Master Subscription Agreement

Master Subscription Agreement

By checking the box “Accepting the Master Subscription Agreement”, you are indicating your acceptance of the terms and conditions of this Agreement, and this shall represent your digital signature of this Agreement binding you to the terms and conditions therein.

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS ANY AND ALL USER’S USE OF OUR SERVICES EITHER VIA THIS WEBSITE, ANY OTHER SOFTWARE INTERFACE, APPLICATION OR APP, OR OTHER MEANS.

THIS AGREEMENT GOVERNS ANY USE OF CallPotential™ EITHER THROUGH A FLAT FEE PURCHASE, A MONTHLY SUBSCRIPTION, A VARIABLE USE-BASED FEE PACKAGE, A FREE TRIAL, OR ANY OTHER FEE OR NON-FEE ARRANGEMENT OFFERED.

IF USER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, USER REPRESENTS THAT USER HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “USER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.  IF USER DOES NOT HAVE SUCH AUTHORITY, OR IF USER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, USER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

User may not access the Services if User is in direct or indirect competition with CallPotential™ except with our prior written consent.  In addition, User may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on July 3,2016.  It is effective between User and CallPotential™ as of the date of User’s acceptance of this Agreement.  User also agrees herein to be bound by any further updated revisions of this Agreement, upon reasonable notice to User of the revisions.

DEFINITIONS

Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common Control with the subject entity.

AppExchange” means the online directory of applications that interoperate with the Services.

CallPotential™” includes both the service referred to as CallPotential™ and the corporate entity CallPotential LLC, owner of CallPotential™.

Control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.

Free Trial” means Services offered to User pursuant to this Agreement for which the User pays no fees to CallPotential™.

Incident” is inclusive to mean any event or occurrence that has a common nexus of fact, circumstance, situation, transaction, cause or series of facts, circumstances, situations, transactions or causes.

Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

Non-CallPotential.com Applications” means online applications and offline software products that are provided by entities or individuals other than CallPotential™.

Purchased Services” means Services that User or its Affiliates purchase, as distinguished from those provided pursuant to a Free Trial.

Services” means both the Purchased Services and Free Trial services where the products and services that are ordered by User are made available by CallPotential™.  The term “Services” excludes Non-CallPotential.com Applications.

Ultimate Users” means individuals who are authorized by User to use the Services, for whom subscriptions have been ordered, and who have been supplied with user identifications and passwords.

User” means the company or other legal entity for which User is accepting this Agreement, and Affiliates of that company or entity.

User Data” means all electronic data or information submitted by User in connection with its use of the Purchased Services.

User Guide” means the online user guide provided by CallPotential™ for the Services, as updated from time to time.  User acknowledges herein that User has had the opportunity to review the User Guide.

FREE TRIAL

CallPotential™ cannot be held liable or responsible as a result of giving access to free services during the Free Trial period.  If User registers for a Free Trial, CallPotential™ may make one or more Services available to User on a trial basis free of charge until the earlier of (a) the end of the Free Trial period or (b) the start date of any Purchased Services.  Additional trial terms and conditions may appear on the trial registration web page.  As part of its benefit received for using this free service, User agrees that additional terms and conditions that may apply to User are binding upon User and are incorporated into this Agreement by reference and are therefore also legally binding.

CallPotential™ DOES NOT WARRANT THAT ANY DATA ENTERED INTO THE CallPotential™ INTERFACE OR USER DATA AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR USER DURING USER’S FREE TRIAL CAN BE RETRIEVED ONCE THE FREE TRIAL PERIOD IS ENDED.  CallPotential™ WILL UNDERTAKE BEST EFFORTS TO MAINTAIN SUCH DATA AFTER THE FREE TRIAL PERIOD IF USER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, OR IF USER PURCHASES UPGRADED SERVICES, BEFORE THE END OF THE TRIAL PERIOD.  NO WARRANTY IS MADE AS TO THE CAPACITY TO MAINTAIN THIS DATA SUBSEQUENT TO THE FREE TRIAL PERIOD.  DURING THE FREE TRIAL PERIOD, THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY.

PURCHASED SERVICES

CallPotential™ shall make the Purchased Services available to User pursuant to this Agreement during the subscription term as paid by the User.

Unless otherwise specified, (i) Services are purchased as Ultimate User subscriptions and may be accessed by no more than the specified number of Ultimate Users, (ii) additional Ultimate User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional Ultimate User subscriptions are added, and (iii) the added Ultimate User subscriptions shall terminate on the same date as the pre-existing subscriptions.  Ultimate User subscriptions are for designated persons only and cannot be shared or used by another but may be reassigned by User to new Ultimate Users as long as the previous and replaced Ultimate Users no longer require ongoing use of the Services.

USE OF THE SERVICES

CallPotential™ shall use best efforts to:  (i) provide basic support for the Purchased Services to User at no additional charge, and/or provide an upgraded support if this upgrade is purchased separately between User and CallPotential™, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for:  (a) planned downtime of which we may give a reasonable notice to User, or (b) any unavailability caused by circumstances beyond our control, including, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial-of-service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.

CallPotential™ shall use reasonable efforts to maintain appropriate administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of any User Data for the Purchased Services only.

User shall (i) be responsible for User’s compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of User Data and of the means by which User acquires and uses the User Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify CallPotential™ promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide, applicable laws and government regulations.  By way of a nonexclusive example, User shall not (a) make the Services available to anyone other than Users or Ultimate Users registered with CallPotential™, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.  Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls User is permitted to make against our application programming interface, and on the number of page views by visitors to the websites set up by User using CallPotential™ or the Services.

In no event will CallPotential™ be held liable to User or any Ultimate User or any third party for any direct or other damages.  If, however, CallPotential™ is found liable to User or any Ultimate User for any reason, such liability shall in no event be greater than any sum received for Purchased Services under this Agreement.  In the event that User knows of any third party who infringes the technology protected as part of the CallPotential™ system, User must immediately inform CallPotential™.  Upon request of CallPotential™, User will fully cooperate in any such resulting investigation, demand, proceeding or action.

This Agreement will not be assignable as a right with any transfer of the entire business associated therewith of either party hereto, unless the successor of the entire business agrees in writing to assume all obligations under this Agreement.  This Agreement is binding upon the successors and assigns of either party hereto.

USAGE POLICY

User acknowledges and agrees that CallPotential™ and the Services are intended only as a method by which User can engage in Communications, as defined below.  User further agrees that CallPotential™ is not responsible for the content User inputs into CallPotential™ or the Services, and agrees that User (not CallPotential™) is the maker of any call or text message sent using the Services.

User further represents and warrants that the owners of the phone numbers that are provided by User, to which User’s outbound messages, calls, broadcasts, campaigns and other communications to recipients (collectively, “Communications”) are transmitted through the Services, have consented or otherwise opted-in to receive such Communications in accordance with any and all applicable laws or governmental regulations.  This includes, but it is not limited to, express written consent to receive calls and/or text messages sent by equipment that may have the capacity to dial random or sequential numbers.  When Communications are transmitted through the Services, User agrees that User will include the necessary opt-out, unsubscribe and/or debt verification information in compliance with the applicable laws and governmental regulations, and that no such Communications are in any way untrue or deceptive to the recipient.  User further agrees that any individual requesting Do-Not-Call (“DNC”) status, regardless of whether such DNC status is with User or with the national Do Not Call Registry, shall immediately be removed from User’s list of contacts used with the CallPotential™ Services and the CallPotential™ websites (“Sites”).

User represents that User is familiar with and shall abide by all applicable local, state, national and international laws and regulations and is solely responsible for all acts or omissions that occur under User’s account, including, without limitation, the content of the Communications transmitted through the CallPotential™ Services.  Without limiting the foregoing, User agrees to familiarize User with the legalities of any Communications transmitted through the CallPotential Services by visiting the following websites:

Federal Trade Commission, http://www.ftc.gov

Federal Communications Commission, http://www.fcc.gov

DoNotCall Registry information, http://www.donotcall.gov

The Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., and its corresponding regulations, the Fair Debt Collections Act (“FDCPA”) 15 U.S.C. § 1692et seq., and its corresponding regulations, the Federal Trade Commission, the Federal Communications Commission, the national DNC registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of Communications.  CallPotential™ is in no way attempting to interpret any laws, rules, or regulations.  This information is provided merely as a courtesy and is not intended to replace User responsibility to comply with all legal requirements pertaining to User Communications prior to using the CallPotential™ Sites or Services.  User is ultimately responsible to make User’s own informed decisions regarding User Communications, including obtaining consent from phone number owners (where necessary) and processing opt-out requests.

User shall schedule Communications responsibly and in such a manner that is both courteous to the recipients and in accordance with all local, state, national, and international laws, including those laws regarding the frequency of the Communications and the time at which recipients are to receive Communications.  User is solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, for inclusion in any outbound Communications.  If User is unfamiliar with or unclear on the legalities of any Communication, User agrees to consult with User’s attorney prior to User’s use of the CallPotential™ Sites or Services.

User accepts that the Services are provided for professional use only, and User agrees that User’s use of the CallPotential™ Sites or Services shall not include:

  • Sending unsolicited marketing messages or broadcasts (i.e., spam);
  • Sending any Communications to life-line services, such as 911, fire departments, police departments, physicians’ offices, hospital/health care facilities/rooms or utility-related telephone numbers;
  • Using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice to send a telemarketing Communication to a residential telephone line without the prior express written consent of the recipient;
  • Using an ATDS or an artificial or prerecorded voice or text message to send a telemarketing Communication to a cellular phone or other similar device or service for which the called party is charged, without the prior express written consent of the recipient;
  • Using an ATDS or an artificial or prerecorded voice to make a non-emergency,
    non-telemarketing call to a residential telephone line, or a cellular phone or other similar device or service, for which the called party is charged, without the prior express consent of the recipient, unless there is an established business relationship;
  • Engaging two or more lines of a multi-line business at the same time;
  • Harvesting, or otherwise collecting information about others, without their consent;
  • Misleading others as to the identity of the sender of User’s Communications, such as creating a false identity, impersonating the identity of someone/something else or providing contact details that do not belong to User;
  • Transmitting, associating or publishing any unlawful, racist, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic, deceptive or otherwise objectionable Communication of any kind;
  • Transmitting any material that may infringe upon the intellectual property rights of third parties, cluding trademarks, copyrights or other rights of publicity;
  • Transmitting any material that contains Malicious Code or any other harmful/deleterious programs;
  • Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks;
  • Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means;
  • Interfering with another’s use and enjoyment of the Services or CallPotential™ Sites; or
  • Engaging in any other activity that CallPotential™ believes could subject it to criminal or civil liability/penalty/judgment.

User agrees to provide legal contact information and any other information required under the applicable local, state, federal and international laws in any Communication.  User further agrees that CallPotential™ is, under no circumstances, responsible for the timing, frequency, contents and/or accuracy of User Communications.  The relationship between User and CallPotential™ is based upon the good-faith understanding of CallPotential™ that User shall use the Sites and Services in accordance with these terms.  User will provide User’s own sound files for all outbound Communications.  CallPotential™ will not be liable for any misuse of the Sites or Services by User.  CallPotential™ is not responsible for the views and opinions contained in any User Communication.

User will not purposely route calls to high-cost non-RBOC (Regional Bell Operating Company) areas for origination or termination of telecommunications traffic on the CallPotential™ system.  Calls may be monitored and reported upon during each billing cycle to ensure sound traffic patterns.  Excessive routing of high-cost calls will be addressed to User by CallPotential™, and fines may be assessed to recover excess charges from CallPotential™ VoIP termination companies.

NON-CALLPOTENTIAL.COM PROVIDERS

CallPotential™ may from time to time make available to User third-party products or services, including but not limited to Non-CallPotential.com Applications and implementation, customization and other services.  Any acquisition by User of such non-CallPotential.com products or services, and any exchange of data between User and any non-CallPotential.com provider, is solely between User and the applicable non-CallPotential.com provider.  CallPotential™ does not warrant or support non-CallPotential.com products or services and cannot be held liable as a result thereof for use alone or in conjunction with the Services.

If User installs or enables Non-CallPotential.com Applications for use with Services, User acknowledges that CallPotential™ may allow providers of those Non-CallPotential.com Applications to access User Data as required for the interoperation of such Non-CallPotential.com Applications with the Services.  In such a case, CallPotential™ shall not be responsible for any disclosure, modification or deletion of User Data resulting from any such access.

FEES AND PAYMENT

User shall pay all fees required under this Agreement.  Except as otherwise specified herein, (i) payment obligations are noncancelable and fees paid are non-refundable, and (ii) the number of Ultimate User subscriptions purchased cannot be decreased during the relevant subscription term.  User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.

User will provide CallPotential™ with valid and updated credit card information, or with a valid purchase order or alternative document acceptable to CallPotential™, for invoicing, payment processing and insurance justification.  If User provides credit card information to CallPotential™, User authorizes CallPotential™ to charge such credit card for all Services listed in the order form for the initial subscription term and any renewal subscription term(s) as set forth below.  Such charges shall be made in advance.  Invoiced charges are due net thirty (30) days from the invoice date.  User is responsible for providing complete and accurate billing and contact information to CallPotential™ and for notifying CallPotential™ of any changes to such information, and any breach thereof shall result in a right of termination without penalty to CallPotential™.

If any charges are not received from User by the due date, then (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher, from the date such payment was due until the date paid, and/or (b) CallPotential™ may condition future subscription renewals on shorter payment terms.

If any amount owing by User under this Agreement is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts User has authorized CallPotential™ to charge to User’s credit card), CallPotential™ may, without limiting other rights and remedies, accelerate User’s unpaid fee obligations so that all such obligations become immediately due and payable, and CallPotential™ may suspend Services to User until such amounts are paid in full.  We may give User seven (7) days’ prior notice that User’s account is overdue before suspending services.  User understands that the suspension of its account will cease all system access as well as operation of any tracking numbers associated with User’s account.  User also understands that CallPotential™ at its option may redirect all inbound calls to an informational message.  CallPotential™ will not be liable for any financial and goodwill loss associated therewith.

Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”).  User is responsible for paying all Taxes associated with User purchases hereunder.  If CallPotential™ has the legal obligation to pay or collect Taxes for which User is responsible, the appropriate amount to be collected shall be invoiced to and paid by User, unless User provides CallPotential™ with a valid tax exemption certificate authorized by the appropriate taxing authority.

PROPRIETARY RIGHTS

CallPotential™ reserves all right, title and interest in and to the Services, including all related intellectual property rights.  No rights are granted to User hereunder other than as expressly set forth herein.  User is granted a single-use license as part of the Purchased Services or its Free Trial.  Upon termination of this Agreement, any right granted under the license will immediately cease.  User shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, (iv) reverse-engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

CallPotential™ will use the Users Data for internal purposes only, solely for the purpose of operating the services on the user’s behalf and to provide support and recommendations to the User.  CallPotential may use aggregated/de-identified data to come up with recommended best practices or other suggestions for its user base.  All use of the Users Data will be subject to the Confidentiality section of this agreement.  CallPotential™ in compliance with the European Directive on Data Privacy will not collect and transmit personal data of Users directly within the European Community without prior written approval from Users.

CallPotential™ is hereby granted by User and any Ultimate User a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by User, including Ultimate Users.

CallPotential™ provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following:  Government technical data and software rights related to the Services including only those rights customarily provided to the public as defined in this Agreement.  This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data — Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).  If a government agency has a need for rights not conveyed under these terms, it must negotiate with CallPotential to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

CONFIDENTIALITY

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  User Confidential Information shall include User Data.

The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those contained herein.  Neither party shall disclose the terms of this Agreement to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so.  If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

WARRANTIES AND DISCLAIMERS

User warrants that User has validly entered into this Agreement and has the legal power to do so.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, CallPotential™ MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND CallPotential™ SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  CallPotential™ SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY LIABILITY FOR CALLS MADE WITHOUT CONSENT, ANY LIABILITY FOR FAILURE OF THE OPT-OUT MECHANISMS CONTAINED IN THE CallPotential™ SYSTEM (INCLUDING, BUT NOT LIMITED TO, ANY FAILURE TO RECOGNIZE NON-UNIFORM OPT-OUT LANGUAGE), AND ANY LIABILITY ARISING FROM A FINDING  THAT THE CallPotential™ SYSTEM IS AN ATDS.

INDEMNIFICATION

User shall indemnify, defend, and hold CallPotential™ and its affiliates (and any and/or all of their officers, directors, employees and agents) harmless against any and all costs, losses, damages, attorneys’ fees or expenses that any of them may incur or be subjected to in any way by reason of any and all third-party claims, demands, suits or proceedings of whatever nature, including, but in no way limited to, claims brought under the TCPA, FDCPA or any such similar or related state law causes of action placing restrictions on Communications, arising out of User Data or User’s use or misuse of the Services covered by this Agreement, whether pursuant to a Free Trial or Purchased Services, or User’s violation of any of these terms of the Agreement, or Communications provided by you through the Services, or any other act or omission by User or any of its employees, contractors, agents or by any person to whom you have granted access to the Services (either deliberately or as a result of your negligence) related to your account with CallPotential™ (including negligent or wrongful conduct) (“Indemnified Claim”).  User further agrees that, for any Indemnified Claim: (1) CallPotential™ may hire counsel of its choosing to defend CallPotential™ against such Indemnified Claim; (2) User shall promptly advance all defense costs and expenses, including reasonable attorneys’ and experts’ fees actually incurred by CallPotential™ in the defense of such Indemnified Claim; and (3) User will not settle any such Indemnified Claim without the express written consent of CallPotential™, which consent shall not be unreasonably withheld.  User’s obligations under this paragraph shall survive the termination of this Agreement.

LIMITATION OF LIABILITY

CallPotential™’s TOTAL LIABILITY WITH RESPECT TO ANY INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE LESSER OF $5,000 OR THE AMOUNT PAID BY USER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY USER HEREUNDER.  IN NO EVENT SHALL CallPotential™ HAVE ANY LIABILITY TO USER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT CallPotential™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

TERM AND TERMINATION

This Agreement commences on the date User accepts it and continues until all User subscriptions (Free Trial or Purchased Services) granted in accordance with this Agreement have expired or been terminated.  If User elects to use the Services for a free trial period and does not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.

User subscriptions purchased by User commence on the start date specified in the subscription application.  User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one (1) year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term.  The per-unit pricing during any such renewal term shall be the same as that during the prior term unless CallPotential™ gives User written notice of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

CallPotential™ may terminate this Agreement at will with thirty (30) days’ written notice or a notice for the remaining of the duration of the Purchased Services, whichever is shorter.  In the event termination is made at will by CallPotential™ and termination is desired prior to the end of a paid period by User, CallPotential will refund any paid unused Services term.

CallPotential™ will make available to User for download a file of User Data in comma separated value (.csv) format along with attachments in their native format, at the earliest, thirty (30) days after the effective date of termination of a Purchased Service subscription.  After a period of ninety (90) days, CallPotential™ shall have no obligation to maintain or provide any User Data and shall thereafter, unless legally prohibited, delete all of User’s User Data.

Ownership of numbers:  Tracking numbers assigned to User for use on User’s account are leased to User for purposes of this Agreement and remain the property of CallPotential™ through the end of the term of Services.  The User is given the option upon termination of a Purchased Service to port these numbers from CallPotential™ to a provider of its choice, assuming the provider is able to accept the numbers for a reasonable fee.  Any porting fees must be paid by the User.  If an account has a balance due or any unpaid charges, CallPotential™ has the right to deny a port request until such charges are paid in full.  In the event that User suspends or terminates Services for any reason, including by breach or non-payment of fees, User acknowledges that the tracking numbers or toll-free numbers it had prior to suspension or termination of the Agreement may no longer be available.

SERVICE EXCLUSIONS

Emergency Dialing:  Emergency dialing services (i.e., 911 services) may be included in the services provided by CallPotential™ to User.  Regardless of whether CallPotential™ provides User with emergency dialing services (i.e., 911 services), User waives any claims against CallPotential™ or any of its affiliates based on any failure, or alleged failure, to provide emergency dialing services at any time during the pendency of this Agreement.

To the extent CallPotential™ provides User with emergency dialing services via VOIP,  CallPotential™ hereby advises User that there may be certain E911 limitations associated with said services. As is the case with E911 services provided by a traditional telephone service provider, the E911 service provided by CallPotential™ (1) may not function with the loss of electrical power, including the loss of power to telephone equipment or other equipment necessary to route E911 calls to the appropriate emergency call center; (2) will not function if the broadband connection is not operational; (3) will not function at a remote location or may transmit incorrect physical location information for the caller if internal users are allowed to use their IP-based phones remotely; (4) will not function if the telephone equipment or other equipment necessary to place calls is not correctly configured; (5) may not transmit the correct physical address for the E911 call due to incorrect information provided by you, use of a non-native telephone number or delays in loading or updating automatic number identification and location information into the E911 databases; (6) may not be capable of being received and/or processed by an emergency call center due to the center’s technical limitations; and (7) may be affected by other factors or force majeure events, such as the quality of the broadband connection and network congestion. A complete discussion of the limitations of the E911 service by CallPotential™ is set forth at www.callpotential.com/e911. Your execution of this Agreement constitutes your acknowledgement that CallPotential™ has advised you of these potential limitations. CallPotential™ will also provide labels to you that will alert users to the limitations discussed above. The FCC suggests that these labels be placed on or near the CallPotential™ Equipment associated with your CallPotential™ Service. The physical location which you provided to us in the Agreement shall be the registered location that will be provided to the emergency call center when you place a 911 call.

Telephone Service:  While CallPotential™ may provide certain telecommunications services to User, CallPotential™ is not a telephone company.  Rather, CallPotential™ may purchase telecommunications services from third-party telecommunications providers or otherwise provide certain telecommunications services to the User.  In either event, CallPotential™ may use such services to deliver products and Services to User.  Regardless of whether CallPotential™ purchases telecommunications services from third-party telecommunications providers or otherwise provides telecommunications services to the User, CallPotential™ does not warrant the functionality of these telephone services and disclaims any potential liability associated therewith.

Equipment:  CallPotential™ may provide User with certain equipment to use the Purchased Services, which User agrees to maintain in the same condition as provided by CallPotential™.  CallPotential™ does not make any warranties, expressed or implied, or promises as to the equipment provided by CallPotential™ to User, nor does CallPotential™ make any warranties, expressed or implied, or promises as to the compatibility of the CallPotential™ system with the equipment provided by CallPotential™ and other technology.  Additionally, CallPotential™ does not make any warranties, expressed or implied, or promises as to the compatibility of the CallPotential™ system with User’s equipment and other technology. A complete discussion of any equipment provided by CallPotential™ is set forth atwww.callpotential.com/purchase

Acceptable Use:  The call tracking and call recording of CallPotential™ are designed for use in tracking User service and sales calls.  User agrees to use the Services in accordance with all applicable local, state and/or federal laws or regulations.  User agrees that it will not use (nor will it allow any client, subcontractor, licensee, representative, Ultimate User, agent or Affiliate to use) the Services in any manner that violates the rights of any person or is illegal, fraudulent, deceptive (including without limitation any spoofing of caller ID information or similar practices likely to deceive any other party contacted through the Services), harassing, threatening, harmful, libelous, defamatory, abusive, slanderous, hateful, sexually, racially or ethnically objectionable, vulgar, pornographic, obscene, invasive of privacy, or otherwise objectionable or unlawful; nor will it use or access the Services by mobile telephone while operating a motor vehicle; nor will it interfere with another’s use and enjoyment of any CallPotential™ services.  The parties agree that any violation of these terms by User shall entitle CallPotential™ to terminate or suspend the Services provided hereunder.

Excessive Use:  CallPotential™ reserves the right to limit or suspend Services usage on any account using the Services if, at CallPotential™’s own and sole opinion, call volumes significantly exceed the planned usage or prior usage patterns, or when reasonable prior notice of capacity needs has not been provided.  User acknowledges that such account limitations or suspensions may result in calls being rejected.

Limited Agency Agreement:  No agency, partnership, joint venture or employment relationship is created as a result of this Agreement, and neither party has any authority of any kind to bind the other party in any respect whatsoever.

General Privacy Terms:  The parties acknowledge that privacy of Ultimate Users of the Services, including User’s employees and clients, is important, and the parties agree to make all necessary efforts to protect the privacy of the same.  User consents by its use of the Services to the collection and use of information.

  1.  User agrees that it has established proper procedures to protect the privacy of its clients’ and employees’ personal information and otherwise comply with all applicable laws and regulations with respect to the data acquired by the Services covered by this Agreement.  The parties agree that information or data (including usage information and data collected through the Services) cannot practicably be stored in a manner that is PCI (“Payment Card Industry”) or HIPAA (“Health Insurance Portability and Accountability Act”) compliant.  Therefore, User agrees to put practices and procedures in place to protect its client information in these areas so such information is kept out of the scope of any call recordings gathered by use of the Services.
  2. The parties agree that the principal uses of the call recordings and User data that will be collected by use of the Services are for the improvement of quality of User service and for training purposes by User.
  3. User agrees to protect login and security information for accessing the information and call recordings collected by use of the Services for its account(s) with CallPotential™ and to notify CallPotential™ immediately of any breach of security on its end.  CallPotential™ cannot be responsible for any data lost, misused, destroyed or stolen due to User’s inability to maintain the security of login information for its account(s).
  4. CallPotential™ may use third-party providers and subcontractors for the Services described in this Agreement (including, but not limited to, credit card processors, telephone service carriers, data service providers or consultants).
  5. User agrees to comply with all applicable laws as to privacy of minors and agrees to be familiar with any such laws.  Children under age 13 are not permitted to use the call recording service.  CallPotential™ does not knowingly collect any information or identifiable information on children without their parental consent.  User agrees to indemnify CallPotential™ from any cause of action related to recording of minors by its use of the Services.

Recorded Call Notice:  The parties acknowledge that some jurisdictions require that, in order to record a conversation, all parties to the conversation must know that the conversation is being recorded while other jurisdictions require only that one party know of the recording of the conversation.  User represents, warrants and agrees that, in connection with its use of the Services, User has reviewed the legality of recording, monitoring, storing and divulging telephone calls, User is permitted to engage in those activities, and User shall use CallPotential™’s service in full compliance with all applicable laws and regulations.

  1. In order to assist in compliance with these regulations, a “Recorded Call Notice” is configured by default to automatically play at the commencement of any incoming call.  This feature may be disabled by User.  CallPotential™ makes no warranties regarding the legality of monitoring, recording, storing or making available calls to User or the legality of the language used in any “Recorded Call Notice” used in conjunction with the Services.  User agrees, acknowledges, represents and warrants that it will provide and/or obtain all notices, consents and permissions relating to recording calls, as required by applicable laws and regulations.  It is the sole responsibility of User to comply with the legislation, regulations and statutes in the jurisdiction(s) in which it operates.  User agrees to notify CallPotential™ in the event User learns of a required revision to the Recorded Call Notice in order to comply with applicable laws or regulations with the specific language required.
  2. User agrees and acknowledges that applicable laws and regulations may require that User provide notice to and/or receive express consent and permission, in writing or otherwise, from all agents (including employees), independent contractors and/or other persons who receive telephone calls recorded by the services described in this Agreement.

HIPAA:  If User is a “covered entity” or a “business associate” thereof, as each term is used under the Health Insurance Portability and Accountability Act of 1996 (as may be amended or replaced, “HIPAA”) or is otherwise subject to any HIPAA-related or similar legal requirement, User is solely responsible for ensuring full compliance therewith.  User is responsible for maintaining the privacy of any persons or their information that may be covered by HIPAA or any related or similar legislation or regulation.  CallPotential™ makes no claims or warranties regarding compliance with HIPAA.  Any information that is recorded by the services defined in this Agreement or that may be stored by CallPotential™ for User is the sole responsibility of User with respect to HIPAA regulations.

Other Governmental Regulations:  User agrees that it has reviewed all applicable governmental regulations relating to Communications, including, but not limited to, phone, email and SMS/MMS transmissions, and agrees to use CallPotential™ only in a compliant manner.  This includes but is not limited to the TCPA and CAN-SPAM acts.

Credit Card Security:  You can view the certification at the following link PCI Compliance Certificate.

Severance:  If any part of any provision of this Agreement is held to be invalid, unlawful, void or for any reason unenforceable, said part shall be deemed severed from this Agreement and shall not affect the validity or enforceability of any remaining provisions.

Survivability:  The parties agree that certain terms of this Agreement shall survive termination or expiration of the same, including but not limited to issues of privacy, confidentiality, intellectual property protection, or indemnification for claims as described herein.

Waiver of Rights:  Failure of CallPotential™ to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.

Modification of Terms:  CallPotential™ may, at any time, for any reason, including but not limited to responses to regulatory changes, unilaterally change, amend, modify, suspend or discontinue any aspect of this Agreement, in any reasonable manner, by posting the revised terms and conditions to its website and providing reasonable notice to Users.  User’s continued usage of the Services after the posted notice of the modified terms shall constitute an acceptance of the modified terms by User.

Choice of Law:  This Agreement shall be governed by the laws of the State of Illinois without regard to its conflict-of-law provisions.