CallMarker may unilaterally change or add to the terms of this Agreement at any time. In the event of a material change, CallMarker shall notify you via email or by means of a prominent notice on the CallMarker website available at: https://callmarker.com/terms-of-use, which you should check periodically. By continuing to use the Solution following such modifications, you agree to be bound by such modifications
- Definitions. For purposes of this Agreement and all Exhibits hereto, the following capitalized terms shall have the following meaning:
- “Intellectual Property Rights” means all worldwide, whether registered or not (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyright applications, copyright restrictions, mask work rights, mask work applications and mask work registrations; (c) trademarks, trade names, service marks, logos, domain names, goodwill and trade dress; (d) rights relating to the protection of trade secrets and confidential information; (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
- “Services” means the services described in the SOW.
- “Solution” means CallMarker’s proprietary smart telemarketing solution in SaaS, including updates and upgrades that are generally made available for free by CallMarker to all of its customers, but will not include other software, solutions, platforms, services or new functionality without CallMarker’s prior written approval.
- “SOW” means a statement of work mutually agreed in writing.
- Subject to the timely payment of all applicable fees, CallMarker shall provide Customer with the Services.
- Customer may purchase local virtual telephone numbers from CallMarker’s service providers (“Numbers“) in the countries supported by the Services, as may be updated from time to time. CallMarker shall not bear any liability whatsoever in connection with the Numbers, including, without limitation, with their assignment, use, registration or history or in connection with the existence of the Customer’s local number in any third party database. The Solution only enables calls to numbers supported by CallMarker, and therefore Customer is advised to check with CallMarker in advance which numbers are supported. The Numbers may be revoked or reassigned at any time and Customer hereby waives any claim in respect thereof.
- License to the Solution. Subject to all the terms and conditions of this Agreement, CallMarker hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable and fully revocable right to use the Solution internally, during the Term.
- Limitations on Use. Customer shall not: (i) copy or reproduce the Solution; (ii) sell, assign, lease, lend, rent, sublicense, make available, or otherwise distribute to any third party, or publicly perform or display the Services and/or Solution, or otherwise use the Services and/or the Solution for time-sharing or service bureau purposes; (iii) modify, alter, adapt, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code of the Solution; (iv) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Solution, such as features that restrict or monitor use of the Solution; (v) create derivative works of the Solution, or use the Solution to develop any competing service or product; (vi) use the Services and/or the Solution in respect of content, products or services that infringe, misappropriate or violate any rights of third parties, including Intellectual Property Rights, privacy, or any applicable law; (vii) access the Solution and/or its servers through or use with the Services and/or the Solution any unauthorized means, services or tools, including, without limitation, any data mining, robots, or similar automated means or data gathering and extraction tools, including, without limitation, in order to extract for re-utilization of any parts of the Solution; (viii) impersonate any third party; (ix) upload credit card information to the Solution; (x) syndicate any part of the Solution or refer to the Solution and/or the Services by use of framing; (xi) make use of the Services and/or the Solution in any jurisdiction where same are illegal or which would subject CallMarker or its affiliates to any registration requirement within such jurisdiction or country; and/or (xii) use, or encourage, promote, facilitate or instruct others to use the Solution and/or the Services for any illegal, harmful or offensive use. Customer is solely responsible for obtaining, paying for, repairing and maintaining all the equipment, software, hardware and services required for getting access to and using the Services and the Solution.
- Undertakings. Customer undertakes to comply with all applicable laws, regulations, guidelines, standards and the rules (including with limitation those applicable to privacy, consumer protection, automatic dialing systems and commercial/ promotional phone calls), including any registration requirements and obtain all applicable licenses, permits, authorizations, approvals and consents (including without limitation from Customer’s personnel) required for Customer to use the Services and the Solution in accordance therewith and process and retain its customers’ personal information.
- Warranties and Representations. Each party warrants and represents to the other party that it has the full corporate power and authority required to enter into this Agreement and to carry out its undertakings and obligations hereunder. Customer warrants and represents to Callmarker that: (i) its products and services and its use of the Services and the Solution comply with and will comply with all applicable laws, rules and regulations, and will not infringe the rights of any third party, including without limitation any Intellectual Property Rights, confidentiality and the right to privacy; (ii) its use of the Services and the Solution will not contain any threatening, offensive, racist, hateful, violent, sexually explicit, obscene, libelous, defamatory or otherwise inappropriate content; and (iii) it has, and will have at all times, all rights, licenses and consents required for its use of the Services and Solution, including without limitation in respect of contacting any person through the Solution. Customer shall indemnify defend and hold CallMarker and anyone on its behalf, including but not limited to, all of its owners, directors, officers, affiliates, employees, licensors and suppliers harmless against any losses, expenses, costs, claims, damages (including attorneys’ fees, expert fees’ and other costs of litigation) arising from, incurred as a result of, or in any manner related to: (a) Customer’s products and services; or (b) Customer’s breach of or misrepresentation in this Section 6.
- Support. During the term of this Agreement CallMarker shall make reasonable efforts to provide Customer with technical support. Support tickets should be submitted to: firstname.lastname@example.org, pursuant to CallMarker’s support policy (“Support“). Support will be provided between 9:30 to 17:30 Israel time from Sunday to Thursday, and between 10:00 to 13:00 Israel time on Fridays, excluding holidays. Support shall be provided only to Customer’s qualified personnel and provided that Customer reviewed CallMarker’s tutorial and that the support issue is not addressed in CallMarker’s FAQ. CallMarker shall provide up-to three (3) monthly hours of support, additional hours shall be subject to payment.
- Ownership. CallMarker or its licensors (as applicable) owns all right, title, and interest in and to the Services and the Solution, including without limitation any and all data, computer code, UI, design and structure, and all modifications, enhancements and derivatives thereof and all Intellectual Property Rights related thereto (“CallMarker IPR“). Customer acknowledges that, except for the limited license to the Solution set forth in Section 3 above, Customer did not and shall not acquire any rights in any part of the CallMarker IPR.
- Customer shall pay CallMarker all fees set forth in the SOW in accordance with the payment terms and timetables set forth therein (“Fees“). The Fees are paid in advance for each month and are non-refundable. Callmarker may change the Fees upon ninety (90) days’ prior written notice, in which case the updated rates shall apply to any renewed term of existing SOWs and any new SOWs. All payments not made when due shall bear interest at the rate of 1.5% per month, or at the highest interest rate allowed by law, whichever is less, from the due date until paid. In addition and without derogating from any other right CallMarker has under law or contract, failure of Customer to make any payment when due shall constitute sufficient cause for CallMarker to immediately suspend the Services and grant of rights under this Agreement and prevent Customer’s access to or use of the Solution.
- Except as expressly provided in this Agreement, each party shall bear its own expenses incurred in the course of its performance of this Agreement. All amounts due to CallMarker under this Agreement shall be paid free and clear from any deduction of any bank fees, tax (including VAT), duty or levy whatsoever. All payments are exclusive of all charges, taxes and levies of any nature all of which shall be borne solely by Customer.
- NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY, THE SERVICES AND THE SOLUTION, INCLUDING ANY SERVICES PROVIDED IN CONNECTION THEREWITH OR RESULTING THEREFROM AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND. CALLMARKER DOES NOT PROVIDE ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY AND/OR COMPLIANCE WITH ANY REGULATORY REQUIREMENTS OR STANDARDS.
- CALLMARKER DOES NOT WARRANT THAT THE SERVICES OR THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS THAT THE SOLUTION OR THE SERVER(S) SUPPORTING THE SOLUTION ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- Confidential Information and Privacy. All data and information related to each party, its affiliates and its shareholders, employees, directors and agents and/or to its business, products and services are confidential information of the disclosing party (“Confidential Information”). “Confidential Information” does not include information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. The receiving party agrees to protect the Confidential Information in accordance with good industry practices and keep confidential and not disclose, disseminate, allow access to or use any Confidential Information except as required for exercising its rights or fulfilling its obligations herein. Either party shall restrict disclosure of Confidential Information to those of its employees and consultants with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. Without derogating from the foregoing, either party may disclose this Agreement in connection with a merger, sell or issuance of shares and sale of all or substantially all of such party’s assets.
- Limitation of Liability. UNDER NO CIRCUMSTANCES WILL CALLMARKER AND ITS AFFILIATES, AND ITS AND THEIR SHAREHOLDERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS OR SUPPLIERS (COLLECTIVELY, “AFFILIATES“) BE LIABLE UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES AND/OR THE SOLUTION EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS AND LOSS OF DATA. CALLMARKER’S AND ITS AFFILIATES’ AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, THE SOLUTION OR OTHERWISE SHALL NOT EXCEED THE PAYMENTS MADE TO CALLMARKER BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO SUCH CLAIM.
- Term and Termination.
- The term of this Agreement shall be as set forth in the SOW and will renew automatically for additional terms that are equal in length unless the Agreement is terminated pursuant to Section 13.2 below (collectively, the “Term“).
- Either party may terminate this Agreement: (i) for convenience, upon thirty (30) days written notice; (ii) upon breach by the other party of any of its obligations herein and the breaching party’s failure to cure the breach within fourteen (14) days of written notice; (ii) by delivering written notice to the other party upon the occurrence of any of the following events: (a) a receiver is appointed for either party or its property; (b) either party makes a general assignment for the benefit of its creditors; (c) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) either party is liquidated or dissolved.
- Upon expiration or termination of this Agreement for any reason: (i) all of Customer’s rights and licenses hereunder shall immediately terminate and Customer shall immediately cease using the Solution; (ii) each party shall promptly erase/delete or return to the other party, at that party’s election, all of its Confidential Information held or controlled by it in any form or media; (iii) Customer shall cease using the Numbers and the Numbers will be returned to CallMarker and/or to CallMarker’s suppliers; and (iv) Customer shall pay CallMarker all unpaid Fees. The following Sections shall survive termination/expiration hereof: 1, 4-6, 8-12, 13.3 and 14 and any payment obligations accrued prior to expiration or termination hereof.
General. (14.1) Waiver; Remedies. Failure of a party to insist upon the performance by the other party of any term hereof shall not be deemed a waiver of the rights of the first-mentioned party with respect thereto. All waivers must be in writing. (14.2) Notices. All notices and other communications required or desired to be communicated by one party to the other shall be in writing and shall be deemed delivered immediately when sent by fax (with automatic confirmation of receipt), by e-mail (with written confirmation of receipt), or delivered by hand or five (5) days after mailing by registered mail to the respective addresses set forth at the head of the
Agreement. Provided, however, that any notice of change of address shall be effective only upon receipt. (14.3) Assignment. Customer shall not assign or transfer any of its rights or obligations hereunder, whether by contract or by operation of law, except with CallMarker’s prior written consent. CallMarker may assign and transfer any rights and obligations under this Agreement at its sole discretion. (14.4) Relationship of the Parties. The relationship established between CallMarker and Customer by this Agreement is solely that of independent contractors. Customer is not the agent or legal representative of CallMarker and no employee of Customer shall be considered to be an employee of CallMarker for any purposes whatsoever. CallMarker shall not be liable for any expenses incurred by Customer which arise out of or in connection with the Agreement. (14.5) Entire Agreement; Modification. This Agreement, including the Exhibits hereto, sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior discussions, agreements, representations and understandings between them. This Agreement shall not be modified except by a written instrument signed by both parties. (14.6) Governing Law and Jurisdiction. This Agreement and any action related hereto shall be governed, controlled, interpreted and defined by and under the laws of the State of Israel, without regard to the conflict of law provisions thereof. The exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement shall be the competent courts of Tel Aviv-Jaffa, Israel and each of the parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. The United Nations Convention for the International Sale of Goods is expressly excluded from this Agreement. (14.7) Remedies. Notwithstanding Section 14.6 above, Customer acknowledges that in the event of breach or threatened breach of any provision of this Agreement by Customer, CallMarker could suffer significant and irreparable harm that could not be satisfactorily compensated in monetary terms, and that the remedies at law available to CallMarker may otherwise be inadequate and CallMarker shall be entitled, in addition to any other remedies to which it may be entitled to under law or in equity, to the immediate ex parte issuance, without bond, of an equitable relief, including without limitation an injunctive relief, in any jurisdiction worldwide. The Customer hereby acknowledges and agrees that CallMarker shall not be required to post bond as a condition to obtaining or exercising any such remedies, and Customer hereby waives any such requirement or condition. (14.8) Severability. Any provision of this Agreement prohibited by, or unenforceable under, applicable law shall be ineffective to the extent of such prohibition and shall be replaced by an enforceable provision to the same or the nearest possible equivalent effect. Notwithstanding the foregoing, the other provisions hereof shall continue in effect unless the ineffectiveness of any provision shall substantially affect the consideration received by either party hereunder. (14.9) Force Majeure. With the exception of payment obligations, neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties. (14.10) No Third Party Beneficiaries. No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than Customer and CallMarker any rights, remedies or other benefits under or by reason of this Agreement