The Vonage Cloud Services Terms and Conditions Agreement (hereinafter referred to as the “Cloud Services Agreement”) applies to the use of the Vonage Cloud Hosting Services (the “Cloud Services”), which shall constitute “Services” as that term is defined in the Terms (defined below), provided by Vonage to the Customer identified in a valid and binding Cloud Sales Order Agreement (the “Sales Order”) and is an integral part of the agreement between Vonage and Customer. This Cloud Services Agreement incorporates the following documents by reference: (i) the Vonage Business Terms of Service (the “Terms” or the “Agreement”), which is set forth at https://enterprise.vonage.com/terms/; (ii) the Sales Order; and (iii) the Acceptable Use Policy (the “AUP”) set forth at https://enterprise.vonage.com/AUP. Any capitalized terms not otherwise defined in this Cloud Services Agreement shall have the meaning ascribed to such terms in the Agreement.

Definitions:
“Content” means any and all information, files, applications, email, software (including machine images), data, text, audio, music, graphics recordings, programs, video, images, or other media or content that Customer (a) causes to interface with the Services, (b) uploads to the Services under Customer’s account, or (c) installs, uploads, stores, or transfers on, from or through the Cloud Services.

“End User” or “User” means the Customer and all authorized employees, contractors or agents of Customer who directly access or use the Cloud Services.

“Hosted System” means a combination of hardware, software and networking equipment that comprise the information technology system provided by Vonage to provide the Services to the Customer. Depending on the Service(s) the Customer is buying, the Hosted System may consist of a dedicated system/platform for Customer’s use only, or the right to use certain parts of a shared multi-tenant system/platform that Vonage maintains for multiple customers, or a combination of some dedicated elements and some shared elements.

1. VONAGE’S OBLIGATIONS AND DISCLAIMERS.
1.1 Vonage will provide the Services in accordance with the Agreement. Subject to the terms of the Agreement, Vonage will perform the Services during the Service Term set forth in the Sales Order.

1.2 Any public or private IP addresses allocated as a part of the Services will remain allocated until: (i) a new IP address or a new IP address block is requested; (ii) the Services are terminated for any reason; or (iii) an IP address is changed, which may occur at any time and at Vonage’s sole discretion. Vonage shall provide ten (10) days’ prior written notice when changing IP address(es) for Customers on a dedicated system/platform (for Customer’s use only). Customers on a shared multi-tenant system are subject to having the IP address(es) changed at any time without prior notice. Upon termination of the Services, Customer may no longer use any IP addresses or address blocks that were provided in connection with the Services.

1.3 Vonage will back up Customer data in accordance with the backup service Customer purchased as set forth in the applicable Agreement. If Customer purchases backup services, Vonage does not promise to retain the data backup for longer than the agreed upon data retention period.

2. CUSTOMER’S OBLIGATIONS.
2.1 Customer’s installation of, use of, and access to the Services is at Customer’s sole discretion and risk, and Customer is solely responsible for any damage to the Customer Equipment, Vonage Business Equipment and Software, and the loss of or damage to any Content that results from any such use, as well as for all activities that occur in connection with the account, regardless of whether the activities are undertaken by Customer, any End User, or a third party (including contractors or agents of Customer).

2.2 Unless otherwise agreed to in writing, Customer is solely responsible for the selection, compatibility, quality, integrity, legality, appropriateness, ownership, accuracy, performance, development, licensing, operation, maintenance and support of all Content and applications. Vonage may immediately (and without prior notice) block access to the Services and any Content that Vonage believes, in its sole discretion, violates the law, misappropriates or infringes the rights of a third party, violates the Agreement, or pursuant to the Digital Millennium Copyright Act, a subpoena, or an order issued by a court or government agency.

2.3 Customer understands that, subject to the Agreement, it bears responsibility for the access, use and security of the Cloud Services. Customer must use appropriate security precautions in connection with its use of the Cloud Services. Customer agrees to implement appropriate security measures that are necessary to protect both the Customer and Vonage, including, without limitation, encryption technologies, password and user ID requirements, and procedures regarding the application of security patches and updates. Customer agrees to keep password and other account details confidential, and not share them with anyone in order to prevent unauthorized access to and use of the Customer’s account. VONAGE SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY UNAUTHORIZED ACCESS (I.E. HACKING) INTO THE CLOUD SERVERS, THE CLOUD SERVICES, OR CUSTOMER’S TRANSMISSION FACILITIES, PREMISES OR EQUIPMENT, OR FOR UNAUTHORIZED ACCESS TO CUSTOMER CONTENT, PROGRAMS, PROCEDURES, OR INFORMATION RELATED THERETO, UNLESS AND ONLY TO THE EXTENT THIS DISCLAIMER IS PROHIBITED BY APPLICABLE LAW.

2.4 Customer is responsible for identifying and authenticating all Users, for approving access to such Users to access and use the Services, and for controlling against unauthorized access and use by any party. Customer accepts full responsibility for the timely and proper termination of User records in Customer’s local (intranet) identity infrastructure or on Customer’s local computers. Vonage is not responsible for any harm caused by Customer, any User or third party, including individuals who gained access to Customer’s local identity management infrastructure, Customer’s local computers or the Hosted System. Customer is responsible for all activities that occur in connection with Customer’s usernames, passwords or accounts or as a result of access to and use of the Services, and agrees to notify Vonage immediately of any unauthorized use. Customer shall be deemed to have taken any action that it permits, assists or facilitates any person or entity to take related to the Agreement, Content, or use of the Services. Customer is solely responsible for End Users, agents and contractor’s use of the Services. Customer shall ensure that all End Users, agents and contractors comply with all obligations under the Agreement. Once Customer becomes aware of any violation of any of its obligations under the Agreement, it shall immediately notify Vonage, and terminate such End User, agent or contractor’s access to the Content and Services

2.5 Customer agrees not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including Customer Content, any applications the Customer installs and uses in connection with the Services and/or the Hosted System, and any third party Content, for any purpose that (a) interferes or adversely affects the Services, Hosted Network, or any infrastructure or any third party; (b) is tortious or violates any third party rights or Vonage’s AUP; (c) menaces or harasses any person or causes damage or injury to any person or property, (d) involves the publication of any material that is false, defamatory, harassing, confidential or obscene; (e) violates privacy rights or promotes bigotry, racism, hatred or harm, or is discriminatory; (f) constitutes unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (g) constitutes an infringement of intellectual property, proprietary or any other rights of any party, or (h) otherwise violates applicable laws, rules or regulations. In addition to any other rights afforded to Vonage under the Agreement, Vonage reserves the right, but has no obligation, to take remedial action if any material or activity violates the foregoing, including the removal of Content, disablement of access to, or suspension or termination of the Services. Customer understands and agrees that any such remedial action is necessary to protect third parties, Vonage and the Hosted System, and that as a result, Customer agrees that Vonage shall have no liability to Customer in the event that Vonage takes such action.

2.6 Any third party content, applications or software may be made available directly to Customer by other companies or individuals under separate terms and conditions, including separate fees and charges. Vonage does not test or screen any such third party content, applications or software, therefore, use of any third party content, applications and software is at Customer’s sole risk and liability. Vonage does not guarantee that any such content, applications or software would be compatible with the Services, and as such, shall not be liable or responsible for any issues related to such content, applications or software, or for compatibility issues which causes the Services to be impacted in any way.

2.7 Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Services, as such Patches are generally released by Vonage. Vonage will coordinate with Customer to schedule the application of Patches, where possible, based on Vonage’s next available standard maintenance window.

2.8 If Customer’s contact information or other account information changes, Customer must update the account details promptly. Once the Customer’s account is activated, Customer may upload Content and have access to the Services. Customer must have the legal right to copy, publish, share, store and use the Content, applications, third party software and all materials used in connection with the Services.

2.9 Customer must cooperate with Vonage’s reasonable investigation of Service outages and interruptions, security problems, and any suspected or actual breach of the Agreement. Customer is responsible for keeping account permissions, billing, and other account information up to date using the Vonage administrative portal or via any other Vonage defined process.

2.10 Customer represents and warrants that (a) it owns all right, title, and interest in and to the Content, or is authorized to use the Content in accordance with the Agreement; (b) it has all rights in the Content necessary to grant the rights contemplated by the Agreement; (c) none of the Content or the use of the Content or Services violates the AUP, any third party rights, or any applicable law; and (d) the information Customer provides in connection with the use of the Services is accurate and complete.

2.11 Customer represents and warrants that (a) it will not attempt to circumvent or disable any of the security-related, management or administrative features of the Services, and (b) it has obtained all consents and licenses required for the use and access of all software used in connection with the Services.

2.12 Customer may not use the Services for any application or use where a failure of the Services could result in death, serious injury, environmental damage, or property damage. Examples of such prohibited use include medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation, aviation and flammable environments. Customer acknowledges that Vonage makes no warranties or assurances of any kind that the Services are suitable for any such high-risk use.

2.13 Vonage does not have a landlord-tenant relationship with Customer, and Vonage is not Customer’s bailee or warehouseman with respect to any data or Content. Customer has no right to access any data centers utilized by Vonage in connection with providing the Services, and Customer is not granted any rights to possess or own any IP address, software, server hardware or other equipment included in the Services.

2.16 Customer represents and warrants that it will be the end user of the Cloud Services. Customer shall not in any way resell, license, permit or otherwise allow any third party to use the Cloud Services without receiving Vonage’s prior written consent, which may be withheld or conditioned in Vonage’ sole discretion.

3. EMAIL SERVICES.
3.1 Management of the Service. Unless otherwise set forth in the Agreement, Customer is responsible for managing its email service, including adding wireless or other service components, adding storage capacity, managing settings, and configuring spam filters.

3.2 Email Service Level Agreement. The SLA for Vonage’s email security and archiving Service is set forth at http://www.mimecast.com/SLA, as it may be amended from time-to-time. This SLA shall pass-through to the Customer, and is incorporated into the Agreement by reference.

3.3 Filtering. Vonage will take commercially reasonable efforts to provide email filtering services designed to filter spam, phishing scams, and email infected with viruses, but does not represent, warrant or guarantee that it will be able to prevent any spamming, phishing, and/or viruses. Vonage recommends that Customer employ additional security measures, such as a desktop virus scanner and firewalls on computers that are connected to the internet. Vonage will use commercially reasonable efforts to deliver email messages. Third party filtering services may from time to time prevent successful delivery of email messages. Customer acknowledges that the technological limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. Customer hereby releases Vonage and its employees, agents, affiliates, and, subject to the email security and archiving SLA referenced in Section 3.2 above, third party suppliers from any liability for damages arising from the failure of Vonage’s filtering services to capture unwanted email or any email infected with a virus from the capture of legitimate email, or from a failure of Customer’s email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient’s email service provider.

3.4 Memory Limitations. Email that exceeds the storage limit contracted for by the Customer when received may be permanently lost. Customer may request that Vonage adjust the storage capacity of its individual mailboxes, and it is Customer’s obligation to monitor and adjust the storage capacity of individual mailboxes as needed. Any such increase may result in additional monthly charges. An individual email message that exceeds the per-message size limit of 25 MB (including attachments) may also be permanently lost. Customer hereby releases Vonage and its employees, agents, affiliates, and third party suppliers from any liability for damages arising from the loss of emails where storage capacity was exceeded.

3.5 Content Privacy. Customer email messages and other items sent or received via the email service will include: (i) the content of the communication (“email content”), and (ii) certain information that is created by the systems and networks that are used to create and transmit the message (the “message routing data”). The email content may include text of email messages and attached media files, and is generally the information that could be communicated using some media other than email (like a letter, telephone call, CD, DVD, etc.) The message routing data includes information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information, and is generally information that would not exist but for the fact that the communication was made via email. The email content is Confidential Information and is subject to the restrictions on use and disclosure described in the Agreement. However, Customer agrees that Vonage, its agents, and vendors, may view and use the message routing data for general business purposes, including maintaining and improving security, improving services, and developing products. In addition, Customer agrees that Vonage may disclose message routing data to third parties in aggregate statistical form, provided that Vonage does not include any information that could be used to identify Customer.

3.6 Usage Data. Vonage collects and stores information related to Customer’s use of the Services, such as Customer’s use of SMTP, POP3, IMAP and filtering choices and usage. Customer agrees that Vonage may use this information for Vonage’s general business purposes, and may disclose such information to third parties in aggregate statistical form, provided that Vonage does not include any identifying information.

3.7 Email Campaigns & Relays. The Cloud Services are limited to the following thresholds and obligations with regard to the distribution and/or forwarding of any bulk or commercial email: (i) any email originating from an exchange email client (e.g., OWA, Outlook, ActiveSync, etc.) shall not be sent to more than fifteen hundred (1,500) recipients per day from any individual email account unless otherwise agreed to in writing by Vonage; (ii) in the aggregate, Customer is not permitted to send more than two-hundred and fifty (250) email messages every twenty minutes; and (iii) if Customer needs to forward or relay any email message(s) from any third party application or system (scanners, accounting applications, salesforce.com, etc.), Customer shall not forward or relay more than fifteen hundred (1,500) email messages on a daily basis and/or more than 500 email messages per hour.

4. OWNERSHIP AND RESTRICTIONS.
4.1 Customer retains all ownership and intellectual property rights in and to Customer Content. Vonage or its licensors retain all ownership and intellectual property rights in and to the Services, and any derivative works thereof, and to anything developed or delivered by or on behalf of Vonage under the Agreement. Customer may not, or cause or permit others to: (a) remove or modify any program markings or any notice of Vonage’s or its licensors’ proprietary rights; (b) make the programs or materials resulting from the Services (excluding Customer Content) available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted by Vonage); (c) copy any software Vonage provides for Customer’s use unless expressly permitted by the Agreement, nor remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software or documentation. Unless permitted by the terms of an open source software license, Customer may not reverse engineer, decompile or disassemble any software Vonage provides for Customer’s use except and to the extent that Customer is expressly permitted by applicable law to do so, and then following at least ten (10) days advanced written notice to Vonage. modify, make derivative works of, disassemble, decompile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to Vonage; (d) perform or disclose any benchmark or performance tests of the Services, without Vonage’s prior written consent; (e) perform or disclose any security testing of the Hosted System or associated infrastructure without Vonage’s prior written consent, such as network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and (f) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services or any related materials available to any third party, other than as expressly permitted by Vonage. No part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means, and Customer shall take every reasonable effort to prevent unauthorized third parties from accessing the Services.

4.2 If Customer uses any non-Vonage provided software with the Hosted System, Customer represents and warrants that it has the legal right to use the software in that manner. Upon Vonage’s written request, Customer shall certify in writing that Customer is in compliance with the requirements of this paragraph, as well as any other software license restrictions that are part of the Agreement, and will provide evidence of compliance as Vonage may reasonably request.

5. EXPORT MATTERS. Customer represents and warrants that it is not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person or company to whom Vonage is legally prohibited from providing the Services. Customer may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles or as otherwise prohibited by law, nor may Customer provide administrative access to the Services to any person (including any natural person or government or private entity) that is located in or is a national of any country that is embargoed or highly restricted under applicable United States export regulations.

6. SUSPENSION OF SERVICES.
6.1 Vonage may suspend Customer’s right to access or use any portion or all of the Services immediately and without liability upon notice to Customer if (i) Vonage reasonably believes that the Services are being used in violation of this Agreement; (ii) Customer does not cooperate with Vonage’s reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on the Hosted System or the Hosted System is accessed or manipulated by a third party without Customer’s consent, (iv) Vonage is required by law to suspend the Services, (v) Customer’s use of the Services (a) poses a security risk to the Services or any third party, (b) may adversely impact the Services or the systems or content of any other Vonage customer, (c) may subject Vonage, Vonage’s affiliates, or any third party to liability, or (d) may be fraudulent; (v) Customer uses the Services in a manner that results in excessive bandwidth usage, as determined by Vonage, (vi) Customer uses the Services for any illegal purpose, or to store, backup or distribute any illegal files or data, (vii) Customer uses the Services to store, backup or distribute material or content protected by intellectual property rights of a third party unless Customer owns or has rights to such material or content; (viii) Customer uses the Services to store, backup or distribute material that contains viruses, Trojan horses, worms, corrupted files or any other similar software that may damage the operation of the Services or another person’s or entity’s equipment or property, (ix) Customer directly or indirectly reverse engineers, decompiles, disassembles, modifies, reproduces or creates derivative works of the Services, (x) Customer alters or modifies any disabling mechanism which may be included in the Services, (xi) Customer assigns, sublicenses, rents, timeshares, loans, leases or otherwise transfers the Services, (xii) Customer removes or alters any proprietary notices (e.g., copyright, trademark notices, legends, etc.) from the Services; or (xiii) there is another event for which Vonage reasonably believes that the suspension of Services is necessary to protect the Vonage Hosting System or Services and/ or Vonage’s other customers. If Customer’s Hosted System is compromised, then Customer must address the vulnerability prior to Vonage placing the Hosted System back in service.

6.2 In addition to Vonage’s right to suspend or terminate the Services per the Agreement, Vonage may suspend all or part of the Services without liability or prior notice to Customer (i) in order to maintain (i.e., modify, upgrade, patch, or repair) the infrastructure or any servers; (ii) as Vonage determines may be required by law or regulation; or (iii) as Vonage determines to be necessary to protect the infrastructure and customers from unauthorized access or an attack on the Hosted System. Notwithstanding the foregoing, Vonage will endeavor in good faith to provide Customer with advance notice of any suspension or termination under this Section and will provide Customer with notice of the suspension or termination as soon reasonably practicable.

6.3 If Customer’s right to access or use any portion or all of the Services is suspended: (a) Customer remains responsible for all fees and charges incurred through the date of suspension, plus all applicable MRCs during the suspension period; and (b) Customer shall remain responsible for any applicable fees and charges for any Services to which Customer continues to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension.

7. SERVICES MANAGEMENT AGENT. Customer agrees that it will not interfere with any services management software agent(s) that Vonage installs on the Hosted System or in connection with the Cloud Services. The services management agent will use only a minimal amount of computing resources, and will not interfere with Customer use of the Services. Vonage will use the agents to track system information so that it can more efficiently manage various service issues, such as patching exceptions and product life cycles. Vonage may also use the agents to identify security vulnerabilities. Vonage will not use the agents to view or capture Content or data. Customer shall not disable or interfere with such services management software agent(s).