VONAGE EARLY ACCESS DEVELOPER AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND VONAGE BUSINESS INC. (“VONAGE”) SETTING FORTH THE TERMS GOVERNING YOUR PARTICIPATION AS A VONAGE EARLY ACCESS DEVELOPER.  PLEASE READ THIS AGREEMENT (“AGREEMENT”) IN ITS ENTIRETY BEFORE CHECKING THE BOX ON THIS PAGE AND CLICKING THE “SUBMIT” BUTTON.  BY PRESSING “SUBMIT,”YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PRESS “CANCEL.”

  1. Developer Services.   As a Vonage Developer, you will have access to certain communication-enabling services (“Services”) described at  developer.vonage.com  (the “Site”), including certain APIs, SDKs, software, code snippets, documentation, technical support, the Site itself, and the features, functionality, and connectivity provided through Vonage ’s proprietary platform.  This Agreement governs your use of all Services provided to or used by you. We may change, suspend or discontinue providing access to the Services to you at any time, and may impose limits on certain features and materials offered or restrict your access to parts or all of such materials without notice or liability.
  2. Developer Account.   To access and use certain Services, you must create (or we may create for you) an account (“Account”), under which you will be issued credentials such as a username, password, and/or API key(s) and secret(s) (collectively, “Credentials”). You are solely responsible for any activity that occurs on your Account, including via Developer Applications (defined below), and for keeping your Credentials secure. You  represent and warrant that you are duly authorized to do business and use the Services in all jurisdictions in which you operate. You must notify us promptly of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from governmental authorities), breach of security or any known unauthorized use of your Account.  
  3. License.   Subject to your compliance with this Agreement, we hereby grant to you a limited, revocable, personal, non-exclusive, non-transferable, non-sublicensable license until this Agreement or your Account is terminated (the “Term”) to (i) use the documentation and APIs we make available to you to create one or more original applications that interfaces with the Services (each, a “Developer Application”), in accordance with documentation or instructions provided by us, and (ii) make the Developer Application available but only to existing Vonage customers with a valid and active account (“End Users”), as requested by such End Users.  The foregoing license shall extend to your Affiliates, provided that such Affiliates are acting via your Account and provided further that you shall remain jointly and severally liable for all acts and omissions of your Affiliates. An “Affiliate,”with respect to a entity, means any entity that controls, is controlled by, or is under common control with that entity. We retain sole discretion over whether to allow your Developer Application to access the Services, and we may restrict, suspend or terminate such access at any time.
  4. Restrictions.   You agree not to exploit the Services in any unauthorized way, including but not limited to:
  1. interfering or adversely i mpacting the availability, reliability or stability of the Services;
  2. attempting to circumvent any security mechanism on the Services, or using the Services in a manner that poses a security or other risk to us, our vendors, or End Users;
  3. benchmarking, tampering with, reverse-engineering, decompiling, or otherwise using the Services in order to find limitations or vulnerabilities or evade filtering capabilities;
  4. using the Services in any manner that may subject us or any third party to liability, damages or loss, including by violating any applicable laws, regulations or third party policies or requirements;
  5. using your Account to engage in fraudulent activity with respect to third parties or otherwise bypass legitimate identification systems;
  6. where prohibited by applicable law, engaging in spamming, or other unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations such as, without limitation, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, Telephone Consumer Fraud &Abuse Prevention Act, Children ’s Online Privacy Protection Act, and the Do-Not-Call Implementation Act;
  7. using the Services in violation of the Electronic Communications Privacy Act, the Regulation of Investigatory Powers Act, or any other analogous law or regulation applicable to your use of the Services; or
  8. offering or purporting to offer any services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 services.
  1. Developer Responsibilities.
  1. Distribution or Developer Application.  You are  solely responsible, at your own expense, for the Developer Application(s) (including their distribution, operation and support) and your own relationships and agreements with End Users regarding their use of Developer Applications. The Developer Application and your applicable terms and conditions must make clear to End Users how the Developer Application functions and uses their data. Without limiting anything in this Agreement, you will ensure that all End User data is collected, processed, transmitted, maintained and used in accordance with (i) your agreement with the End User, a legally adequate and publicly-accessible privacy policy, and appropriate notices to and consents from End Users, and (ii) all applicable laws and regulations. You will establish and maintain diligent safeguards (no less than industry standard) that protect against the accidental destruction, loss, disclosure or alteration of any End User data accessed by you or in your possession.
  2. Reference to Vonage End User terms; Non-Affiliation. In distributing or making available your Developer Application to End Users, you must clearly and conspicuously in writing and at the point of distribution include the following proviso in substantially the following form:

By accessing [name of Developer Application], you acknowledge and authorize [name of Developer Application] to access your account with Vonage Business, and such usage shall be subject to all applicable terms and conditions as separately agreed between you and Vonage Business as set forth at   https://www.vonage.com/legal-policy-center   or, if you have entered into a separate written agreement with Vonage Business, such written agreement. You further acknowledge that [name of Developer Application] is being provided to you by [Developer] and not by Vonage Business, and that in providing the [name of Developer Application] we are acting independently and not as an agent or partner of Vonage Business. As such, Vonage Business shall have no responsibility or liability to you regarding the Developer Application or the functionality thereof.

  1. Intellectual Property.   As between you and us, you own and reserve all right, title and interest in your Developer Applications.   Other than the Developer Application, all content made available through the Services is, as between you and us, owned by us. Your suggested improvements to and feedback regarding the Services are not Confidential Information (as defined below), and you hereby grants to us an unrestricted, irrevocable, fully paid-up, and non-exclusive right to use such suggestions and feedback for any purpose. We own and reserve all right, title and interest in and to the Services and all improvements, modifications and derivative works thereof. Except as explicitly granted herein, neither you or us is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or other form of intellectual property of the other or its Affiliates without the other ’s express prior written authorization. You will not issue any press release or other public statement relating to this Agreement without our prior written permission. Notwithstanding the foregoing, we may identify you using your name, trademarks and/or logos, and information pertaining to your Developer Applications and their functionality in our marketing collateral, presentations and websites.  The Services may contain content specifically provided by us or third parties that is subject to and protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws under United States and other laws and international conventions. You shall abide by and maintain all such notices, information, and restrictions accessed through the Services. You may not decompile, reverse engineer, disassemble, or attempt to derive the source code of any software or security components of the Services, except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by any licensing terms accompanying the foregoing.
  2. Confidentiality.   “Confidential Information” means any non-public information or data, regardless of whether it is in tangible form, disclosed by either Party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. “ Confidential Information” includes any of our information related to Services that have not been released to the general public; it also includes any End User data, whether provided via the Services, by the End User, or otherwise.  “Confidential Information” does not include any information which: (i) is publicly available through no fault of receiving party, (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party, (iii) was properly disclosed to receiving party, without restriction, by another person without violation of disclosing party ’s rights, or (iv) is independently developed by the receiving party without use of or reference to the disclosing party ’s Confidential Information. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement (and for us to provide the Services) and it will not disclose such information to any third party without the other party ’s prior written consent, except as otherwise permitted hereunder or for us to provide the Services or make other disclosures identified in our Privacy Policy ( https://www.vonage.com/privacy-policy ). Each party agrees to exercise due care in protecting the other party ’s Confidential Information from unauthorized use and disclosure. Each party may also disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are bound to keep such information confidential consistent with the terms of this Section. In addition, we may disclose this Agreement under a comparable non-disclosure agreement in response to a third-party due diligence request supporting a financing or non-ordinary course of business corporate transaction. Either party may disclose the Confidential Information of the other as required by law, legal process or court order; provided that, subject to applicable law, it promptly notifies the other party of such required disclosure in order to allow the other party to seek a protective order or other appropriate remedy.
  3. Indemnification.  You agree to defend, indemnify and hold harmless us, our Affiliates, suppliers, and partners, and each of our and their respective employees, contractors, directors, officers and representatives, from and against any damages, liabilities, claims, demands, obligations, losses, fines, penalties, and expenses (including reasonable attorney ’s fees) (collectively, “Losses”) incurred in connection with claims made or brought by a third party arising from or relating to: (i) your unauthorized or prohibited use of the Services, by you, your Affiliates or your or their employees, agents or subcontractors; (ii) the Developer Applications, (iii) your relationships or interactions with End Users or other third parties, (iv) your breach of this Agreement, or (v) gross negligence or willful misconduct by you, your Affiliates or your or their employees, agents or subcontractors. We shall notify you promptly after we learn of the existence of an indemnifiable claim hereunder; provided, however, that failure to give such notice shall only affect our rights to the extent that you are prejudiced. You shall be entitled to take sole control of the defense and investigation of the indemnifiable claim at your own expense, by providing prompt written notice to us, subject to our approval of your counsel, such approval not to be unreasonably withheld or delayed. We shall cooperate in all reasonable respects with you and your attorneys in the defense of the claim (including by making available books, records, and personnel), and may reasonably participate at our own expense, through our attorneys or otherwise, provided that such participation does not interfere with your defense. All settlements of indemnifiable claims under this Section shall: (i) be entered into only with our consent if such settlement requires any admission of guilt or imposes any restriction on us; and (ii) include an appropriate confidentiality agreement prohibiting disclosure of the terms of such settlement.
  4. Amendments. We reserve the right, at our discretion, to modify this Agreement, including any rules and policies at any time.  You will be responsible for reviewing and becoming familiar with any such modifications (including new terms, updates, revisions, supplements, modifications, and additional rules, policies, terms and conditions) (“Additional Terms”) communicated to you by us.  All Additional Terms are hereby incorporated into this Agreement by this reference and your continued use of the Services will indicate your acceptance of any Additional Terms.   In addition, we may be send communications to you from time-to-time, which may be in the form of phone calls and/or emails and may include, but are not limited to, membership information, marketing materials, technical information, and updates and/or changes regarding your participation as a Vonage Developer.  By agreeing to this Agreement, you consent that we may provide you with such communications.
  5. Term and Termination.  We may terminate or suspend you as a registered Vonage Developer at any time in our sole discretion. You may terminate your participation as a registered Vonage Developer at any time, for any reason, by notifying us in writing of your intent to do so. Upon any termination or, at our discretion, suspension, all rights and licenses granted to you by us will cease, including your right to access the Services, and you agree to destroy any and all of our Confidential Information that is in your possession or control.  At our request, you agree to provide certification of such destruction to us. Sections 6, 7 and 8 shall survive termination of this Agreement.
  6. Disclaimer of Warranty.   TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,”“AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY (E.G., AS TO LATENCY AND THROUGHPUT), AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR SUPPLIERS, PARTNERS AND LICENSORS, AND EACH OF OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DO NOT WARRANT (AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES) THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED, (III) ANY CONTENT OR SOFTWARE AVAILABLE ON OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (IV) THE CONTENT ON THE SITE OR SERVICES (OR ANY THIRD PARTY SITES OR SERVICES LINKED THERETO) IS ACCURATE, ERROR-FREE, APPROPRIATE, COMPLIANT, OR COMPLETE, OR (V) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONTENT OF, COMMUNICATION BY, OR PRODUCT OR SERVICE ADVERTISED OR OFFERED BY, A THIRD PARTY THROUGH THE SERVICES, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD PARTIES.  
  7. Disclaimer of Liability.   NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR OUR PARTNERS, SUPPLIERS, LICENSORS, OR CONTENT PROVIDERS, OR ANY OF OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE UNDER ANY CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, LOST PROFITS, GOODWILL, REVENUE, INCOME OR BUSINESS, DATA LOSS, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, RIGHTS OR SERVICES (HOWEVER ARISING AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); OR (II) THE AMOUNT OF FIFTY DOLLARS ($50.00) .
  8. Export Control.  You may not use or otherwise export or re-export any of our Confidential Information except as authorized by United States law and the laws of the jurisdiction in which our Confidential Information was obtained.  In particular, but without limitation, you may not export or re-export our Confidential Information (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department 's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List or any other restricted party lists.  By becoming a Vonage Developer or using our Confidential Information, you represent and warrant that you are not located in any such country or on any such list.  You also agree that you will not use any of our Confidential Information for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, chemical or biological weapons.
  9. Governing Law.   This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to its principles of conflicts of law rules. You agree to submit, for purposes of this Agreement, to the jurisdiction and venue of the state and federal courts located in the State of Delaware.  
  10. Miscellaneous.  No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by our duly authorized representative, and no single waiver will constitute a continuing or subsequent waiver.  This Agreement will bind your successors but may not be assigned, in whole or part, by you without the written approval of our authorized representative.  Any non-conforming assignment shall be null and void.  If any provision is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.  This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous understandings regarding such subject matter.  No addition to or removal or modification of any of the provisions of this Agreement will be binding upon us unless made in writing and signed by our authorized representative. Our relationship shall not be that of partners, agents or joint venturers for one another, and nothing contained in the Agreement shall be deemed to constitute a partnership or agency agreement between the parties for any purpose