UNIVERSAL TERMS OF SERVICE AGREEMENT
CAREFULLY READ THE FOLLOWING AGREEMENT, AS IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS IN CONNECTION WITH THE USE OF CALLROCKET SERVICES AND PRODUCTS. YOUR CONTINUED USE OF THIS SITE CONSTITUTES, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THIS WEBSITE AND MUST LEAVE IMMEDIATELY.
This CallRocket Terms of Service Agreement (the “Agreement”) is entered into by and between Net Versa, LLC. (“CallRocket”, “we”, “us”, or “our”) a Delaware company doing business under the name CallRocket and the person or entity (“Customer”, “you”, or “your”) identified in the order submitted by Customer (each, an “Order”) or identified in connection with the CallRocket Account registration process, or any of their employees, and governs Customer’s use, and CallRocket’s provision, of the CallRocket Service, as hereinafter defined. Each Order, and any exhibit or attachment to an Order, shall subject to this Agreement, and is incorporated herein by reference.
If you are an individual and are entering into this Agreement on behalf of an entity, you represent and warrant that you have the full right and authority to bind such entity to all of the terms and conditions of this Agreement. If you are an individual and are entering into this Agreement on your own behalf, you represent and warrant that you are at least eighteen (18) years of age and otherwise able to enter into a valid and binding legal agreement.
ACCESSING THE CALLROCKET WEBSITE AND USING CALLROCKET SERVICES REQUIRES THAT YOU HAVE READ AND ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE CALLROCKET SERVICES OR THE CALLROCKET WEBSITE.
THE CALLROCKET SERVICE:
The “CallRocket Service(s)” means those online services, products, software, and tools that Customer has ordered from CallRocket, including without limitation the Cosmic Platform, APIs, SDKs, CallRocket Wormhole Support, and the CallRocket LaunchPad, and other associated software and services, as applicable, and such other services, products, software and/or tolls as CallRocket makes available from time to time. “Cosmic Platform” means an online application platform that enables the Customer to create mobile and other software applications which deliver CallRocket’s Real Time Communication services via such applications. “Content” means all content, files, data, text, graphics or other material or information, in any form, that is uploaded to the CallRocket Service by Customer or on Customer’s behalf, including any such Content that is integrated into the CallRocket Service from third parties at the direction of the Customer, subject to the terms of this Agreement. “App” means an application for the iOS and/or Android platforms, built by Customer, or on Customer’s behalf, using CallRocket APIs or Mobile SDKs. The CallRocket Service does not include Customer’s Content or Apps or the Content or Apps of any other CallRocket customers or any third parties. The CallRocket Service does not itself collect or store personally identifiable information (that is, data or information which can be used to identify a person), however a Customer’s access to the CallRocket Services is through the CallRocket-controlled website. A Customer’s interaction with such website, and any personally identifiable information that may be collected by the website, is governed by our Privacy Policy.
ACCESS TO THE CALLROCKET SERVICE, FREE ACCOUNTS, BETA SERVICES
- Access to the CallRocket Service. Access to Customer’s CallRocket Service Account(s) shall be enabled by use of username(s) and password(s) or through an API Key (“Credentials”) to be provided to Customer by CallRocket. An “Account” is a single point of entry through which Customer accesses and uses the CallRocket Service. Except where CallRocket has actual notice of loss, theft or unauthorized use of Customer’s Credentials;
- Customer is responsible for all activity occurring in Customer’s Account(s) and
- CallRocket shall have the right, without further inquiry, to rely on the provision of Customer’s Credentials as sufficient to authenticate Customer’s use of the CallRocket Service.
- Free Accounts and Trials. CallRocket may, from time to time at its discretion, offer free CallRocket Service Accounts, for a limited or unlimited period of time. Unless otherwise specified during the Account registration process, the terms and conditions of this Agreement shall govern the use of such free Accounts. CallRocket may terminate any free Account at any time without notice, in its sole discretion. Additionally, Customers that are granted free Accounts, and who are using the CallRocket LaunchPad on a Cosmic server, shall not limit or restrict any third party users connected to the Cosmic server from having access to the CallRocket LaunchPad and CallRocket Service, or require that any such third party users pay any fees for same.
- Beta Services. CallRocket may, from time to time, offer products or services that are not generally available to all CallRocket customers (“Beta Services”). All Beta Services will be identified as “beta” or in a manner that indicates that the Beta Service is in limited or pre-release. Such Beta Services may still be in development and CallRocket may change aspects of the Beta Services at any time, including prior to general release. Customer will not be obligated or required to use any Beta Services. CallRocket may cease offering any Beta Services, or cease offering such services at no cost, at any time without notice, in its sole discretion.
CUSTOMER’S OBLIGATIONS:
Restrictions on Use:
Customer covenants that it will not, in connection with the use of the CallRocket Service:
- use the CallRocket Service in any illegal or unlawful manner, or for any illegal or unlawful purpose, or to stalk, harass, or harm another individual;
- perform any act which is intended to and/or actually does harm to CallRocket, the CallRocket Service, or any of CallRocket’s customers;
- imply or state, directly or indirectly, that Customer is affiliated with or endorsed by CallRocket without CallRocket’s express wliitten permission;
- send unsolicited messages, junk mail or SPAM, using the CallRocket Service;
- share the Customer’s password or let any third party access Customer’s Account, or take any other action which would affect the security of the Customer’s Account;
- attempt to or actually override any security component included in the CallRocket Services; or,
- publish, transmit, or disseminate any Content which is
- pornographic, sexually explicit or violent,
- illegal (including without limitation copyrighted material and material which infringes or has the potential to infringe the Intellectual Property Rights of a third party,
- slanderous or libelous,
- a breach of a third party’s privacy rights.
CallRocket will not review or screen Content or Apps on a regular basis for compliance with this Agreement or applicable law, and CallRocket shall have no obligation to do so; provided, however, that
- in addition to any other rights CallRocket may have, CallRocket reserves the right to suspend and/or terminate Customer’s access to and/or use of the CallRocket Service, or any particular Content or App, if CallRocket determines, in its sole judgment and discretion, that such suspension or termination is necessary to comply with the foregoing restrictions, applicable law, and/or to prevent significant harm to the CallRocket Service or any end user, and
- in such event, CallRocket shall use commercially reasonable efforts to suspend or terminate only that portion of the CallRocket Service or any particular Content or App as CallRocket deems reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.
Usage Policy:
At CallRocket, our goal is to provide the highest quality service for the best value. The CallRocket Usage Policy defines what constitutes an acceptable volume of use of the CallRocket Service. CallRocket establishes normal usage profiles for users of the CallRocket Service across the industries where it operates. User profiles may be monitored to identify unusual patterns inconsistent with normal, individual use. CallRocket may, at its sole discretion, suspend Customer’s right to use the CallRocket Service, and/or terminate this Agreement in its entirety (and, accordingly, Customer’s right to use the CallRocket Service), if CallRocket determines that Customer usage varies substantially from normal use, and/or there is an unusual spike or increase in Customer use of the CallRocket Service for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the CallRocket Service. CallRocket will use good faith efforts to notify the Customer in the event of such suspension and/or termination.
End Users:
Customer shall ensure that all of Customer’s end users which use or access the CallRocket Service shall, as a condition of any such use or access, agree to terms which comply with the terms of this Agreement, and which are no less restrictive with respect to the use of the CallRocket Service than those set forth in this Agreement. If CallRocket determines in its sole discretion that a Customer has failed to comply with the terms of this Section 3(c), CallRocket may, in addition to any other available rights and remedies, suspend and/or terminate this Agreement in its entirety (and, accordingly, Customer’s and end users’ right to use the CallRocket Service).
TERM
Term of this Agreement:
This Agreement commences on the Effective Date and shall remain in effect until all of Customer’s Orders have expired or been terminated in accordance with the terms of this Agreement (the “Term”). The “Effective Date” of this Agreement shall be the date specified in Customer’s initial Order or, if such Order was submitted online, the date Customer submits the online Order. If Customer has entered into this Agreement as part of the online Account registration process (such as for trial or Production Accounts), the Effective Date shall be the date that Customer accepts this Agreement online. If Customer is using the CallRocket Service pursuant to a trial Account and does not submit an Order prior to the conclusion of the trial or test period, this Agreement will terminate at the end of the trial or test period or, if later, the date CallRocket closes such trial Account.
Term of Orders:
The initial term of each Order shall commence on the date specified in the Order or, if such Order was submitted online, the date Customer submits the online Order (the “Order Effective Date”). Unless earlier terminated in accordance with this Agreement, each Order shall remain in effect for 1 year from the Order Effective Date (unless a different term is set forth in Customer’s Order) (“Initial Term”), following which it shall automatically renew for successive one (1) year periods on the first day following the end of the Initial Term (each, a “Renewal Term”) unless either party hereto has provided written notice to the other of non-renewal at least 60 days in advance of the end of the Initial Term or, if applicable, the then-current Renewal Term. Notwithstanding the prior sentence, all Orders for free Accounts, unless earlier terminated by either Customer or CallRocket, shall remain in effect for the period of time indicated during the Account registration process.
Termination:
Without limiting any other term of this Agreement, and unless otherwise prohibited by law, either party may terminate this Agreement, including without limitation any outstanding Orders:
- if the other party becomes insolvent or files or has filed against it a petition for bankruptcy which has not been dismissed thirty (30) days from filing, or
- upon the occurrence of a material breach of this Agreement by the other party if such breach is not cured within thirty (30) days after written notice identifying the matter constituting the material breach, or
- either party has a Change of Control, which for purpose of this Agreement shall mean the sale of all or substantially all the assets of a Party; any merger, consolidation or acquisition of a Party with, by or into another corporation, entity or person; or any change in the ownership of more than fifty percent (50%) of the voting capital stock of a Party in one or more related transactions.
Effect of Termination:
In the event of the termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate automatically. Upon an early termination of this Agreement for any reason, all then-current Orders shall terminate and, unless such termination resulted from a material, uncured breach of this Agreement by CallRocket, all fees and expenses payable under any such Orders shall become immediately due and payable. All sections of this Agreement that expressly or by nature would continue beyond expiration or termination shall survive expiration or termination of this Agreement, including without limitation any right of action for breach of this Agreement prior to termination, indemnification obligations, confidentiality provisions, and representations and warranties.
FEES AND PAYMENT FOR PURCHASED SERVICES
Fees:
Customer will pay all fees specified online or in Order Forms. Except as otherwise specified herein or in an Order Form,
- fees are based on CallRocket Services purchased and not actual usage,
- payment obligations are non-cancelable and fees paid are non-refundable, and
- quantities purchased cannot be decreased during the relevant subscription term.
Invoicing and Payment:
Customer will provide CallRocket with valid and updated credit card information or with a valid purchase order or alternative document reasonably acceptable to CallRocket. If Customer provides credit card information to CallRocket, Customer authorizes CallRocket to charge such credit card for all purchased services listed in the Order Form for the Initial Term and Renewal Term(s) as set forth in Section 4(b). Such charges shall be made in advance, either annually or in accordance with any alternative billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than credit card, CallRocket will invoice Customer in advance in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are payable upon receipt of the invoice, and shall be due within sixty (60) days thereafter (the “Due Date”), unless otherwise specified in the Order Form. Customer is responsible for providing complete and accurate billing and contact information to CallRocket and notifying CallRocket of any changes to such information.
Overdue Charges:
If any invoiced amount is not received by CallRocket by the Due Date, then without limiting CallRocket’s rights or remedies,
- those unpaid amounts shall accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or
- CallRocket may condition future subscription renewals and Order Forms on Customer’s agreement to payment Due Dates which are shorter than those specified in Section 5(b).
Suspension of Service and Acceleration:
If any amount owed by Customer under this Agreement is thirty (30) or more days overdue (or 10 or more days overdue in the case of amounts Customer has authorized CallRocket to charge to Customer credit card), CallRocket may, without limiting other CallRocket rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreements so that all such obligations become immediately due and payable, and suspend the CallRocket Service to Customer until such amounts are paid in full. CallRocket will use reasonable efforts to provide Customer at least ten (10) days’ prior notice that Customer’s account is overdue, in accordance with Section 16, before suspending the CallRocket Services.
Taxes:
CallRocket fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including for example, value-added sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer purchases hereunder. If CallRocket has the legal obligation to pay or collect Taxes for which Customer are responsible under this Section 5(e), CallRocket will invoice Customer and Customer will pay that amount unless Customer provides CallRocket with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of doubt, CallRocket shall be solely responsible for Taxes assessable against CallRocket based on CallRocket’s income, property and employees, and Customer shall not withhold or deduct any amounts for same except as required by applicable law.
Payment Procedures:
All payments must be made in United States Dollars and are non-refundable.
Future Functionality:
Customer agrees that Customer purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by CallRocket regarding future functionality or features.
LICENSES
License to Use the CallRocket Service:
Subject to the terms and conditions set forth in this Agreement, CallRocket hereby grants Customer a limited, revocable (as set forth in this Agreement), non-transferable (except as provided in Section 25(b)), non-exclusive, worldwide license to use the applicable CallRocket Service for which Customer has submitted an Order or registered online. All rights not expressly granted to Customer are reserved by CallRocket. Except as expressly consented to by CallRocket, in writing, Customer shall not:
- sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the CallRocket Service or any part thereof, in any way; or
- modify, reverse engineer, decompile, disassemble or make derivative works based upon the CallRocket Service, and any and all CallRocket software, tools, and trademarks.
License to Content
Customer hereby grants CallRocket a limited, revocable (as set forth in this Agreement), non-transferable (except as provided in Section 25(b)), non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Customer’s Content as are necessary for CallRocket to provide the CallRocket Service in accordance with this Agreement. All rights not expressly granted to CallRocket are reserved by Customer.
License to Feedback, Suggestions or Recommendations:
Customer hereby grants CallRocket an unlimited, irrevocable, perpetual, transferable, non-exclusive, royalty-free, worldwide license to use and/or incorporate into the CallRocket Service any feedback, suggestions and/or recommendations provided to CallRocket by Customer regarding the CallRocket Service, whether during the Term or otherwise.
License Restrictions:
Customer agrees not to remove, obscure, or alter any CallRocket copyright notice, trademarks, logos, or other proprietary rights notices affixed to or contained within the CallRocket Service.
Title:
As between the parties, CallRocket shall own and retain all right, title and interest in and to the CallRocket Service, and all elements thereof (including without limitation any and all CallRocket software, tools and trademarks), including without limitation all Intellectual Property Rights therein and relating thereto. “Intellectual Property Rights” means, collectively, all patent rights, copyrights, trade secrets and moral rights; trade names, trademarks, service marks, and companion goodwill; domain names; rights of publicity and rights of privacy; and other similar rights throughout the world, together with all registrations and/or applications for each of the foregoing.
CallRocket acknowledges and agrees that as between CallRocket and Customer, Customer shall retain all right title and interest in and to the Customer’s software, products and services, subject to CallRocket’s underlying rights in and to the CallRocket Service and all elements thereof.
CUSTOMER SERVICE AND SUPPORT
Support of End Users:
Customer shall at its sole expense provide end user support with respect to all Customer software, products and services.
CallRocket Customer Support:
CallRocket will use commercially reasonable efforts to provide Customer with maintenance and support for the CallRocket Services in accordance with its standard practices (as such may be amended from time to time). CallRocket shall have no obligation to support any version of CallRocket Software other than the then current and immediate prior version thereof. Customer agrees that CallRocket may charge in accordance with its then current policies for any support services resulting from
- problems, errors or inquiries relating to any non-CallRocket-provided hardware, system, service or other content or software,
- use of any unsupported version of the CallRocket software, or
- any unauthorized use of the CallRocket Services. Additionally, CallRocket may provide Customer with any update that it makes generally available to its other licensees that have purchased the same CallRocket Service.
SERVICE LEVELS
The following terms shall apply separately to each Account using CallRocket Service.
Service Commitment. CallRocket will use commercially reasonable efforts to make the CallRocket Service available with a Monthly Uptime Percentage (defined below) of at least 99.95% of the time. In the event CallRocket does not meet the goal of 99.95% of CallRocket Service availability in a given calendar month, Customer will be eligible to receive a Service Credit as described below.“Unavailable Time” means the CallRocket Service is not available for use according to performance and monitoring services reports of availability; provided that service issues or outages relating to any Exclusions (defined below) shall not be deemed as Unavailable Time.
“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of continuous 5 minute periods during the Service Month in which the CallRocket Service was in a state of “Unavailable Time” as identified by Monitoring Service
A “Service Credit” is a dollar credit, calculated as set forth below, that CallRocket may credit back to an eligible Customer account.
Service Credit. For a calendar month where the Uptime Monthly Percentage, as identified by Monitoring Service, CallRocket, at its sole discretion after confirming the nature and accuracy of the Unavailable Time, will credit Customer’s account a percentage of that month’s billings based on active users, as defined by this table:
Monthly Uptime Percentage Service Credit
99.95% 10%
Service Credit shall be issued to Customer’s CallRocket balance for future use only. No refunds or cash value will be provided. Service Credits may not be transferred or applied to any other account.
Credit Request and Payment Procedures. To apply for a Service Credit, the customer must submit a ticket via the CallRocket Portal within thirty (30) days of the month in which the Unavailable Time occurred. The ticket must include,
“SLA Claim” as the subject of the ticket;
the dates and times of the Unavailable Time for which you are requesting credit; and
any applicable information that documents the claimed outage.
Exclusions. Notwithstanding anything to the contrary, no Unavailable Time shall be deemed to have occurred with respect to any unavailability, suspension or termination of the CallRocket Service, or any other CallRocket Service performance issues, that
are caused by factors outside of CallRocket’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of CallRocket or its direct hosting subcontractors (i.e beyond the point in the network where CallRocket maintains access and control over the CallRocket Services);
result from any actions or inactions of Customer or any third party (other than CallRocket’s direct hosting subcontractor);
result from Applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within CallRocket’s direct control); or
arise from CallRocket’s suspension and/or termination of Customer’s right to use the CallRocket Services in accordance with the Agreement,
scheduled maintenance; or
problems or issues related to alpha, beta or not otherwise generally available CallRocket features or products (collectively, the “Exclusions”).
Sole Remedy. Service Credits shall be your sole and exclusive remedy for any unavailability or non-performance of the CallRocket Services or other failure by us to provide the CallRocket Services.
REPRESENTATIONS AND WARRANTIES
The CallRocket Service. CallRocket represents and warrants that it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement.
Content and Apps. Customer represents and warrants that
it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and
the Content and the Apps use through the CallRocket Service, as enabled by Customer, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party’s rights.
INDEMNIFICATION
Customer agrees to indemnify and hold CallRocket and its subsidiaries, affiliates, officers, agents, employees, and licensors harmless from and against any and all claims, demands, lawsuits, actions or other liability (collectively, “Claims”), including reasonable attorneys’ fees, due to or arising out of Customer’s Content, Customer’s use of the CallRocket Services, any claim that Customer or Customer’s Content caused damage to a third party, Customer’s violation of this Agreement or any material term hereof, or Customer’s violation of any rights of another, including without limitation any Intellectual Property Rights. In connection with any Claims, pursuant to this Section 10, CallRocket will
give Customer prompt written notice of such claim; and
cooperate reasonably with Customer (at Customer’s expense) in providing information in connection with Customer’s payment of the defense of such Claim and any losses arising out of such Claim.
DISCLAIMERS
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CALLROCKET MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO CUSTOMER, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WORKMANLIKE QUALITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE OR THAT THE CALLROCKET SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE CALLROCKET SERVICE IS PROVIDED ON AN “AS IS” BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM CALLROCKET SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. IF ANY JURISDICTION DOES NOT ALLOW THE DISCLAIMER OF ANY OF THE ABOVE WARRANTIES, THE SCOPE AND DURATION OF THE APPLICABLE WARRANTY(IES) SHALL BE LIMITED AS REQUIRED BY APPLICABLE LAW.
EXCLUSIONS/LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY OF LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES (OR AMOUNTS) IN EXCESS OF THE TOTAL FEES PAID AND/OR PAYABLE FOR THE APPLICABLE ORDER FOR THE FULL INITIAL TERM OR RENEWAL TERM IN WHICH THE INCIDENT GIVING RISE TO THE CLAIM HEREUNDER AROSE, EXCEPT IN CONNECTION WITH DAMAGES ARISING UNDER SECTIONS 9 OR 10 OF THIS AGREEMENT, OR CUSTOMER’S USE OF THE CALLROCKET SERVICES VIA A FREE ACCOUNT.
THIRD PARTY SERVICES
CallRocket may, from time to time, inform customers of third-party services that can be used by customers in connection with the CallRocket Service, including services from companies associated with CallRocket’s partner program, and Customer may opt to use these or other third-party services in connection with the CallRocket Service. Customer’s use of any third-party service in connection with the CallRocket Service, and any terms, conditions, representations and/or warranties associated with such use, are solely between Customer and such third-party service provider. CallRocket makes no endorsement, representation or warranty with regard to any such third-party service, or any content or materials used on connection with such third-party service, even if such provider is certified by CallRocket or selected as a premier partner (or similar designation) by CallRocket. As such, CallRocket shall not be responsible or liable to Customer in any manner for any such third-party service. CallRocket does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services.
CONFIDENTIALITY
Each party agrees not to disclose the other party’s Confidential Information without its prior written consent. “Confidential Information” includes, without limitation:
all intellectual property;
financial information (including pricing) and business information; and
any other information designated in writing as “Confidential”, or which would reasonably be deemed to be confidential in nature. Confidential Information does not include:
IDENTIFICATION RIGHTS
CallRocket shall have the right to identify Customer as a customer, in any manner or media, and to use Customer’s name and/or logo in CallRocket’s general marketing materials. Customer shall have the right to identify CallRocket as the provider of the CallRocket Service, and to use CallRocket’s name and/or logo solely in connection with Customer’s use of the CallRocket Service.
NOTICES
All notices under this Agreement must be in writing and delivered either by hand, e-mail (with confirmation of receipt), certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to Customer, to the contact identified in Customer’s most recent Order and, if to CallRocket, to:
Net Versa LLC. (d.b.a., CallRocket)
1 Park Plz, Suite 600
Irvine, CA 92614
Attn: General Counsel
Email: legal@CallRocket.net
MOBILE APPLICATION STORES
Apps may be submitted to the Apple® App Store and/or the Google® Play store and such other marketplaces as CallRocket may from time to time enable (collectively, the “App Markets”). Customer is solely responsible for submitting all Apps to the App Markets for approval and acceptance. CallRocket makes no representation or warranty that the App Markets will accept the submitted App or the extent to which an App will be installed and/or used by end users. Customer is solely responsible for ensuring that it and its Apps comply with the App Markets’ policies, including, without limitation, any obligations regarding privacy and privacy policies, and, in addition to all other disclaimers set forth in this Agreement, CallRocket expressly disclaims any responsibility for any failure of any App to comply with the App Markets’ policies.
HIGH RISK USE
Customer acknowledges that CallRocket Services are not designed or intended for access and/or use in or during high-risk activities, including but not limited to: medical procedures; on-line control of aircraft, air traffic, aircraft navigation or aircraft communications; or the design, construction, operation or maintenance of any nuclear facility. Customer understands that the CallRocket Services do not allow and should not be used for calls to emergency services numbers (e.g., in the United States 911, or in the United Kingdom 999 and 112). Without limiting any other disclaimers set forth in this Agreement, CallRocket expressly disclaims any express or implied warranty of fitness for such purposes.
JURISDICTION RESTRICTIONS
If the law of Customer’s country prohibits Customer, Customer administrators and/or Customer business users from using CallRocket Service because the CallRocket Service is not allowed in the country or countries in which Customer or business users are located, Customer and Customer business users are prohibited from using the CallRocket Service in such circumstances.
RECORDINGS:
Certain CallRocket Services provide functionality that allows a Customer to record audio and data shared during collaboration sessions. Customer is solely responsible for complying with all federal, state, and local laws in the relevant jurisdiction when using such recording functionality. Without limiting any other disclaimers set forth in this Agreement, CallRocket expressly disclaims any and all liability with respect to Customer recording of audio and/or shared data while using the CallRocket Service, and Customer releases and agrees to hold CallRocket harmless from and against any damages, or any other consequences or liabilities related to recording, loss or deletion of customer data.
VOICE AND DATA CHARGES; CUSTOMER CONNECTIVITY
Customer is responsible for all fees and charges imposed by Customer’s telephone carriers, wireless providers, and other voice and/or data transmission providers for voice and/or data transmission used to access and use the CallRocket Services. If Customer’s broadband connection and/or telephone service fails, or Customer experiences a power failure, the CallRocket Services may also cease to function due to reasons outside of CallRocket control, and CallRocket shall not be liable for, and Customer expressly releases CallRocket from any liability, in connection with same.
OPEN SOURCE DISCLOSURE
CallRocket acknowledges that it uses certain Open Source Libraries as part of the CallRocket Service. A summary and acknowledgment of CallRocket’s open source use can be found at CallRocket Open Source Libraries.
HIPAA/HITECH
Certain of the CallRocket Services will permit Customer to comply with HIPAA/HITECH in connection with such use. As a condition of any use of the CallRocket Services under HIPPA/HITECH, CallRocket will enter into a separate business associate agreement with the Customer, and in such case CallRocket will comply with all business associate obligations under HIPAA/HITECH. In such event, the pricing for the applicable CallRocket Services will be modified in accordance with CallRocket’s pricing policies then in effect (as such may be amended from time to time).
COPYRIGHT COMPLAINT POLICY
If you believe any Content or other use of the CallRocket Services infringes your copyrighted work(s), you may provide a notification of claimed copyright infringement to our Designated Agent for copyright complaints, requesting that the infringing material be removed, or that access to the CallRocket Services be blocked. This notice must include:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. We will need direct URLs to the content/image(s) being referenced.
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
In addition, if you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the law permits you to send CallRocket a counter-notice. Notices and counter-notices must meet statutory requirements imposed by the Digital Millennium Copyright Act (“DMCA”). You acknowledge that if you fail to comply with all of the notice requirements of the DMCA, your notice may not be valid. You may currently find this information at http://www.loc.gov/copyright.
In accordance with the DMCA, CallRocket has designated an agent to receive notification of alleged copyright infringement. Any written Notification of Claimed infringement should comply with Title 17, United States Code, Section 512(c)(3)(A) and should be provided in writing to our Designated Agent as follows:
Net Versa LLC. (d.b.a., CallRocket)
1 Park Plz, Suite 600
Irvine, CA 92614
Attn: General Counsel
Email: legal@CallRocket.net
GENERAL
Independent Contractors:
CallRocket and Customer are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture, employment or agency relationship.
Assignment:
Neither party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other, except that each party may assign this Agreement without the other party’s prior written consent in the case of a merger, acquisition or other Change of Control, and in such event this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
Governing Law:
This Agreement shall be governed by the laws of the United States of America and the State of California applicable to contracts entered into and wholly to be performed therein.
Forum Selection:
Exclusive venue for all disputes arising out of this Agreement shall be in the state or federal courts in San Francisco County, California, and the parties each agree not to bring an action in any other venue. Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts.
Jury Trial Waiver:
CUSTOMER AND CALLROCKET EACH WAIVE ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY AND ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Statute of Limitations:
Notwithstanding any law providing a longer statute of limitations, any claim or cause of action arising out of or related to this Agreement and/or Customer’s use of the CallRocket Service must be filed within 1 year after such claim or cause of action arose, without regard to the date such claim or cause of action was discovered, or such claim or cause of action shall be forever barred.
Export Compliance:
Each party shall comply with all applicable United States and international export control laws and regulations. Customer specifically represents (i) that it is not located in any country or jurisdiction that is subject to U.S. economic sanctions, nor is it acting on behalf of the government of any such country and (ii) that it is not identified on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals List, as amended from time to time, nor is it owned or controlled by any such entity.
Effect of Waivers:
The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision.
Survival:
All terms of this Agreement which by their nature extend beyond the termination of this Agreement, remain in effect until fulfilled and apply to respective successors and assigns.
Counterparts, Delivery, Acceptance:
This Agreement may be executed in counterparts, all of which are considered one and the same agreement, and becomes effective when one or more counterparts have been signed by each of the parties and delivered to the other party or upon Customer’s submission of an online Order (whichever occurs first). Delivery by facsimile or e-mail and online acceptance are all as effective as physical delivery of an originally executed copy hereof.
Integration, Amendment:
This Agreement, including any Orders entered into hereunder, constitutes the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous agreements between the parties concerning the subject matter hereof.
No Reliance:
No party hereto has relied on any statement, representation or promise of any party or representative thereof except as expressly set forth in this Agreement.
Severability:
If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Agreement had been executed with the invalid portion eliminated. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.
Government Entities:
The CallRocket Service may be licensed to the U.S. government or any entity acting on its behalf as a Commercial Item, as that term is defined at 48 C.F.R. §2.101, and licensed only with those rights as are granted to all other entities or individuals entering into an agreement to use the CallRocket Service.
Purchase Orders/Instruments:
Any instruments, including purchase orders, work orders, acknowledgments and vendor registration forms not signed by both parties (“Instruments”) shall not add to, supersede or modify, the terms of this Agreement and in the event any term of an Instrument purports to add to, supersede or modify any term of this Agreement, such term of the Instrument shall be void and without effect.
Foreign Language Translation of Agreement:
For Customer’s convenience only, CallRocket may provide Customer with a non-English translation of the Agreement. Any such non-English language version of the Agreement is for reference purposes. Customer acknowledges and agrees that the English language version of the Agreement shall, in all instances, govern the parties’ relationship.
Modification:
CallRocket may modify this Agreement at CallRocket’s sole discretion. Any such modified Agreement shall be posted or linked to, or delivered as provided in Section 16. Any such changes made during the term of this Agreement will become effective thirty (30) days after the date CallRocket posts, links to, or provides notice of such modified Agreement. Customer’s continued use of the Services after such 30-day period shall constitute acceptance of such modified Agreement. Customer may not modify the terms of this Agreement without CallRocket’s prior written consent.
