have the meanings set forth in this Agreement (including the T&Cs and the SLA).
1. SERVICES; CUSTOMER EQUIPMENT; NO RESALE.
a. Services Description. During the term of this Agreement, J2 Cloud Services, LLC (“J2”) will provide customer (“Customer”) with a capability to send and receive faxes using electronic mail (“email”) under the brand eFax Corporate® or eFax Developer™, as applicable, pursuant and subject to the terms and conditions set forth in this Agreement (the “Services”). Faxes are sent and received as email attachments or as otherwise described in Section 1(c) for optional features (if applicable).
b. Customer’s Administrator. As part of the registration process for the Services, Customer is required to provide Customer’s contact information via J2’s website. Once Customer’s account is activated, J2 will automatically send an administrator user name and password by email to the individual designated by Customer in the registration process as Customer’s administrative contact (the “Administrator”). The Administrator can access J2’s web-based administrative tool using the administrator user name and password at the website designated by J2 (the “Administrative Tool”). Through the Administrative Tool, the Administrator can assign, reassign or unassign telephone numbers to End Users, and each telephone number available for assignment, reassignment or unassignment through the Administrative Tool is referred to as a “Billable Service Number.” In order to remove a Billable Service Number from Customer’s account, Customer must send J2’s Corporate Sales Department a removal request via email to [email protected].
c. Optional Features.
Domain Send: The eFax Domain Send feature enables an end user to send a fax by using the end user’s domain even if such end user is not assigned a Billable Service Number.
eFax Developer: eFax Developer provides Customer with a capability to send and receive faxes by a TLS-encrypted HTTPS web post. Upon delivery of the fax, delivery information regarding the fax will be passed back to Customer’s application (as a web post or email). eFax Developer also provides a Billable Service Number whereby fax pages are passed along quickly and securely via web post to your application as a PDF or TIF file (along with the associated “wrapper” information, such as date/time, number of pages, Caller ID, etc.).
TLS Encryption: The J2 transport layer security encryption service (“TLS”) enables J2 to route faxes to Customer through encrypted secure email. Faxes sent to Customer through TLS are routed through a single gateway and encrypted as they pass across the Internet. SMTP over TLS is implemented using the extended SMTP (E-SMTP) protocol, and is detailed in RFC 3207. J2 TLS transmissions use enforced TLS via an X.509 certificate exchange. The use of TLS is negotiated between SMTP servers by use of a single service extension to SMTP, known as STARTTLS. If the request is accepted, the two servers will validate each other’s certificates. The channel then becomes encrypted, and all communications between the servers will be private. For inbound faxing, Customer’s mail transfer agent (“MTA”) provides its server certificate for authentication. For outbound faxing, J2’s MTA supplies its server certificate for authentication.
eFax Router: The eFax Router is a customizable Windows service application that operates on Customer’s infrastructure and allows the auto-download of faxes for one or multiple fax numbers. Based on the Customer’s user-defined settings, the application checks to see if any new faxes have arrived on the specified fax numbers, downloads these faxes and the associated metadata, and then performs one or more of the following tasks (per the Customer’s user-defined configuration): (i) saves faxes into admin-designated folders, (ii) prints faxes to network shared printers, or (iii) executes a templated command line using the fax’s image and metadata as parameters.
eFax Corporate Enterprise API (“EAPI”). The EAPI is a RESTful API (Application Programing Interface) that integrates cloud faxing with the Customer’s workflow application software, which may include EMR, EHR, CRM and ERP. EAPI enables high volume faxing and user management from Customer applications.
eFax Secure™: Through eFax Secure, upon receipt of a fax, Customer receives an email notification which contains a hyperlink to access the fax from a secured web portal using AES 256-bit transport encryption for that telephone number. From this same secure site, there is also an interface for sending faxes securely. Customer faxes will be stored indefinitely until deleted by Customer. The data “at-rest” is stored using AES 256-bit encryption.
Porting: Customer may port certain telephone numbers from Customer’s current telecommunications carrier(s) to J2’s telecommunications carrier(s) to be placed in J2’s name (“Ported Billable Service Numbers” or “Ported BSNs”). Customer shall not delete any Ported BSNs from its account during the term of this Agreement. Upon termination of this Agreement (other than termination due to a Default by Customer), if J2 receives a written request from Customer within 60 days of the termination date, J2 will use commercially reasonable efforts to transfer back any Ported BSNs remaining in Customer’s account to a telecommunications provider designated by Customer. In the event Customer fails to make such request within 60 days of the termination of this Agreement, Customer shall no longer have a right to have such Ported BSN ported back to it. J2’s administration fees for porting Ported BSNs (both to J2 and/or back to Customer) depend on location and quantity.
Salesforce eFax Connector: The Salesforce eFax Connector brings eFax capabilities to Salesforce users who can now easily integrate fax activities with other workflow processes. Available on both Lightning and Classic installations, Salesforce users can securely send and receive faxes through their customer relationship management platform and manage those faxes in a variety of ways. Salesforce users can request to purchase the connector through the Salesforce AppExchange.
d. Billable Service Numbers. All Billable Service Numbers provided to Customer (other than Ported BSNs) will remain the exclusive property of J2 and will not be ported to Customer.Customer understands that J2, as customer of record of all Billable Service Numbers, will not be liable for any damages arising out of any reassignment or removal by J2, or by Customer, of any Billable Service Number from Customer’s account.
e. Service Level Agreement. The SLA outlines various service level metrics for the Services.The credit allowances described in the SLA are Customer’s sole and exclusive remedy for any failure by J2 to provide the Services to Customer, except that J2 shall have no obligation to compensate Customer under the SLA while Customer is in Default.The SLA currently in effect on the Service Effective Date is attached to the Agreement as Exhibit A, and J2 may amend the SLA from time to time provided that (i) Customer is informed of any such amendment; and (ii) the amendment does not materially and adversely alter the provision of the Services.
f. Customer Equipment. Customer is responsible for providing all equipment necessary for it to use the Services, including its own desktop computer equipment, Internet access and email service.
g. No Resale. Customer agrees that it shall not resell, lease or otherwise permit the Services to be used by anyone other than employees, contractors, consultants and agents of Customer and its affiliated entities.
2. FEES AND BILLING.
a. Charges. Customer will pay J2 all charges for the Services as set forth in this Agreement. All such charges are exclusive of sales taxes, valued added tax, universal service fees and other federal, state, municipal or other governmental taxes, charges or levies (collectively “Taxes”) now in force or enacted in the future, all of which Customer is responsible for paying in full, except as required by law. Customer’s payment obligation for the Services shall accrue as of the Service Effective Date. IF Customer is using Ported BSNs, charges accrued in respect of Customer’s applicable minimum commitment(s), as set forth in the Services Agreement, may be delayed until the porting of the Ported BSNs to J2 is complete.
b. Billing and Payment Terms. J2 shall issue invoices on a monthly basis in arrears, and all payments shall be made in the currency specified in the Services Agreement. All payments under this Agreement are due 30 days from the date of the invoice (“Payment Due Date”), and shall become past due if not paid by the Payment Due Date. Amounts not received by the Payment Due Date will accrue interest at a rate of 1.5% per month (or, if lower, the highest rate allowed by applicable law).
3. CUSTOMER CONDUCT; END USERS.
a. Customer Conduct. Customer is solely responsible for the content it transmits through the Services. J2 reserves the right to take any necessary or appropriate action with respect to the Services if J2 reasonably believes, in its sole discretion, that Customer or its information may create liability for J2, compromise or disrupt the Services for other J2 customers, or cause J2 to lose the services of its Internet service providers or other suppliers. Customer agrees: (a) to comply with all applicable laws and regulations in its use of the Services, including those regarding the transmission of technical data exported from one country to another through the Services; (b) not to use the Services for illegal purposes, including distribution of unsolicited facsimile advertisements; (c) not to use the telephone numbers from the Services as repositories for responses to unsolicited email advertisements; (d) not to use the Services to infringe any third party’s copyright, patent, trademark, trade secret or other intellectual property or proprietary rights or rights of publicity or privacy; and (e) not to transmit through the Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature.
b. End Users. Customer agrees that it is responsible for all individual users who access and/or use the Services through Customer’s corporate account and, if applicable, through the eFax® Domain Send feature (such individual users are referred to as “End Users”). Accordingly, the terms, conditions, restrictions and obligations of this Agreement applicable to Customer (excluding Customer’s payment obligations) shall be construed to also apply to all End Users, and Customer shall be liable for any breach of those terms, conditions, restrictions and obligations by any End User. Each of Customer and any End User is entirely responsible for maintaining the confidentiality of its, his or her account password and account information.
4. SOFTWARE LICENSE.
a. License. During the term of this Agreement, J2 grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use the Administrative Tool and its related documentation, solely for the purpose of performing administrative services for Customer’s account for the Services. During the term of this Agreement, J2 also grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license for each End User to install J2’s Messenger Plus computer program (“Messenger Plus”) on each such End User’s personal computer (in object code form only) and to use Messenger Plus and its related documentation, in each case solely for the purpose of using the Services. The Administrative Tool and Messenger Plus, and their related documentation, are collectively referred to as the “Software.”
b. Ownership and Use of Software. J2 retains all right, title and interest in and to the Software and all parts thereof, including all copyrights, trademarks, trade secrets, patents and other intellectual, proprietary and property rights related thereto (collectively, “Proprietary Rights”). Customer acknowledges and agrees that nothing in this Agreement shall in any way be construed to provide an express or implied license to modify, improve or manipulate any of the Software, or exploit the Software or the Proprietary Rights in any matter not expressly permitted in this Agreement.
c. Restrictions. Customer is prohibited from attempting to create or derive any of the source code or other technology or data within the Software by disassembly, reverse engineering or any other method, or otherwise reduce the Software to a human-readable form.
d. Termination. All licenses to the Software granted to Customer and End Users will automatically terminate upon expiration or termination of this Agreement. In addition, all licenses to the Software granted to Customer and End Users will terminate immediately without notice from J2 if Customer or any of its End Users fails to comply with any provision of this Section 4; provided that, if such violation relates only to a single End User, then the licenses will not terminate as to Customer and its other End Users so long as Customer cures the violation within 5 business days following receipt of notice from J2 regarding the violation. Upon termination of the licenses to the Software granted to Customer or any particular End User, Customer or such End User must cease all use of the Software and destroy all copies of the Software.
5. PRIVACY POLICY.
J2 is dedicated to establishing trusting relationships with its customers, based on respect for personal identity and information. A current copy of J2’s Privacy Policy (“Privacy Policy”) is available at www.eFaxCorporate.com and is incorporated into this Agreement by reference. If J2 updates its Privacy Policy, J2 will notify Customer via email and post a revised Privacy Policy at www.eFaxCorporate.com. If any Privacy Policy update materially and adversely impacts Customer, Customer may, within 14 days of the effective date of such update, provide J2 with a written notice of objection to the change, identifying the specific language to which Customer objects and setting forth in reasonable detail the basis for Customer’s objection. Failure to deliver notice within such 14-day period will be deemed acceptance of the Privacy Policy as modified. If mutual resolution is not achieved within 30 days from the date J2 receives Customer’s notice of objection, then the previous version of the Privacy Policy will remain in effect as to the specific language to which Customer objected.
6. CONFIDENTIAL INFORMATION.
a. Confidential Information. “Confidential Information” means (i) information that is disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) which is specifically designated by the Disclosing Party as confidential at the time of disclosure to the Receiving Party or customarily treated as confidential by a reasonable person; and (ii) with respect to Customer, any confidential information provided by Customer to J2 in connection with the activation of the Services or any End User accounts. Confidential Information shall not include, however, any information which (A) was publicly known prior to the time of disclosure by the Disclosing Party to the Receiving Party; (B) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party in violation of this Agreement; (C) is already in the lawful possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the content of the receiving Party’s files and records prior to the time of disclosure or other competent evidence in the Receiving Party’s possession; (D) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (E) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by the Receiving Party’s documents or other competent evidence in the Receiving Party’s possession.
b. Restrictions on Use and Disclosure. Neither Party shall use Confidential Information of the other Party for any purpose other than for the purpose of providing or using the Services or as otherwise expressly permitted in this Agreement. Each Party shall exercise reasonable care not to disclose, and to prevent its employees, contractors, consultants and agents from disclosing, any Confidential Information of the other Party or the terms of this Agreement. If a Party is required or requested to disclose Confidential Information of the other Party or the terms of this Agreement by law, regulation, legal process or securities exchange rules, such Party shall promptly notify the other Party to the extent legally permitted and, if requested by the other Party, use commercially reasonable efforts to cooperate at the expense of the other Party in any reasonable and lawful actions which the other Party takes to resist such disclosure or limit the information to be disclosed.
7. REPRESENTATIONS AND WARRANTIES.
a. Warranties by Customer. Customer represents and warrants to J2 that: (i) Customer is duly organized and validly existing and has the legal power and authority to enter into this Agreement and to perform its obligations under this Agreement; (ii) the person signing this Agreement on behalf of Customer is duly authorized to do so, and upon its execution by such person, this Agreement is the valid and legally binding obligation of Customer; (iii) Customer’s and its End Users’ use of the Services do not as of the Service Effective Date, and will not during the term of this Agreement, in any manner violate any applicable law or regulation; and (iv) Customer will not use the Services to transmit or store (1) any “protected health information” (as such term is used in the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191) unless and until Customer has executed a Business Associate Agreement with J2 in connection with this Agreement; (2) any cardholder data unless such transmission or storage is encrypted as part of the Services; or (3) any other type of regulated information that imposes independent obligations upon J2.
b. Warranties by J2. J2 represents and warrants to Customer that: (i) J2 owns or has the legal right and authority, and will continue to own or maintain the legal right and authority during the term of this Agreement, to provide the Services as contemplated by this Agreement; (ii) J2 is duly organized and validly existing and has the legal power and authority to enter into this Agreement and to perform its obligations under this Agreement; (iii) the person signing this Agreement on behalf of J2 is duly authorized to do so, and upon its execution by such person, this Agreement is the valid and legally binding obligation of J2; (iv) the Services as supplied to Customer in connection with this Agreement, if used appropriately, do not violate any applicable law or regulation; and (v) the Software does not infringe upon any third party’s patent, trademark or other intellectual property rights.
c. No Other Warranty. EXCEPT FOR ANY EXPRESS WARRANTY SET FORTH IN SECTION 7(b), THE SERVICES AND THE SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. J2 expressly disclaims all warranties of any kind, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose. J2 makes no warranty that the Services or the Software will be uninterrupted, timely, secure or error free, or that any transmission through the Services will be sent or received. J2 makes no warranty regarding any goods or services purchased or obtained through any messages transmitted through the Services or any transactions entered into through the Services. J2 has no responsibility or liability for the deletion, corruption or failure to store any messages or other content maintained or transmitted by the Services. No statement, whether oral or written, obtained by Customer from J2 shall create any warranty not expressly made in this Agreement. Some jurisdictions do not allow the exclusion of certain warranties, so, to the extent not allowed by law, some of the above exclusions may not apply. This Section 7(b) does not limit the remedies expressly set forth in the SLA to which Customer may be entitled.
8. LIMITATION OF LIABILITY; INDEMNIFICATION.
a. Consequential Damages Waiver; Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, OR ANY DAMAGES BASED ON LOST REVENUE OR PROFITS, REPLACEMENT GOODS OR SERVICES, LOSS OF DATA OR MESSAGES RECEIVED OR SENT THROUGH THE SERVICES, TRANSACTIONS ENTERED INTO OR NOT ENTERED INTO THROUGH THE SERVICES, OR UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA, IN EACH CASE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. J2’S AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTIES UNDER THIS AGREEMENT IS LIMITED TO THE LESSER OF (i) THE AMOUNT PAYABLE BY CUSTOMER TO J2 UNDER THIS AGREEMENT DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE LOSS OR DAMAGE FIRST OCCURS, OR (ii) $5,000 USD. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO, TO THE EXTENT NOT ALLOWED BY LAW, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
b. Indemnification. Subject to the limitations set forth elsewhere in this Agreement, each Party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other Party and its subsidiaries, affiliates, officers and employees (collectively, the “Indemnified Party”) from and against any and all costs, expenses, liabilities, losses and damages (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, suit, action, demand or proceeding (each, an “Action”) brought by any third party against the Indemnified Party arising from: (i) a Default by the Indemnifying Party, (ii) the intentional misconduct of the Indemnifying Party or its employees, contractors, consultants or agents, or (iii) any failure by the Indemnifying Party or its employees, contractors, consultants or agents to comply with applicable laws and regulations.
c. Indemnification Procedures. The Indemnifying Party’s obligations under Section 8(b) are conditioned upon: (i) the Indemnified Party promptly notifying the Indemnifying Party upon receipt of written notice of the Action for which the Indemnified Party seeks indemnity; (ii) the Indemnified Party tendering control of the defense of such Action and any related settlement discussions to the Indemnifying Party (provided, however, that the Indemnified Party may participate in such defense, at its own expense, with counsel of its own choosing); and (iii) the Indemnified Party, at the Indemnifying Party’s request and expense, reasonably cooperating with and assisting the Indemnifying Party in its efforts to defend the Action. The Indemnifying Party shall obtain the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or delayed, for any settlement or compromise of any such Action that does not include an unconditional release of the Indemnified Party from the indemnified liability.
9. DEFAULT AND REMEDIES.
a. Default by J2. The occurrence of any of the following will be a “Default” by J2: (i) the material breach of any representation or warranty made by J2 in this Agreement, except to the extent such breach is susceptible to cure, in which case there shall be no Default unless such breach is not cured by J2 within 30 days of receiving written notice from Customer of such breach; or (ii) J2’s insolvency or liquidation as a result of which J2 ceases to do business. Failure to deliver the Services in accordance with the SLA is expressly not a breach of a representation or warranty and is not a Default under this Agreement, and remedies for such failure are addressed entirely in the SLA.
b. Default by Customer. The occurrence of any of the following will be a “Default” by Customer: (i) Customer fails to pay, when due, any amounts owing to J2 under this Agreement; (ii) the material breach of any representation or warranty made by Customer in this Agreement, except to the extent such breach is susceptible to cure, in which case there shall be no Default unless such breach is not cured by Customer within 30 days after receiving written notice from J2 of such breach; (iii) Customer fails to perform or observe any of its other obligations under this Agreement after a period of 30 days after receiving written notice from J2 of such failure; or (iv) Customer’s insolvency or liquidation as a result of which Customer ceases to do business.
c. Customer’s Remedies for Default by J2. If J2 commits a Default, Customer will be entitled, at its election, to terminate this Agreement or seek any available remedies at law or in equity.
d. J2’s Remedies for Default by Customer. If Customer commits a Default, J2 will be entitled, at its election, to exercise any one or more of the following remedies: (i) to pursue any remedy available at law or in equity, (ii) to terminate this Agreement; or (iii) to suspend the Services.
10. TERM AND TERMINATION.
The term of this Agreement will commence on the Service Effective Date and will expire or terminate in accordance with the terms of this Agreement. Upon expiration or termination of this Agreement, Customer’s right to use the Services shall cease immediately, and thereafter Customer shall have no right and J2 shall have no obligation to have any unopened or unsent messages forwarded to Customer or any third party with respect to the Services. If this Agreement is terminated prior to the end of the contract term for any reason other than due to J2’s Default or in accordance with the SLA, Customer shall, within 10 days of the effective date of termination, pay J2 a termination charge (which Customer acknowledges is a reasonable measure of actual damages and not a penalty) equal to the fees payable for the Services, as set forth in the Services Agreement, from the termination date through the last day of the contract term.
11. OTHER PROVISIONS.
a. Non-Assignment; No Third-Party Rights. Customer may not assign, delegate or transfer this Agreement or any rights or obligations under this Agreement without the prior written consent of J2, and any attempt to do so is void. This Agreement is binding upon, and is for the sole benefit of, the Parties and their respective successors and permitted assigns, and nothing in this Agreement will give or be construed as giving any rights under this Agreement to any other party.
b. Independent Contractors. The Parties will have the status of independent contractors, and nothing in this Agreement will be deemed to place the Parties in any other relationship, including employer-employee, principal-agent, partners or joint venturers.
c. Non-Waiver/Severability. No waiver of any provision of this Agreement will be valid unless in writing and signed by the Party against whom the waiver is sought to be enforced. Failure of a Party to enforce any of its rights under this Agreement will not constitute a waiver of its future enforcement of such rights or any other rights. If any term of this Agreement is held to be invalid by any court, the remainder of the Agreement will remain in force and will not be affected.
d. Force Majeure. Either Party will be excused from any delay or failure in performance under this Agreement, other than the payment of money, caused by or due to any cause beyond its reasonable control, including acts of God, earthquakes, floods, third party labor disputes, utility curtailments, power failures, explosions, civil disturbances, vandalism, riots, war, governmental actions, and acts or omissions of third parties. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
e. Governing Law; Jurisdiction. This Agreement and Customer’s use of the Services will be governed by and construed in accordance with the substantive laws of the State of California, without regard to conflict of law principles. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. In addition, each party expressly agrees that the exclusive jurisdiction for any claim or dispute arising from this Agreement or the use of the Services resides in Superior Court for the State of California located in Los Angeles County, City of Los Angeles; provided that nothing in this Section 11(e) shall restrict either of the Parties from resorting to the courts of any jurisdiction in order to collect, enforce or execute any judgment obtained in the above-described courts.
f. Integration. This Agreement (including the T&Cs and the SLA), together with any Business Associate Agreement executed by the Parties in connection with this Agreement, express the complete and final understanding of the Parties with respect to the subject matter of such agreements, and supersedes (i) all prior agreements or communications between the Parties, whether written or oral with respect to such subject matter, (ii) any online or click-wrap agreements or terms and conditions (unless expressly referenced in this Agreement), and (iii) any terms that may be set forth in any purchase orders or questionnaires related to the Services. No modification of this Agreement will be binding upon the Parties unless in writing and executed by Customer and J2.
g. Notices. Except where other means of communication are expressly provided for in this Agreement, all notices under this Agreement will be in writing, signed by the Party giving the same, and will be deemed properly given and received (i) on the next business day after deposit for overnight delivery by an overnight courier service or (ii) three business days after mailing, by registered or certified mail, return receipt requested. All such notices will be sent to the Customer notice address or the J2 notice address, as applicable, set forth below each Party’s signature to this Agreement. Either Party may change its address for notices under this Agreement by notice to the other Party pursuant to this Section 11(g).
h. Survival. The respective obligations of J2 and Customer, which by their nature would continue beyond the termination or expiration of this Agreement, including the obligations regarding Proprietary Rights, Confidential Information, limitation of liability and indemnification, shall survive the termination or expiration of this Agreement.
i. Interpretation; Counterparts. The language used in this Agreement has been chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party. The headings in this Agreement are for reference only and will not affect the meaning of this Agreement. The word “including” means “including without limitation.” This Agreement may be executed in counterparts, all of which taken together will constitute one agreement, and signatures exchanged by facsimile or .pdf will constitute effective execution and delivery of this Agreement.
EXHIBIT A
SERVICE LEVEL AGREEMENT
J2 uses commercially reasonable efforts to achieve the following customer support and maintenance and performance standards for the Services, measured on a monthly basis:
1.0 Customer Support Standards
1.1 Availability. J2 will answer incoming customer support phone calls and e-mail messages 24 hours per day, 7 days a week.
1.2 Speed to Answer. J2’s goal is to answer 90% of all incoming customer support phone calls within 3 minutes and respond to 90% of all incoming email messages by the next business day.
2.0 Maintenance and Performance Standards
2.1 Network Server Availability. The J2 network is a private IP-based network that is used for message transport and system management. J2’s goal is to maintain its network servers’ uptime at 99.5%, except for those periods during scheduled or emergency network and/or application maintenance.
2.2 Website Availability. J2’s goal is to maintain access to websites at 99.5%, except for those periods during scheduled or emergency network and/or application maintenance.
2.3 Delivery of Inbound Faxes. J2’s goal is to attempt initial delivery of 95% of all inbound faxes of 5 pages or less to Customer via the Internet within 5 minutes (larger sized faxes, by their very nature, take more time to process). Time of delivery is calculated beginning with J2’s receipt of the complete fax transmission via the public switched telephone network (“PSTN”) and ending with J2’s initialization of transmission of the digitized version of the fax via the Internet. J2 determines achievement of this goal on a monthly basis by tracking a representative sample of fax transmissions from J2’s data center.
2.4 Timing of Delivery of Outbound Faxes. J2’s goal is to send 95% of all outbound faxes of 5 pages or less within 10 minutes of receipt by J2 from the Internet of the request to send the fax (larger sized faxes, by their very nature, take more time to process). Time of delivery is calculated beginning with J2’s receipt of the fax at J2’s media servers and ending with J2’s initial attempt to transmit the fax to Customer’s fax recipient via the PSTN. J2 determines achievement of this goal on a monthly basis by tracking a representative sample of fax transmissions from J2’s outbound servers.
3.0 Credit Allowances for SLA Failures and Service Outages
3.1 SLA Failures. If in any given month Customer believes that J2 has failed to achieve any of the foregoing goals, Customer must deliver a written request to J2 within 14 days following the end of the month for a report detailing J2’s performance against the given goal. J2 will provide the report to Customer within 14 days of receipt of the request. If the report demonstrates failure to achieve the given goal, an “SLA Failure” will have occurred under the Services Agreement for the impacted service (the “Impacted Service”) and J2 will provide Customer a service credit of 1% of Customer’s monthly recurring fee (or 1% of 1/12 of Customer’s annual fee) with respect to the Impacted Service, multiplied by the number of percentage points by which J2 failed to achieve the given goal. For example, if J2 achieves a 90% delivery of outbound faxes under Section 2.4 above, then Customer would be eligible to receive a service credit of 5% of Customer’s monthly recurring fee with respect to the Impacted Service. Customer may request up to 4 such reports per any 12-month period, plus 1 additional report for each prior report during such 12-month period that demonstrates failure to achieve any of the foregoing goals.
3.2 Limitations. Credits attributable to any month for SLA Failures shall not exceed the total monthly license fee payable by Customer for that month (or, if applicable, 1/12 of the annual license fee paid by Customer) with respect to the Impacted Service. Credits are not applied against usage fees or any other fees payable by Customer to J2. No credit allowance will be made for:
3.2.1 SLA Failures arising from the breach by Customer of the provisions of the Services Agreement, or any SLA Failures due to any party other than J2, or for events happening on any other party’s network, including to Internet service providers or telecommunications providers connected to, or providing service connected to, the Services or J2’s facilities;
3.2.2 SLA Failures due to the failure or malfunction of equipment not owned or operated by J2, including service connected to Customer-provided electric power;
3.2.3 SLA Failures during any period in which J2 does not have reasonable access to its facilities or equipment for the purpose of investigating and correcting interruptions, such as during disasters;
3.2.4 SLA Failures during any scheduled or emergency maintenance period or when Customer has released service to J2 for maintenance purposes or for implementation of a Customer order for a change in service arrangements; or
3.2.5 SLA Failures due to force majeure events beyond the reasonable control of J2.
4.0 Termination Right for Chronic SLA Failures and Service Outages
If a particular SLA Failure occurs at least once during each of 3 consecutive months, or any combination of SLA Failures occur at least once during each of 5 consecutive months, then Customer shall be permitted to terminate the Impacted Service without liability (except for past performed services) by delivering J2 written notice of termination within 14 days of receipt of the most recent report demonstrating the applicable SLA Failures.