Effective September 16, 2019
CallTrackingMetrics provides its services subject to the terms and conditions contained in these Terms of Service (the “Terms”). To become eligible to use CallTrackingMetrics services, you must review and accept the Terms by clicking the “I accept” check box when you create your account or other mechanisms provided (such as in a contract).
Please review the Terms carefully. Once accepted, these Terms become a binding legal commitment (“Agreement”). If you have any questions, you can reach CallTrackingMetrics at https://www.calltrackingmetrics.com/contact-us
These Terms apply to use of CallTrackingMetrics on calltrackingmetrics.com, calltrackingapp.com, or other re-branded/white labeled versions of the CallTrackingMetrics software. Use and access to these sites, the telephone services provided, call tracking technology, text message, and reporting software described below are subject to these Terms.
Please review our Privacy Notices (https://www.calltrackingmetrics.com/legal/privacy), which also govern your visit to our website, to understand our practices.
“Customer”: The individual accepting the Terms or the entity such individual represents. If you are accepting these Terms for a company or agency, you hereby warrant that you (1) have the legal right and authority to enter into these Terms for the company as named in the Account, (2) acknowledge that you are accepting these Terms on behalf of a company or other entity (3) you are binding the company or other entity to the Terms and (4) if you becomes no longer affiliated with the company or entity in which you entered the agreement under, then the account and associated content and data is maintained as the property of the company or entity, and the authorized officers of that organization.
“Account”: An Account is created at www.calltrackingmetrics.com. Customer completes sign up questions and provides payment information to create an Account.
“Available Balance”: The money the Customer has added to the Account to fund usage in the Account.
“Customer Data”: Data and other information made available to CallTrackingMetrics through the use of CallTrackingMetrics services under these Terms including call records, audio recordings, recording transcriptions, SMS records and SMS message content, and as further defined in section 6 of these Terms.
“Customer Personal Data”: means any personal data contained in the Customer Data (where “personal data” has the meaning given to it by the Data Protection Laws).
“Data Protection Laws”: means applicable legislation protecting the personal data of natural persons and the privacy of electronic communications, including in particular (up to 25 May 2018) the national legislation implementing Directive 95/46/EC (and, from and including 25 May 2018), Regulation (EU) 2016/679 (“GDPR”) and any national legislation with supplements the GDPR, together with national legislation implementing Directive 2002/58/EC (and any legislation which replaces .Directive 2002/58/EC).
“Services”: CallTrackingMetrics Services consist of one or more of the following: a web-based interface, website number insertion, information about the caller, call forwarding, browser phone, advertising channel information for incoming phone calls, text messaging applications, call and text data access, call and text data storage as well as software maintenance and upgrades and customer support.
“Standard Contractual Clauses”: means the Standard Contractual Clauses (processors) for the purposes of Article 26(2) of Directive 95/46/EC set out in Decision 2010/87/EC as the same are revised or updated from time to time by the European Commission.
- Electronic Communications:
When Customer visits or send e-mails to us, they are communicating with us electronically. When they create an account and enter their email address, subject to applicable law, they consent to receive communications from us electronically. We will communicate with Customer by e-mail or by posting notices on this site. Customer agrees that all agreements, notices, disclosures and other communications that we provide electronically satisfy any legal requirement that such communications be in writing.
Customer will be solely responsible for all use (whether or not authorized) of the CallTrackingMetrics Services under its account. Customer will ensure that it has a written agreement with each End User (“End User Agreement”) that enables CallTrackingMetrics to use all Customer Data as necessary to provide the Services and that protects CallTrackingMetrics’ rights to the same extent as the terms of this Agreement. The End User Agreement must include terms concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability, and, where the Customer is subject to the Data Protection Laws, data protection. CallTrackingMetrics agrees that, subject to the foregoing requirements, the End User Agreement need not specifically refer to CallTrackingMetrics. Customer will promptly notify CallTrackingMetrics if it becomes aware of any breach of the terms of the End User Agreement that may affect CallTrackingMetrics. Customer will take all reasonable precautions to prevent unauthorized access to or use of the CallTrackingMetrics Services and notify CallTrackingMetrics promptly of any such unauthorized access or use.
Services described on the CallTrackingMetrics sites may or may not be available in all countries or regions of the world and may be available under different trademarks in different countries. Customer agrees to use the CallTrackingMetrics Services in accordance with all applicable guidelines as well as all state and federal laws that the Services are subject to.
Customer will not use the CallTrackingMetrics Services to access or allow access to Emergency Services. Customer will ensure that the CallTrackingMetrics Services provided hereunder are used in accordance with all applicable laws, regulations and third-party rights, as well as the terms of this Agreement. Specifically, and without limitation, Customer will ensure that CallTrackingMetrics is entitled to use the Customer Data as needed to provide the CallTrackingMetrics Services and will not use the CallTrackingMetrics Services in any manner that violates any Data Protection Laws, all applicable laws and regulations governing the making and sending of calls and text messages, and any other applicable regulation, order or similar law. Except as allowed by applicable law, with respect to any software provided to Customer hereunder, Customer will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive the source code of such software.
- Our Use and Storage of Customer Data
Data storage is not guaranteed by us and you agree that we will not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that you may incur relating to the loss or deletion of Customer Data.
You further acknowledge and agree that we may access or disclose Customer Data, including the content of communications stored on our systems, if: (i) we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request, (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our services and products, (iv) to protect ourselves, our other customers, or the public from harm or illegal activities, or (v) to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.
- User Accounts
Customer may use the service through the use of their username and password login. Customer shall provide CallTrackingMetrics with accurate, complete and regularly updated profile information associated with their login. They agree to notify CallTrackingMetrics of any known or suspected unauthorized use of their user login account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. Customer shall be responsible for maintaining the confidentiality of their password. Any fraudulent, abusive, or otherwise illegal activity or actively prohibited by any regulation or statute may be grounds for termination of the user account, in CallTrackingMetrics’ sole discretion, and Customer may be reported to appropriate law-enforcement agencies.
- Termination of Agreement
8.1 Term: The term will commence on the date these Terms are accepted by Customer and continue until either party terminates the Account, except for those Customers who have entered into supplemental annual contracts through written amendments/order forms.
8.2 Termination by CallTrackingMetrics: CallTrackingMetrics may suspend an Account immediately upon notice for cause if:
(a) Customer violates (or gives CallTrackingMetrics reason to believe it has violated) any provision of these Terms;
(b) there is an unusual spike or increase in Customer’s use of the CallTrackingMetrics Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the CallTrackingMetrics Services;
(c) CallTrackingMetrics determines, in its sole discretion, that its provision of any of the CallTrackingMetrics Services is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or
(d) subject to applicable law, upon Customer’s liquidation, commencement of dissolution proceedings, disposal of Customer assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if Customer become the subject of bankruptcy or similar proceeding.
(e) the Available Balance falls below $0 in the Customer’s Account(s). When this happens, past call data and reports will still be accessible up to a period of 60 days, but tracking numbers will be released as they come up for renewal and phone calls will no longer be active. Any numbers that come up for renewal while the Available Balance does not have funds in it will be released.
(f) Or any other date upon which CallTrackingMetrics has the right to terminate the Account(s) or suspend the Service as provided in this Agreement or any other applicable agreement or policy.
8.3 Termination By Customer: Customer may cancel Account and associated Services through the cancellation process on the account settings page within the CallTrackingMetrics website or for agencies, on the agency settings page.
8.4 When Customer cancels an account, they will be prompted to confirm the release of all active tracking numbers associated with the account. No phone calls will be connected through the tracking numbers once the account has been cancelled.
8.5 After canceling an account, the Available Balance will be preserved for when/if the Customer reactivates the account. If Customer would like to request a refund of the Available Balance, please contact email@example.com.
While not guaranteed, CallTrackingMetrics is generally able to refund any unused funds in the Available Balance upon cancellation provided the account is in good standing and the transactions funding the Available Balance have occurred within the past 3 months. Refunds can only be processed back to the card that was used to fund the Available Balance. For refunds in excess of $500, bank transaction fees will be withheld from any refunds– US fees are 4%, International fees are 5.5%
8.6. If Customer has elected to sign up for a pre-paid 12 month subscription plan or another type of annual commitment, the account can be cancelled but no refunds will be given for unused portion of the annual term.
8.7 When cancelling a monthly add on license such as “Chat” , the Customer will still be able to use the associated license through the end of the current billing cycle- unless they are also cancelling the associated Account (in which case, they will no longer be able to use “Chat”).
- Price and Payment:
9.1 Account Available Balance: In order to start using CallTrackingMetrics service, Customer will need to select a subscription plan and pay the respective monthly fee upfront for the first 30 days of service AND add money to the Account Available Balance to fund usage. The Customer chooses how much to initially add to the Available Balance and at what point it should automatically recharge.
Thereafter, the fees for phone numbers, the per minute charges for minutes used, the per text message rates for text messages sent or received, and any other usage fees for services (e.g. premium Caller ID, keyword spotting, additional calls per second capacity, transcription services, form completions etc ) will all be deducted from the Available Balance.
9.2 Customer grants CallTrackingMetrics the right to charge the primary or secondary credit cards in their Account for all fees incurred under this policy.
9.3 Each subscription plan has an associated monthly fee. The monthly fee for the chosen subscription plan will be charged to the Customer’s credit card every 30 days. The term of the service for that plan is for an initial period of 30 days and will thereafter automatically renew for successive 30-day periods. The plan will continue to renew until Customer cancels the Account by going to the “account settings” or “agency settings” page. In the case of an agency plan, the monthly subscription fee will continue to be charged to the Customer until the agency has been cancelled (cancelling just the sub-accounts does not stop the monthly subscription fee from being charged).
9.4 Customers can elect to sign up for a pre-paid 12 month subscription plan. In those plans, the monthly software fee is discounted and paid up front by the Customer for a 12 month period. The term for those plans automatically renew for successive 365 days periods. Customers on these annual plans can cancel by notifying our support team at least 30 days in advance of the renewal date. Customers can cancel these annual plans at any time but no refunds will be given for unused portion of the annual term.
9.5 Tracking Numbers: Each tracking number purchased is valid for 30 days of service and will thereafter automatically renew for successive additional 30-day periods. The monthly renewal fee for the number will be deducted from the available balance. Customer can cancel a tracking number by releasing it on the edit tracking number page.
9.6 Per Minute Charges: For clarification and without limitation to which plan has been selected, CallTrackingMetrics shall bill for all minutes of usage for each call from the instant a call is initiated by, or connected to, the CallTrackingMetrics network to the instant all parties to such call are disconnected. Call duration calculations will be rounded up to the nearest minute. The per minute rates shown on the pricing and signup page apply to the standard rate center for each country that matches the purchased tracking number. Actual per minute rates may be higher depending on the rate center of the receiving number. Customer can check the exact per minute rate of their receiving number rate center lookup here: https://www.calltrackingmetrics.com/rates
9.7 Licenses: Customers can choose to add on licenses to their account to use services such as “Chat”. These licenses renew every 30 days, at which point the monthly license fee is charged to the Customers credit card (not through the account available balance). If the Customer has multiple licenses renewing on the same day, they will be grouped into one charge on the Customer’s credit card.
9.8 Collections: If CallTrackingMetrics requires use of collection agencies, attorneys, or courts of law for collection on the account, Customer will be responsible for those expenses. Customer will be responsible for all use, sales, and other taxes imposed on the Services provided under this policy.
9.9 Pricing Changes: CallTrackingMetrics may change any portion of the fees by posting the changes to the Sites or otherwise notifying customers of the change, such changes to take effect at the beginning of the next period of service.
9.10 Disputed Charges: Billing disputes must be submitted within 30 days of the applicable billing date or are deemed waived. Disputes shall be considered in the order received and are subject to determination in the sole judgment of CallTrackingMetrics. If a valid, settled transaction is disputed through the processing bank as a “chargeback” and thus the transaction is reversed, the amount of that transaction will be deducted from the current available balance of the corresponding account AND a $50 processing fee will be applied to the account. Please take care to not dispute valid transactions.
9.11 Use of Secondary Carrier: Customers may request tracking numbers that are not available through our primary carrier. These numbers may have different monthly and per minute rates than the standard rates for the plan. Customer will be notified of these differences prior to CallTrackingMetrics procuring the number and customer needs to agree in writing to ok the difference.
10.1 Unless otherwise stated, the Customer shall be responsible for maintaining an accurate Service Address for their Account and shall pay all Taxes imposed on or with respect to the CallTrackingMetrics Services that are the subject of this Agreement whether such Taxes are imposed directly upon the Customer or upon CallTrackingMetrics. “Taxes” mean all applicable federal, state and local taxes, fees, charges, carrier surcharges or other similar exactions, including, without limitation, sales and use taxes, communications service taxes, utility user’s taxes or fees, excise taxes, any other license or business and occupations taxes, 911 taxes, franchise fees and universal service fund fees or taxes.
10.2 For purposes of this Section, Taxes do not include any Taxes that are imposed on or measured by CallTrackingMetrics net income, property tax, or payroll taxes.
10.3 If a Customer is exempt from any such Taxes for any reason, we will exempt them from such Taxes on a going-forward basis once we receive a duly executed and dated valid exemption certificate to our tax department and our tax department has approved such exemption certificate. Such exemptions should be sent directly to firstname.lastname@example.org. If for any reason a taxing jurisdiction determines that the Customer is not exempt from any such exempted Taxes and then assesses us such Taxes, the Customer agrees to promptly pay to CallTrackingMetrics such Taxes, plus any applicable interest or penalties assessed.
11. Security Rules:
Customer is prohibited from violating or attempting to violate the security of the CallTrackingMetrics Sites and Services and from using the CallTrackingMetrics Sites and Services to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for Customer or logging into a server or account which Customer is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measurers without proper authorization; (c) attempting to interfere with service to any user of the CallTrackingMetrics Sites or Services, host or network, including, without limitation, via means of submitting a virus to the CallTrackingMetrics Sites, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing”; or (d) sending unsolicited e-mail, including promotions and/or advertising of products or services. Violations of system or network security may result in civil or criminal liability. CallTrackingMetrics may investigate violations of these Terms, and may involve and cooperate with law enforcement authorities in prosecuting users of the CallTrackingMetrics Sites who are involved in such violations.
12. Account Authorization:
New accounts go through an authorization process which restricts usage in the account temporarily as we verify the information provided during the sign up process. We try and expedite this process as quickly as possible but it can take several days. Customers will receive emails if their account activity is being restricted due to the authorization process. When necessary, we will reach out to the Customer to request additional information needed to fully authorize an account.
13. Compliance with Laws:
Customers using the Service for telemarketing or similarly regulated purposes are directly and solely responsible for compliance with applicable laws, including without limitation for filing, subscribing, or holding appropriate regulatory compliance documentation as required by competent jurisdictions and/or the purchase of access to any do-not-call lists and the like.
Customer agrees to familiarize himself with and abide by all applicable local, state, national and international laws and regulations and is solely responsible for all acts or omissions that occur under their account, including without limitation (a) the initiation or making of the phone calls and or messages transmitted through the Services or (b) the creation of and the specific content of the phone calls and messages.
Customer accepts that the Services are provided for professional use only, and agree that their use of the CallTrackingMetrics Sites or Services shall not include:
- Sending unsolicited marketing messages or broadcasts (i.e. spam);
- Sending any calls to life-line services, such as hospitals, fire, police, 911 or utility- related telephone numbers;
- Using strings of numbers as it is unlawful to engage two or more lines of a multi-line business;
- Harvesting, or otherwise collecting information about others, without their consent;
- 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 CallTrackingMetrics Sites;
- Making autodialed or prerecorded calls and/or texts through the Services without the appropriate prior consent of the called party;
- Failing to maintain the appropriate records of the consent of a called party to receive a certain type of call or message;
- Altering or “spoofing” the caller ID information transmitted with a call or text using the Services with the intent to defraud, cause harm, or wrongfully obtain anything of value;
- Making calls to telephone numbers listed on the National Do Not Call Registry or on the Customer’s own internal Do Not Call Registry through the Services;
- Failing to adhere to calling time restrictions as established or may be established in the future, by any Federal or State governmental authority;
- Failing to include any required opt-out mechanisms at the beginning of any pre-recorded message; or
- Engaging in any other activity that CallTrackingMetrics believes could subject it to criminal liability or civil penalty/judgment.
Customer will not purposely route calls to high cost non-RBOC (Regional Bell Operating Company) areas for origination or termination of telecommunications traffic on the CallTrackingMetrics system. Calls may be monitored and reported upon each billing cycle to ensure sound traffic patterns. Excessive routing of high-cost calls will be addressed to customer by CallTrackingMetrics and fines may be assessed to recover excess charges from CallTrackingMetrics carriers.
Any violation of CallTrackingMetrics policies will be grounds for termination of the Account, at CallTrackingMetrics’ sole discretion, Customer may be reported to appropriate law enforcement agencies.
14. Changes to Service:
CallTrackingMetrics may at any time change or modify the features and functions of the Services may change over time. CallTrackingMetrics will use reasonable efforts to notify Customer at least 60 days prior to implementation of a change in Service and to provide information required for Customer to continue to use the Services.
15. General Support
15.1 CallTrackingMetrics General Support (“General Support”) is available to all Customers to help them with questions about their account.
15.2. General Support is distinct from the Implementation Support, Premium Support, or Onboarding (“Customized Support”). To request Customized Support, Customers should send an inquiry to email@example.com to discuss pricing and options.
15.3 CallTrackingMetrics may in its sole discretion determine the methods and channels for the provision of General Support.
15.4 Customers may contact General Support to ask questions about the Service, report issues in their Account, or even to recommend future features. General Support does not come with any response time or resolution guarantees.
15.5 The General Support Team can provide support to authorized users of an Account. CallTrackingMetrics may in its sole discretion limit the provision of Support to only individuals designated as authorized support contacts and/or may limit what topics can be covered based on the role the user has in the account.
15.6 Customers seeking General Support will be required to provide their account ID, their first and last name, their email address and/or other identifying information reasonably deemed necessary by CallTrackingMetrics prior to receiving services.
15.7 The General Support Team cannot directly modify configurations or settings in a Customer’s account.
15.8 In an effort to assist Customers with their inquiry as efficiently and accurately as possible, General Support agents may refer Customers to web accessible help articles or guided tours for issues that are addressed by those articles as a resolution to the issue. If Customer wishes to instead have personalized walk throughts of those tutorials, the agent can connect them with a sales rep who can go over pricing and details for Customized Support options.
15.9 General Support does not provide detailed orientations, onboarding, or assessments of a Customer’s account, nor can they provide detailed walkthroughs of complex features. If a Customer is looking for such guidance, the agents will connect the Customer with a sales rep who can go over Customized Support options.
15.10 CallTrackingMetrics has the discretion to limit the frequency in which a Customer can contact General Support. If CallTrackingMetrics determines that a Customer is requesting an excessive amount of time from General Support, CallTrackingMetrics may rate limit the number of inquiries responded to from that Customer or refuse service.
15.11 General Support agents are not experts on the systems that CallTrackingMetrics integrates with. Inquiries about integrations that involve the settings in another system will need to be addressed by the other system.
15.12 General Support inquiries can be answered by a variety of agents on the team. Customers cannot select or request to only work with particular agents. The General Support team may not be able to assist Customers with questions that require detailed knowledge about their specific account configurations and may recommend Customized Support options in those situations where the Customer would benefit from a more dedicated arrangement.
15.13 General Support agents are not experts on supporting hardware (computers, headsets, routers, etc.) and telephone devices. Customers are responsible for their hardware and its use with CallTrackingMetrics. Customers are solely responsible for supporting computer hardware and telephone devices when that hardware and those devices are deemed faulty by CallTrackingMetrics support agents or engineers.
16. Telephone Numbers:
16.1 CallTrackingMetrics will use commercially reasonable efforts to obtain the telephone number(s) requested, and use commercially reasonable efforts to initiate and complete port requests. Customer acknowledges that CallTrackingMetrics may need to change the telephone number assigned to the Customer (due to an area code reassignment or split, or for any other reason). Customer acknowledges that if the Service is suspended or terminated due to non-payment or breach of this Agreement, Customer may not be able to obtain the same local or toll free numbers should the Service be reactivated.
16.2 CallTrackingMetrics may, after 30 days post-cancellation of service and the inability or lack of desire to port the telephone number, remove all telephone numbers from Account.
16.3 You acknowledge that we are the “customer of record” for all phone numbers provided as part of our Services. As the customer of record, CallTrackingMetrics has certain rights with respect to porting phone numbers. You understand and agree that you may use the phone numbers provided as part of our Services subject to these Terms. Unless otherwise required by law, we reserve the right to refuse to allow you to port away any phone number in our sole discretion. Regardless, we may allow you to port away phone numbers, so long as you (1) have an account in good standing, and (2) have either ported in or purchased the phone number more than 90 days prior to the port-away date. If porting a number away from CallTrackingMetrics, it is the Customer’s responsibility to confirm the completion of a port away request with the winning carrier and release the tracking numbers from their Account.
16.4 Any attempts to use CallTrackingMetrics merely a source of numbers to be immediately ported away without use of the numbers on our system is not permitted and is grounds for Termination.
16.5 Phone numbers may not be immediately active from the time of purchase if the numbers require additional validation to be activated such as a local billing address or other identity verification depending on the country of origin.
17. Call Recording:
CallTrackingMetrics makes available technology that offers the ability to record incoming telephone calls. When a calling party initiates a call to a tracking phone number, CallTrackingMetrics will, at the Customer’s discretion, create a digital audio recording of the telephone call. CallTrackingMetrics provides the ability to play a customizable voice message at the beginning of each call to either or both parties (calling party and called party) announcing that the call will be recorded.
If Customer chooses to record telephone calls, they expressly agree and acknowledge that:
1) They authorize CallTrackingMetrics to make incoming call recordings on their behalf and
2) They either: 1. Authorize CallTrackingMetrics to play a voice message advising the caller that the call is being recorded prior to the call being connected to the party answering the call; OR 2. Have made the necessary arrangements to ensure that the caller is provided with the necessary warning about the presence of any recordings made in accordance with the law.
CallTrackingMetrics shall have no liability whatsoever in respect of any use made by Customer, their employees, contractor, officer, agent, authorized representative or other third party, of the recordings and its contents, and/or of any personal information.
18. DISCLAIMER OF WARRANTIES:
CALLTRACKINGMETRICS HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD PARTY EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE.
CALLTRACKINGMETRICS’ SERVICES AND PROPERTIES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. CALLTRACKINGMETRICS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE, THE CALL TRACKING SERVICE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK.TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
19. EXCLUSION OF DAMAGES, LIMITATION OF LIABILITY:
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL CALLTRACKINGMETRICS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF CALLTRACKINGMETRICS HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL CALLTRACKINGMETRICS BE LIABLE TO CUSTOMER FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE SIX MONTHS PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
THE CALLTRACKINGMETRICS SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. NEITHER CALLTRACKINGMETRICS NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD CALLTRACKINGMETRICS HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE CALLTRACKINGMETRICS SERVICES TO CONTACT EMERGENCY SERVICES.
20. Intellectual Property Rights:
20.1 Ownership: The brand names, slogans, trademarks, service marks, designs, and logos used on the CallTrackingMetrics Website or in conjunction with the Service, including without limitation CallTrackingMetrics (collectively, the “Marks”) are the trademarks of CallTrackingMetrics and its licensors.
Customer further agrees not to use any domain name, trademark, trade name, service mark, logo, or other materials confusingly similar to the Marks without the prior written consent of CallTrackingMetrics.
20.2 Site Content: All information and materials published, transmitted, or otherwise available on the CallTrackingMetrics Website or through the Service (including, but not limited to, terms of service, use policies, service documentation, user help, informational resources, images, equipment configurations, audio clips, and video clips, collectively, “Content”) are protected by copyright or trademarked (as applicable), and owned or controlled by CallTrackingMetrics, its licensors, or affiliated companies. Customer shall abide by all copyright and trademark notices, limitations, and restrictions applicable to any Content or to the Service. Without limiting the foregoing, no Content may be copied, reproduced, republished, reused, uploaded, downloaded, posted, or transmitted, other than through the Service in accordance with its intended use, nor may derivative works be created from it or distributed in any way.
20.3 Proprietary Technology: The software, hardware, and other technologies which CallTrackingMetrics uses to deliver the Service (the “CallTrackingMetrics Technologies”) contain confidential and proprietary information, trade secrets, and other property rights belonging to CallTrackingMetrics and its licensors, and all rights to the CallTracking Metrics Technologies and all property rights related to the Service, including without limitation all patents (registered or unregistered), trade secrets (including diagrams, drawings, processes, production methods, information, data, computer software, and formulas), copyrights (whether registered or unregistered), domain names and sub domains, end-user and consumer information, work product resulting from custom implementation services, and contract rights, including all derivative works thereof (whether produced by CallTrackingMetrics, Customer, or otherwise), shall remain exclusively with CallTrackingMetrics and its applicable licensors.
Customer rights to the CallTrackingMetrics Technologies are limited to a non-exclusive and non-transferable runtime right solely during the term of the applicable Account subscription and solely for the purpose of using the Service. All Service is hosted by CallTrackingMetrics and no software code (other than APIs if CallTrackingMetrics agrees to provide the same in its sole discretion) will be provided to Customer.
20.4 Derivative Works: Customer may not modify, create derivative works or, redistribute, sell, decompile, reverse engineer, or disassemble the CallTrackingMetrics Technologies or otherwise attempt to deduce the source code, design, or data transmission characteristics of the CallTrackingMetrics Technologies. Customer may not use packet sniffers or other network or IP tracing technologies on the Service or with the CallTrackingMetrics technologies except for the specific purpose of optimizing your network for use of the Service in accordance with CallTrackingMetrics Service documentation.
21. Use of Customer Name and Logo:
Customer hereby grants CallTrackingMetrics a royalty-free, nonexclusive, limited license to use the name and logo of Customer on the CallTrackingMetrics website or in other public relations materials to include Customer as a customer of CallTrackingMetrics. Customer may terminate such authorized use upon 30 days written notice.
22. Indemnification and Disputes:
With respect to any violation of this Agreement, Customer agrees to indemnify and hold harmless CallTrackingMetrics, and its subsidiaries, parents, affiliates, managers, shareholders, officers, directors, agents, resellers, sales affiliates, licensees or other partners, and employees, from all claims, demands, liabilities, losses, damages and expenses (including without limitation reasonable legal fees and expenses), arising from or in connection with the use of the Service, any other parties’ use of the Customer Account, or any conduct while using the Service, violation of this Agreement, or violation of any rights of another, including without limitation any violation of applicable law or any tort committed while using the Service.
22.1 Applicable Law: This Agreement shall be governed by and construed in accordance with the laws of Maryland, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between Customer and CallTrackingMetrics or its associates.
23. Data Protection
23.1 Defined Terms: In this section 23, the terms “Controller”, “Data Subject”, “Personal Data Breach”, “Process” and “Processor” have the meanings given to them by the Data Protection Laws.
23.2 Application of Data Protection Laws: Where the Data Protection Laws apply to the delivery of the Services under these Terms, the parties agree that CallTrackingMetrics shall act as a Processor, and that Customer shall either be (i) a Controller; or (ii) another Processor, subject to a separate agreement with the Controller of the Customer Personal Data.
23.3 Obligations of CallTrackingMetrics: CallTrackingMetrics shall:
23.3.1 Process Customer Personal Data, as described in Annex 1 to these Terms, solely on the documented instructions of Customer, for the purposes of providing the Services and as otherwise necessary to perform its obligations under these Terms including with regard to transfers of Customer Personal Data to a third country outside the European Union or an international organization (unless required by Union or Member State law to which CallTrackingMetrics is subject, in which case CallTrackingMetrics shall inform Customer of that legal requirement before such Processing, unless that law prohibits such information on important grounds of public interest);
23.3.2 Ensure that persons authorized to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
23.3.3 Implement technical and organizational measures designed to ensure an appropriate level of security for Customer Personal Data, in accordance with Article 32 of the GDPR;
23.3.4 Be generally authorized to engage another Processor to Process the Customer Personal Data (“Sub-Processor“), subject to CallTrackingMetrics:
126.96.36.199 Notifying Customer of any intended changes to its use of Sub-Processors by posting notice of the intended change on CallTrackingMetrics’s Sub-Processor Page.
188.8.131.52 Including terms in its contract with each Sub-Processor which are no less protective than those set out in these Terms; and
184.108.40.206 Remaining liable to the Customer for any failure by each Sub-Processor to fulfil its obligations in relation to the Processing of the Customer Personal Data.
In relation to any notice received under section 220.127.116.11, the Customer shall have a period of 30 (thirty) days from the date of the notice to register any reasonable objection to the use of that Sub-Processor on the grounds of data protection. The parties will then, for a period of no more than 30 (thirty) days from the date of the Customer’s objection, work together in good faith to attempt to find a commercially reasonable solution for the Customer which avoids the use of the objected-to Sub-Processor. Where no such solution can be found, either party may (notwithstanding anything to the contrary in these Terms) terminate the relevant Services immediately on written notice to the other party;
23.3.5 Notify Customer without undue delay of any communication from a Data Subject regarding the Processing of Customer Personal Data, or any other communication (including from a supervisory authority) relating to any obligation under the Data Protection Laws in respect of the Customer Personal Data and, taking into account the nature of the Processing, assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to requests for exercising the data subject’s rights. In respect of such assistance, Customer agrees to pay CallTrackingMetrics for time exceeding one person hour] and for out of pocket expenses incurred by CallTrackingMetrics in connection with the performance of its obligations under this section 23.3.5;
23.3.6 Notify Customer without undue delay upon becoming aware of any Personal Data Breach involving Customer Personal Data, and provide Customer with such information as is reasonably required by Customer to assist with its obligations to notify the Personal Data Breach under the Data Protection Laws, to the extent that this information is available to CallTrackingMetrics (and acknowledging that CallTrackingMetrics shall be entitled to provide this information in phases, as its investigation develops). Where it can be reasonably demonstrated that Customer (or any third party connected to Customer) was responsible for the Personal Data Breach (evidence of which shall include, but not be limited to, any related enforcement action taken against Customer or any connected third party by any supervisory authority), Customer shall reimburse CallTrackingMetrics’ reasonable expenses in relation to its investigation and remediation of the Personal Data Breach;
23.3.7 Provide reasonable assistance to Customer, upon request, in relation to any data protection impact assessments, or related consultations with supervisory authorities, which Customer is required to undertake pursuant to Articles 35 to 36 of the GDPR;
23.3.8 To the extent that Customer is not able to self-serve its control or deletion of Customer Personal Data, provide reasonable assistance therewith to uphold the Customer’s right to have the Customer Personal Data returned or deleted following termination or expiry of these Terms;
23.3.9 Make available to Customer on request all information necessary to demonstrate compliance with this section 22, and provide, on request, and, subject to clause 23.3.10, in full satisfaction of Customer’s right of audit and inspection (which Customer hereby expressly acknowledges), an independent audit report of CallTrackingMetrics’ security measures in respect of its processing of Customer Personal Data; and
23.3.10 Notwithstanding section 23.3.10, permit Customer, following a Personal Data Breach, and on at least 5 days’ prior notice, to inspect and audit the facilities used by CallTrackingMetrics for the processing of Customer Personal Data, subject to Customer bearing CallTrackingMetrics’ reasonable costs.
23.4 International Transfers: Customer expressly acknowledges that CallTrackingMetrics’ processing facilities are located in the United States of America. To ensure compliance under the Data Protection Laws, Customer (as “data exporter”) and CallTrackingMetrics (as “data importer”), with effect from the commencement of the relevant transfer, hereby enter into the Standard Contractual Clauses in respect of any transfer from Customer to CallTrackingMetrics (or onward transfer) where such transfer would otherwise be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address Data Protection Laws). Appendix 1 to the Standard Contractual Clauses shall be deemed to be pre-populated with the relevant sections of Annex 1 to these Terms and the processing operations are deemed to be those described in these Terms. Appendix 2 to the Standard Contractual Clauses shall be deemed to be prepopulated with the following “Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood for the rights and freedoms of natural persons, CallTrackingMetrics shall implement appropriate technical and organizational measures as set forth in these Terms.
23.5 Obligations of Customer: Customer acknowledges and confirms that: (i) all Customer Personal Data shall comply with and have been collected or otherwise obtained in compliance with Data Protection Laws, including by ensuring that there is a lawful basis for each Processing activity which Customer instructs CallTrackingMetrics to perform in relation to Customer Personal Data; (ii) Customer will take appropriate measures to ensure that the information referred to in Data Protection Laws, including Articles 13 and 14 of the GDPR, is made available to relevant Data Subjects in relation to the Processing by CallTrackingMetrics, for the purposes of which Customer may choose to reference the Application Privacy Notice made available by CallTrackingMetrics; and (iii) all instructions given by Customer to CallTrackingMetrics in respect of Customer Personal Data shall be in accordance with Data Protection Laws.
23.5 Use of Aggregated Data: Customer acknowledges that CallTrackingMetrics collects and uses data from across its customer base in order to improve its products and services for its customers, and to carry out related research. CallTrackingMetrics takes steps to aggregate or otherwise de-identify any Customer data used for these purposes, and therefore does not knowingly process any personal data. However, to the extent that any such data is held to be personal data in a particular jurisdiction, CallTrackingMetrics shall be the Controller for the purposes of the Data Protection Laws.
24.1 Amendment: CallTrackingMetrics may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. CallTrackingMetrics will notify Customer of any such amendments and Customer’s continued use of the CallTrackingMetrics Services following the effective date of any such amendment may be relied upon by CallTrackingMetrics as Customer’s consent to any such amendment. CallTrackingMetrics’ failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of the Agreement.
24.2 Enforceability: If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severed from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
24.3 Modification: Except when expressly provided by another written agreement with CallTrackingMetrics, this is the entire Agreement between the parties relating to the subject matter herein and shall not be modified except in writing signed by an authorized representative of CallTrackingMetrics. Customer agrees that CallTrackingMetrics may, in its sole discretion, from time to time add to, delete from, or modify this Agreement in any reasonable manner by providing notice as permitted above.
24.4 Force Majeure: CallTrackingMetrics shall not be deemed in breach of this Agreement, nor for any breach of any implied warranty or other obligation, for any failure in performance arising in connection with circumstances beyond its reasonable control, including, without limitation, fire, flood, storm, strike, lockout or other labor trouble, riot, war, rebellion, accident, or other acts of God.
24.5 Transferability: The right to use the Service and access the Account is not transferable, sublicense able, and may not be sold, rented, or timeshared, unless expressly permitted in another agreement with CallTrackingMetrics. CallTrackingMetrics may assign this Agreement, in whole or in part, at any time with or without notice.
24.6 No Waiver: The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
24.7 Relationship: Each party is an independent contractor in the performance of each and every part of this Agreement. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of its activities, or those of its employees or agents, in the performance of this Agreement. Customer does not have the authority to commit CallTrackingMetrics in any way and will not attempt to do so or imply that it has the right to do so.
877 Baltimore Annapolis Blvd. Suite 207
Severna Park, MD 21146.
ANNEX 1: DESCRIPTION OF PROCESSING OF CUSTOMER PERSONAL DATA
This Annex includes certain details of the Processing of the Customer Personal Data as required by Article 28(3) of the GDPR.
- Subject matter and duration of the Processing of the Customer Personal Data: The subject matter and duration of the Processing of the Personal Data are set out in the Terms.
- The nature and purpose of the Processing of the Customer Personal Data: CallTrackingMetrics is engaged to provide the Services to Customer which involve the Processing of Customer Personal Data. The scope of the Services are set out in the Terms, and the Customer Personal Data will be Processed by CallTrackingMetrics to deliver those Services and to comply with the Terms.
- The types of the Customer Personal Data to be Processed: Any personal data introduced by Customer, or Customer’s end users, onto the CallTrackingMetrics’ platform, including (by way of example) names, telephone numbers, contents of telephone conversations.
- The categories of Data Subject to whom the Personal Data relates: Customer’s employees or end users, or the customers or employees of Customer’s end users.
- The obligations and rights of Customer: The obligations and rights of Customer are set out in these Terms.