Terms of Service Production (TOSP) for Unify Phone Service
For End Customers obtaining access to Unify Phone Service
Effective as of March 18th, 2022
These TERMS OF SERVICE PRODUCTION (herein referred to as “TOSP” or the “Agreement”), including any annexes, policies or other documents, which by reference are incorporated herein, govern the use of Unify Phone Service, licensed and sold by Unify Software and Solutions GmbH & Co. KG, with its registered office at Otto-Hahn-Ring 6, 81739 München, Germany (herein referred to as “Unify”), either directly or through an Accredited Reseller, and constitute a binding agreement between Unify and the legal entity, accepting this agreement in order to use Unify Phone Service (herein referred to as “You” or the “Customer”). Unify and Customer are collectively referred to as the “Parties” and individually referred to as a “Party”,
where the Parties agree as follows:
- 1. Registration, Click & Accept, Contracting Parties
The Unify Phone Service is designed to be used in conjunction with certain Unify OpenScape platforms. It is a software as a service solution (SaaS) delivered through a cloud-based infrastructure, offered by Unify solely for business use subject to these Terms of Service Production (TOSP) and the conditions of Your OpenScape Services Agreement for OpenScape platform license (OpenScape Business, OpenScape Voice or OpenScape 4000) with Unify or Accredited Reseller. You can purchase the cloud service by purchasing Unify Phone licenses for your Unify OpenScape platform from Unify or Accredited Reseller. Upon installation of these licenses your OpenScape platform will present under Administration a registration form for the Unify Phone Service on which You have to accept this Agreement by Click & Accept. After successful registration the cloud service is activated, integrated with your OpenScape platform and provisioned for use.
You cannot use the Unify Phone Service without a valid license for its use on your OpenScape platform, and you must complete the sign-up process and provide current, complete and accurate information, as prompted by the sign-up form. You also need to conclude the Data Processing Agreement (DPA).
The person accepting this Agreement represents and warrants to have the authority to bind the business or organization on whose behalf he or she is acting. The person will be registered by Unify as Customer Contact for all further communication. By clicking “Accept” on the Unify Phone Service registration page Customer accepts and acknowledges having read these Terms of Service Production and the documents, referenced herein.
You agree that any person of your business or organization, who is granted access to your Unify Phone Service Tenancy, is bound by these TOSP and the documents referenced herein.
Other capitalized terms used in the TOSP, are defined in Annex 1 – Definitions.
List of Annexes:
Annex 1 – Definitions
- 2. Feedback about Unify Phone Service
Unify will own any information and data that You/Users will provide about the tests they have done, the test results, and other material such as screenshots, recordings, concepts, etc. (collectively, “Feedback”). You hereby assign and grant Unify all rights, title and interest in the Feedback and all Intellectual Property Rights herein, including the right to use, share, and commercialize the Feedback in any way and for any purpose. You will not give any Feedback that is subject to a license that requires Unify to grant any rights (e.g. Freeware and Open Source License) or make any payments to third parties because the Feedback was incorporated into Unify Phone Service or the Documentation or any other of Unify’s products, software, or services or other items. These rights shall survive this Agreement.
- 3. End-Customer’s responsibilities for User Data
3.1 When using Unify Phone Service, You must at all times comply with all Applicable Laws, including, but not limited to all applicable privacy laws and regulations with respect to Personal Data and User Data.
It is your responsibility to ensure that you have the right to use Unify Phone Service where you are located.
3.2 You are entirely responsible for any and all activities that occur under your Unify Phone Service Accounts and with your User Data. With your registration to Unify Phone Service, You acknowledge and consent and You will make all of your Users acknowledge and consent, that all User Data is in your sole responsibility.
3.3 You will indemnify, defend and hold harmless Unify and Your Accredited Reseller from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from your violation of the clauses from this section 3 (End-Customer’s responsibilities for User Data) and 4 (Data Privacy).
- 4. Data Privacy
4.1 By registering for Unify Phone Service, You agree, for the term of the Agreement, that Unify Phone Service User Data containing Personal Data of You and each of your Unify Phone Service Users will be processed by the Unify Phone Service solely for the purpose of providing Unify Phone Service to You and the Users You appoint Unify, as the Producer of Unify Phone Service, is very serious about the safety and security of such Personal Data.
With regard to the Personal Data stored or otherwise processed by Unify Phone Service, when registering for Unify Phone Service and accepting this Agreement, You will also enter into the Data Processing Agreement (DPA) under Art. 28 GDPR with Unify. Unify will not provide contracted Unify Phone Service without an executed DPA.
4.2 Unify will produce Unify Phone Service through personnel who are bound to data secrecy as defined by Applicable Law.
4.3 Unify will Process Personal Data obtained from You only for the purposes of producing Unify Phone Service and shall delete such Personal Data from Unify’s systems if it is no longer needed for that purpose, subject to any data retention obligations required by Applicable Laws.
4.4 Unify may use subcontractors to Produce Unify Phone Service according to the Data Processing Agreement (DPA) and follow a standard that meets or exceeds the standard provided for in the Privacy Notice, published on https://unify.com/en/legal-information/unify-phone/privacy-policy.
Unify shall process personal data only within the European Economic Area unless approved by Customer and upon Unify providing appropriate safeguards in order to ensure an adequate level of protection to the transferred User Data and Personal Data, as required under Applicable Law.
With accepting this Agreement the Customer approves the use of the sub-contractors and the associated international transfers of personal data as shown in Annex 1 of the DPA.
4.5 You agree to meet all statutory required preconditions for your intended use of Unify Phone Service and the Unify Phone Service User Data for which You are responsible so that in this regard Unify Phone Service can be provided to You without You infringing any Applicable Laws. You are in particular responsible for observing your workers council rights of codetermination, where applicable. You and your organization shall indemnify Unify from all claims and damages resulting from your failure to do so.
4.6 More details on Unify’s data protection measures can be found in the Privacy Notice which must be presented to each single Unify Phone Service User at their first login and can be accessed from within Unify Phone Service at any time.
4.7 Where required by Applicable Law, if You represent an organization that provisions several Unify Phone Service Users for Unify Phone Service (Customer), you acknowledge and accept that primarily the Data Processing Agreement (DPA) shall determine your data privacy relationship with Unify.
You hereby also agree that the terms of the DPA, where applicable, and the Privacy Notice shall apply to each of your organization’s Unify Phone Service Users, and that you will take appropriate measures to ensure these terms are binding upon them.
4.8 Unify Phone Service allows Users to download Call Journal Data at any time, specifically prior to a termination of the cloud service.
4.9 The Unify Phone Service is only acting as a passive conduit for your Unify Phone Service User Data. Unify may not claim any ownership rights in your User Data and will not review, share, distribute, or reference your User Data except as provided herein or in the Acceptable Use Policy (“AUP”) for Unify Phone Service, or as this may be required by Applicable Laws.
- 5. Security
5.1 You are entirely responsible for maintaining the confidentiality of all of your passwords and Unify Phone Service Accounts. None of your Users may use any other User’s Unify Phone Service Account at any time without the permission of the affected User.
5.2 You agree to notify Unify or your Accredited Reseller immediately of any unauthorized use of your Unify Phone Service Accounts or any other breach of security. Neither Unify, nor your Accredited Reseller will be liable for any loss that You may incur as a result of someone else using your passwords or Unify Phone Service Accounts, either with or without your knowledge. You acknowledge and agree that in such an event You could in turn be held liable for losses incurred by Unify or your Accredited Reseller or another party due to someone else using your Unify Phone Service Accounts or passwords.
- 6. Local availability may be limited
Unify Phone Service may not be available in, or accessible from, all countries or for use in a particular location. You are responsible for following the Applicable Laws in your jurisdiction, state or country and must not use Unify Phone Service, if such use would result in a breach of Applicable Law. Unify reserves the right to modify or disable features and functionalities of Unify Phone Service and/or any related services, if required to comply with local Applicable Laws. In some cases some of Your Unify Phone Service Users may need to use a separate instance of Unify Phone Service. Unify has the right to block access to Unify Phone Service from certain countries or jurisdictions. Such limitation or modification or disablement does not entitle You to prematurely terminate the Unify Phone Service Tenancy.
Please contact Unify or Your Accredited Reseller, for the latest list of countries in which Unify Phone Service is available, and to learn about any functional variations applicable in certain countries or jurisdictions.
- 7. Emergency Services
Unify Phone Service provides real-time communication services. The Unify Phone Service is not meant to be a replacement for your primary telephone or internet service. You should not rely on Unify Phone Service as your sole means of telecommunication. You also acknowledge that Unify Phone Service is not intended to support or carry emergency calls such as calls to hospitals, police, fire departments or other kind of services that connect a User to emergency services answering point. It is your responsibility to provide for fixed (landline) telephone services or wireless (mobile) telephone services that offer access to such emergency services. Unify Phone Service does not support the special features required by emergency services, such as providing information about the location of the caller to the emergency service. Please note that this also applies if, technically, you could actually connect from Unify Phone Service to an emergency service. In this case, you will need to provide details of your physical location to enable the emergency services to respond to You.
- 8. License, Copyright and Ownership of Unify Phone Service
8.1 The Unify Phone Service licenses you purchase from Unify or your Accredited Reseller grant you upon registration and accepting this Agreement effective on the date of the registration a worldwide, revocable (pursuant to any termination of this Agreement), non-exclusive, royalty-free and non-transferable right under our Intellectual Property Rights to access and use Unify Phone Service including all future releases made available by Unify from any technically compatible device that is controlled by your organization.
8.2 Save for the rights granted in clause 8.1 above, all title to and all Intellectual Property Rights in Unify Phone Service, including but not limited to all modifications thereto, be they based on Feedback or not, shall remain the exclusive property of Unify and shall not be used in any way other than as described herein. You acknowledge that Unify Phone Service and all Intellectual Property Rights with respect thereto are and will at all times be the property of Unify, even if suggestions made by you, e.g. as part of Feedback, are incorporated into subsequent versions of Unify Phone Service.
8.3 You do not have any rights to disclose, sublicense, or otherwise transfer access to Unify Phone Service or any software that may be made available to You for download as part of your registrationto Unify Phone Service, or the related documentation, or other of Unify’s proprietary information. You may not sub-rent or sub-lease Unify Phone Service to any third party, except for your Affiliates, unless explicitly agreed in writing with Unify. You may not reverse engineer, reproduce, de-compile or disassemble Unify Phone Service, except to the extent expressly permitted by Applicable Law. You agree not to claim or assert title to or ownership of Unify Phone Service.
- 9. Downloadable Software
9.1 In order to use some features of Unify Phone Service, or to use Unify Phone Service on some devices, You may have to download and install software, e.g. an app for a smartphone or tablet, or a plugin. Such software is licensed to You under these TOSP and, in addition, the terms of Unify’s End User License Agreement (EULA) shall apply. In some cases, the software may contain third-party software components, e.g. commercial components, Freeware or Open Source Software, which may be subject to additional Third Party EULAs or Open Source Licenses, respectively. Such separate licensing terms shall prevail over the EULA. A copy of the EULA and the separate licensing terms is provided in the EULA that is available in the Unify Phone Service application.
9.2 Any installation and use of the software is subject to your acceptance of those license terms.
9.3 The software shall only be delivered and licensed in object code form i.e. executable, machine-readable form. There is no claim to delivery of the source code. Insofar as the terms of Open Source Licenses provide for the provision of source code, Unify may make the source code available (a) by including it in the software delivery or (b) upon your request, send separate media in return for reimbursement of expenses, or (c) through Unify’s website. Option (b) shall always be available, and covers the relevant Open Source Software used in the current version Unify Phone Service and all preceding versions, going back to at least three (3) years.
9.4 You may copy such downloadable software for backup or archival purposes, or as part of using Unify Phone Service, but for no other purpose. You may not remove or alter any copyright or proprietary notice. You may not reverse engineer, decompile or disassemble the software save where explicitly permitted by law or by applicable Open Source Licenses. Distribution within your business or organization by other means than Unify Phone Service (e.g. internal software distribution system) is permitted only to the extent that downloadable software is distributed solely to and for the use of your Users.
- 10. Availability of Unify Phone Service and Service Levels
10.1 Availability SLA
Unify is obligated to use commercially reasonable efforts to provide the Unify Phone Service with 99.9% Availability, except for Downtimes within the scope of the following exclusions:
- a) Scheduled Maintenance
This is Downtime scheduled in advance to install bug-fixes, updates, and to conduct other maintenance work. Scheduled Maintenance will, in general, be done outside times of peak use of Unify Phone Service. Customers will be notified about Scheduled Maintenance in text form at least two (2) days in advance.
- b) Emergency Maintenance
In urgent cases, Downtime may be scheduled immediately if it is required to prevent or avoid damages, or to install bug-fixes which cannot be delayed until the next Scheduled Maintenance period, e.g. a security fix for a vulnerability that is considered to be “high”. Unify is obligated to attempt to notify the End-Customer, but a shorter notice period than for Scheduled Maintenance may apply.
- c) Availability Exceptions
These are Downtimes caused by:
- Force Majeure Events;
- Problems, Incidents and Defects caused by You, such as
- Despite Unify’s advice, you continue to use the Unify Phone Service in a manner that is dangerous or wrongful, in particular if such use violates the Acceptable Use Policy (AUP), available at: https://unify.com/en/legal-information/unify-phone/acceptable-use-policy
- Any unauthorized action or inaction from your employees, agents, contractors, or vendors with respect to the Unify Phone Service, or if anyone gains access to Unify’s network by using your passwords or equipment without your permission;
- Your failure to adhere to any required configurations, platforms, software or hardware;
- Your failure to follow any applicable policies for acceptable use, including any uses of the Unify Phone Service that violate the Acceptable Use Policy (AUP).
- Problems, Incidents and Defects caused by third parties’ software (including any third party services or software such as browsers that you use) or third parties’ hardware (including your network equipment), provided these are not under the control of Unify or were not recommended for the Unify Phone Service;
- Failure of the Internet connection between you and Unify’s Point-of-Presence for the data centres providing the Unify Phone Service;
10.2. Technical Support / Product Defects
Technical support for Unify Phone Service is provided under your OpenScape Services Agreement with a Unify / Atos legal entity or an Accredited Reseller for the OpenScape platform the Unify Phone licenses are installed. You may use the interfaces shown in your OpenScape Services Agreement to open tickets regarding the Unify Phone Service. Unify provides a centralized cloud service desk for Unify Phone accepting tickets from the service desks shown in your OpenScape Services Agreement. The cloud service desk is available 24X7 for Severity 1 incidents.
10.3 Product Defects
- a) If there is a Defect in the Software (provided as a Unify Phone Service), Unify will remedy such Defect provided that you open a support ticket under the OpenScape Service Agreement with Unify or your Accredited Reseller, respectively, without undue delay and in any case not later than five (5) Business Days from your knowledge of the Defect.
- b) You will render reasonable assistance free of charge, in particular by a prompt implementation of any work-around solution or the sending of logs In case you claim defects, which as per this TOSP cannot be considered as defects, e.g. because Unify is not responsible for the claimed defect or there is actually no defect, and you should have been able to recognize that with reasonable diligence when examining the claimed defect, Unify or your Accredited Reseller reserves the right to impose to a reasonable extent the costs incurred by Unify or by your Accredited Reseller to you.
- c) Unify will decide, at their sole discretion, whether a workaround or a correction release of Unify Phone Service will be provided.
- d) The provisions of this clause 10.3 are exhaustive with respect to claims based on Defects. Unify Phone Service is otherwise provided “as is” and as available. Save as explicitly described in the TOSP, Unify makes no warranties, either express, statutory or implied, including without limitation any implied warranties for merchantability fitness for a particular purpose or non-infringement of intellectual property rights.
10.4 If the Defect is not remedied and materially impairs your use of Unify Phone Service in accordance with the TOSP on an ongoing basis, You may terminate your Unify Phone Service Tenancy. In this case, prepaid Fees (if any) shall be refunded to you on a pro rata basis i.e. from the time your termination becomes effective.
- 11. Intellectual Property Rights Indemnification
11.1 Unify will indemnify You against liability resulting from (a) a final judgment in proceedings brought by a third party against You that determines that a Unify Phone Service infringes such third party’s Intellectual Property Rights, or (b) a written settlement reached between You and the third party with respect to the infringement of Intellectual Property Right, provided that Unify gave prior written consent to the settlement, including reasonable costs incurred in connection therewith.
11.2 Unify may also, at its sole discretion and cost, procure from such third party the Intellectual Property Rights necessary to continue to provide a Unify Phone Service to You; or modify or replace the respective part of the Unify Phone Service with substantially similar functionality in order to avoid the infringement. If Unify fails to provide these remedies, either Party may terminate the Cloud Services Agreement without regard to any minimum term and You will be refunded any remaining prepaid Fees.
11.3 You will not acknowledge any alleged infringement. In the event You elect to cease using the affected part of a Unify Phone Service, or the Unify Phone Service altogether, to minimize the expected damages or for other good reasons, You will inform the third party that the cessation of use does not imply any acknowledgment of the alleged infringement.
11.4 Unify’s obligation to indemnify You is subject to You (a) notifying your Accredited Reseller and Unify in writing as soon as reasonably possible of any suspected or alleged infringement, (b) not making any admission which is or may be prejudicial to Unify without Unify’s prior written consent; (c) giving Unify the right to defend against the allegation, including the negotiation of a settlement prior ; (d) providing Unify with reasonable assistance in defending against the alleged infringement; and (e) permitting Unify to provide the remedies set forth in clause 11.2.
11.5 Unify’s obligation to indemnify You shall be excluded to the extent that the alleged infringement is attributable to You and in particular if it is due to (a) misuse or any use of a Unify Phone Service in a manner not authorized by or contrary to your Accredited Reseller’s and Unify’s instructions or for a purpose not reasonably contemplated by your Accredited Reseller and Unify; (b) the use of any component of a Unify Phone Service in combination with any hardware equipment, system environment or third-party applications not specifically approved by your Accredited Reseller and Unify; (c) with respect to downloadable software and without limitation to your rights under Open Source Licenses, a modification thereof that was done without Unify’s prior written consent; (d) use of a Unify Phone Service outside the scope of the rights of use granted to You under the Cloud Services Agreement; (e) with respect to downloadable software, your failure to use corrections provided or recommended by your Accredited Reseller and Unify, including generally available corrections and security fixes for the underlying hardware equipment, third party software or system environment; (f) any claims relating to a Standard; or (g) in any event where Unify or your Accredited Reseller followed a design or instruction furnished or given by You.
11.6 The provisions of this clause, paragraphs 11.1 to 11.5 are exhaustive with respect to claims related to an alleged or actual infringement of third-party Intellectual Property Rights. All other rights and remedies shall be excluded.
11.7 You shall defend and indemnify Unify against any losses, costs, expenses, demands or liabilities arising out of a claim by a third party alleging any infringement if (a) the claim arises from an event specified in clause 11.5; (b) the ability of Unify to defend against the alleged claim has been prejudiced by your failure to comply with any requirements of clause 11.4; or (c) the claim arises from the use of the Customer Network.
- 12. Liability
The following section only applies if your OpenScape Services Agreement does not provide for different terms and only for direct, non-partner, customer contracts with Unify:
12.1 Unify’s liability whether by way of indemnity or otherwise for each event or connected series of events arising out of or in connection with the TOSP shall be limited to the lesser of (i) twenty five percent (25%) of the Purchase Volume or (ii) one hundred thousand Euro (EUR 100.000). Unify’s total aggregate liability under the Agreement shall be limited to an amount equal to fifty percent (50%) of the Purchase Volume.
12.2 Unify shall not be liable for loss of profit, indirect damages, consequential damages, including loss of business, loss of contracts, interruption of business , expenditures incurred and rendered unnecessary, loss or corruption of User Data, or claims raised by a third party against You, unless otherwise specified in this Agreement .
The exclusion of liability set forth in the paragraph above will apply regardless of the form of action, whether in contract, tort, strict product liability, or otherwise, even if Unify is advised in advance of the possibility of the damages in question and even if such damages were foreseeable, and even if your remedies fail of their essential purpose.
12.3 Unify’s liability for loss or corruption of User Data shall be limited to the time and cost for restoring the data from the regular, general backups of the Unify Phone Service platform Unify makes as part of Unify’s normal operations. It is otherwise your obligation to ensure that important User Data is not stored on Unify Phone Service alone, and to provide for backups or copies of User Data on a regular basis. You will not use Unify Phone Service as your sole means of storing such important data.
12.4 Nothing in the TOSP shall be construed to limit your, Unify’s or your Accredited Reseller’s liability for fraud or fraudulent misrepresentation, intentional acts or omissions, bodily injury, gross negligence as well as liability under a guarantee, or any mandatory Applicable Laws.
Those liability provisions will apply equally to your Accredited Reseller. For the avoidance of doubt, there shall be no cumulative nor joint liability between Unify and your Accredited Reseller.
- 13. Term and Termination
13.1 The Unify Phone Service is activated on the date of your registration (“Effective Date”) and shall run for the term as defined in the applicable license grant under the conditions of the OpenScape Services Agreement.
13.2. The termination provisions in the OpenScape Services Agreement apply accordingly to the Unify Phone Service Tenancy. In addition, You acknowledge and accept that the license for use of Unify Phone Service shall terminate automatically with the termination/expiration of the OpenScape Services Agreement.
13.3. Upon expiration of the Unify Phone Service license Your Unify Phone Service Tenancy will be suspended. You may renew its term by acquiring a new license from Unify or Your Accredited Reseller with whom you hold Your OpenScape platform, that will become effective from the date of its activation.
13.4 Upon receipt of the termination notice, the cloud service is suspended for 30 (thirty) days. Upon expiry of that period, all of your Users will be completely removed together with all User Data that such Unify Phone Service Users may have (still) stored in the respective Unify Phone Service. You are responsible to inform Users about downloading their Call Journal Data prior to the termination becoming effective. With the exception of the download facility, You will also cease to use any part of Unify Phone Service even if it should still be available to You. Upon termination for good cause attributable to You, Unify may allow Users to download Call Journal data as per Art. 4.8, dependent on the payment of all outstanding fees.
13.5 The Unify Phone Service Tenancy may be suspended in its entirety or in parts without liability and without giving prior notice, if (a) it is reasonably determined that the End Customer or User has grossly violated the provisions in these TOSP or (b) Unify is ordered to do so by a court or authority in any country.
Upon such suspension, access to all of the End Customer’s Users and User Data may be deactivated or barred, without any refund or compensation being granted to You.
- 14. Changes to Unify Phone Service and the TOSP
14.1 Unify may, at any time and at its sole discretion, further develop and expand Unify Phone Service and may replace or update or extend certain functionalities of Unify Phone Service by functionally equivalent functions. Unify may select and/or modify at its sole discretion the equipment, hardware, software including utilities and tools, telecommunications equipment and terminals, IT systems and other items including the associated documentation (e.g. operating instructions, application guides and specifications) and the configuration used to provide Unify Phone Service to You, provided that this does not materially impair the provision of Unify Phone Service to You. Where feasible, Unify or your Accredited Reseller will announce possible changes in Unify Phone Service that affect the system requirements, adequately in advance.
14.2 At any time, the terms of these TOSP and the other terms and conditions referenced by it may be changed, or functionality be added to Unify Phone Service or removed or other changes be implemented that require changes on your side, such as a change of your browser, microphone settings or the exporting of data. In this case, Unify or your Accredited Reseller will provide You with thirty (30) day notice by sending an email to the Customer Contact, and, at Unify’s discretion, also in other suitable forms. If you continue to use the Unify Phone Service after the change becomes effective, You are deemed to have accepted the changed terms. If You do not want to accept the changed terms, You may terminate your Unify Phone Service Tenancy with effect as of the date the change to the terms of the TOSP becomes effective, subject to a prior ten (10) day written notice from the date the change became effective. If a change has to be implemented due to a requirement under Applicable Laws which cannot be reasonably and in a legally compliant manner be avoided or circumvented, there shall be no right on your side to terminate the Unify Phone Service Tenancy.
15 Compliance with Export Control and Customs Regulations
15.1 All Products, including but not limited to items/commodities (“Items”) (goods/hardware, software and technologies and/or Services) may be subject to export laws and regulations and/or to national, foreign and international regulations. The Parties acknowledge that violations to such laws and regulations are prohibited and that compliance with applicable rules and regulations, including but not limited to export control regulations of the European Union and the United States of America must be ensured at all times.
15.2 Unify will perform all necessary and appropriate procedures for requesting any export authorizations required for deliveries to you, provided Unify will be the legal Exporter of Record for the deliveries. You will provide assistance, required documentation and certificates requested by Unify to obtain required authorizations or to review, ensure and document compliance with applicable laws and regulations.
15.3 Should required authorizations not be granted, granted with delay, granted with a reduced scope, be revoked or not renewed, Unify shall not be liable towards You. Such events shall be considered as a Force Majeure event.
15.4 You shall obtain in due time all required import licenses required for the Items imported from Unify. Unify will, on reasonable request, provide reasonable assistance and documentation in support of the import licensing process.
15.5 You are aware that Items supplied under Export licenses are provided for a specific end use and End User and may be subject to specific provisions and conditions. You will respect the contents of the applicable governmental licenses and authorizations and the certificates signed in the licensing process. You will not sell, transfer or make otherwise available items delivered under Export Licenses to any End User, end use or destination deviating from the contents of the Export License unless such action was authorized by the competent authority issuing the original export authorization.
15.6 You will only transfer, export or re-export Items received from Unify to reliable partners. They will ensure that Items are not made available in any way to parties, destinations and End Users under embargo, excluded from business or otherwise under relevant sanctions by Germany, the European Union, the USA or the United Nations.
15.7 You will not re-export any controlled technical information / technology under this Agreement.
15.8 In case of re-export of any Item by you and unless Unify is the legally defined Exporter of Record, you shall be responsible for the overall export process. You shall bear all costs related to export control for such re-export.
15.9 For the avoidance of doubt and subject to this Agreement, if You transfer the Items delivered by Unify or works and services (including all kinds of technical support) performed by Unify to a third party worldwide, You are solely responsible to comply with all applicable national, EU and international import, export and re-export control regulations, if any.
15.10 You shall indemnify and hold harmless Unify from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any noncompliance with export control regulations by You, and You shall compensate Unify for all losses and expenses resulting thereof.
15.11 You warrant that the Items shall not be used for design, development, or production of any nuclear, military, ballistic, biological or chemical weapons. You undertake to inform Unify immediately in case of breach of the said regulations and/or an investigation lead by according relevant national authorities.
15.12 If due to circumstances attributable to You, Unify is questioned by judicial or administrative authorities, You shall be held responsible and may be required to compensate Unify for damages caused.
15.13. Unify shall not be held responsible of any regulatory evolution, including but not limited to revoked authorizations.
- 16. Confidentiality
16.1 Each Party shall use all Confidential Information exclusively for the performance of the Agreement, keep all Confidential Information confidential with the same degree of care as it uses with respect to its own confidential information and in any case at least with the care of a prudent business person; and shall not make any Confidential Information available to third parties. Affiliates, subcontractors as well as employees of a Party, their related companies and their subcontractors shall not be regarded as third parties, provided that they “need-to-know” the Confidential Information in order for a Party to perform its obligations under the Agreement.
Each Party shall provide that all recipients of any Confidential Information are bound by non-disclosure obligations that are equivalent to this Agreement. Each Party shall be responsible for the compliance of any recipients of Confidential Information with the obligations set forth in this Agreement.
16.2 The above obligations shall not apply to Confidential Information to the extent (a) it was, or has become after disclosure by a Party, lawfully known to the receiving Party without any duty of confidentiality, provided that, to the receiving Party’s knowledge, the third person providing such Confidential Information to the receiving Party did not violate any duty of confidentiality; (b) is, or has become after disclosure by a Party, publicly known, provided that the receiving Party is not responsible for such Confidential Information becoming publicly known and further provided that any Confidential Information shall not be deemed publicly known because a portion thereof is or becomes publicly known; (c) is independently developed or acquired by the receiving Party; (d) has been released by the disclosing Party in writing; or (e) the receiving Party is obliged to disclose under Applicable Laws, provided that, if not forbidden by such Applicable Laws, the other Party was informed of such requirement without delay so that such Party may seek a protective order or other appropriate remedy. If such protective order or other remedy cannot be obtained, or if such Party waives in writing the other Party’s obligation to comply with the terms of this section 16, such other Party shall only furnish that portion of the information which it is advised to by written opinion of counsel and which is legally required. Such Party will also take all reasonable actions to ensure that such Confidential Information it was compelled to disclose will be treated confidentially.
The Party invoking an exception has to prove that the prerequisites for such exception are met.
16.3 All obligations regarding the Confidential Information in this Section shall survive the termination of the Agreement for any reason for a period of three (3) years. This time period shall begin with the end of the calendar year in which the Agreement was terminated. In the event Applicable Laws require that a Party must retain Confidential Information for a longer period of time, e.g. for taxation or audit purposes, it may only do so for the sole purpose of complying with such Applicable Laws and the confidentiality obligations stipulated in this Agreement shall continue to apply with respect to such Confidential information until it is destroyed in the Party’s ordinary course of business.
16.4 Each Party shall be entitled to request at all times the return or destruction of any Confidential Information as well as any copies thereof. The receiving Party undertakes to return, or confirm the destruction of, any Confidential Information within a time period of four (4) weeks from the receipt of such a request.
This shall not apply to (a) routinely made backup copies of electronically stored data; (b) to the extent that the receiving Party is obliged under Applicable Laws to keep the Confidential Information or copies thereof and (c) to the extent that the receiving Party needs the Confidential Information in order to prove the due performance of its contractual obligation or to enforce its rights.
- 17. General Provisions
17.1 Proprietary Rights.
As to the trademarks, industrial design marks, names or domain names of Unify and of Unify’s suppliers (for the purpose of this clause, “Marks”), they retain ownership of all Intellectual Property Rights in all of the Marks associated with or used in or displayed with Unify Phone Service. You may not frame or utilize framing techniques to enclose any Marks of Unify or of Unify’s suppliers, or other proprietary information (including images, text, page layout, or form) of Unify or Unify’s suppliers without Unify’s express written consent. You may not use any meta tags or any other “hidden text” utilizing Unify’s or Unify’s supplier’s Marks without the respective Mark owner’s written consent.
Unify may use Customer’s organization’s name, Mark and logo on Unify’s website. Unify may also use Customer’s organization’s name, Mark and logo in Unify’s marketing materials, provided Customer pre-approves such use, not to be unreasonably withheld, in writing. Without requiring prior approval Unify may state the fact that Customer is a client of Unify and that Customer is using Unify Phone Service, without revealing specifics about the relationship.
17.3 Independent Parties
Customer and Unify each acts as an independent contractor and not as an agent, partner, or joint venture with the other Party for any purpose. Except as provided in the Agreement, neither Customer nor Unify shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other Party.
17.4 Entire Agreement, Written Form
The TOSP, and any documents incorporated or referenced to herein, constitute the entire Agreement between the Customer and Unify relating to the subject matter thereof and supersede all prior agreements between the Customer and Unify with respect to that subject matter, whether written or oral. The Agreement may only be amended in writing. The same applies to a waiver of the written form requirement.
Neither Party may transfer, sublicense or assign any of its rights or obligations under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed. Provided, however, that Unify may, without such consent, assign this Agreement and its rights and obligations hereunder (a) to an Atos Affiliate, or (b) in connection with the transfer or sale of all or substantially all of its business to which this Agreement relates, or in the event of its merger, consolidation, change in control or similar transaction.
Any attempted transfer, sublicense or assignment by either party in violation of this Section will be null and void.
Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
17.6 Force Majeure
Neither party shall be responsible for any failure or delay in performance of its obligations under this Agreement (other than the obligation to make payments of money) due to any Force Majeure Event.
To the extent permitted by Applicable Law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event any individual provision of the Agreement is illegal, invalid, void, voidable or unenforceable, the remainder of the Agreement will continue in full force and effect. The Parties shall agree upon an effective provision that, insofar as legally possible, most closely reflects what the Parties intended.
17.8 Applicable Law / Court Venue
This Agreement shall be governed by the substantive law of Germany without regard to its principles of conflicts of laws.
The court venue shall be Munich, save where another court venue is mandatorily required by Applicable Laws.
Annex 1 – Definitions
The capitalized terms used in these TOSP and the documents referenced herein are defined as follows:
“Acceptable Use Policy” or “AUP” means a framework of rules and regulations that aim to ensure that everyone who uses Unify Phone Service enjoys a productive, disruption-free and safe use of Unify Phone Service. It describes what is deemed to be acceptable use of Unify Phone Service, what not, and what will happen if there is a violation of the AUP.
“Accredited Reseller” means the company authorized by Unify to resell OpenScape Voice platforms, licenses and services. You have to purchase OpenScape phone licenses from Your Accredited Reseller for Your OpenScape platform and You will receive technical support from Your Accredited Reseller as per the OpenScape Services Agreement with Your Accredited Reseller. The use of the OpenScape cloud services is covered by this Agreement directly between You and Unify.
“Agreement” means these TOSP, including any annexes, policies or other documents, incorporated by reference, that govern the use of Unify Phone Service.
“Affiliate” means, with respect to any company that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with either of the Parties, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such company, whether through ownership of voting securities, by contract or otherwise.
“Applicable Export Control Laws” means any national and international foreign trade and customs requirements or any embargos or other sanctions such as anti-terrorism laws, denied persons lists or similar stipulated by the Federal Republic of Germany, the European Union, the United States of America and other applicable national export laws, e.g. from the country/jurisdiction where You or a Unify Phone Service User have its place of business. Applicable Export control Laws are a subset of Applicable Laws.
“Applicable Laws” means and includes all laws, statutes, regulations, directions, guidelines and codes of conduct of any governmental or Regulator of competent jurisdiction and any orders of any Regulator or other administration or court or other tribunal of competent jurisdiction which are applicable to these TOSP, You, Unify or to the performance of either your or Unify’s obligations under these TOSP.
“Availability” means the time during which the Unify Phone Service is available for access and use, subject to the exclusions described in section 10.
“Availability Exceptions” means circumstances which are beyond Unify’s control and under which the Unify Phone Service cannot be provided in accordance with Unify’s SLA commitments, as outlined in section 10.
“Business Day” means the days of the week during which most businesses are operating, usually Monday to Friday except local public holidays or bank holidays. In order to determine the timeliness of a notice, the schedule of Business Days applicable to the receiving party shall prevail, while the timeliness of an action shall be determined by the schedule of Business Days applicable to the party obliged to take the action.
“OpenScape Services Agreement” means an agreement between Customer and Unify or an Accredited Reseller on the support, maintenance or managed services of an OpenScape platform as defined in the Unify Phone Product and Service Description, for which Unify Phone licenses are purchased. This Agreement is then added to the OpenScape Services Agreement as an annex.
“Call Journal Data” means metadata collected by the Unify Phone cloud service on the calls a User had over a period of time. Call Journal Data are presented onto to users involved in calls.
“Confidential Information” means all information and data, which a Party has received orally, in writing, electronically or otherwise from or on behalf of the other Party in connection with the Agreement, including all business, commercial and technical information and data, unless, according to the judgment of a prudent business man, such information and data cannot be considered as being of confidential nature.
“Customer Contact” is a person within your business or organization who is assigned to be our primary contact and who has the authority to act on behalf of your business or organization in respect of all day-to-day activities relating to Unify Phone Service. This person must be named during the registration process on the Unify Phone registration webpage.
“Customer Network” means any part of your network and the devices operated in it, including personal computers, active and passive data network equipment, telecommunications network applications and all associated equipment (including third party network components) which may be used for Unify Phone Service.
“Data Processing Agreement” or “DPA” is an agreement for Personal Data processing under which Unify will collect, store, and process Personal Data.
“Defect” means a reproducible failure of Unify Phone Service to comply with the specification of Unify Phone Service as described in Product and Service Description (PSD).
“Documentation” means the technical and/or functional descriptions that are provided or made available to the Customer along with Unify Phone Service . The Documentation will in general be provided online. The Documentation includes, among other things, the description of performance characteristics, features or hardware and software requirements. If and to the extent required by the respective rights holder, the Documentation also comprises of the Open Source License texts or the special license conditions of a Freeware vendor or other commercial third party vendor of software.
“Effective Date” means the date on which You register for Unify Phone Service.
“End Customer”, also referred to as “You”, means the business or organization who is a party to this Agreement and who is responsible for the proper use of Unify Phone Service by the Users and for their User Data in its Unify Phone Service Tenancy.
“End User License Agreement” or “EULA” means our set of license terms and conditions for the use of software by end users. While Unify Phone Service is, in principle, a cloud-based application, some of its components need to be downloaded and installed, such as apps for smartphones and tablets. These components are covered by the EULA. In addition, Open Source Licenses and Third Party EULAs may apply.
“Freeware” means a computer program which may be used without payment or other compensation (for example, by advertising). Freeware may be subject to special license conditions of the vendor, which, for example, may limit the right to distribute or redistribute the Freeware. Freeware may have functional limitations which a commercial version does not have. In general, the vendor of a freeware does not grant access to the source code of the Freeware.
“Force Majeure Event” means any event beyond the reasonable control of a Party, including (i) damage to or destruction or compulsory purchase of the premises or other property belonging to the affected Party, (ii) fire, explosion, accident, lightning damage, electromagnetic interference; (iii) storm, earthquake, hurricane, tornado, flood, volcanic eruption or other natural disaster; (iv) war, threat of war, act of terrorism, insurrection, rebellion, riot or other civil unrest; (v) epidemics, pandemics, quarantine restrictions or other public health restrictions or advisories; (vi) strikes or lockouts or other labour interruptions; (vii) disruption to transport services; (viii) sanctions, embargoes or lack of materials, supplies or utilities, breaking off of diplomatic relations; (ix) the failure of any applicable governmental authority to issue any licenses or approvals, or the suspension, termination or revocation of any licenses or approvals, required for the operation of the affected Party’s business or the performance of services, or any other circumstance as a result of which performance by the affected party is prevented by law; or (x) in the case of Unify, the occurrence of any of the aforementioned events to its subcontractors or suppliers which result in their delay or failure to perform.
“Incident” means an event that affects the delivery of Unify Phone Service, e.g. a case of non-performance of Unify Phone Service.. Incident priorities are further described in Product and Service Description (PSD).
“Intellectual Property Rights” means copyrights (including moral rights), patents, protected designs, registered designs, design rights, utility models, trademarks, service marks, business secrets, know-how, database rights, personal rights, company or business names, domain names and other rights of a similar type, in any country or jurisdiction, including all registrations, applications for registration, rights to apply for registration and licenses for or relating to such rights.
“Open Source License” or “OSS License” means license terms to a computer program that give the user, beyond the right to use without license fee or royalty, rights of use which are usually reserved for the owner of the copyright to the computer program, for example the right to analyze the computer program as desired, to edit it, to merge it with other computer programs or to derive their own computer programs thereof and to distribute the results thereof (for the purposes of this provision, collectively referred to as “Work”). In turn, such license terms require that at least one of the following conditions is met: (a) the source code or design information regarding the Work must be made available; (b) the right to create derivative works regarding the Work must be granted; (c) a royalty-free license to any third party to use the intellectual property rights of the party embodied in the Work or (d) to identify the owner of the copyright to the unmodified Open Source Software. Open Source Licenses are, by example and without limitation, any version of the GNU General Public License (GPL) or the GNU Lesser General Public License (LGPL) or the Affero General Public License (AGPL) or similar open-source licenses, “free” licenses, and the general licenses to these as “public domain”.
“Open Source Software” or “OSS” means a computer program which is, in principle, available at no costs, which is licensed under an Open Source License, and that is available either (a) in source code form only, or (b) in (executable) object code form, and the source code is delivered together with the executable code.
“Personal Data” means any information relating to an identified or identifiable natural person (“Data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic cultural or social identity.
“Producing Unify Phone Service, Produced” means to run the Unify Phone Service software in a data center, to enable means to access this software for Users, and to make all other products and services available which are collectively called Unify Phone Service. Unify Phone Service is Produced by Unify.
“Product and Service Description” or “PSD” means the description of Unify Phone Service and the services associated with it. Some functions of Unify Phone Service and the associated services may only be available if You subscribe to an eligible service package.
“Providing Unify Phone Service, “Provided” means to hold an agreement with You which grants you access to Unify Phone Service. Unify Phone Service is provided to You by a legal entity within Atos Group or Unify’s Accredited Reseller.
“Purchase Volume” means the amount paid for active Unify Phone licenses purchased from Unify or your Accredited Reseller.
“Regulator” means any public authority which has or from time to time may have supervisory or regulatory authority over your Accredited Reseller and/or Unify and/or Unify Phone Service in accordance with Applicable Laws over any aspect of the performance or fulfilment of any rights, entitlements or obligations related to Unify Phone Service.
“Resolution” – Measures taken to resolve an incident. Can also be a work around.
“Standard” means any technical specification that is distributed, published, or otherwise made available by any consortium, standards organization, special interest group, or like entity, for the purpose of widespread industry adoption.
“Support Data” means Usage Data that is collected when a Unify Phone Service User submits a support request, including information about the Unify Phone Service User’s hardware and software environment when the fault occurred, and other related details, such as contact or authentication information, chat session personalization, data resulting from diagnostics, system and registry data about software installations, hardware configurations, and error-tracking files or screenshots.
“Tenancy Administrator” refers to a Tenancy User or your Unify Phone Service Tenancy, or a third party, who has been granted access to the Customer’s administration console for Unify Phone Service. The Tenancy Administrator is responsible for the configuration of your Tenancy.
“Tenancy User” means a Unify Phone Service User who is provisioned by a Customer as a user in a specific tenancy of the cloud service.
“Third Party End User License Agreement” or “Third Party EULA” means a set of license terms and conditions from the vendor of a commercial third party component or a Freeware, whose acceptance is made a prerequisite by such vendor for granting the right to use the respective third party component or Freeware.
“Unify Phone Service App” is an application for mobile devices which can be used to access Unify Phone Service.
“Unify Phone Services Tenancy” means the logically separated segment or domain on the Unify Phone Service platform that is dedicated to You and your Users.
“Usage Data” means statistical data, analytics, trends and usage information derived from each Unify Phone Service User’s use of Unify Phone Service. Usage Data includes, by example and without limitation, aggregated quantitative information about number of Cloud Services User, used bandwidth or CPU capacity.
“User Data” includes, but is not limited to, all data, including all data transmitted by the OpenScape platform or Unify Video such as phone number, name, etc. and Usage Data such as call entries and logs or other content and information that a User generates through using Unify Phone Service. In other words, it means all data about and from you or one of the Users that was not there before you signed up for Unify Phone Service.