The Terms of Service set forth below shall govern the relationship between CallRevu and the Customer.
In the event of a conflict among these Terms of Service and the Services Agreement, the Terms of Service shall control. Any term not defined in these Terms of Service shall have the meaning set forth in the Services Agreement.
“CallRevu” or “Supplier” means CallRevu, LLC.
“Customer” means the party to the Services Agreement that makes use of the Business Intelligence Services provided by CallRevu pursuant to the Master Services Agreement. Use of the term “Customer” shall include the Customer’s employees and agents as well as the Customers subsidiaries and affiliates.
“Business Intelligence Services” means the phone tracking and transcription services to automotive dealers through leading technology and proprietary software to enable the accumulation, processing, analysis, and presentation of data collected to best increase profitability of the Customer. Use of the term “Business Intelligence Services” also includes the software, systems, and networks through which the foregoing Business Intelligence Services are provided.
“Master Services Agreement” shall mean these Terms of Service together with the Services Agreement.
“License” means the license granted to the Customer to access and use the Business Intelligence Services subject to these Terms of Service.
“Services Agreement” means that certain Services Agreement entered into between CallRevu and the Customer.
“Terms of Service” means the terms and conditions set forth herein. These Terms of Service were previously referred to as the Terms and Conditions.
“Overage Minutes” means the minutes of use that exceed the minutes included in the client’s subscription package.
Grant of License. During the Term of the Services Agreement, including any renewals, and subject to these Terms of Service, Supplier grants to the Customer a non-exclusive, non-transferrable, non-sublicensable, License. The License shall be used solely for the Business Intelligence Services provisioned by Supplier for the benefit of the Customer. This License is revocable at any time at the sole discretion of the Supplier. The Customer shall not sublicense the License, or any rights to use the License in any manner, to any third party without the Supplier’s prior written consent which shall be at the sole discretion of the Supplier. With respect to the Customer’s use of the Business Intelligence Services, the Customer shall not copy, republish, frame, download, transmit, modify, rent, lease, loan, sell, assign, distribute, reverse engineer the Business Intelligence Services or create derivative works based on the Business Intelligence Services.
The Customer shall use the Business Intelligence Services solely for the benefit of the Customer’s business and consistent with the terms of the Services Agreement and these Terms of Service. So long as the Customer’s account is in good standing, and subject to the provisions of the Master Services Agreement, any data generated through the Business Intelligence Services including, but not limited to, audio recordings, call log entries and reporting platforms will be available to the Customer. The Customer’s account is deemed to be in good standing, if, among other things, the Customer is paid current on all amounts due to the Supplier and is not otherwise in breach of the Services Agreement or these Terms of Service.
The CallRevu Platform, which is operated in connection with the Business Intelligence Services, is used by a Customer to access certain Customer data and information. The CallRevu Platform offers certain self-servicing capabilities that permit and enable the Customer to perform its own modifications to the Platform. The CallRevu Platform is delivered by CallRevu to the Customer in its AS-IS condition. CallRevu shall not be liable for any self-servicing modifications to the CallRevu Platform that are performed or completed by the Customer. All self-servicing modifications completed by the Customer are the Customer’s sole risk, liability, cost and expense, and Customer shall not hold CallRevu liable for any damages or harm that result from the Customer’s self-servicing modifications.
The Customer will cause its employees, agents, subsidiaries and affiliates to comply with this Terms of Service and the Services Agreement. The Customer shall be responsible for any breach of, or failure to comply with, the Master Services Agreement by its employees, agents, subsidiaries and affiliates.
Term. The term of the Services Agreement and any renewals are defined in the Services Agreement. The Initial Term and each applicable Renewal Term shall automatically renew unless terminated upon written notice to the other party a minimum of sixty (60) days prior to the end of the Initial Term or any Renewal Term.
Early Termination. The Master Services Agreement may be terminated at any time and by either party under the following circumstances:
If a party materially breaches the Master Services Agreement, the non-breaching party may send written notice to the breaching party identifying the breach. The breaching party shall have ten (10) days from the date it receives the notice to cure the breach. If the breaching party does not cure the breach, the Master Services Agreement shall automatically terminate upon written notice by the non-breaching party to the breaching party which notice must be provided within forty-five (45) days of the expiration of the ten (10) day cure period.
The Master Services Agreement shall automatically terminate (i) upon the commencement by the Customer of a voluntary case under the federal bankruptcy laws or any federal or state insolvency or similar laws or the consent by the Customer to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, or similar official for the Customer of any of the property of the Customer or the making by the Customer of an assignment for the benefit of creditors, or the failure by the Customer generally to pay its debts as the debts become due; or (ii) if there shall be filed against the Customer an involuntary petition or other pleading seeking the entry of a decree or order for relief under the United States Bankruptcy Code or any similar federal or state insolvency or similar laws.
The Supplier may terminate the Master Services Agreement, for any reason or no reason, upon fifteen (15) days prior written notice to the Customer.
Procedure Upon Termination.
Upon termination of the Master Services Agreement for any reason, the Customer’s License shall immediately terminate, and the Customer shall immediately cease its use of and access to the Business Intelligence Services.
The Customer shall work with the Supplier to port the telephone numbers to Customer’s new solutions provider and to remove ad tracking lines posted in the Customer’s ad sources. Upon termination of the Master Services Agreement, the following shall occur: (i) the telephone lines shall be ported after written notice of termination has been provided, (ii) Customer shall continue to pay Supplier for these lines until they are fully ported at Supplier’s then-current rates which are not less than $0.069 per minute, and (iii) if all of the lines are not fully ported as of the termination date, the Supplier shall have the right to terminate such non-ported phone lines.
Upon termination, the Customer owns all rights to its tracking numbers and may transfer its tracking numbers to another provider, at Customer’s sole cost and expense, so long as the Customer has not accepted use of a number expressly stated as a non-transferrable number and is in compliance with all terms and conditions contained in the Master Services Agreement and its use of the Business Intelligence Services.
Termination of the Master Services Agreement shall not affect any right of either party arising from any act or failure to act, as the case may be, prior to the termination.
Late Payment; Payment Disputes.
In the event any funds via direct-debit of Customer are unavailable upon Supplier’s debiting of Customer’s account by ACH withdrawal, Client shall pay a late fee in the amount of 1.5% each month such payment is past due. This 1.5% fee shall also apply in the event Customer does not timely pay Supplier if such Customer does not use ACH withdrawal. This 1.5% late fee shall be calculated based on the total amount owed by Customer to Supplier.
If a customer reasonably disputes any portion of an invoice, Customer must pay the undisputed portion of the invoice and submit to Supplier written notice of its claim (with sufficient detail of the nature and basis of the claim, the amount and invoices in dispute and information necessary to identify the affected Service(s)) for the disputed amount. All claims must be submitted in writing within sixty (60) days from the date of the invoice for those Services. Customer waives the right to dispute any charges not disputed within such sixty (60) day period. In the event that the dispute is resolved against Customer, Customer shall pay such amounts plus 1.5% interest calculated based on the total disputed amount owed by Customer to Supplier.
Storage of Recordings. All transcribed audio recordings will be automatically deleted after thirteen (13) months from the date recorded unless the Service Agreement specifies otherwise.
Customer acknowledges that Supplier is not a phone provider, and the telephone lines provided are solely for tracking purposes in connection with the Business Intelligence Services. Supplier may refuse the Business Intelligence Services to anyone at any time in the Supplier’s sole discretion. Supplier reserves the right to discontinue, temporarily or permanently, any or all of the Business Intelligence Services, including, but not limited to, shutting down phone numbers; provided, however, Supplier will make reasonable efforts to notify Customer within twenty-four (24) hours of doing so. Supplier reserves the right to discontinue any or all of Customer’s use of the Business Intelligence Services if Supplier suspects that Customer may be in breach of the Master Services Agreement. Supplier shall not be liable to any third-party for its termination of the Customer’s access to the Business Intelligence Services.
Customer acknowledges that Supplier will not be liable for any damages arising out of any change to the telephone numbers assigned to Customer, and Customer waives any claims against Supplier with respect to such change to the assigned telephone numbers. Supplier reserves the right to withdraw telephone numbers from the Customer at Supplier’s sole discretion when the Supplier determines that a telephone number is receiving insufficient use. Supplier’s practices and policies may change from time to time with respect to withdrawing and reassigning telephone numbers.
The Business Intelligence Services are designed to be used in connection with local exchange telephone, wireless telephone, and similar telecommunications services provided by a third-party service provider and not as a substitute or replacement for third-party telecommunications services. Emergency calls cannot be accessed by originating calls to 911 using the Business Intelligence Services. To that end, Customer acknowledges that it has a different means for contacting 911 emergency services.
The Business Intelligence Services rely on third-party service providers outside of the Supplier’s control, and the Supplier is not liable for any issues or outages with the services provided by any third-party service providers. The loss or interruption of any such services may prevent the Business Intelligence Services from functioning. Supplier will use commercially reasonable efforts to manage all communications initiated by the Customer or intended for the Customer during any loss or interruption of the Business Intelligence Services, whether caused, in whole or in part, by the third-party service providers. The independent third-party service interruptions may include but are not limited to, power outages, outages due to the suspension of Customer’s account, outages due to Customer’s failure to maintain its account with third-party service providers, and outages with internet service providers or telecommunications service providers.
Overage Minutes will be charged at a rate of .089 unless otherwise stated in the Service Agreement.
Customer Responsibilities. The Customer, at its sole cost and expense, is responsible for the following:
All phone carrier fees, charges or expenses, and any other third-party charges, costs, expenses, and claims that may result from the services rendered by Supplier pursuant to the Master Services Agreement. The Customer acknowledges that phone service may be disrupted from time to time due to circumstances beyond the control of the Supplier. Under no circumstances shall the Supplier be held liable for any disruptions to the phone services or in the event a call tracking line is inoperative.
Customer is liable for the payment of all federal, state and local taxes that may be incurred by the Supplier in connection with the services rendered to the Customer, including, but not limited to all sales, use, value-added, excise, personal property, and all other taxes or levies.
Compliance with all applicable federal, state, local and international laws, rules and regulations including, but not limited to, all laws and applicable industry standards related to the recording and transcribing of phone calls in connection with the services provided under the Master Services Agreement. The foregoing shall specifically include, but is not limited to, providing proper notification, obtaining required permissions, and abiding by “do not call” requirements under applicable laws.
Intellectual Property. Supplier retains all right, title and interest, including all intellectual and proprietary rights, in and to (i) the Business Intelligence Services and the License, (ii) Supplier’s trademarks, patents, copyrights and other intellectual property rights, (iii) all technology and software that the Supplier provides or makes use of in connection with the Business Intelligence Services. Except for its limited use pursuant to the Master Services Agreement, the Customer acknowledges and agrees that it does not, by way of the Master Services Agreement or otherwise, acquire any ownership rights or other rights in and to the Business Intelligence Services, the Supplier’s intellectual property rights, and the Supplier’s technology and software.
No Warranty; Limitation of Liability.
The Supplier may modify, suspend, or discontinue the offering of the Business Intelligence Services at any time for any reason upon providing the Customer with advance written notice.
The Supplier uses electronic and physical security to reduce the risk of improper access to, or manipulation of, data during transmission and storage of data, and the Supplier cannot guarantee the security or safe-keeping of such data. The Supplier is not liable for breaches of security or safe-keeping of data, and shall have no liability for (i) breach of the security or safe-keeping of data, (ii) any third-party interception of data, (iii) any damages to the Customer’s computer or other property by Customer’s use of the Business Intelligence Services.
The Supplier shall use commercially reasonable efforts to make access to the Business Intelligence Services available through the Supplier’s customary protocols but makes no representation, warranty or guarantee that (i) the Business Intelligence Services will be available at any specific time, or (ii) that the Customer will be able to access the Business Intelligence Services at any particular time or from any particular location.
Supplier is not liable for the acts or omissions of any third-party that furnish a portion of the Business Intelligence Services or participate in the Business Intelligence Services including, but not limited to, communications carriers or internet service providers. Supplier is also not liable for equipment that it does not furnish or for damages that result from the operation of the Customer-provided systems, equipment, facilities, or services that are interconnected with (or used as part of) the Business Intelligence Services.
While, Supplier strives to provide complete and accurate transcriptions, Customer acknowledges and agrees that due to the many variables involved in the process of converting audio recordings to text, there may be times when portions of audio are unclear or missing, a call designated as “do not transcribe” is mistakenly transcribed, or errors are made in the transcription. Supplier does not guarantee that transcriptions will be error-free, and Supplier disclaims all liability resulting from such errors. Upon discovery that a call designated as “do not transcribe” was inadvertently transcribed, the Supplier shall immediately destroy such transcription.
Regardless of the cause or the form of action, Supplier’s aggregate maximum liability arising out of or related to the Master Services Agreement shall not exceed the total amount paid by Customer hereunder during the month in which the action arises.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE BUSINESS INTELLIGENCE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESSED OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANY STATEMENT TO THE CONTRARY CONTAINED IN THESE TERMS OF SERVICE, THE SUPPLIER DOES NOT WARRANT THAT THE USE OF THE BUSINESS INTELLIGENCE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, INCLUDING, BUT NOT LIMITED, TO ANY INTERRUPTIONS TO SUCH SERVICES CAUSED BY THE INTENTIONAL AND/OR MALICIOUS ACTS OF THIRD PARTIES (E.G., "HACKING") NOR SHALL THE SUPPLIER BE RESPONSIBLE FOR ANY DATA LOSS OR LOSS OF ANY INFORMATION IN CUSTOMER’S ACCOUNT, REGARDLESS OF THE CAUSE NOR TRANSCRIPTION ERRORS OR OMMISSIONS, INADVERTENT TRANSCRIPTIONS OF CALLS DESIGNATED AS “DO NOT TRANSCRIBE” OR DISRUPTIONS IN PHONE OR OTHER COMMUNICATION SERVICES. FURTHERMORE, THE SUPPLIER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE BUSINESS INTELLIGENCE SERVICES OR THAT SAID BUSINESS INTELLIGENCE SERVICES WILL MEET ANY OF THE CUSTOMER’S SPECIFIC REQUIREMENTS OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE. THE SUPPLIER MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE BUSINESS INTELLIGENCE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICE, SOFTWARE, TEXT, GRAPHICS OR LINKS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. THE SUPPLIER SHALL NOT BE LIABLE TO THE CUSTOMER OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF DAMAGE TO OR CORRUPTION OF DATA OR LOSS OF GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THESE TERMS OF SERVICE, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF CUSTOMER’S USE OF THE BUSINESS INTELLIGENCE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE, OR DATA, THE SUPPLIER IS NOT RESPONSIBLE FOR THOSE COSTS. THE SUPPLIER'S TOTAL LIABILITY ARISING OUT OF THE CUSTOMER’S USE OF THE BUSINESS INTELLIGENCE SERVICES FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE MONTHLY FEE PAID BY THE CUSTOMER TO THE SUPPLIER HEREUNDER.
Indemnification. The Customer agrees to indemnify, defend and hold the Supplier, and its subsidiaries and affiliates, and its and their members, directors, officers, employees, agents and business partners, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable expert and attorneys’ fees), arising out of or in connection with any claim arising from the Customer’s use of the Business Intelligence Services or the Supplier’s trademarks and intellectual property rights in a manner not authorized by the Master Services Agreement or in violation of applicable law.
Force Majeure. The Supplier shall not be liable for any failure or delay in performing its obligations hereunder, which failure or delay is due to downtime of any telecommunications line or systems or any unavailability of any telecommunications or internet services, power failure, pandemic, governmental restrictions, court order or order of any governmental authority, compliance with any law, statute, rule or regulation, or other causes beyond the reasonable control of the Supplier. Further, Supplier shall be excused from performance in the event it is unable to acquire from its customary sources and on terms reasonable in Supplier’s discretion, any material necessary for the performance or providing of the Business Intelligence Services.
The Supplier and Customer agree that the Supplier shall maintain the content of all calls recorded and transcribed under the Master Services Agreement, including nonpublic personal information (the “Confidential Information”) in strict confidence and shall not disclose such Confidential Information, in whole or in part, to any third party other than to Customer and its members, officers, directors, employees, agents and other representatives who need to know or must have knowledge of the Confidential Information to provide the services to the Customer and comply with the Master Services Agreement. For the purposes of complying with the obligations of the Master Services Agreement, each party agrees that it will use such measures and care to protect Confidential Information as it accords its own confidential information but in no event less than commercially reasonable measures and care. The disclosure of Confidential Information may be made if it is in response to a valid order of a court or other governmental body or agency of the United States of America or any political subdivision thereof. The Supplier expressly retains the right to aggregate data for any purposes it requires to the extent permitted by law.
Notwithstanding the foregoing confidentiality provisions, the Customer authorizes the Supplier, in the Supplier’s sole discretion, to provide all recorded information to any third-party service provider for the purposes of call analytics and redaction of personally identifiable information. The Customer acknowledges that any third-party service provider may receive confidential and proprietary information concerning the Customer; however, the Customer authorizes this transfer of information by the Supplier to any third-party service provider to improve and facilitate the Business Intelligence Services provided by the Supplier to the Customer. The Supplier shall not be liable to the Customer for any violation or misuse of Confidential Information by a third-party service provider.
Notice. All notices, demands and other communications to be given or delivered under the Master Services Agreement shall be in writing and be to have been delivered (i) by email with a copy sent by certified mail return receipt requested, or (ii) delivered by over-night messenger service (FedEx). All notices, demands and other communications shall be sent to the address set forth in the Services Agreement. Each party shall provide the other party with written notice of any change of address.
Assignment. The Customer shall have no right to assign, transfer, or sub-license any of its rights or obligations under the Master Services Agreement without the express prior written consent of the Supplier. The Supplier may assign the Master Services Agreement, or its rights and obligations thereunder, without prior written notice to the Customer.
Arbitration; Governing Law. The Supplier and the Customer agree that any and all questions and disputes arising under the Master Services Agreement shall be submitted to binding arbitration in Baltimore County, Maryland in accordance with the rules and regulation of the American Arbitration Act. The non-prevailing party shall reimburse the prevailing party for all expenses incurred, including but not limited to reasonable attorneys’ fees and arbitration costs. The binding arbitration shall be governed by and construed in accordance with the laws of the State of Maryland, without reference to any conflict of laws principles.
Severability. Should any provision of this Agreement be held to be unenforceable, that provision will be enforced to the maximum extent permissible under Maryland law, and the remaining provisions of this Agreement shall remain in full force and effect.
Entire Agreement. The Master Services Agreement contains the complete and entire agreement between the parties and supersedes all prior and contemporaneous agreements, understandings, proposals, discussions, and negotiations of any kind. The Master Services Agreement may not be amended unless in writing and signed by both parties, except as specifically provided for under the Master Services Agreement.