CallerReady Terms of Service and Acceptable Use
Updated: January 1, 2014
In order to use the CallerReady API (the “CallerReady API” or “API”), access the information contained on the CallerReady website (the “Website”) or make use of the services provided by CallerReady (the “Service” or “Services”), you (hereinafter referred to as “You” and “Client”), must first read this agreement (the “Agreement”) and accept it. You may not avail Yourself of the CallerReady API, Website or Services if You do not accept this Agreement and the terms therein. You accept the terms of the Agreement by clicking to accept, by agreeing to the terms of the Agreement in the user interface for any CallerReady Service, or by using the CallerReady API or Services. In the latter case, You understand and agree that we will treat Your use of the Services as acceptance of the terms from that point onwards. BY USING CALLERREADY AND THE CALLERREADY WEBSITE, YOU CONSENT TO THE TERMS, PRICING, USAGE FEES AND CONDITIONS OF THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE PLEASE DO NOT USE THE WEBSITE AND/OR SERVICES.
If You are accepting on behalf of Your employer or another entity, You represent and warrant that: (i) You have full legal authority to bind your employer, or the applicable entity, to these terms of service; (ii) You have read and understand this Agreement; and (iii) You agree, on behalf of the party that You represent, to this Agreement. If You don’t have the legal authority to bind Your employer or the applicable entity, please do not put a check mark next to I AGREE and click on SUBMIT, do not submit account authorization and payment forms, or do not use the CallerReady API and other CallerReady’s Services.
We reserve the right to change these Terms of Service from time to time without notice by posting them to CallerReady’s website. When we do, we will also revise the “last update” date of these Terms of Service. Your continued use of the Service after such posting will constitute acceptance by You of such amendments.
- Grant of Rights to Use Services
1.1 Definitions As used in these Terms of Service, the following capitalized terms shall have the meanings set forth below.
1.1.1 Person or person – Any individual, corporation, partnership, limited liability company, association, trust, estate or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
1.1.2 Lead – Identity and contact information of an individual submitted by Client into the CallerReady lead processing system for value added services and routing to Agents.
1.1.3 Lead Data – Information input or otherwise transmitted by end users and by lead generators yielding Leads pursuant to this Agreement.
1.1.4 Qualified Phone Call – a telephone call wherein verbal information is provided by a duly approved representative of the product or service being marketed by the Client that is in some way facilitated by the CallerReady technology system.
1.1.5 Call Verification and Phone Number Enhancement – the individual represented by the Lead engages in online and telephone processes to verify and/or improve the contact phone number and confirm availability through the CallerReady technology system.
1.1.6 Scheduled Callback Service – the individual represented by the Lead selects a date and time to engage in a Qualified Phone Call through the CallerReady technology system.
1.1.7 Intellectual Property – All intellectual property, including, but not limited to, trademarks, trade dress, trade secrets, know-how, copyrighted works, patent applications, patents or any other proprietary information owned or licensed by CallerReady and provided to Client solely for purposes of this Agreement.
1.1.8 Creative Content – Graphical and text images, printed material, documents, marks, logos, videos, recorded audio, electronic recordings, photographs, slides, themes, scripts, micro-sites, websites and other materials generated by or for Client for or on behalf of its Lead Buyers under this Agreement and/or generated by or for Client so as to generate Leads, Qualified Phone Calls, Scheduled Callbacks and Web Chat Services.
1.1.9 Lead Generation Properties – web sites, micro-sites, landing pages, pop-ups, light boxes, iFrames, web-services, online forms, mobile device forms, widgets, phone facilitated online form completion registrations, or other registration path forms that generate Leads, Qualified Phone Calls, and/or Scheduled Callbacks.
1.2 Except as otherwise provided herein or otherwise agreed upon by the parties in writing, the parties shall not convey, nor shall the parties obtain, any right in the other party’s proprietary materials, including, but not limited to, software including without limitation any web services, programming code, functions, object libraries, tool kits, and related documentation (“Software”).
CallerReady will provide to You information regarding its products and/or services for use by You in generating, transmitting, optimizing, distributing and managing lead generation, call distribution and warm call transfers. This information may include Intellectual Property, the Developments, CallerReady Software, specifications, descriptions, software code, claims, creative material, and any other appropriate marketing and sales content (such information, together with any other creative and technology elements provided by CallerReady to You pursuant to this Agreement is referred to herein as “CallerReady Content”). All CallerReady Content is the exclusive property of CallerReady and CallerReady shall retain ownership of all rights whatsoever in the CallerReady Content. You shall not remove or destroy any copyright or other markings placed upon or contained within the CallerReady Content. Under no circumstances shall You sell, lease, assign, sublicense, use, disclose or transfer the CallerReady Content except as expressly provided in this Agreement.
Subject to Your acceptance of and compliance with this Agreement and with the payment requirements for the Services, CallerReady hereby grants You a limited, non-exclusive, non-transferable, non-sublicenseable, revocable right and license during the Term of this Agreement in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement. Unless explicitly stated otherwise, any new features provided by CallerReady that augment or enhance the current Services shall also constitute “Services” and shall be subject to these terms and conditions. You may not, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Services for any purpose whatsoever. You may not allow any unauthorized third party to access the Services for any purpose whatsoever. All rights not expressly granted under this Agreement are retained by CallerReady.
1.3 You may write a software application or website (an “Application”) that interfaces with the Services. You acknowledge that we may change, deprecate or republish APIs for any Service or feature of a Service from time to time, and that it is Your responsibility to ensure that calls or requests You make to or via our Service are compatible with then-current APIs for the Service. CallerReady will attempt to inform You of any changes with reasonable notice so You can adjust Your Application, but we are under no obligation to do so.
1.4 You and any Applications that You may build, distribute, or otherwise create may make network calls or requests to the Services, or may receive phone calls via the Service, at any time that the Services are available provided that those requests do not violate the terms of the Acceptable Use Policy or other terms of this Agreement.
1.5 You may not remove, obscure, or alter any notice of any CallerReady trademark, service mark or other intellectual property or proprietary right appearing on the Website or contained within the Services.
1.6 Provided that You comply with the terms of this Agreement and our policies and procedures including the Acceptable Use Policy, You may use the Services to execute Applications owned or lawfully obtained by You. You are solely responsible for Your Applications, including any data, text, images or content contained therein.
1.7 You are personally responsible for all traffic originating from Your Applications using Your account credentials to the Services. As such, You should protect Your authentication keys and security credentials. Actions taken using Your credentials shall be deemed to be actions taken by You, with all consequences including service termination, civil and criminal penalties.
1.8 We may make available to You, for Your installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation (the “CallerReady Properties”). Subject to Your acceptance of and compliance with this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, and payment if and as required for Your right to use the subject Service, CallerReady hereby grants to You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term of this Agreement in and under our intellectual property rights in the CallerReady Properties, only to install, copy and use the CallerReady Properties solely in connection with and as necessary for Your use of such Services, solely in accordance with the terms and conditions of this Agreement.
(a) The CallerReady Properties may include, without limitation:
- The CallerReady Website;
- CallerReady APIs and CallerReady Markup Language; and
- Specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of a Service and its related APIs and technology.
(b) CallerReady may make available under another license agreement, such as an open source agreement, additional content or software. Any such content or software will be clearly marked with such a license indicating the usage rights available for that content or software. For such content or software released pursuant to an open license, CallerReady encourages You to modify, alter, tamper with, repair and/or create derivative works consistent with such license. Such content or software may include:
- Developer tools, such as software development kits or sample code, for use in connection with the APIs; and
- Articles and documentation for use in connection with the use and implementation of the APIs (collectively, “Documentation”).
(c) Except as may be expressly authorized under this Agreement:
- You may not, and may not attempt to, modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the CallerReady Properties.
- You may not, and may not attempt to, reverse engineer, disassemble, or decompile the CallerReady Properties or the Services or apply any other process or procedure to derive the source code of any software included in the CallerReady Properties.
1.9 For purposes of this Agreement, CallerReady hereby grants to You a limited, non-exclusive, non-transferable, non-sub-licenseable, revocable license during the Term of this Agreement to display the trade names, trademarks, service marks, logos, domain names of CallerReady (each, a “CallerReady Mark”) for the purpose of promoting or advertising that You use the Services, solely in accordance with the terms and conditions of this Agreement. In return You hereby grant CallerReady a limited, non-exclusive, non-transferable, non-sublicenseable license during the Term of this Agreement to display Your trade names, trademarks, service marks, logos, domain names and the like for the purpose of promoting or advertising that You use the Services. In using CallerReady Marks, You may not: (i) display a CallerReady Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by CallerReady; (ii) use CallerReady’s Marks to disparage CallerReady or its products or services; or (iii) display a CallerReady Mark on a site that violates any law or regulation. Notwithstanding the above, CallerReady may determine in its sole discretion whether its marks may be used in connection with Your Application. Furthermore, we may modify any CallerReady Marks provided to You at any time, and upon notice, You will use only the modified CallerReady Marks and not the old CallerReady Marks. Other than as specified in this Agreement, You may not use any CallerReady Mark unless You obtain our prior written consent. All uses of the CallerReady Trademarks and goodwill associated therewith shall inure to the benefit of CallerReady.
1.10 The rights granted by us in this Agreement with respect to the CallerReady Properties, the CallerReady Marks and the Services are nonexclusive, and we reserve the right to: (i) act as a developer of products or services related to any of the products that You may develop in connection with the CallerReady Properties or via Your use of the Services; and (ii) appoint third parties as developers or systems integrators who may offer products or services which compete with Your Application.
1.10 Subject to our commercially reasonable efforts and so long as Your account remains in good standing, data generated by Your use of the Service such as audio recordings and call log entries will remain available via our API for at least six months from the date such data was generated. Notwithstanding the above and without limitation to Section 7, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur with respect to loss of data associated with Your account and data therein.
- Term, Termination and Suspension
2.1 The term (“Term”) of this Agreement will commence once You accept this Agreement as provided above. The Agreement will remain in effect until terminated by You or CallerReady in accordance with this Section 2.
2.1.1 This Agreement may be terminated by a party (a) in the event that the other party fails to pay any undisputed amount when due under this Agreement and such failure to make such payment is not cured within ten (10) days after notice of such failure is given to the other party from the party owed such payment, (b) in the event that the other party breaches any of the terms or conditions or representations or warranties hereof (other than as set forth in clause (a) above), and such breach is not cured within thirty (30) days after notice of breach from the party asserting breach, and (c) immediately in the event that any bankruptcy, insolvency, liquidation, dissolution, or similar action is instituted by the other party, and (d) immediately, if the other party discontinues its business.
2.1.2 Termination of this Agreement shall not prevent either party from pursuing any remedy available to it in law or equity, nor shall it excuse or discharge any obligation that accrued prior to the termination date.
2.1.3 Upon expiration or termination of this Agreement, any property, of whatever kind or nature, whether created by this Agreement or otherwise, in the possession of the non-owning party and for which the non-owning party is not entitled by the express terms of this Agreement to continue using after the expiration or termination of this Agreement, shall, pursuant to instructions from the owning party, be (a) promptly returned to the owning party or (b) destroyed and a certification of destruction provided to the owning party. In addition, all rights granted to You, including any non-exclusive license rights, shall terminate; and You and all its suppliers and subcontractors shall immediately discontinue any and all use of the CallerReady Content, Software, Developments and Intellectual Property.
2.2 You may terminate this Agreement for any reason or no reason at all, at Your convenience, by closing Your account for any Service for which we provide an account closing mechanism.
2.3 We may suspend Your right and license to use any or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to You), for any reason or for no reason, at our discretion at any time by providing You ten (10) days’ advance notice in accordance with the notice provisions set forth in Section 10 below. If CallerReady determines that providing advance notice would negatively impact CallerReady’s ability to provide Services, CallerReady may suspend Your right and license to use any or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to You), with no notice.
2.4 We may suspend Your right and license to use the Service or terminate this Agreement in its entirety (and, accordingly, Your right to use the Service), for cause effective as set forth below:
2.4.1 Immediately upon our notice to You in accordance with the notice provisions set forth in Section 10 below if (i) You violate any provision of the Acceptable Use Policy or we have reason to believe that You have violated the Acceptable Use Policy, (ii) there is an unusual spike or increase in Your use of the Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Service; (iii) we determine, in our sole discretion, that our provision of any of the Services to You is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (iv) subject to applicable law, upon Your liquidation, commencement of dissolution proceedings, disposal of Your assets, failure to continue Your business, assignment for the benefit of creditors, or if You become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
2.4.2 Immediately and without notice if You are in default of any payment obligation with respect to any of the Services or if any payment mechanism You have provided to us is invalid or charges are refused for such payment mechanism.
2.4.3 Five (5) days following our provision of notice to You in accordance with the notice provisions set forth in Section 10 below if You breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such 5-day period.
2.5 Effect of Suspension or Termination.
2.5.1 Upon our suspension of Your use of any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by You, notwithstanding the suspension; (ii) You remain liable for all fees, charges and any other obligations You have incurred through the date of suspension with respect to the Services; and (iii) all of Your rights with respect to the Services shall be terminated during the period of the suspension.
2.5.2 Upon termination of this Agreement for any reason: (i) You remain liable for all fees, charges and any other obligations You have incurred through the date of termination with respect to the Services; and (ii) all of Your rights under this Agreement shall immediately terminate.
2.6 In the event this Agreement expires or is cancelled or terminated for any reason, Sections 6, 7, 8, 9, 10 and 11 and any applicable definitions will survive any such expiration, cancellation or termination.
2.7 Following the suspension or termination of Your right to use the Services by us or by You for any reason other than a termination for cause, You shall be entitled to take advantage of any post-termination assistance we may generally elect to make available with respect to the Services such as data retrieval arrangements. We may also endeavor to provide You with unique post-suspension or post-termination assistance, but we shall be under no obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the Services or made available uniquely to You, shall be conditioned upon Your acceptance of and compliance with any fees and terms we specify for such assistance.
- Downtime and Service Suspensions; Security
3.1 In addition to our rights to terminate or suspend Services to You as described in Section 2 above, You acknowledge that: (i) Your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to You, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to You or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by applicable law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). Without limitation to Section 7, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide You notice of any Service Suspension in accordance with the notice provisions set forth in Section 10 below and to post updates regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
3.2 We strive to keep information You provide to us secure, but cannot guarantee that we will be successful at doing so. Accordingly, without limitation to Section 7 below, You acknowledge that You bear sole responsibility for adequate security, protection and backup of Your content including all audio recordings associated with Your account. We strongly encourage You, where available and appropriate, to use encryption technology to protect Your content from unauthorized access and to routinely archive Your content. We will have no liability to You for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your content.
- Promotional Credits
4.1 We may award credits, points or any of our other virtual currencies (each individually or collectively referred to as “Promotional Credits”) in connection with promotions or other giveaways. Acquisition of Promotional Credits provides only a limited, non-transferable, non-sublicensable, revocable license to use such Promotional Credits to access Services that we expressly make available for use with the Promotional Credits. Promotional Credits have no monetary value and do not constitute currency or property of any type. Promotional Credits may not be sold or transferred, and cannot be exchanged for cash or for any other goods or services, except for Services. We may cancel any Promotional Credits transferred, assigned or sold in violation of this Agreement.
4.2 During the term of Your license to Promotional Credits, You have the right to redeem Promotional Credits for selected Services. We neither guarantee the availability of particular Services nor that particular Services will be offered for any particular time.
4.3 The term of Your Promotional Credits license starts when You acquire such Promotional Credits and, subject to this Agreement, expires upon the earlier of (a) twelve months from the date of award (as the context requires and applicable to each individual award); or (b) the date that Your access to the Services is expired, suspended, cancelled or terminated as set forth herein. If You do not use Your account for twelve months, or if You delete Your account, any remaining Promotional Credits may be redeemed, cancelled or expired by us. Once Promotional Credits are redeemed for Services, such Services are not returnable, exchangeable or refundable for Promotional Credits or any other virtual currency, or for cash or goods or services.
4.4 Promotional Credits may only be held by legal residents of countries where access to and use of the Services and Promotional Credits are permitted. Promotional Credits may only be awarded by us or through means we provide on the Website or otherwise expressly authorize. We can cancel or suspend Your access to Promotional Credits in our sole discretion and without prior notice, if (a) You fail to comply with this Agreement; or (b) if we otherwise suspect fraud or misuse of Promotional Credits. We have no obligation or responsibility to, and will not reimburse You for, any Promotional Credits lost due to such cancellation or suspension.
4.5 We have the absolute right to offer, manage, regulate, modify and/or eliminate Promotional Credits or any portion thereof, at any time, without any liability to You.
In its sole discretion, CallerReady shall determine whether You are eligible for a free trial subscription to its Services, which terms of the free trial are set forth http://www.callerready.com/pricing and http://www.callerready.com/additional-usage-fees. Free trials are limited to one per person, and if we find that You have created multiple free trial accounts, we reserve the right to suspend those accounts and take actions to prevent additional violations.
5.1 In its sole discretion, CallerReady shall determine whether You are eligible for a free trial subscription to its Services, which terms of the free trial are set forth on these website pages: http://www.callerready.com/pricing and http://www.callerready.com/additional-usage-fees. Free trials are limited to one per person, and if we find that You have created multiple free trial accounts, we reserve the right to suspend those accounts and take actions to prevent additional violations.
5.2 To the extent the Services or any portion thereof are made available for any fee, You agree to pay all applicable fees (including any minimum subscription fees) as set forth http://www.callerready.com/pricing and http://www.callerready.com/additional-usage-fees. You agree to pay any carrier costs, such as fees for porting Your existing telephone numbers into or out of the Services. We may increase or add new fees for any existing Service or Service feature by giving You 30 days’ advance notice. All fees payable by You are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect VAT from You. You are responsible for any charges imposed on CallerReady by a carrier related to government fees for telecommunications, including but not limited to, Universal Service Fund fees, if applicable.
5.3 We may specify the manner in which You will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by You under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, You shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, You shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
5.4 Should You have any dispute as to fees associated with Your account, please contact us at help@CallerReady.com within 90 days of the date of the activity that generated such dispute, and we will attempt to resolve the matter. Any and all refunds issued to resolve such a dispute shall be issued as credits to Your account, but in no event shall there be any cash refunds. Disputes older than 90 days shall not be entitled to any refunds or credits.
- Intellectual Property and Confidential Information
6.1 Subject to the terms of this Agreement, CallerReady grants You a limited, revocable, non-exclusive, non-transferable right to use the CallerReady Intellectual Property solely for the uses set forth on www.CallerReady.com . Such rights will terminate automatically upon the expiration or termination of this Agreement for any reason. Except for the rights expressly granted herein, You agree and acknowledge that this Agreement does not transfer to You or grant any rights to You in or to CallerReady Intellectual Property. Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the CallerReady Properties; (iii) the CallerReady Marks; and (iv) any other technology and software that we provide or use to provide the Services and the CallerReady Properties. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the CallerReady Properties, the CallerReady Marks, or such other technology and software, except for the limited use and access rights described in this Agreement.
6.2 CallerReady may, at its discretion, offer certain Software Development Kits, tools, application samples, or documentation under an open source license. Any such products will be marked with copyright details, and those copyrights will apply to those and only those documents. CallerReady reserves all rights to any documents, tools, services, technologies and the like not designated with an open license.
6.3 Other than the rights and interests expressly set forth in this Agreement and excluding any and all works derived from CallerReady Properties, You reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) content and data You may send to us or use as part of Your use of any Services (“Your Content”); and (ii) Your Applications.
6.4 In the event You elect, in connection with any of the Services, to communicate to us suggestions for improvements to the Services, the CallerReady Properties or the CallerReady Marks (collectively, “Feedback”), we shall own all right, title, and interest in and to the same, even if You have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. Furthermore, any other content or information You post or provide to CallerReady via comments, forums, emails and the like (collectively, “Communications”) shall be considered the property of CallerReady. You hereby irrevocably assign all right, title and interest in and to the Feedback and Communications to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback and Communications.
6.5 During and after the Term of the Agreement, with respect to any of the Services that You elect to use, You will not assert, nor will You authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of us), sub-licensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
6.6 CallerReady respects the intellectual property of others, and we ask our users to do the same. If You believe that Your work has been copied in a way that constitutes copyright infringement, or that Your intellectual property rights have been otherwise violated, You should notify CallerReady of Your infringement claim in accordance with the procedure set forth below.
CallerReady will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to CallerReady’s Copyright Agent at email@example.com for (Subject line: “DMCA Takedown Request”). You may also contact us by mail or facsimile at:
Attention: Copyright Agent
132 Riding Trail Ln
Pittsburgh, PA 15215
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that You claim has been infringed;
- a description of where the material that You claim is infringing is located on the Site, with enough detail that we may find it on the Site;
- Your address, telephone number, and email address;
- a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
6.7 CONFIDENTIAL INFORMATION: Both CallerReady and You hereby agree that, during the term of this Agreement and thereafter, proprietary information protected under this Agreement consists of information of any type reasonably related to the business relationship between the parties (“Purpose”), regardless of form. This Agreement and the fact of discussions between the parties in connection with this Agreement are also proprietary information. To be protected under this Agreement, proprietary information must be information that the receiving party (“Recipient”) knows or has reason to know is confidential, proprietary, or trade secret information of the other party (“Discloser”), either (i) because the information is marked as confidential or proprietary at the time of disclosure or promptly after disclosure or (ii) because of the nature of the information and the context in which it was disclosed. Without limitation, information concerning business models and strategies, pre-release product and service information, technical designs, customers, and pricing is in all cases covered under clause (ii), subject to the following paragraph.
6.7.1 This Agreement does not protect information that: (a) was in Recipient’s possession before receipt from Discloser; (b) is independently developed or acquired by or for Recipient without use of Discloser’s proprietary information; (c) is rightfully received by Recipient from a third party without a duty of confidentiality; (d) was disclosed by Discloser to a third party not under an obligation of confidentiality; or (e) is or becomes available to the public through no fault of Recipient.
6.7.2 Recipient shall use Discloser’s proprietary information only for the purposes of this Agreement and shall not disclose any such proprietary information outside its organization except as follows: (a) to persons who are advising Recipient in connection with its permitted use of such proprietary information and who are subject to confidentiality obligations with Recipient that protect Discloser’s proprietary information to an extent comparable with this Agreement; (b) to other third parties, but only with Discloser’s prior written consent, which Discloser may grant or withhold in its discretion; and (c) when disclosure is required under applicable law, if Recipient first gives Discloser notice of the required disclosure and cooperates with Discloser, at Discloser’s expense, in seeking reasonable protective arrangements (however, Recipient is not required to act in a manner which would result in sanctions or other penalties). Recipient shall be primarily liable to Discloser for the compliance with this Agreement of each person described in clause (a) or (b). Recipient shall preserve all proprietary markings on Discloser’s proprietary information provided to Recipient. At Discloser’s written request, Recipient shall return proprietary information to Discloser or destroy it and certify its destruction.
6.7.3 Rights in Information. Proprietary information remains the property of Discloser, and Recipient does not acquire any intellectual property rights under this Agreement except the limited rights necessary to use Discloser’s proprietary information for the purposes of this Agreement.
- Representations and Warranties; Disclaimers; Limitations of Liability
7.1 You represent and warrant that You will not use the Website (including our forums and comments sections), Services, CallerReady Properties, CallerReady Marks, Your Application or Your Content in a manner that violates the Acceptable Use Policy. To this effect, we ask that You take reasonable precautions to promote best practices. Although CallerReady does not assume the duty or obligation to monitor any materials created, posted or uploaded by You or any third parties, CallerReady reserves the right, in its sole and absolute discretion, to monitor any and all materials posted or uploaded by You or any third parties at any time without prior notice to ensure that they conform to any usage guidelines or policies (including our Acceptable Use Policy) relating to our Website or Services.
7.2 You also acknowledge and understand that we do NOT currently allow You to access any 911 or similar emergency services (no traditional 911, E911, or similar access to emergency services). The Services are not intended to replace any primary phone service, such as a traditional landline or mobile phone, that may be used to contact emergency services.
7.3 You represent and warrant: (i) that You are solely responsible for the development, operation, and maintenance of Your Application and for Your Content, including without limitation, the accuracy, appropriateness and completeness of Your Content and all product-related materials and descriptions; (ii) that You have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Application and Your Content; (iii) that neither Your Application nor Your Content (a) violates, misappropriates or infringes any rights of us or any third party, (b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that neither Your Application nor Your Content contains any harmful components; and (v) to the extent to which You use any of the CallerReady Marks, that You will conduct Your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of CallerReady. You also represent and warrant that You are responsible for any charges incurred by virtue of Your use of the Application, no matter whether the Application acted in error.
7.4 You further understand and agree that You will have use of the telephone number(s) that are provided as part of the services only until the end of the term of Your Agreement with CallerReady or until CallerReady no longer provides You with Service. You understand and agree that CallerReady is the customer of record for all telephone number(s) provided as part of the Services and, therefore, CallerReady has certain rights with respect to porting of the number(s) (“Porting” is causing or attempting to cause number(s) to be transferred, switched, or otherwise moved to any other service provider, telephone carrier, or any other person or entity). As the customer of record for the telephone number(s), CallerReady owns the telephone number(s) assigned to you. CallerReady generally ports a telephone number at the request of a customer. CallerReady reserves the right to refuse to port any telephone number(s) in its sole discretion.
7.4.1 If You “ported in” any telephone number(s) in connection with Your use of Services, CallerReady assigned You one or more toll free telephone numbers, You are entitled to “port out” a telephone number under non-U.S. law, or CallerReady has agreed to port out any telephone number(s), You may “port out” such number(s) only if You satisfy the following requirements: (1) You provide written notice to CallerReady of Your intent to “port out” such number(s) no later than thirty (30) days after providing CallerReady notice of Your intent to terminate this Agreement (the “Porting Notice Period”); (2) Your new telephone carrier provides CallerReady’s telephone carrier a duly executed porting request prior to the expiration of the Porting Notice Period; (3) You have paid CallerReady for all Services provided to You prior to the date You provide CallerReady notice of Your intent to terminate this Agreement; and (4) You have paid CallerReady any administrative fees associated with processing the port. You hereby authorize CallerReady to charge Your account in the applicable amount for the administrative fees in subsection (4) above or to otherwise arrange to make this payment to CallerReady within the Porting Notice Period. The porting process can be lengthy; if You would like to maintain Your account with the company during the porting process, You must maintain Your account in an active status and not terminate Your account until the porting out is complete. Regardless of when the port out is complete, You will continue to be responsible to pay all applicable account fees with respect to the telephone numbers until You formally terminate this Agreement. If You fail to satisfy any of the foregoing requirements, CallerReady remains the customer of record over the number(s) and You are expressly prohibited from causing or attempting to cause such number(s) to be transferred to any other service provider, telephone carrier or any other person or entity. CallerReady also retains the right to reclaim the number(s) from You after the number(s) are ported out in contravention with these requirements and authorize CallerReady to charge Your account or take any other measures to collect the costs associated with causing the number(s) to be returned to CallerReady. You understand and agree that even if You satisfy the requirements set forth in this section, technical or procedural difficulties or interruptions may occur when attempting to port out these numbers and such difficulties or interruptions may prevent Your new carrier from porting the numbers. CallerReady is not responsible for such technical or procedural difficulties or interruptions.
7.4.2 You understand and agree that following the termination of this Agreement for any reason, your number(s) may be re-assigned to another customer. You agree that CallerReady will not be liable for damages (including consequential or special damages) arising out of any such re-assignment and You hereby waive any claims with respect to any such re-assignment, whether based on contractual, tort or other grounds, even if CallerReady has been advised of the possibility of damages.
7.4.3 You understand and agree that CallerReady may need to change the telephone number(s) assigned to You. You agree that CallerReady will not be liable for damages (including consequential or special damages) arising out of any such change in the telephone number(s) assigned to You and You hereby waive any claims with respect to any such change, whether based on contractual, tort or other grounds, even if CallerReady has been advised of the possibility of damages.
7.6 You represent and warrant that without CallerReady’s express written consent You will not use, and will not authorize any third party to use, any Public Software (as defined below) in connection with the Services in any manner that requires, pursuant to the license applicable to such Public Software, that any CallerReady Properties or Services be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients. With respect to any Feedback or Communications, You represent and warrant that such Feedback and Communications, in whole or in part, contributed by or through You, (i) is legally distributable by You, either because You own the copyright or because You have fully complied with any copyright terms associated with the software or content, (ii) contains no third party software or any software that may be considered Public Software and (iii) does not violate, misappropriate or infringe any intellectual property rights of any third party. “Public Software” means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (ii) The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the Apache License.
7.7 You represent and warrant that: (i) the information You provide in connection with Your registration for the Services is accurate and complete; (ii) You are duly authorized to do business in the jurisdiction where You operate; and (iii) You are an authorized representative of Your entity duly authorized to access the Services and to legally bind You to this Agreement and all transactions conducted under Your account.
7.8 CALLERREADY PROPERTIES, THE CALLERREADY MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS.” WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE CALLERREADY PROPERTIES, THE CALLERREADY MARKS, THE SERVICES OR THE PROMOTIONAL CREDITS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICES OR WEBSITE WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICES WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE OR WEBSITE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
7.9 In addition to the foregoing, we specifically disclaim all liability, and You shall be solely responsible for the development, operation, and maintenance of Your Application and for all materials that appear on or within Your Application and Your Content and You agree that You shall, without limitation, be solely responsible for:
7.9.1 the technical operation of Your Application and all related equipment;
7.9.2 the accuracy and appropriateness of any materials posted on or within Your Application or Your Content (including, among other things, any product-related materials);
7.9.3 ensuring that any materials posted on Your site or within Your Application do not violate our Acceptable Use Policy, are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
7.9.5 any of Your users’ or customers’ claims relating to Your Application or Your Content or any Services utilized in connection with Your Application.
7.9.6 Privacy and Acceptable Use Warranties Made by You the Client
Client represents and warrants to CallerReady (on its own behalf and on behalf of its publishers, affiliates, partners, suppliers and/or subcontractors, as of and during the term of this Agreement, and covenants and agrees that: (a) Client is duly organized, validly existing and in good standing and is duly qualified and licensed to do business and to carry out its obligations under this Agreement, and that the execution, delivery and performance of this Agreement does not violate any existing agreement to which Client is a party or by which Client is bound; (b) each of its employees, agents, and representatives assigned to provide services under this Agreement shall have the proper skill, training and background so as to be able to perform in a competent and professional manner and in accordance with generally accepted industry practices; (c) Client has all right, title and interest necessary to grant the licenses granted by Client to CallerReady under this Agreement; (d) the Client Software and Creative Content do not and will not infringe or misappropriate any patent, trademark, copyright, trade secret or other proprietary right of any third party; (e) the Client Software and Creative Content do not and will not contain any viruses, Trojan horses, worms, time bombs, spyware or other malware or any other computer programming devices that may damage in any material respect CallerReady’s systems or data, extract information from CallerReady’s systems or data or prevent CallerReady from operation or use of its systems or data in the ordinary course; (f) any advertisements, content, messages, or other publications Client makes in connection with performing services under this Agreement will not be false or misleading and do not and will not contain any content that is in any way libelous, harmful, obscene, harassing, or racially, ethnically, or otherwise objectionable to a reasonable person; (g) for all Qualified Phone Calls, Client, and all activities of Client related to telemarketing, Internet marketing, its business and/or this Agreement, will not violate any applicable foreign, federal, state and/or local laws or regulations, including, but not limited to, the Federal CAN-SPAM Act of 2003, the Gramm-Leach-Bliley Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Telemarketing Sales Rule (TSR), the Telephone Consumer Protection Act (TCPA), any laws or regulations relating to unsolicited electronic advertisements or messages (i.e., “spam”), any laws and regulations promulgated by the Occupational Safety and Health Administration, or any laws and regulations pertaining to student educational records and privacy, including without limitation the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and regulations thereunder at 34 CFR Part 99; (h) Client, and all activities of Client related to the Internet, its business and/or this Agreement, will not violate any Internet service provider (ISP) agreement between Client and any person and/or any policies and procedures of any such ISP; (i) for all Qualified Phone Calls, if applicable to the business and/or marketing efforts of Client, Client is the owner of and has and shall have all right, title and interest in and to Client’s Websites and Client’s Websites (including all content therein) does not and will not infringe or misappropriate any patent, trademark, copyright, trade secret or other proprietary right of any third party and that any Creative Content used has the appropriate permissions and approvals that may be necessary from the Lead Buyers; (j) for all Qualified Phone Calls, any software, advertisements and/or electronic communications utilized by Client in the performance of its business (including, but not limited to, the performance of any of its activities related to this Agreement) does not and will not infringe or misappropriate any patent, trademark, copyright, trade secret or other proprietary right of any third party; (k) except as expressly authorized by CallerReady in writing, Client will not make any representations, warranties or other statements concerning CallerReady to any Person; (l) for all Qualified Phone Calls, Client will not use any computer or other electronic device to send advertisements or messages to an electronic mail address of a person unless Client has received an express invitation or the consent or permission from that person (and in any such case any such advertisements or messages shall comply with all applicable foreign, federal, state and/or local laws or regulations); (m) Client’s Website and/or any advertising material or script utilized by Client in the performance of its business does not and will not contain any content that is in any way unlawful, harmful, obscene, harassing, or racially, ethnically, or otherwise objectionable; (n) Client is solely responsible for excluding from any advertisement, script, telemarketing call or email those customers who opted out of receiving such from Client or its Lead Buyers; and (o) for the avoidance of doubt, Client acknowledges and agrees that for any Lead posted into the CallerReady system or any Lead created in the CallerReady system for initiation by CallerReady of a telephone call to a telephone number contained in any Lead, Client warrants it shall have obtained the express written permission from the consumer represented by the Lead to make such calls, even if the consumer’s number is listed on the National Do Not Call Registry and any state Do Not Call Registries, and permission to contact Lead including through automated means with prerecorded message, SMS and MMS via telephone on the number the Lead provided which may be a mobile device (including SMS and MMS).
In addition, Client makes, on behalf of its publishers, affiliates, partners, suppliers and/or subcontractors, all of the representations, warranties, covenants and agreements contained in this Section related to Qualified Phone Calls (as if such Persons were the Client) and Client represents and warrants to CallerReady that each of its publishers, affiliates, partners, suppliers and subcontractors are duly organized, validly existing and in good standing.
7.10 NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE CALLERREADY PROPERTIES, THE CALLERREADY MARKS, THE SERVICES OR PROMOTIONAL CREDITS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
7.11 THE SERVICES DO NOT AND ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. “EMERGENCY SERVICES SHALL MEAN SERVICES THAT ALLOW A USER TO CONNECT WITH EMERGENCY SERVICES PERSONNEL OR PUBLIC SAFETY ANSWERING POINTS SUCH AS 911 OR E911 SERVICES.” NEITHER CALLERREADY NOR ITS OFFICERS, EMPLOYEES OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO YOUR INABILITY TO USE CALLERREADY OR ITS SERVICES TO CONTACT ANY EMERGENCY SERVICES, OR YOUR FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES.
7.12 Third Party Materials: Certain content, products, and services available via the CallerReady website (or links contained therein) may include materials, software, plug-ins, applications and other resources from third parties and access to third party websites (collectively “Third Party Materials”). You acknowledge and agree that CallerReady is not responsible for examining or evaluating the content or accuracy of any such Third Party Materials and that CallerReady does not warrant or endorse and does not assume (and will not have) any liability or responsibility for any Third Party Materials or any damage or loss resulting therefrom. The availability of Third Party Materials is provided solely as a convenience to you. You agree that you must evaluate, and bear all risks associated with, the use of any Third Party Materials, including any reliance on the accuracy, completeness, or usefulness thereof. Please also remember that all use of the CallerReady website and service is subject to the CallerReady Terms of Service.
7.13 EXCEPT WITH RESPECT TO THE INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT, EACH PARTY AGREES THAT THE AGGREGATE LIABILITY OF THE OTHER PARTY AND ITS STOCKHOLDERS, MEMBERS, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS TO CLIENT FOR ANY ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE OR LOSS IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED (I.E., MAY NOT BE MORE THAN (BUT CAN BE LESS)) TO THE LESSER OF (I) THE FEES PAID OR REQUIRED TO BE PAID BY CLIENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE CLAIM OR (II) $10,000. FURTHERMORE, IN NO EVENT SHALL EITHER PARTY OR ITS STOCKHOLDERS, MEMBERS, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER PARTY OR ITS STOCKHOLDERS, MEMBERS, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR OPPORTUNITY COSTS EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. THE PROVISIONS OF THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE).
DISCLAIMER OF WARRANTIES. ALL SERVICES PROVIDED BY CALLERREADY ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CALLERREADY MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN.
8.1 You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (i) Your use of the Services, CallerReady Properties and/or CallerReady Marks in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, the Acceptable Use Policy, and/or applicable law, (ii) Your Application, Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Your Application and/or Your Content, (iii) Your violation of any term or condition of this Agreement, the Acceptable Use Policy or any applicable additional policies, including without limitation, Your representations and warranties, or (iv) You or Your employees’ or personnel’s negligence or willful misconduct.
8.2 We agree to promptly notify You of any claim subject to indemnification; provided that our failure to promptly notify You shall not affect Your obligations hereunder except to the extent that our failure to promptly notify You delays or prejudices Your ability to defend the claim. At our option, You will have the right to defend against any such claim with counsel of Your own choosing (subject to our written consent) and to settle such claim as You deem appropriate, provided that You shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.
9.1 Notwithstanding anything to the contrary, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of CallerReady’s or any third party’s intellectual property rights and/or proprietary rights. You further acknowledge that our rights in the CallerReady Services, CallerReady Properties and the CallerReady Marks are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
9.2 By using the Services, You agree that the laws of the State of Pennsylvania, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between You and us.
9.3 Arbitration. YOU AND CALLERREADY BOTH AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION. THERE’S NO JUDGE OR JURY IN ARBITRATION, AND THE PROCEDURES MAY BE DIFFERENT, BUT AN ARBITRATOR CAN AWARD YOU THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME TERMS IN THIS AGREEMENT, AS A COURT WOULD. IF THE LAW ALLOWS FOR AN AWARD OF ATTORNEYS’ FEES, AN ARBITRATOR CAN AWARD THEM TOO. YOU AND CALLERREADY ALSO BOTH AGREE THAT:
9.3.1 THE FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT. ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM ANY SERVICES YOU RECEIVE FROM US WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). YOU CAN ALSO BRING ANY ISSUES YOU MAY HAVE TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL GOVERNMENT AGENCIES, AND IF THE LAW ALLOWS, THEY CAN SEEK RELIEF AGAINST US FOR YOU.
9.3.2 UNLESS YOU AND CALLERREADY AGREE OTHERWISE, THE ARBITRATION WILL TAKE PLACE IN ALLEGHENY COUNTY, PENNSYLVANIA. YOU CAN GET PROCEDURES, RULES AND FEE INFORMATION FROM THE AAA (WWW.ADR.ORG) OR FROM US.
9.3.3 THIS AGREEMENT DOESN’T ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT.
9.3.4 IF EITHER YOU OR CALLERREADY INTENDS TO SEEK ARBITRATION UNDER THIS AGREEMENT, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. NOTICE TO CALLERREADY SHOULD BE SENT AS REQUIRED BY THIS AGREEMENT. THE NOTICE MUST DESCRIBE THE NATURE OF THE CLAIM AND THE RELIEF BEING SOUGHT. IF YOU AND CALLERREADY ARE UNABLE TO RESOLVE OUR DISPUTE WITHIN 30 DAYS, EITHER PARTY MAY THEN PROCEED TO FILE A CLAIM FOR ARBITRATION.
9.3.5 AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CAN’T BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.
9.3.6 IF FOR SOME REASON THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH IN SUBSECTION (3) CANNOT BE ENFORCED, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.
9.3.7 IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND CALLERREADY AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU AND CALLERREADY UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT. YOU AND CALLERREADY ALSO AGREE THAT ANY DISPUTE HEREUNDER SHALL BE ADJUDICATED IN ANY STATE OR FEDERAL COURT IN ALLEGHENY COUNTY IN PENNSYLVANIA, AND YOU CONSENT TO EXCLUSIVE JURISDICTION AND VENUE IN SUCH COURTS.
10.1 Notices made by us under this Agreement for You or Your account specifically (e.g., notices of breach and/or suspension) will be provided to You via a notification message displayed on Your account page or via the email address provided to us in Your registration for the Services or in any updated email address You provide to us in accordance with standard account information update procedures we may provide from time to time. It is Your responsibility to keep Your email address current and You will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not You actually receive the email.
10.2 For notices made by You to us under this Agreement and for questions regarding this Agreement or the Services, You may contact CallerReady as follows: by US Postal Mail at CallerReady LLC, 132 Riding Trail Lane, Pittsburgh, PA 15215, or by contacting us at help@CallerReady.com
Either party may change the address provided above by notice given to other party in accordance with this section.
- Miscellaneous Provisions
11.1.1 Choice of Law. This Agreement, including, without limitation, all questions concerning the construction, validity, and interpretation of this Agreement and the performance of the obligations imposed by this Agreement, shall be governed by the laws of the State of Pennsylvania, excluding any law or conflicts of law principle that would apply the law of another jurisdiction. The parties agree that any action with respect to or arising out of this Agreement shall be brought and maintained exclusively in a state or federal court of competent jurisdiction located in Allegheny County, Pennsylvania. The parties hereby irrevocably consent to the personal jurisdiction of and venue in such courts.
11.1.2 Assignment. Client shall not assign this Agreement in whole or in part without the prior written consent of CallerReady. CallerReady may assign this Agreement in whole or in part upon written notice to Client.
11.1.3 Severability. The provisions of this Agreement are severable, and in the event that any provision of this Agreement is determined to be invalid or unenforceable under any controlling body of law, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof.
11.1.4 Entire Agreement. This Agreement, including the Schedules hereto, any Insertion Orders, and CallerReady website pages referenced herein, constitute the entire understanding between Client and CallerReady with respect to the subject matter hereof, and supersedes all prior agreements, arrangements, representations and communications (whether oral or written), regarding the subject matter of this Agreement.
11.1.5 No Waiver. No waiver of the provisions hereof shall be effective unless in writing and signed by the party to be charged with such waiver. No waiver shall be deemed a continuing waiver or waiver in respect of any subsequent breach or default, either of similar or different nature, unless expressly so stated in writing.
11.1.6 Independent Contractor. Nothing in this Agreement shall be deemed to constitute, create, give effect to, or otherwise recognize a joint venture, partnership, pooling arrangement, formal business entity or any type of permanent arrangement, and the employees of one party shall not be deemed employees of the other. CallerReady and Client shall be acting in their respective capacities as independent contractors and under no circumstances will either party be deemed to be in any relationship with the other carrying with it fiduciary or trust responsibilities or to assume any responsibility for the other party’s business or operations.
11.1.7 Survival. The expiration or termination of this Agreement for any reason will not release either party from any liabilities or obligations set forth herein or therein which (a) the parties have expressly agreed will survive any such expiration or termination or (b) remain to be performed or by their nature would be intended to be applicable following any such expiration or termination. Without limitation of the foregoing, Sections 2, 5, 6, 7, 8, 10, and 11 shall survive termination or expiration of this Agreement. In addition, expiration or termination shall not extinguish any claim for breach relating to events which occurred prior to such expiration or termination.
11.1.8 Counterparts. This Agreement may be executed in counterparts and/or by facsimile, and each such executed counterpart so delivered shall be deemed an original instrument, but all such counterparts together shall constitute but one agreement.
11.1.9 Interpretation. It is expressly agreed that this Agreement shall not be construed against any party, and no consideration shall be given or presumption made, on the basis of who drafted this Agreement or any particular provision hereof or who supplied the form of Agreement. Each party agrees that this Agreement has been purposefully drawn and correctly reflects its understanding of the transaction that this Agreement contemplates. In construing this Agreement examples shall not be construed to limit, expressly or by implication, the matter they illustrate and the word “includes” and its derivatives means “includes, but is not limited to” and corresponding derivative expressions.
11.1 Responsibility. If You authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, You shall be deemed to have taken the action Yourself.
11.2 Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
11.3 Message Routing. You may not use phone numbers provided by CallerReady (“CallerReady Phone Numbers”) to route SMS messages over any other provider’s network. All SMS messages sent and received for a CallerReady Phone Number must be sent and received via CallerReady’s Services.
11.4 Waivers. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
11.5 Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
11.7 No Endorsement. You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of Your Applications or Your Content.
11.8 International Sale of Goods; Export and Import Control Laws and Regulations. You and CallerReady hereby agree to opt out from and expressly exclude any applicability of the Uniform Information Transactions Act (UCITA). Services, Content, and product derived or obtained from CallerReady’s Services may be subject to the U.S. export laws and the export or import laws of other countries. You agree to comply strictly with all such laws and, in particular, shall: (a) obtain any export, reexport, or import authorizations required by U.S. or your local laws; (b) not use Services, Content, or direct product from CallerReady’s Services to design, develop or produce missile, chemical/biological, or nuclear weaponry; and (c) not provide Services, Content, or direct product from CallerReady’s Services to prohibited countries and entities identified in the U.S. export regulations
11.9 No Agency. Nothing in this Agreement shall be construed as creating a partnership, contract of employment, agency, joint venture or franchise relationship between CallerReady with you.
11.10 No Third Party Beneficiary. You acknowledge and agree that, except as otherwise expressly provided in the Terms, there shall be no third party beneficiary to this agreement.
11.11 Recitals. The recitals contained in this Agreement are intended to be and are part of this Agreement, and are incorporated into the Agreement by reference as if fully set forth herein.