These CallGear Terms of Service (this “Agreement”) are entered into by SIA “Callgear” (“CallGear”) and the entity executing this Agreement (“Client”). This Agreement governs the use of the services provided by CallGear (the “Services”). Hereinafter CallGear and the Client are jointly referred to as the “Parties”, and, individually, as a “Party”. In consideration of the foregoing, the Parties agree as follows:
“Account” refers to the billing account for the Service, created at callgear.com and which is activated by completing the questionnaire and providing payment information.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the party to this Agreement.
“Control” for the purposes of this definition means direct or indirect ownership or control of 50 percent of the voting interest of such party.
“Confidential Information” includes any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or disclosed orally and, within five business days, reduced to writing and marked “confidential”. However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
“Customer Data” means the data Client collects, processes or stores using the Services.
“Documentation” means any accompanying documentation made available to Client by CallGear for use with the Processing Software, including any documentation available online.
“Order Form” and ordering document that specifies the Service(s) that is purchased by Client under the Agreement entered into by the Parties. Order Forms shall be subject solely to and incorporate by reference the terms of this Agreement. By entering into an Order Form hereunder, and Affiliate agrees to be bound by the terms of this Agreement.
“Platform Home” means the user interface through which Client can access certain CallGear Platform-level functionality.
“Processing Software” means the CallGear server-side software and any upgrades, which analyzes the Customer Data and generates the Reports.
“Report” means the resulting analysis shown at callgear.com.
“Servers” means the servers controlled by CallGear (or its wholly owned subsidiaries or affiliates) on which the Processing Software and Customer Data are stored.
“Services” means any and all of the following: 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.
“Software” means the Processing Software.
“Third Party” means any third party (i) to which Client provides access to the Account of Client or (ii) for which Client uses the Service to collect information on the third party’s behalf. The words “include” and “including” mean “including but not limited to”.
Client shall pay to CallGear the applicable fees described in the Order Form in accordance with the terms therein (the “Fees”). CallGear may change its Fees and payment policies for the Services from time to time including the addition of costs or other fees charged to CallGear or its wholly-owned subsidiaries or its affiliates by third party vendors in connection with the Services. The changes to the Fees or payment policies are effective upon acceptance of those changes which will be posted at callgear.com. Unless otherwise stated, all Fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys’ fees) incurred by CallGear will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with the Account of Client.
To register for the Services, Client must complete the registration process by providing CallGear with current, complete and accurate information as prompted by the registration form, including e-mail address (username) and password. Client will protect the passwords and take full responsibility for its own, and third party, use of the accounts of Client. Client is solely responsible for any and all activities that occur under the Account of Client. Client will notify CallGear immediately upon learning of any unauthorized use of the Account or any other breach of security. CallGear’s (or its wholly-owned subsidiaries’ or affiliate’s) support staff may, from time to time, log in to the Service under Client’s customer password in order to maintain or improve service, including to provide Client assistance with technical or billing issues.
4. Non-Exclusive License
Subject to the terms and conditions of this Agreement, (a) CallGear grants Client a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the Software solely as necessary for Client to use the Services. Client will not (and Client will not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which Client is located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services or the Software; or (vi) use data labeled as belonging to a third party in the Services for purposes other than generating, viewing, and downloading Reports. Client will comply with all applicable laws and regulations in the use of Client of and access to the Documentation, Software, and Services.
Neither Party will use or disclose the other Party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other Party as much notice as is reasonably practicable prior to disclosing the Confidential Information.
6. Information Rights and Publicity
To the extent permitted by applicable law, Client will indemnify, hold harmless and defend CallGear and its wholly owned subsidiaries, and Affiliates at its own expense, from any and all third-party claims, actions, proceedings, and suits brought against CallGear or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys’ fees and other litigation expenses) incurred by CallGear or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) the breach of any term or condition of this Agreement by Client, (ii) the use of the Services by Client, (iii) violations of applicable laws, rules or regulations in connection with the Services by Client, (iv) any representations and warranties made by Client concerning any aspect of the Service, the Software or Reports to any Third Party; (v) any claims made by or on behalf of any Third Party pertaining directly or indirectly to the use of the Services by Client, the Software [or Reports]; (vi) violations of Client’s obligations of privacy to any Third Party; and (vii) any claims with respect to acts or omissions of any Third Party in connection with the Service, the Software [or Reports]. CallGear will provide Client with written notice of any claim, suit or action from which Client must indemnify CallGear. Client will cooperate as fully as reasonably required in the defense of any claim. CallGear reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Client.
To the extent permitted by applicable law, CallGear will indemnify, hold harmless and defend Client and its wholly owned subsidiaries, and affiliates at its own expense, from any and all third-party claims, actions, proceedings, and suits brought against Client or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys’ fees and other litigation expenses) incurred by Client or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) the breach of any term or condition of this Agreement by CallGear, (ii) violations of applicable laws, rules or regulations by CallGear, (iii) any representations and warranties made by CallGear concerning any aspect of the Service, the Software or Reports to any Third Party; (iv) violations of CallGear’s obligations of privacy to any Third Party; and (v) any claims with respect to acts or omissions of any Third Party in connection with the Service, the Software [or Reports]. Client will provide CallGear with written notice of any claim, suit or action from which CallGear must indemnify Client. CallGear will cooperate as fully as reasonably required in the defense of any claim. Client reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by CallGear.
9. Third Parties
If Client uses the Service on behalf of the Third Party or a Third Party otherwise uses the Services through the Account of Client, whether or not Client is authorized by CallGear to do so, then Client represents and warrants that (a) Client is authorized to act on behalf of, and bind to this Agreement, the Third Party to all obligations that Client has under this Agreement, (b) CallGear may share with the Third Party any Customer Data that is specific to the Third Party and (c) Client will not disclose Third Party’s Customer Data to any other party without the Third Party’s consent.
10. Disclaimer of Warranties
To the fullest extent permitted by applicable law, except as expressly provided for in this agreement, CallGear makes no other warranty of any kind, whether express, implied, statutory or otherwise, including without limitation warranties of merchantability, fitness for a particular use and noninfringement.
11. Limitation of Liability
To the extent permitted by applicable law, CallGear will not be liable for Client’s lost revenues or indirect, special, incidental, consequential, exemplary, or punitive damages, even if Callgear or its subsidiaries and affiliates have been advised of, knew or should have known that such damages were possible and even if direct damages do not satisfy a remedy. Callgear’s and its wholly owned subsidiaries’ total cumulative liability to Client or any other party for any loss or damages resulting from claims, demands, or actions arising out of or relating to this Agreement shall not exceed 100$ (one hundred usd). Neither Party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this Agreement.
12. Proprietary Rights Notice
The Services, which include the Software and all Intellectual Property Rights therein are, and will remain, the property of CallGear (and its wholly owned subsidiaries). All rights in and to the Software not expressly granted to Client in this Agreement are reserved and retained by CallGear and its licensors without restriction, including, CallGear’s (and its wholly owned subsidiaries’) right to sole ownership of the Software and Documentation. Without limiting the generality of the foregoing, Client agrees not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service or Software outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the Software or the Service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of CallGear; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with CallGear (or its wholly owned subsidiaries) other than in the name of CallGear (or its wholly owned subsidiaries, as the case may be); (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service; or (h) seek, in a proceeding filed during the term of this Agreement or for one year after such term, an injunction of any portion of the Service based on patent infringement.
13. Term and Termination
Either party may terminate this Agreement at any time with notice. Upon any termination of this Agreement, CallGear will stop providing, and Client will stop accessing the Service; and Client will delete all copies of the software from all devices and certify thereto in writing to CallGear within 3 business days of such termination. In the event of any termination (a) Client will not be entitled to any refunds of any usage fees or any other fees, and (b) any outstanding balance for Service rendered through the date of termination will be immediately due and payable in full and (c) all of Client’s historical data will no longer be available to Client.
14. Modification to Terms of Service and Other Policies
CallGear may modify these terms or any additional terms that apply to the Service to, for example, reflect changes to the law or changes to the Service. Client should look at the terms regularly. CallGear will post notice of modifications to these terms at callgear.com the CallGear Privacy or other policies referenced in these terms at the applicable URL for such policies and send an email notifying of such changes. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted. If Client does not agree to the modified terms for the Service, Client should discontinue the use CallGearServices. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of CallGear, (ii) Client accepts updated terms online, or (iii) Client continues to use the Services after CallGear has posted updates to the Agreement or to any policy governing the Services.
15. Miscellaneous, Applicable Law and Venue
CallGear will be excused from performance in this Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between the Parties concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
This Agreement shall be governed by and construed in accordance with UAE (Dubai) law. Any disputes, controversies or claims arising out of or in relation to this Agreement or its breach, termination or invalidity thereof shall be settled in courts of the UAE (Dubai) in accordance with the applicable law. All amendments to the Agreement and/or additions shall be prepared in writing.
16. Phone recording language
CallGear provides the opportunity to record inbound and outbound phone calls. Call recording is subject to a variety of laws the violation of which may result in serious criminal and/or civil liability. It is the responsibility of Client to familiarize itself, and comply, with such laws and regulations. By using the call recording capability CallGear provide, Client expressly agrees that CallGear is authorised to record such calls on behalf of Client and all parties to such calls are properly notified under applicable law.