CallTrack Terms of Use
Thank you for choosing CallTrack LLC. as your service provider. Please read and understand these Terms and Conditions of Service, which are an integral part of the Agreement between you and our company. The Agreement is entered into by CallTrack LLC (referred to as “we,” “us,” “our,” “Company,” or “CallTrack”) and you, the customer identified in the Service Order (referred to as “you,” “your,” or “Customer”). All capitalized terms not defined herein shall have the meaning given to them in the Service Order.
By using our System and Services, you agree to be bound by these Terms and Conditions of Service, as well as any policies posted on our website that affect the System or Services, including any Service or implementation schedule. We reserve the right to modify these Terms and Conditions of Service at any time upon written notice to you. If we make any changes, we will notify you by revising the version and its effective date and adding a statement to the login screen or sending you an email notification, as applicable. Your continued use of the Services after any modification and notice shall be deemed your acceptance of all such modifications. If you are dissatisfied with any modifications of these Terms and Conditions of Service pursuant to this provision, your only right is to terminate your subscription as provided herein.
Please note that Company may not revise the Service Order except by written agreement signed by a duly authorized representative of each Party. By acknowledging these Terms and Conditions of Service, you confirm that you have read and understood them, and you agree to be bound by them.
DEFINITIONS
The following terms used in this Agreement shall have the following meanings:
1.1. “Customer Data” refers to data in electronic form collected or inputted by Customer through the System, including but not limited to Customer’s telephone numbers and account registration data.
1.2. “Documentation” means the written documentation for the System or Services provided by the Company.
1.3. “Service Order” refers to the digital or tangible document signed by the Customer and accepted by the Company, which identifies the Services ordered by the Customer.
1.4. “Privacy Policy” refers to the Company’s privacy policy, which can be found at www.CallTrack.ai/privacy-policy.
1.5. “Monitoring Services” refers to the reputation monitoring service that uses aggregated data from leading native applications and carriers heuristic data sources.
1.6. “Device Cloud Services” refers to the telecommunications testing service that tests delivery to a wide range of real mobile devices on major US cellular networks, as specified in the Service Order.
1.7 “Dedicated Technical Support” refers to the dedicated support technician who assists in managing and maintaining device cloud reporting and functionality.
1.8 “Dedicated Device Cloud Resources” refers to the priority access granted to Customer to use the Company’s telecommunication service and System resources for Device Cloud Services during the Term. This access includes the ability to select a custom schedule, device and application combinations, and custom origination carrier.
1.9. “Remediation Services” refers to services provided on behalf of Customer, which includes working directly with flagging parties to remove or address negative flagging of Customer’s telephone numbers.
1.10 “Service” or “Services” refer to any of the above-defined services, resources, and support identified in a Service Order or these Terms and Conditions of Service. It also includes the use of the System necessary to obtain and use such Services.
1.11. “System” refers to the Company’s software and hardware technology and resources made available to the Customer via the internet during the Term. It includes all modifications, updates, translations, enhancements, and other Derivative Works (defined by 17 U.S.C. §101) thereof, together with the Documentation. However, the term “System” excludes Customer Data.
1.12. “Term” refers to the period from the Start Date to the End Date specified in a Service Order.
1.13. “User” refers to any person who accesses a Service through Customer’s account or passwords, whether authorized or not.
SERVICES
2.1. Use of Services. During the Term and subject to the terms of the Agreement, Company will make commercially reasonable efforts to provide Customer with the Services as outlined in any outstanding Service Order, and in accordance with these Terms and Conditions of Service, including any policies or agreements referenced herein and updated from time to time. Company permits only its Users to access the Services during the Term.
2.2. Appointment for Remediation Services. If the Service Order includes Company’s Remediation Services, Customer appoints and authorizes Company to perform the services on behalf of Customer. This appointment includes Company’s right to: (a) obtain CPNI information for the services provided to Customer; (b) show Customer’s name in the Caller ID field; (c) register/re-register Customer’s CNAM; (d) request telecommunication companies to update, revise, or correct any improper name(s) or negative associations in the Caller ID field and to unblock calls from Customer’s phone number; and (e) simulate Customer’s outbound calls by masking Customer’s phone numbers. This appointment, along with the associated rights, will continue until Customer’s authorized representative provides written notice of withdrawal to Company.
2.3. Documentation Use. Customer may use and reproduce the Documentation only as necessary to support Users’ use of the Services.
2.4. Revision of Services. Company may revise the features and functions of the System or Services. If any revision materially reduces the features or functionality provided under a Service Order, Customer may terminate the Service Order within 30 days of receiving notice of the revision, without cause, unless otherwise mutually agreed to in writing by Company and Customer. If any revision materially reduces the service levels provided under an outstanding Service Order, the revisions will not take effect with respect to that Service during the Term of the affected Service Order.
2.5. Fees and Payment. Customer will pay the Fees as described in the Service Order when due. If Customer believes that it has been billed incorrectly, it must contact Company within 30 days of receiving the first payment or billing statement that contains the error or problem, in order to receive an adjustment or credit. Customer must direct inquiries to Company’s customer support department. Unpaid amounts are subject to a late charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer is responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. Unless otherwise stated in the Agreement, Company will not refund any Fees under any circumstances.
DATA
4.1. Use of Customer Data. Company will only use Customer Data to provide the Services, subject to the terms of our Privacy Policy, unless Customer provides prior written consent. However, Company may disclose Customer Data if required by law or governmental authority. If Company receives a demand for Customer Data, which is protected by our Privacy Policy, it will promptly notify Customer and reasonably cooperate with Customer in any effort to protect the information, at Customer’s expense.
4.2. Privacy Policy. Our Privacy Policy applies to Customer Data and not to any third-party websites or services linked to the System or recommended by Company’s staff.
4.3. Risk of Exposure. Customer acknowledges that hosting data online involves risks of unauthorized disclosure or exposure. In using the Services, Customer assumes these risks, and Company offers no guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
4.4. Data Accuracy. Company is not responsible for the accuracy of data uploaded to the System by Customer, including Customer Data and any other data uploaded by Users.
4.5. Customer Data. Company takes measures to safeguard Customer Data in the System against loss or unauthorized exposure. Upon termination of the Services, Company will return all Customer Data and destroy all other copies in its possession promptly.
4.6. Excluded Data. Customer represents and warrants that Customer Data does not include any illegal data or material, or data or material for an illegal purpose. Customer will not upload or transmit such data or material to Company’s computers or media.
CUSTOMER USAGE
5.1. Use Restrictions. Unless Company receives prior written consent from Customer, Company shall only use Customer Data as necessary to provide the Services and in accordance with the Privacy Policy. However, Company may disclose Customer Data as required by applicable law or legal or governmental authority. If Company receives such a demand for any protected information, Company shall notify Customer promptly and cooperate with Customer to seek a protective order or to contest the disclosure of Customer Data. Customer shall bear all expenses related to such efforts.
5.2. System Security. Both Parties shall take reasonable steps to prevent unauthorized access to the System, including protecting their passwords and log-in information. If either Party becomes aware of any known or suspected unauthorized use of the System or breach of its security, it shall notify the other Party immediately and use best efforts to stop the breach.
5.3. Legal Compliance. Each Party shall comply with all applicable laws, including those governing the protection of personally identifiable information and proprietary information included in Customer Data. Customer shall not use the Services for any illegal purpose or activity or to transmit material that Company deems harmful, fraudulent, deceptive, infringing on the rights of others, hateful, or objectionable.
5.4. User Responsibility. Customer shall be responsible and liable for its Users’ use of the Services and any use of the System through Customer’s account, whether authorized or unauthorized, including any conduct that violates this Agreement.
5.5. Audit Right and Records. Company (or its third-party agents) may request evidence or conduct on-site audits at Customer’s locations to verify compliance with financial terms of the Agreement and the use restrictions in Section 5.1. Such audits shall be at no charge to Company, but it shall be responsible for any travel or lodging expenses of its auditor(s). Customer shall provide access to its records necessary for the verification. If such audit reveals any violation of Section 5, Company shall notify Customer and Customer shall promptly correct such violation. Company retains all other rights in the event of such violation.
CONFIDENTIALITY
The term “Confidential Information” is defined as proprietary information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) which includes any document marked as “Confidential”, any oral information designated as “Confidential” and confirmed in writing by the Disclosing Party within 5 business days, any documentation regardless of whether it is marked or designated as confidential, and any other nonpublic, sensitive information that the Receiving Party should reasonably consider a trade secret or otherwise confidential. However, Confidential Information does not include information that is already in possession of the Receiving Party at the time of disclosure, independently developed by the Receiving Party without the use of Confidential Information, becomes publicly known other than as a result of the Receiving Party’s improper action or inaction, or is approved for release in writing by the Disclosing Party.
Both Parties agree to use Confidential Information solely for the purpose of performing their obligations under this Agreement and to disclose Confidential Information only to employees or contractors whose responsibilities require access and who are legally bound to a nondisclosure agreement with terms no less restrictive than those of this Section 7. The Parties will protect Confidential Information with the same degree of care they use to protect their own confidential information of similar nature and importance, but with no less than reasonable care. Each Party will notify the other Party of any misuse or misappropriation of Confidential Information that comes to their attention. However, either Party may disclose Confidential Information as required by law or proper legal or governmental authority, provided it gives the other Party prompt notice of any such legal or governmental demand and cooperates with the other Party in any effort to seek a protective order or otherwise contest such required disclosure.
The Parties acknowledge that breach of this Section 7 would cause the non-breaching Party irreparable injury, for which monetary damages would not provide adequate compensation. In addition to any other remedy, the non-breaching Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
Upon termination of this Agreement or at the request of the Disclosing Party, the Receiving Party shall promptly return all Confidential Information (and all copies and extracts and other embodiments thereof) to the Disclosing Party without charge, or, when requested by the Disclosing Party, destroy the Confidential Information. The Receiving Party shall certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Both Parties will retain all right, title, and interest in and to all Confidential Information.
Pursuant to the Defend Trade Secrets Act of 2016, both Parties acknowledge that, notwithstanding the foregoing or any other provision of this Agreement, individuals shall not be held civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law. Additionally, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, provided that the individual files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order.
REPRESENTATIONS AND WARRANTIES
Section 8.1: Both parties confirm and agree that they are lawfully organized, exist validly and are in good standing under the state laws where they are organized. They have the full power and authority to own/lease properties and conduct business as per the locations where the business is carried out. The execution and performance of the Agreement by either party won’t result in any breach of agreement, instrument, judgment, decree, order, or award, and the Agreement is enforceable and legally binding subject to debtor relief laws.
Section 8.2: The Company represents and warrants that it is the rightful owner of the System and all its components or has a valid license to it. The Company has full power and authority to grant the rights mentioned in the Agreement without any third-party consent. This warranty doesn’t apply to the use of the System with hardware/software not provided by the Company. In case of any breach of this warranty, or if the System or Service may become the subject of an infringement claim, the Company may, at its own expense, secure for the Customer the right to continue using the System, replace or modify the System to make it non-infringing, or terminate the infringing features of the System and refund the Customer any prepaid fees for such features. The Company’s obligation and liability, and the Customer’s sole remedy, for the breach of this warranty and for potential or actual intellectual property infringement by the System, is as stated in the preceding sentence, notwithstanding anything to the contrary in the Agreement.
Section 8.3: The Customer represents and warrants that they have full authority to enter into, execute, and perform their obligations under this Agreement, and no pending or threatened claim or litigation known to them will adversely affect their ability to perform as required by the Agreement, including any claims or litigation relating to any failure of the Customer’s data security safeguards or unauthorized disclosure of third-party information entrusted to them. The Customer has accurately identified themselves and provided no inaccurate information through the System. If the Customer is a natural person, they are at least of the age of majority under applicable law. The Customer has been assigned control of the telephone numbers for which they requested the Services by the Federal Communications Commission or its lawful designee, and they have the right to use such telephone numbers, control and allow access to all data associated with it, and undertake all lawful actions in connection with it.
Section 8.4: (a)The Customer further represents and warrants that neither the Company nor any of its subsidiaries, officers, directors, employees, or agents are in violation of any applicable laws related to anti-corruption, anti-bribery, terrorism, money laundering, or the Executive Order, collectively known as Anti-Bribery, Anti-Money Laundering and Anti-Terrorism Laws.
(b) The Company and its subsidiaries, officers, directors, employees, and agents have not, to the knowledge of the Customer, directly or indirectly acted on behalf of terrorists, terrorist organizations, or narcotics traffickers. They are not included in the Annex to the Executive Order or on any Government List. The term “Government List” refers to lists maintained by the United States Department of Commerce, OFAC, and the United States Department of State that include Denied Persons List, Entities List, Specially Designated Nationals and Blocked Persons List, Sectoral Sanctions Identifications List, Foreign Sanctions Evaders List, Foreign Terrorist Organizations List, and Debarred Parties List.
(c) The Company and any person with a direct equity interest in the Customer are not on a Government List, nor are they acting for or on behalf of any Sanctioned Country. Sanctions refer to the comprehensive economic sanctions administered by OFAC, the U.S. Department of State, or any other applicable economic sanctions authority, including but not limited to Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine.
(d) The Company and any person controlling or controlled by the Customer are not the target of Sanctions. “Person” includes natural persons, partnerships, limited partnerships, limited liability companies, corporations, trusts, estates, associations, unincorporated associations, or other entities.
8.5. The Customer is solely responsible for all Customer Data that is made available through the System. The Customer represents and warrants that they are the sole and exclusive owner of all such Customer Data, or they have all necessary rights, licenses, consents, and releases to use such data with the Services. Furthermore, the Customer represents and warrants that neither the Customer Data nor its use will infringe, misappropriate, or violate any third-party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy. The Customer also represents and warrants that it will not result in the violation of any applicable law or regulation, including but not limited to the Data Protection Act 1998 and any other applicable federal or state privacy laws. The Customer retains sole responsibility for individual compliance with such laws and any other laws to which Customer or the Customer Data is subject.
8.6. Warranty Disclaimers. Except as set forth under Section 3, the Customer accepts the Services and System “as is” and “as available” with no representation or warranty of any kind, express or implied. This includes without limitation implied warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property rights, or any implied warranty arising from statute, course of dealing, course of performance, or usage of trade. The Company has no obligation to indemnify or defend the Customer or Users against claims related to infringement of intellectual property. The Company does not represent or warrant that the System will perform without interruption or error, and it does not represent or warrant that the System is secure from hacking or other unauthorized intrusion or that Customer Data will remain private or secure.
INDEMNIFICATION
The Customer shall be responsible for defending, indemnifying, and holding the Company and its Representatives (as defined below) harmless from any third-party claims, suits, or proceedings (referred to as “Indemnified Claims”) arising from or related to the Customer’s actual or alleged use of, misuse of, or failure to use the System, including but not limited to: (a) claims by Users, Customer’s employees, or Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data, caused by Customer, its employees, subcontractors, agents, and/or Registered Users; (c) claims related to infringement or violation of copyright, trademark, trade secret, privacy, or confidentiality rights by written material, images, logos, or other content, including Excluded Data, uploaded to the System through the Customer’s account, including without limitation by Customer Data; (d) claims that the use of the System through the Customer’s account harasses, defames, or defrauds a third Party; and (e) claims arising from a violation of law by Users, Customer, or Customer’s employee. The term “Indemnified Claims” includes claims arising out of or related to Customer’s negligence. The Customer’s obligations under this Section 9 include the retention and payment of attorneys, payment of court costs, as well as settlement at the Customer’s expense and payment of judgments. The Company will have the right, which shall not be exercised unreasonably, to reject any settlement or compromise that requires it to admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. The term “Company Representatives” means the Company’s officers, directors, managers, members, subcontractors, agents, successors, and assigns and those of any affiliate of the Company.
LIMITATION OF LIABILITY
10.1. Exclusion of Certain Damages. COMPANY WILL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT, INCLUDING WITHOUT LIMITATION, THE SYSTEM OR SERVICES.
10.2. Limitations and Disclaimers. THE LIMITATIONS OF LIABILITY STATED IN THIS ARTICLE 10 APPLY: (a) TO NEGLIGENCE CLAIMS; (b) IRRESPECTIVE OF THE LEGAL THEORY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY WAS INFORMED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL TO ACHIEVE THEIR ESSENTIAL PURPOSE. If the applicable law limits the applicability of this Section 10, Company’s liability shall be limited to the maximum extent allowed, and in any case, the Company’s monetary liability under the Agreement to Customer and others, in total, will not exceed the Fees paid by Customer for the Service during the 12 months immediately before the event or circumstance that gave rise to Customer’s claim. To be clear, the liability limits and other rights set out in this Section 10 are also applicable to Company Representatives.
TERM & TERMINATION
11.1. Term. The Agreement will remain effective during the Term and will renew automatically for subsequent periods equal to the Term unless otherwise indicated in the Service Order. The Agreement may be terminated by either Party upon giving 15 days’ advance written notice prior to the End Date.
11.2 Termination for Cause. Despite Section 11.1, either Party may terminate the Agreement in case of breach by the other Party by providing written notice (“Notice of Breach”) stating the nature of the breach and the steps required to remedy it. The Agreement will be terminated (a) if curable, 30 days after delivery of such notice (or longer if specified in the notice) unless the other Party remedies the breach within such time, or (b) if not curable or the subject of a prior Notice of Breach (as determined by Company), on the date the notice is delivered. The Agreement will be terminated automatically, without notice, if Customer fails to comply with any restriction set forth in Section 5.1. Customer must notify Company as soon as it becomes aware or should have been aware of any such failure.
11.3. Effects of Termination. Upon termination of the Agreement, all rights and obligations, including Customer’s right to access and use the System and all Services, will cease, and Customer must delete, destroy, or return all copies of the Documentation in its possession or control. However, the following provisions will survive termination: (a) all payment obligations of Customer that accrued before the end of the Term until paid in full, and (b) the terms of Sections 1, 5.6 (for 3 months), 6, 7, 8.4 – 8.6, and 9 – 13, inclusive.
MISCELLANEOUS
12.1. Independent Contractors. Both parties are independent contractors and represent themselves as such in all regards. Neither party is an agent of the other, and neither can make commitments on the other’s behalf.
12.2. Notices. The company can send notices to the customer’s email contact points as stated in the Service Order, and they will be considered received 24 hours after sending. The customer can send notices to support@CallTrack.ai (for technical support) or support@CallTrack.ai (for all other support) and they will be considered received on the date they are received.
12.3. Force Majeure. If a Force Majeure Event (defined as acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, pandemic or other causes beyond the Claiming Party’s reasonable control) occurs, the Claiming Party’s performance times for obligations affected by the Force Majeure Event will be extended for a period of time lost due to the Force Majeure Event. However, the Claiming Party will not be relieved from performing any obligations in this Agreement not affected by the Force Majeure Event. The Claiming Party must be excused from the performance of those obligations affected by the Force Majeure Event if they provide written notice required by Section 12.2 (“Notice”) within five (5) days after the occurrence of the claimed Force Majeure Event, which describes the event and all obligations of the Claiming Party affected thereby, and furnishes evidence which proves the occurrence of the event and the causal connection between the event and the obligations affected thereby within five (5) days of giving such Notice. The suspension of the Claiming Party’s performance will be no greater in scope and no longer than required by the Force Majeure Event. The Claiming Party must continually use commercially reasonable efforts to mitigate the cause and effect of the Force Majeure Event and resolve it as soon as practicable, and upon resolution thereof, give Notice thereof to the other Party.
12.4. Assignment & Successors. The customer may not assign this Agreement or any of its rights or obligations hereunder without the express written consent of the company, which shall not be unreasonably withheld. This Agreement will be binding upon and inure to the benefit of the Parties’ respective successors and permitted assigns except to the extent forbidden in this Section 12.4.
12.5. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Jurisdiction and Governing Law: This Agreement and any claims arising from or related to it will be governed solely by the internal laws of the State of California, including applicable federal law, without considering: (a) any principle of conflicts of law that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (b) the United Nations Convention on Contracts for the International Sale of Goods (1980); or (c) any other international laws.
12.8. Conflicts: If there is any conflict between these Terms and Conditions of Service and any online Company policy, including the Privacy Policy, these Terms and Conditions of Service will prevail. The terms of the Service Order will take precedence over any directly conflicting terms of these policies and the Terms and Conditions of Service.
12.9. Interpretation: The Parties agree that this Agreement results from negotiations between them. It will not be construed in favor of or against either Party due to authorship. “Section” or “Paragraph” means the numbered paragraph and its sub-paragraphs, if any.
12.10. Compliance with U.S. Export Laws: The export of any products, materials, and data exchanged under this Agreement may be subject to U.S. export laws, including the International Traffic in Arms Regulations (ITAR), the Export Administration Regulations (EAR), the Export Administration Act, the Trading with the Enemy Act, and the International Emergency Economic Powers Act. The Customer agrees not to export, re-export, disclose or transfer any such materials or data directly or indirectly without complying with these and other applicable laws and regulations. The Customer recognizes that providing information that constitutes “technology” and/or “technical data” to a foreign person, as defined by the ITAR, is an “export” that may require prior authorization and licensing from the U.S. Government. The Customer agrees and warrants that no regulated product, materials, or technical data exchanged between the Parties shall be accessed or provided, in any manner, to foreign persons in the United States or abroad without prior written authorization as required by the U.S. Government.
12.11 Digital Signatures: Any signature (including any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record) to this Agreement or to any other certificate, agreement or document related to this Agreement, and any contract formation or record-keeping through electronic means shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, and the Parties hereby waive any objection to the contrary.
12.12 Counterparts: The Service Order may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or in PDF shall be as effective as delivery of a manually executed counterpart of the Service Order.