Terms & Conditions
Certain features of CallTrak or the Site may be subject to additional guidelines and/or terms, which will be posted on CallTrak or the Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement.
THESE TERMS AND CONDITIONS (INTERCHANGEABLY REFFERED TO HEREIN AS THE “TERMS AND CONDITIONS” AND THE “AGREEMENT”) ARE A LEGALLY BINDING AGREEMENT BETWEEN CALLTRAK LLC (REFERRED TO HEREIN AS “WE”, “US”, AND “OUR”) AND THE INDIVIDUAL, LIMITED LIABILITY COMPANY, CORPORATION, PARTNERSHIP, TRUST, OR OTHER ENTITY (REFERRED TO HEREIN AS “YOU”, AND YOUR”) PURCHASING THE PRODUCTS AND SERVICES KNOWN AS “CALLTRAK”, AS MORE SPECIFICALLY DEFINED IN PARAGRAPH 1 OF THIS AGREEMENT. BY ACCESSONG OR USING THE SITE OR CALLTRAK, YOU ARE ACCEPTING THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. YOU MAY NOT ACCESS OR USE THE SITE OR CALLTRAK OR ACCEPT THIS AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SITE OR CALLTRAK. IF YOU ARE ACCESSING THE SITE OR CALLTRAK ON BEHALF OF A COPRORATION, LIMITED LIABILITY COMPANY, TRUST, PARTNERSHIP, OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SAID CORPORATION, LIMITED LIABILITY COMPANY, TRUST, PARTNERSHIP, OR OTHER ENTITY TO THE PROVISIONS OF THIS AGREEMENT.
1. CALLTRAK
During the Term of this Agreement, we grant you a non-exclusive, non-transferable right to access and use our Artificial Intelligence (“AI”) powered call tracking system known (and referred to herein) as “CallTrak”, as it currently exists and including any future updates and changes. The term “CallTrak” as used herein includes but is not limited to the Site, the AI, and all other features of CallTrak that may be purchased by you. We reserve the right at any time to update, change, suspend, and/or discontinue CallTrak with or without notice. You agree we shall not be liable to you or to any third party for any modification, suspension, or discontinuance of CallTrak. If CallTrak is listed on the Site at an incorrect price or with incorrect information, we reserve the right to refuse or cancel orders placed for the same, whether or not the order has been confirmed and even if you have been charged (in which event a credit will be issued to you in the amount of the charge). Our creation or transmission of an order confirmation does not signify acceptance of your order, nor does it constitute a binding confirmation of an offer to sell CallTrak or any other product or service, and we reserve the right to accept or decline your order for any reason. We may contact you and require additional information from you before we grant such approval. CallTrak is offered for sale to end user customers only and not for resale. You are solely responsible for your own use of CallTrak and the use of CallTrak by your owners, officers, employees, contractors, and licensees. We reserve the right to refuse, cancel, or seek the return of any purchase in violation of our policies and restrictions. You are responsible for any taxes imposed on the sale or use of CallTrak, and applicable taxes may be added to the amount charged for CallTrak.
AI Features
CallTrak provides you with certain features and services through AI, machine learning, or similar technologies (“AI Technology”) made available within AI-enabled features of CallTrak (“AI Features”). Potential customers calling in to your business (your “Callers”) will interact with CallTrak through an AI Feature through prompts in the form of the Callers’ conversations with the AI Receptionist (“Inputs”) and Callers will receive outputs generated and returned by the AI Receptionist based on those Inputs and the data used to train the AI Features (“Outputs”). Furthermore, for some plans, AI Technologies will generate reports and information including but not limited to call summaries, and sentiment analysis (“AI Reports”). WE MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOVER AS TO OUTPUTS OR AI REPORTS, INCLUDING BUT NOT LIMITED TO: LEGALITY, DISTINCTIVENESS, ACCURACY, COMPLETENESS, CONSISTENCY, OR ABILITY TO BE PROTECTED UNDER INTELLECTUAL PROPERTY LAWS. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE OUTPUTS AND CONFIRM THEY ARE APPROPRIATE FOR YOUR CALLERS AND TO REVIEW AI REPORTS. YOU FREELY AND VOLUNTARILY ASSUME ALL RISK ASSOCIATED WITH YOUR RELIANCE ON AI REPORTS AND YOU AGREE TO INDEMNIFY US AND HOLD US HARMLESS THEREFROM.
Acknowledgement
You acknowledge and agree that, due to the nature of AI and machine learning, information generated by AI Features may be incorrect or inaccurate. AI Features that include AI or machine learning models are not human and are not a substitute for human oversight. Additionally, you understand and agree that:
Output and AI Reports may not always be accurate. You are responsible for verifying the facts presented in Outputs and using human review before using or sharing Outputs or AI Reports.
AI Features could generate the same or similar output for different users.
You must not use Outputs or AI Reports for any purpose that could have a legal or material impact on a person (including but not limited to credit, educational, employment, housing, insurance, legal, medical, or other important decisions).
It is possible that Outputs and/or AI Reports may provide incomplete, incorrect, or offensive information.
Outputs and AI Reports do not represent our views. Outputs and/or AI Reports that contain references to third-party services do not mean the third party endorses or is affiliated with us.
You must ensure that your AI Receptionist is not available to Callers who are under the age of 16.
CallTrak’s AI Features are developed using industry licensed data relevant to your industry and further customized to your business by training on data from your website and other online channels about your business and any other data you want to provide to us (“Your Business Data”) as well as your Recordings and Transcripts. You can enhance your use of the Services by providing access to your customer relationship management data (“CRM Data”). You hereby grant us an unlimited, nonexclusive, irrevocable, sublicensable right to access, collect, scrape, process, and create derivatives of Your Business Data and CRM Data that you provide to us and your Recordings and Transcripts generated through the Services (collectively, “Your Data”) for the purpose of providing you with CallTrak and for our own internal business purposes. Additionally, you authorize us to access your information systems as needed to exercise the above license to Your Data and to use Your Data to generate or otherwise process derivative data, deidentified data, or anonymous data and use such data for any lawful purpose.
2. PRIVACY POLICY
When you accept this Agreement, you also agree to the provisions of our Privacy Policy located at <https://staylist.com/privacy-policy/> (the “Privacy Policy”) which is incorporated into this Agreement by reference. You agree that we may process your personal data in the manner described in the Privacy Policy, and you agree that you will not process the personal data of any third person with whom you may come in contact through the use of any of our products and/or services, except in compliance all applicable laws, rules, and regulations and in compliance with the Privacy Policy. Lawful and otherwise appropriate handling of personal data you come into contact with using CallTrak is solely your responsibility and you agree to indemnify us and hold us harmless from and against any negligent, reckless, or intentionally harmful handling by you of such data or any use by you of such data in violation of any law, rule, or regulation.
3. LICENSE AND RESTRICTIONS
Subject to the terms and conditions contained herein, upon acceptance of your order, we will be granting you a non-transferable, non-sublicensable, non-exclusive, license to use CallTrak for your business. We retain all right, title, and interest in and to CallTrak, and you will only receive rights explicitly granted in this Agreement. In consideration of such license granted herein, you agree that you shall not permit any end user to:
license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit CallTrak;
reverse assemble, reverse compile, decompile, translate, engage in model extraction or stealing attacks, or otherwise attempt to discover the source code or underlying components of CallTrak, its algorithms, or its systems;
access CallTrak in order to build a similar or competitive service;
copy, reproduce, distribute, republish, download, display, post or transmit any portion of CallTrak in any form or by any means, except as may be permitted in this Agreement;
use any data mining, robots, or similar data gathering tools or otherwise exploit your access to CallTrak;
use CallTrak in a manner that violates any applicable laws or any of our Policies or that infringes, misappropriates, or otherwise violates any third party’s rights;
use any of the trademarks, logos, or other proprietary graphics belonging to or appearing on CallTrak without express written permission, which may be denied in our sole and absolute discretion; or
assist with (whether actively or passively), permit, or allow the violation of (a)-(g) above by any third party, and, in the event you discover a violation of (a)-(g) above by any of your owners, officers, employees, licensees, or any third party, you shall immediately notify us, and we may take any and all remedial action necessary, including but not limited to freezing or terminating your account (and we may, with or without taking remedial action, pursue any and all damages available at law or in equity).
Any future release, update, or other addition to functionality of CallTrak shall be subject to the terms of this Agreement. All copyright and other proprietary notices on our website or any CallTrak content must be retained on all copies thereof.
4. PRICING AND PAYMENT
You agree to pay all fees charged to your account (“Fees”) based on the pricing and terms provided to you at the time of sign-up (the “Pricing Page”) or as otherwise stated in writing by us. Price changes on the Pricing Page shall be effective seven (7) calendar days after they are posted, except for changes made for legal reasons which shall be effective immediately. We have the right to correct pricing errors or mistakes even after issuing an invoice or receiving payment.
Payment through the Site. All Fees and other payments made hereunder shall be made via credit or debit card through the Site. You authorize us and our third-party payment processor(s) to charge all amounts due hereunder to the credit or debit card provided on your account (the “Card”) on an agreed-upon periodic basis, but we may reasonably change the date on which the charge is posted. You certify that you are authorized to use the Card and that you will pay all amounts due hereunder in accordance with the issuing bank cardholder agreement. It is your responsibility to update us, via the Site, with any new credit or debit card information, and you understand and agree that failure to do so will result in a default in this Agreement. All Fees are payable in U.S. dollars and shall be due on a recurring monthly basis throughout the Term of this Agreement. All payments are earned payments upon receipt and shall be nonrefundable unless otherwise provided herein.
Taxes
Fees are exclusive of taxes, which we will charge as required by applicable law. We will use the name and address in your account as the place of supply for tax purposes.
Overages and Booking Fees
In addition to all other pricing and payment terms, you specifically agree to the “overage” charges and “Per AI Agent Booking” fees for your plan as listed on the Pricing Page. All such overage charges will be billed as part of your Fees in accordance with this Section 4
Late Payments
In the event you fail to update your payment information or otherwise fail to pay any Fee or make any payment on or before the date such Fee or other payment is due, interest on the unpaid amount shall accrue at the highest rate allowed by law, and you shall be in default of this Agreement. You agree to pay all costs of collection of any and all amounts due hereunder, including but not limited to court costs and our attorney fees (regardless of whether any action is filed).
Disputes
We shall have no obligation hereunder to send invoices and do not anticipate doing so. However, you have the right to request a receipt by emailing your request to [email protected] and a receipt will be provided to you. If you dispute the amount charged, you must notify us in writing (by emailing [email protected]) within five (5) business days of the date the amount was charged to you or you shall have waived all rights to dispute the amount in any manner whatsoever. In the event we receive timely notice of a dispute, both we and you shall have an obligation to negotiate the dispute in good faith. However, if after thirty (30) days of good faith negotiation an agreement is not reached, our decision shall be final.
5. ACCOUNTS
In order to use CallTrak, you must register for an account on the Site (your “Account”) and provide certain information about yourself as prompted by the registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. You agree that we cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements and that you will indemnify and hold us harmless therefrom. You may not have more than one Account.
Exclusive Use
Use of CallTrak is exclusive to you. You shall not permit anyone who is not your employee or otherwise a part of your business (such as an owner or officer) to access CallTrak at any time. Any and all passwords and information used to access CallTrak must be kept strictly confidential and not disclosed to anyone except in connection with your use of CallTrak hereunder. You shall destroy all passwords and other information used to access CallTrak immediately upon termination of this Agreement, and you shall likewise destroy any and all images of CallTrak, the Site, code, and/or information taken from CallTrak.
Responsibility for End Users
It is your responsibility to ensure that all of your employees, officers, shareholders, members, partners, contractors, and anyone to whom you grant access to CallTrak complies with all of your confidentiality obligations in this Agreement. In the event any such person violates any term of this Agreement, you agree to be held liable for such violation.
Access in Violation
In the event that you allow anyone access to CallTrak in violation of this Agreement, or you retain any password, image, code, or other information taken from CallTrak in violation of this Agreement, you agree that, in addition to monetary damages for which you will be liable, we may seek injunctive relief and that you will pay any and all costs associated with our enforcement of this Agreement, including but not limited to court costs and attorney fees.
Confidentiality
You are responsible for maintaining the confidentiality of any account information, including your login and password, and for restricting access to your computer and phone system, and you agree to accept responsibility for all activities that occur under your account or password. We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in our sole discretion.
6. TERM AND TERMINATION
The term of this Agreement (the “Term”) shall commence upon our acceptance of your CallTrak order, and shall remain in effect on a month-to-month basis until terminated in accordance with this Section 6. Notwithstanding the foregoing, if you and CallTrak enter into a separate written sales agreement or order form that expressly supersedes this Agreement (the “Superseding Document”), and any terms of the Superseding Document are in conflict with the terms of this Agreement, the terms of the Superseding Document shall control.
Termination Without Cause
You may terminate this Agreement at any time by submitting a thirty (30) day written cancellation notice to us at the following address: [email protected], and we may terminate this Agreement at any time by submitting a thirty (30) day written cancellation notice which we will send to our main point of contact with you. Once either such cancellation notice is received, this Agreement shall remain in full force and effect for a period of thirty (30) days, and, then, you will lose all CallTrak services, but you will continue to have access to your call history in “read only” mode for an additional thirty (30) days (the “Read Only Period”). You agree that you are solely responsible for copying or otherwise documenting all call history and information that you wish to retain during the Read Only Period. After the expiration of the Read Only Period, you will no longer have access to your call history or any other data or information from CallTrak, and you expressly agree that we may delete or destroy the same. You agree to indemnify and hold us harmless from and against any and all damages due to lost call history, data, or other information due to our deletion or destruction of the same after the expiration of the Read Only Period. All terms and conditions of this Agreement (including but not limited to restrictions found in Section 4 above) shall remain in full force and effect during the Read Only Period, except that no additional monthly Fee will be due for the month of the Read Only Period.
Termination for Nonpayment
The above notwithstanding, in addition to all other remedies for nonpayment and breach of this Agreement, we may immediately terminate this Agreement, with or without notice, in the event any payment due from you hereunder is five (5) or more business days late. In such an event, you will have access to your call history in “read only mode” for a thirty (30) day Read Only Period. You agree that you are solely responsible for copying or otherwise documenting all call history and information that you wish to retain during the Read Only Period. After the expiration of the Read Only Period, you will no longer have access to your call history or any other data or information from CallTrak, and you expressly agree that we may delete or destroy the same. You agree to indemnify and hold us harmless from and against any and all damages due to lost call history, data, or other information due to our deletion or destruction of the same after the expiration of the Read Only Period. All terms and conditions of this Agreement (including but not limited to restrictions found in Section 4 above) shall remain in full force and effect during the Read Only Period. If payment is made during this Read Only Period, we, in our discretion, may (but are not obligated to) reinstate your account, and, in such event, this Agreement shall continue in full force and effect.
Termination for Violation of Restrictions
Additionally, we may immediately terminate this Agreement and revoke all access you have to CallTrak (including but not limited to your call history, data, and information) in the event you violate any of the restrictions described in Section 4 above or if the same is required by law or if we, in our sole discretion, deem such immediate termination and revocation necessary to protect us or a third party from substantial loss or damage due to your negligent, reckless, or intentional act or omission. In such an event, you agree to indemnify and hold us harmless from and against any and all damages due to the immediate termination of this Agreement and revocation of your access to CallTrak, including but not limited to damages due to lost call history, data, or other information.
Effect of Termination
Termination or expiration of this Agreement shall not affect any rights or obligations, including the payment of amounts due, which have accrued under this Agreement up to the date of termination or expiration. Upon termination or expiration of this Agreement, the provisions that are intended by their nature to survive termination will survive and continue in full force and effect in accordance with their terms, including indemnification obligations, confidentiality obligations, limitations of liability, and disclaimers.
7. FEEDBACK
If you provide us any feedback or suggestions regarding CallTrak (“Feedback”), you hereby assign to us all rights in the Feedback and agree that we shall have the right to use such Feedback and related information in any manner we deem appropriate. We will treat any Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not submit to us any information or ideas that you consider to be confidential or proprietary.
8. OWNERSHIP
You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets in or related to CallTrak are owned by us or our licensors. The use of the Site and/or provision of CallTrak does not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. We and our suppliers reserve all rights not specifically granted in this Agreement. The relationship of the parties to this Agreement shall be that of independent contractors, and no partnership is created hereby.
9. TRADEMARKS
Our logos and product and service names are our trademarks. All other “trademarks” (which term includes both trademarks and servicemarks) appearing on the Site or in connection with CallTrak are trademarks of their respective owners, and our reference to them does not imply or indicate any approval or endorsement by their owners unless such approval or endorsement is expressly made. You may not attempt to disassemble, decompile, reverse engineer, or otherwise modify or attempt to access the software, related code, or any portion of CallTrak.
10. INTELLECTUAL PROPERTY RIGHTS
CallTrak and all code, javascript, copyrights, trade secrets and other proprietary rights therein, including any derivative work, are, and will remain our sole property, regardless of the use made by you; and are protected by certain United States and international patent laws, copyright laws, and trademark laws. The terms of this Agreement confer no title of ownership in CallTrak, and are not a sale of any rights in or to CallTrak, including any intellectual property rights related thereto.
11. NO WARRANTY
CALLTRAK IS PROVIDED “AS IS”, “WHERE IS”, AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY AND ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT CALLTRAK:
WILL MEET YOUR REQUIREMENTS;
WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS;
WILL BE FREE FROM DEFECTS (OR THAT DEFECTS WILL BE CORRECTED); OR
WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE, AND WE DISCLAIM THE SAME.
12. INDEMNITY
Without in any way limiting any other indemnification contained herein, you agree to indemnify and hold us (and our officers, employees, agents, parents, subsidiaries, and affiliates) harmless, including but not limited to court costs and our attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of CallTrak (ii) your interaction with other third parties (including but not limited to interactions on a call), (iii) your violation of this Agreement; or (iv) your violation of applicable laws, rules, and/or regulations. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree to pay any and all judgments and/or settlements against us as well as all costs of our defense including but not limited to court costs and our attorney fees.
13. LIMITATION ON LIABILITY
IN NO EVENT SHALL WE (AND/OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR CALLTRAK, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF THE SITE AND CALLTRAK ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR PHONE SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF:
$50.00; OR
AMOUNTS YOU HAVE PAID US IN THE PRIOR TWELVE (12) MONTHS (IF ANY).
14. GDPR OBLIGATIONS
If you (1) are established in the European Union (“Union”), (2) offer goods or software to data subjects in the Union (whether or not they have to pay anything), or (3) monitor the behavior of any individuals that occurs in the Union, then you must comply with the provisions of the General Data Protection Regulation (“GDPR”) with respect to your use of CallTrak. Without limiting the generality of the foregoing, you must:
Obtain the consent of any data subject about whom you gather any personal data (as that term is defined in the GDPR) using CallTrak unless you have established that you are authorized to process information about such data subject under another lawful basis (such as a legitimate interest or contractual basis for processing such information). The consent you obtain must be clear and in compliance with the provisions of the GDPR;
Use the personal data you obtain using CallTrak only for the purposes for which consent is given or for other purposes allowed by the GDPR;
Notify us immediately if any data subject makes a complaint regarding your use of their personal data; and
Comply with any reasonable request we may make regarding compliance with the GDPR and cooperation with any applicable data protection authority.
15. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without reference to the United Nations Convention on the International Sales of Goods. The Parties hereby submit to the exclusive jurisdiction of the state and federal courts located in the State of Tennessee. Any litigation filed hereunder shall be filed exclusively in a Tennessee State court located in Knox County, Tennessee or the United States District Court for the Eastern District of Tennessee sitting in Knox County, Tennessee, and shall not be properly filed in any other county.
16. ATTORNEY FEES
In case of an action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
17. ENTIRE AGREEMENT; AMENDMENT
These Terms and Conditions constitute a binding contract and contain the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only as described herein.
18. HEADINGS, INTERPRETATION
Headings in these Terms and Conditions are inserted solely for convenience and are not intended to affect the meaning or interpretation of these Terms and Conditions. When used herein, pronouns of one gender shall include all genders, the singular shall include the plural, and the plural shall include the singular.
19. NON-WAIVER
No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
20. NO THIRD-PARTY BENEFICIARIES
Nothing in this Agreement, express or implied, is intended to confer on any person, other than the parties to this Agreement, any right or remedy of any nature whatsoever.
21. SEVERABILITY; BINDING EFFECT
If a court of competent jurisdiction should hold that any provision of this Agreement is invalid or unenforceable in any respect for any reason, the same shall be modified to the slightest extent necessary to make it valid and enforceable, and the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be impaired. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
22. FORCE MAJEURE
Neither you nor we will be liable for or be considered to be in breach of or default under this Agreement on account of failure to perform any obligation hereunder, other than obligation for payment due hereunder, as a result of any fire, flood, natural disaster, epidemic, pandemic, war, riot, strike, government order, act of civil or military authority, labor dispute, equipment or device failure, computer virus, or failure or interruption of electrical telecommunications or other utility service or other condition beyond the reasonable control of the parties.
23. DEFENSE AND INDEMNIFICATION
In addition to the other provisions of this Agreement, you agree to defend us from any actual or threatened third party claim arising out of or based upon your use of CallTrak, your failure to comply with any of the provisions of the GDPR, and/or your breach of any of the provisions of this Agreement. In addition, you agree to indemnify, defend, and hold us harmless from and against: (a) all damages, costs, and attorneys’ fees finally awarded against us in any proceeding under this Section; (b) all out-of-pocket costs (including but not limited to reasonable attorneys’ fees) reasonably incurred by us in connection with the defense of such proceeding (other than when you have accepted defense of such claim); and (c) if any proceeding arising under this Section is settled, any amounts to any third party agreed to by you in settlement of any such claims.
24. ASSIGNMENT
This Agreement cannot be assigned other than as permitted under this Section 24. We may assign this Agreement to an affiliate or to a purchaser of or successor to substantially all our membership interests, shares, assets, or business without notice to you or your consent. You and we may assign this Agreement to a successor to substantially all of your membership interests, shares, assets, or business, provided that you provide us with at least thirty (30) days’ prior written notice of the assignment, by emailing us at the following address: [email protected].
25. ACCEPTABLE USE POLICY
In addition to any other things that might constitute a misuse of CallTrak, you must not, and must not attempt to do the following things:
modify, alter, tamper with, repair or otherwise create derivative works from CallTrak or any portion thereof;
reverse engineer, disassemble or decompile the software used in CallTrak or used to provide or access CallTrak, or attempt to discover or recreate the source code used in CallTrak of to provide or access CallTrak, except and only to the extent that the applicable law expressly permits doing so;
use CallTrak for research or benchmarking or any related endeavor with the intent of creating a competing or similar product;
use CallTrak in any manner or for any purpose other than as expressly permitted by these Terms and Conditions, the Privacy Policy, or any other policy, instruction, or terms applicable to CallTrak;
sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to CallTrak to any third party;
remove, obscure or alter any proprietary rights notice pertaining to CallTrak;
access or use CallTrak in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;
use CallTrak to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized calls, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) advertise or promote a commercial product or service that is not available through CallTrak; (iv) store or transmit inappropriate content, such as content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (4) store or transmit any content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (5) abuse, harass, stalk or otherwise violate the legal rights of a third party;
interfere with or disrupt servers or networks used by us to provide CallTrak or used by other users’ to access CallTrak, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of any of CallTrak;
access or attempt to access our other accounts, computer systems or networks not covered by this Agreement, through password mining or any other means;
cause, in our sole discretion, inordinate burden on CallTrak or our system resources or capacity; or
share passwords or other access information or devices or otherwise authorize any third party to access or CallTrak.
26. CHANGES TO TERMS AND CONDITIONS
This Agreement is subject to occasional revision, and if we make any substantial changes, we will post the revisions on the Site, and we may (but are not required to) notify you by sending you an e-mail to the last e-mail address you provided to us (if any). Any changes to this Agreement will be effective thirty (30) calendar days following our posting of notice of the changes on the Site. These changes will be effective immediately for new users of CallTrak. Continued use of CallTrak following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes. If you do not agree with an update, you may stop using CallTrak and terminate this Agreement under Section 6.