call tracking service

These CallGear Terms of Service (this "Agreement") are entered into by CallGear, Inc. ("CallGear") and the entity executing this Agreement ("You"). This Agreement governs Your use of the services provided by CallGear (the "Services"). BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT. In consideration of the foregoing, the parties agree as follows:


1. Definitions.

"Account" refers to the billing account for the Service, created at callgear.com and which you activate 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 You collect, process or store using the Services. "Documentation" means any accompanying documentation made available to You 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 You under the Agreement entered into by You and CallGear. 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 You 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. "Privacy Policy" means the Your privacy policy. "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 You provide access to Your Account or (ii) for which You use the Service to collect information on the third party's behalf. The words "include" and "including" mean "including but not limited to".

2. Fees.

You 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 Your 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 Your Account. You shall be responsible for all taxes associated with Services other than US taxes on CallGear’s net income.

3. Account.

To register for the Services, You must complete the registration process by providing CallGear with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. You will protect Your passwords and take full responsibility for Your own, and third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account. You will notify CallGear immediately upon learning of any unauthorized use of Your 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 Your customer password in order to maintain or improve service, including to provide You assistance with technical or billing issues.

4. Non-Exclusive License.

Subject to the terms and conditions of this Agreement, (a) CallGear grants You a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the Software solely as necessary for You to use the Services. You will not (and You 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 You are 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. You will comply with all applicable laws and regulations in Your use of and access to the Documentation, Software, and Services.

5. Confidentiality.

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.

CallGear and its wholly owned subsidiaries and/or Affiliates may retain and use, subject to the terms of its privacy policy (located at callgear.com), information collected in Your use of the Service. CallGear will not share Your Customer Data or any Third Party's Customer Data with any third parties unless CallGear (i) has Your consent for any Customer Data or any Third Party's consent for the Third Party's Customer Data; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of Customer Data is reasonably necessary to protect the rights, property or safety of CallGear, its users or the public; or (iii) provides Customer Data in certain limited circumstances to third parties to carry out tasks on CallGear's behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by CallGear. When this is done, it is subject to agreements that oblige those parties to process Customer Data only on CallGear's instructions and in compliance with this Agreement and appropriate confidentiality and security measures.

7. Privacy.

You will not and will not assist or permit any third party to, pass information to CallGear that CallGear could use or recognize as personally identifiable information. You will have and abide by an appropriate Privacy Policy and will comply with all applicable laws, policies, and regulations relating to the collection of information from callers. You must post a Privacy Policy and that Privacy Policy must provide notice of Your use of cookies that are used to collect data. You must disclose the use of CallGear Services, and how it collects and processes data. This can be done by displaying a prominent link to the site "How CallGear uses data when you use our partners' sites or apps", (located at callgear.com/privacy-policy, or any other URL CallGear may provide from time to time). You will use commercially reasonable efforts to ensure that a caller is provided with clear and comprehensive information about, and consents to, [the storing and accessing of cookies or other information on the caller’s device where such activity occurs in connection with the Service and where providing such information and obtaining such consent is required by law].

8. Indemnification.

To the extent permitted by applicable law, You will indemnify, hold harmless and defend CallGear and its wholly owned subsidiaries, and Affiliates at Your 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) Your breach of any term or condition of this Agreement, (ii) Your use of the Services, (iii) Your violations of applicable laws, rules or regulations in connection with the Services, (iv) any representations and warranties made by You 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 Your use of the Services, the Software[ or Reports]; (vi) violations of Your 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 You with written notice of any claim, suit or action from which You must indemnify CallGear. You 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 You.

9. Third Parties.

If You use the Service on behalf of the Third Party or a Third Party otherwise uses the Services through Your Account, whether or not You are authorized by CallGear to do so, then You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, the Third Party to all obligations that You have under this Agreement, (b) CallGear may share with the Third Party any Customer Data that is specific to the Third Party and (c) You 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 YOUR 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 YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED $500 (USD).

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 You 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, You agree 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. US Government Rights.

If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government's rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.

14. 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 You will stop accessing the Service; and You 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) You 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 Your historical data will no longer be available to You.

15. 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. You 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. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted. If You do not agree to the modified terms for the Service, You should discontinue Your use CallGear . 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) You accept updated terms online, or (iii) You continue to use the Services after CallGear has posted updates to the Agreement or to any policy governing the Services.

16. 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 You and CallGear 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 will be governed by and construed under the laws of the state of California without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and California law, rules, and regulations, California law, rules and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Irvine County, California. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. The Software is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals. Any notices to CallGear must be sent to: CallGear, Inc. Union Bank Plaza, 445 S.Figueroa, 31 Floor, Los Angeles, CA, 90071 USA, via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights in this Agreement without CallGear's prior written consent, and any such attempt is void. The relationship between CallGear and You is not one of a legal partnership relationship, but is one of independent contractors. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The following sections of this Agreement will survive any termination thereof: 1, 4, 5, 6 (except the last two sentences), 7, 8, 9, 10, 11, 12, 14, and 16.

17. Phone recording language

CallGear provides the opportunity to record inbound and outbound phone calls. Call recording is subject to a variety of federal and state laws the violation of which may result in serious criminal and/or civil liability. It is your responsibility to familiarize yourself, and comply, with such laws and regulations. In our view, though it is obviously not a legal opinion, it is highly advisable to include a message at the start of any call, that it is being recorded, and our Service provides you with the ability to play such message. We also recommend that you use your own lawyer to advise you on applicable phone recording laws. By using the call recording capability we provide, you expressly agree that we are authorised to record such calls on your behalf and all parties to such calls are properly notified under applicable law.