View the Terms of Service for 2023.
January 1, 2024
CallTrackingMetrics, LLC (“we/us/our” or “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 (“you/your” or “Customer,” subject to Section 2) 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, along with any Order Form (as hereinafter defined), contract form or addendum provided or accepted by CallTrackingMetrics, and such CallTrackingMetrics policies as are incorporated herein from time to time, including without limitation the Acceptable Use Policy as posted from time to time (the “AUP”), become a binding legal agreement between you and us (collectively, the “Agreement”). If you have any questions, you can reach CallTrackingMetrics at https://calltrackingmetrics.com/contact
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 services provided, call tracking technology, text message, and reporting software described below are subject to these Terms.
Please review our Privacy Notices, which also govern your visit to our website, to understand our practices.
2. Representations and Warranties of Acceptor:
If you are accepting these Terms, or submitting any Order Form or contract subject to these Terms, for a company or other entity, you hereby represent and warrant that you (1) have the legal right and authority to enter into these Terms for the company or other entity as named in the Account (as hereinafter defined), (2) acknowledge that you are accepting these Terms, along with any service order or contract submitted by you, on behalf of a company or other entity, (3) you are binding the company or other entity to the Terms and any Order Form or contract submitted by you, and (4) if you cease to be affiliated with the company or entity for which you entered the Terms, 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, and you will have no claim against CallTrackingMetrics with respect to the ownership, possession or use of any such Account, content or data. If you are accepting these Terms or submitting a service order or contract, you will not be subject to personal liability for Customer’s breach of any provision hereof, unless you have breached one of the foregoing representations or warranties.
Capitalized terms not otherwise defined herein will have the meanings attributed to them in this Section 3. Unless context clearly requires otherwise, the singular of any term includes the plural and vice versa, and terms of any gender include all genders.
“Customer”: The individual accepting the Terms or the entity such individual represents, subject to Section 2 above.
“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.
“CCPA”: The California Consumer Privacy Act of 2018 (as amended) (see Cal. Civ. Code § 1798.100 – § 1798.199 et seq).
“Customer Data”: Customer Data consists of information made available to us through your use of our Services under these Terms, which includes information such as your name, contact information, billing records, call or messaging logs, and traffic routing information, as well as the content of communications sent through or integrated with our Services, such as audio recordings, message bodies, and call recording transcriptions, and for the avoidance of doubt includes all Customer Personal Data.
“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 Regulation (EU) 2016/679 (“GDPR”) and any national legislation which supplements the GDPR, together with national legislation implementing Directive 2002/58/EC (as amended) (the “ePrivacy Directive”) (and any legislation which replaces Directive 2002/58/EC), but excluding the CCPA.
“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, and such other services as CallTrackingMetrics may provide from time to time.
“Service Address”: Sales taxes for CallTrackingMetrics’s products are dependent on where the Customer consumes our services, which is determined by the Customer’s Service Address. In most cases, this is the same as the Customer’s billing address.
“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.
“User”: Any user of CallTrackingMetrics Services that interacts with our Services, whether such user is authorized or permitted access to the Services by Customer in accordance with these Terms (an “Authorized User”) or unauthorized.
“Documentation”: Any usage guides and policies for the Services contained in instructions or other documentation provided with the Services or made available by us in connection with the Services.
4. Changes to These Terms
We may update or modify these Terms and our posted policies, including the AUP, from time to time. We will provide you with written notice of any updates or modifications to these Terms that materially modify your Services or your obligations hereunder at least thirty (30) days in advance of the effective date; unless such material updates result from changes in laws, regulations, or requirements from telecommunications providers, in which event we will use commercially reasonable efforts to provide such notice as may be practicable under the circumstances. Notice will be given in accordance with Section 16.5 (Notices). This notice will highlight the intended updates and the effective date. The updated version of these Terms will supersede all prior versions. For all other changes or updates to these Terms, we may, but shall not be obligated to, provide notice, which notice may be given in any manner we deem appropriate. Notice will generally not be given for changes to our policies, including the AUP, except that modified versions of policies will specify the date on which they were updated, and except that we may (but will not be required to) post notice in advance of policy changes on our website. You acknowledge and agree that you are obligated to review our website, these Terms and any policies referenced herein (including the AUP) periodically to ensure your compliance. Following notice of material updates or modifications to these Terms, or commencing on the next billing cycle after the posting of any other updates or modifications to these Terms or any updates or modifications of any of our policies, your continued use of the Services on or after the effective date of the applicable updates or modifications constitutes your acceptance of such updated or modified Terms and/or policies. If you do not agree to the updated version of these Terms or policies, you must stop using the Services immediately.
5. Account Creation and Information
5.1 Account Creation: To use the Services, you will be asked to create an Account. As part of the account creation process, you’ll be asked to provide your email address, create a password, and verify that you are a human being by providing a telephone number to which we will send you a verification code to enter into an online form. Until we authorize an Account, your access to the Services will be limited. When creating an Account, you must provide true, accurate, current, and complete information about yourself and/or the Customer, if an entity, as requested during the Account creation process. You must keep that information true, accurate, current, and complete after you create each Account.
5.2 Account Authorization: As part of our ongoing and routine monitoring of Account activity and to help us reduce the risk of fraudulent use of your Account and the Services, you will initially be limited in the number of transmissions you can send while we are activating your Account. When necessary, we will reach out to the Customer to request additional information needed to fully authorize an Account.
5.3 Restriction: If you breach these Terms, including, without limitation, your payment obligations in Section 8 (Fees and Payment Terms), you are strictly prohibited from creating new accounts until you remedy such breach in full.
6. Provision of Services
6.1 Our Responsibilities. We will make the Services available to you in accordance with these Terms, our Documentation, including any usage guides and policies for the Services contained in such Documentation, and any applicable ordering document between the parties that specifies mutually agreed upon rates for certain Services and other commercial terms, including any applicable minimum spend commitments (“Order Form”). We will provide the Services in accordance with laws applicable to our provision of the Services to our customers generally (i.e. without regard for your particular use of the Services), subject to your use of the Services in accordance with these Terms, the applicable Documentation, and any applicable Order Form(s). We will, if applicable, use trained, qualified personnel to provide the Services; and use commercially reasonable efforts to provide you with applicable support for the Services as described in Section 12.
6.2 Availability: Services described on the CallTrackingMetrics websites may or may not be available in all countries or regions of the world and may be available under different trademarks in different countries. Additionally, some Services may rely upon third-party facilities, networks, hardware, software or services, which may not be available at all times or in all areas. CallTrackingMetrics will have no liability for any unavailability of Services except as may be set forth in the support provisions of Section 12.
6.3 Modification: CallTrackingMetrics may at any time change or modify the features and functions of the Services may change over time provided, however, we will not materially decrease the overall functionality of the Services or discontinue a Service without providing advance notice to Customer. CallTrackingMetrics will use reasonable efforts to provide reasonable advance notice to Customer prior to implementation of a material change in Service and to provide information required for Customer to continue to use the Services.
6.4 Phone Numbers: 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 these Terms, Customer may not be able to obtain the same local or toll free numbers should the Service be reactivated.
6.5 Porting: We allow Customers to port phone numbers in or out of Customer’s Account, in accordance with applicable laws, the policies of our underlying service providers and prevailing practices in the telecommunications industry. It is the Customer’s responsibility, as the case may be, to provide us with appropriate letters of authorization and such other documentation as we may request in order to port in a number from another carrier, or to confirm the completion of a port away request with the winning carrier and release the tracking numbers from Customer’s Account. In the event you port out any number, you will remain responsible for all Fees and other amounts due in connection with such number until the port is completed and you have completed all steps required to release the number from your Account. In connection with any port in, we may require you to select a temporary number from a list of DID/ telephone numbers that we will provide, which will be used until the port in is complete. In no event will we be liable for any delays in or rejection of a porting request by the winning or releasing (as the case may be) carrier.
6.5.1 Any attempts to use CallTrackingMetrics merely as a source of number storage or accumulation without use of the numbers on our system is not permitted and is grounds for suspension or Termination (see 10.6 Material Breach) at CallTrackingMetrics sole discretion. CallTrackingMetrics reserves the right, in its sole and absolute discretion, to reclaim or reassign any number under Customer’s account that has not been used for at least thirty (30) days.
6.6 Activation: 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.
6.7 Compliance with Terms: Customer is responsible for their compliance with these Terms as well as their Users’ compliance. If Customer or any User violates these terms,
6.8 CallTrackingMetrics may suspend Customer’s use of the Services immediately and in our sole discretion upon notice to you for cause if:
(a) you or a User has materially breached (or we, in good faith, believe that you or a User has materially breached) any provision of these Terms or any provision of the AUP;
(b) there is an unusual and material spike or increase in your use of the Services and we believe that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services;
(c) we determine that our provision of the Services is prohibited by applicable law or regulation;
(d) there is any use of the Services by you or a User that in our sole judgment threatens the security, integrity, or availability of the Services;
(e) information in your Account is untrue, inaccurate, or incomplete;
(f) you have failed to pay any amount when due and have not cured such failure within five (5) days of the date on which payment was due; or
(g) as provided in Section 8 of these Terms or the AUP.
If we suspend the Services pursuant to this Section 6, Section 8 or the AUP, you will remain responsible for the Fees (as defined below) and we will have no liability for any damage, liabilities, losses (including any loss of data or profits) of any kind whatsoever, or any other consequences that you may incur in connection with any such suspension.
7. No Use for Emergency Services:
The CallTrackingMetrics services are not intended to be used in a manner functionally equivalent to typical voice services and rely upon third party networks and services. The Services at present are not intended to be used to support or carry emergency calls to any emergency services. Outbound communications are not associated with a geographic location and thus will not route to a local 911 service, and the software may not permit the dialing or entry of certain numbers, including 911. The Services will not be available if Customer experiences a power outage, loss of broadband connection for any reason (including outages, electrical interference or supsension or termination by the broadband services provider), or termination or suspension of Services by us (including for non-payment). Customers should maintain another phone system associated with their location to use for emergency calling. Without limiting the generality of the foregoing, Customers using our mobile application should exit the application and use their cellular carrier’s phone service for the placement of emergency calls. You shall give clear and conspicuous notice to all Users under your Account of the limitations of the Services with respect to emergency calling, and you will indemnify and hold us harmless for any claims arising out of or related to your failure to provide such notice. These Terms will be updated if and as additional functionality is made available by our underlying service providers or in future generations of the Services.
8. Customer Regulatory Responsibilities
8.1 Illegal Robocalling Traceback Cooperation
CallTrackingMetrics and Customer will cooperate with each other and third parties, as necessary, to determine the origin of a voice call to or from a United States phone number that is suspected of being an illegal robocall by identifying (a) the upstream voice service provider from which such voice call entered CallTrackingMetrics or its upstream carriers networks or (b) its own customer or End User, as applicable, if such voice call originated from within the Customer’s Account. Notwithstanding the foregoing or any other provision hereof, CallTrackingMetrics makes no representation, warranty or commitment of any kind regarding the attestation level that any voice service provider may assign to calls under Customer’s Account or over any phone number assigned to Customer, and CallTrackingMetrics shall have no liability for any attestation level assigned by any voice service provider or any determination of a voice service provider to block any traffic under Customer’s Account or associated with any phone number assigned to Customer.
8.2 Customer will not use the Services for any Excluded Service, for excessive Short Duration Calls or for activity that exceeds the Incomplete Call Threshold, as such terms are defined in the AUP. Such usage may, in addition to our other remedies hereunder, result in additional surcharges as set forth in the AUP or in our then-posted rates and charges.
9. Fees and Payment
9.1 Account Available Balance: In order to start using CallTrackingMetrics service, Customer will need to select a subscription plan and add money to the “Account Available Balance” in your online account portal to fund usage in the account. The Customer chooses how much to initially add to the Available Balance and at what point it should automatically recharge. Thereafter, the fees for usage including phone numbers rentals, minutes used, text messages sent or received, and any other fees for services such as premium Caller ID, keyword spotting, additional calls per second capacity, transcription services, form completions etc (collectively “Usage”) will all be deducted from the Available Balance. If the recharge settings that the Customer has chosen results in charge attempts to their card that CallTrackingMetrics deems, in its sole discretion, to be too frequent or to place undue burdens or costs upon CallTrackingMetrics, CallTrackingMetrics reserves the right to adjust the balance to reduce the frequency to no more than one charge per day based on the average daily use in the Account. Customer authorizes CallTrackingMetrics to charge Customer’s credit card on file, in accordance with Section 9.2, for the amount associated with the Available Balance and frequency as adjusted by CallTrackingMetrics pursuant to this Section 9.1.
9.2 Credit card Payment Terms: Customer shall provide current and valid credit card information upon establishing the Account. Customer grants CallTrackingMetrics the right to charge the primary or secondary credit cards in Customer’s Account for all fees incurred under the Agreement, including all Taxes (as hereinafter defined) applicable thereto. Customer is responsible for (a) managing auto-recharge settings on the Account and (b) ensuring that the Account has a sufficient positive balance to cover all fees due.
9.2.1 Negative Available Balance: If, for any reason, your Account has a $0 or negative balance, CallTrackingMetrics may, in lieu of charging your credit card on file, in its sole discretion, suspend your Account, preventing further usage from occurring until funds are added to the Available Balance. If your balance remains at $0 or below for more than 60 days, it will be canceled until the Account is funded and all Fees and other amounts due are paid in full. You are prohibited from creating new accounts until the fees due from your prior account(s) are paid in full.
9.3 Each subscription plan has an associated monthly fee (the “Fee”), as posted on our website. The monthly Fee for the chosen subscription plan, plus all associated Taxes, late charges or other amounts due, will be charged to the Customer’s payment method on file. 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 canceled (canceling just the sub-accounts will not stop the monthly subscription fee from being charged).
9.4 Customers can elect to sign up for a prepaid 12 month subscription plan. In those plans, the monthly subscription 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 day 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 Fee for the number will be deducted from the Available Balance as soon as the Customer purchases the number and every thirty days thereafter. Customer can cancel a tracking number by releasing it on the edit tracking number page. There are no refunds given for tracking numbers purchased accidentally or no prorated refunds for tracking numbers released during the 30 day period.
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://app.calltrackingmetrics.com/rates.
9.7 Licenses: Customers can choose to add on licenses to their Account such as “Chat” or “Agent”. The monthly license Fee(s) are charged to the Account Available Balance. If the Customer has multiple licenses renewing on the same day, they will be grouped into one deduction amount from the Available Balance.
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.
9.9 Fee Changes: CallTrackingMetrics may change any Fee, or any component of its Fees under any Service plan, by posting the changes to its websites or otherwise notifying customers of the change., Such changes to any Fees will take effect at the beginning of the next period of service under Customer’s Account, unless CallTrackingMetrics specifies another effective date in writing.
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 must agree in writing to approve the difference. Upon such agreement, Customer shall be responsible for all costs of numbers acquired through such other carrier, including any Taxes assessed by such carrier, and shall indemnify and hold CallTrackingMetrics harmless from all such costs.
9.12 Taxes and Communication Surcharges: All fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”).
9.12.1 Customer shall be responsible for maintaining an accurate service address for their Account. Customer will pay all Taxes in connection with this Agreement, excluding any taxes based on CallTrackingMetrics net income or employees.
9.12.2 If a Customer is exempt from any such Taxes for any reason, CallTrackingMetrics 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.
9.12.3 Communications Surcharges and Cost Recovery Fees: If applicable, all fees are exclusive of any applicable communications service or telecommunication provider (e.g., carrier fees or surcharges (collectively, “Communications Surcharges”). You will pay all Communications Surcharges in connection with your use of the Services. Communications Surcharges will be shown as a separate line item on an invoice. You will pay all costs, fines, or penalties that are imposed on CallTrackingMetrics by a government or regulatory body or a telecommunications provider as a result of your or your Users’ use of the Services. We may also assess a cost recovery fee to recover our costs of compliance with regulatory programs applicable to the Services, as well as other administrative expenses. Such cost recovery fee shall be shown as a separate line item on Your invoice. Please refer to our fee disclosure for more information regarding the cost recovery fee.
10. Term and Termination
10.1 Term: These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated in accordance with this Section 10 or the terms of your Service plan (“Term”).
10.2 Termination by CallTrackingMetrics: We may terminate these Terms and close all of your Accounts for any reason upon thirty (30) days prior written notice to the Customer unless otherwise specified herein.
10.3 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. Past activity data and reports will be accessible for 60 days and then will be deleted. If Customer’s plan requires a commitment for a minimum Term and Customer cancels prior to the end of such Term, then Customer shall owe all Fees due for the remaining months in the Term.
10.3.1 Notwithstanding the preceding sentence, if there is an Order Form(s) or Addendum in effect, then these Terms will not terminate until such Order Form(s) or Addendum has expired or been terminated in accordance with its terms.
10.4 After canceling an Account, the Available Balance will be preserved for 90 days. If Customer would like to request a refund of the Available Balance, they must do so within 90 days by contacting us at https://calltrackingmetrics.zendesk.com/hc/en-us/requests/new. Otherwise, the money will be forfeited.
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 3%, International fees are 5%. Additionally, no refund will be made if Customer terminates a Service prior to the end of the Term for that Service stated in the applicable plan or Order Form.
10.5 When canceling a monthly license such as “Chat” or “Agent, the Customer will still be able to use the associated license through the end of the current billing cycle- unless they are also canceling the associated Account (in which case, they will no longer be able to use the licenses associated with it).
10.6 Material Breach: We, at our sole discretion, may terminate these Terms and close all of your Accounts in the event you breach these Terms and fail to remedy such breach within fifteen (15) days after we provide written notice of such breach to you. You may also terminate these Terms in the event we breach any of our material obligations under these Terms and fail to remedy such breach within fifteen (15) days after you provide written notice of such breach to us.
10.7 Insolvency: Subject to applicable law, either party may terminate these Terms immediately and close all of your Accounts by providing written notice in the event of the other party’s liquidation, commencement of dissolution proceedings, or any other proceeding relating to a receivership, failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.
11. Ownership, Confidentiality and Use of Customer Data
11.1 Ownership: We exclusively own and reserve all right, title, and interest in and to the Services, our Confidential Information (as defined below), and any data, in anonymized or aggregated form that does not identify you, any Users, or any natural person, generated or derived from the use or operation of the Services, including volumes, frequencies, bounce rates, and performance results for the Services. You exclusively own and reserve all right, title, and interest in and to your Confidential Information, and Customer Data, subject to our rights to use and disclose Customer Data in accordance with these Terms.
11.2 Our Use of Customer Data: You instruct us to use and disclose Customer Data as necessary to (a) provide the Services consistent with this Section 11, any other applicable provisions of these Terms, our Data Protection Addendum and our Privacy Notices, including detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Services, and (b) respond to any technical problems or your queries and ensure the proper working of the Services.
11.3 You acknowledge that the Internet and telecommunications providers’ networks are inherently insecure. Accordingly, you agree we are not liable for any changes to, interception of, or loss of Customer Data while in transit via the Internet or a telecommunications provider’s network.
If you do not agree to CallTrackingMetrics Privacy Notices and/or Data Protection Addendum, you must stop using our Services. If you have any questions about either of them, you may contact us at 1-800-577-1872 or via email at email@example.com.
11.5 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.
11.6 Trademarks: 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.
11.7 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.
11.8 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 CallTrackingMetrics 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 subdomains, 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.
11.9 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.
11.10 Confidentiality: “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure, including, without limitation, any Order Form(s), Customer Data, security reports and attestations, audit reports, customer lists, pricing, phone numbers, concepts, processes, plans, designs and other strategies, financial, and other business and/or technical information and materials of Disclosing Party and its Affiliates. Confidential Information does not include any information which: (a) is publicly available through no breach of these Terms by or fault of Receiving Party; (b) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without breach of Disclosing Party’s rights; or (d) is independently developed by the Receiving Party without use of or reference to the Confidential Information of Disclosing Party.
11.11 Use and Disclosure: Except as otherwise authorized by Disclosing Party in writing, Receiving Party will not (a) use any Confidential Information of Disclosing Party for any purpose outside the scope of these Terms and (b) disclose or make Confidential Information of Disclosing Party available to any party, except to its affiliates, and their respective employees, legal counsel, accountants, contractors, and in our case, subcontractors (collectively, “Representatives”) who have a “need to know” in order to carry out the purpose of these Terms. Receiving Party is responsible for its Representatives’ compliance with this Section 11.11. Representatives will be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this Section 11.11. Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care.
11.12 Compelled Disclosure: Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided Receiving Party gives Disclosing Party notice of a Compelled Disclosure (to the extent legally permitted). In any event, the Receiving Party will use commercially reasonable efforts to limit the Confidential Information disclosed to the minimum necessary to comply with the Compelled Disclosure, and to request confidential treatment of such Confidential Information.
12.1 CallTrackingMetrics General Support (“Support”) is available to Customers to help them with questions about their Account. General Support does not come with any response time or resolution guarantees. General Support does not include any uptime commitments or other service level commitments.
12.2. General Support is distinct from the Implementation Support, Premium Support, or Onboarding (collectively “Customized Support”) which are paid services. Terms for Customized Support are provided through Order Forms.
12.3 General Support does not provide detailed orientations, walkthroughs or assessments of a Customer’s Account.
12.4 The General Support Team cannot directly modify configurations or settings in a Customer’s Account.
12.5 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.
12.6 CallTrackingMetrics may in its sole discretion determine the methods and channels for the provision of General Support. CallTrackingMetrics has the discretion to limit the frequency and channels 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 to provide service to them.
12.7 CallTrackingMetrics can only 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.
12.8 Customers seeking General Support over the phone or chat will be required to provide their Account ID, their first and last name, login email address, and their support Pin prior to receiving services.
12.9 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.
12.10 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 their computer hardware and telephone devices.
13. Use of Marks
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.
14. DISCLAIMER OF WARRANTIES:
CALLTRACKINGMETRICS HEREBY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO ANY SERVICES OR EQUIPMENT PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, CALLTRACKINGMETRICS MAKES NO WARRANTIES RELATED TO THIRD PARTY EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE.
CALLTRACKINGMETRICS’ SERVICES AND PROPERTIES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” TO THE FULLEST EXTENT PERMITTED BY LAW. CALLTRACKINGMETRICS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF ITS WEBSITE, THE CALL TRACKING SERVICE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE WEBSITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE AND ALL SERVICES AND PRODUCTS 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.
15. 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 IMMEDIATELY PRECEDING THE INCIDENT OR OCCURRENCE FROM WHICH THE CLAIM AROSE.
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.
16. Anti-Corruption and International Trade Laws.
Each party (a) warrants that it will comply with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders (collectively, “Anti-Corruption and Trade Laws”) in the jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States, and (b) represents that it has not made, offered, promised to make, or authorized any payment or anything of value in violation of Anti-Corruption and Trade Laws. You will promptly notify CallTrackingMetrics in writing of any actual or potential violation of Anti-Corruption and Trade Laws in connection with the use of the Services and take all appropriate steps to remedy or resolve such violations, including any steps requested by CallTrackingMetrics. If applicable, you represent that you have obtained, and warrant that you will continue to obtain, all licenses or other authorizations required to export, re-export, or transfer the Services. Each party represents that it (and in your case, also your Users) is not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). You will immediately (i) discontinue your use of the Services if you become placed on any Sanctions List and (ii) remove your End Users’ access to the Services if your Users become placed on any Sanctions List. You represent that you have not, and warrant that you will not, export, re-export, or transfer the Services to an entity on any Sanctions List without prior authorization from the applicable governmental authority. Notwithstanding anything to the contrary in this Agreement, either party may terminate this Agreement immediately upon written notice to the other party if the other party is in breach of its obligations in this Section.
17. Indemnification and Disputes:
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 Services, any other parties’ use of the Account, any conduct or omissions of Customer or any User while using the Service, any violation of these Terms or the AUP, or any violation of applicable law or rights of any third party, or any tort committed while using the Service.
17.1 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 Terms and any dispute of any sort that might arise between Customer and CallTrackingMetrics or its associates. Venue for all disputes arising under these Terms or the Agreement shall be solely in the state and federal courts for Anne Arundel County, Maryland. Each party hereby submits to the jurisdiction of such courts and waives any and all claims that such courts lack jurisdiction over such party or constitute an inconvenient forum.
18.1 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.
18.2 Force Majeure: CallTrackingMetrics shall not be deemed in breach of this Agreement, nor for any breach of any obligation hereunder or implied in law, 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.
18.3 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 the Agreement, in whole or in part, at any time with or without notice.
18.3 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.
18.4 Relationship: Each party is an independent contractor in the performance of each and every part of these Terms. 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.
18.5 Notices: When Customer visits or sends 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.
Any notice required or permitted to be given under these Terms to you will be sent via email to the email address you designate in your Account or provided via your account portal. You hereby consent to receive email notices for all matters required or permitted under these Terms, or otherwise affecting your Account or Services.
Any questions or notices can be directed to CallTrackingMetrics at:
231 Najoles Road Suite #500
Millersville, MD 21108.
18.6 Entire Agreement: These Terms, along with the Order Form, the policies referenced herein, the service plan terms posted on our website from time to time, and any addenda or other documents executed by the parties in connection herewith, constitute the entire Agreement between the parties with respect to the subject matter hereof and thereof, and supersede all prior agreements or understandings with respect to such subject matter. Except as stated in these Terms, the Agreement between the parties may not be amended except by a written instrument executed by the parties.