1.1 In these Conditions, the following definitions apply:
Billing Commencement Date: The date when CLOUDCALL will start billing for the Service as set out in the CloudCall Order.
Business Day : a day (other than a Saturday, Sunday or public holiday) when banks in New York are open for business.
Call Rates: The rates CLOUDCALL will use for calculating call Charges for phone calls made by the Customer outside any inclusive call package.
Charges: The amounts to be paid by the Customer to CLOUDCALL in respect of the services including but not limited to the Monthly Service Fees, Set-up Charges and and Call Charges.
CloudCall Order : The Order form sent to the Customer by CLOUDCALL listing the products, terms and process using the DocuSign eSignatures service.
Customer : the person, firm or company who purchases the Services from CLOUDCALL.
Customer Account : the overall account created by CLOUDCALL for the Customer in connection with all Services provided by CLOUDCALL to the Customer.
Hardware : Any physical goods supplied to by CLOUDCALL, such as telephone handsets, telephone headset or network equipment such as routers etc.
Intellectual Property Rights : all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Memorable Numbers : special, cherished numbers termed "Gold", "Silver" or "Platinum" numbers that Customers can rent from CLOUDCALL as part of the Services.
Monthly Service Fees : the amount stated in the CloudCall Order.
Number Porting : The process used by telecoms regulatory bodies for moving a number from one service provider to a different service provider.
Personal Information: means Customer Proprietary Network Information as that term is or may be hereinafter defined in Section 221(f) of the Communications Act of 1934, as amended, and as further defined and regulated by 47 U.S.C. Section 222, as amended.
Services : the services to be supplied by CLOUDCALL to the Customer as set out in the CloudCall Order.
Set-up: all elements of the on-boarding process including but not exclusively, account provisioning, network checking, all system configuration and training.
Set-up Charges : the amounts payable by the Customer to CLOUDCALL in respect of Set-up as set out in the CloudCall Order.
SLA: The Service Level Agreement as further described in these Conditions.
CLOUDCALL : CLOUDCALL Inc, a company incorporated in the Delaware US with company number 0488740.
User Account : individual accounts created by CLOUDCALL inside Customer Accounts for each of the users.
Application : software applications made to the customer as part of the Services.
CloudCall Go! : the CloudCall application for mobile devices through which the Customer may access certain Services.
1.2 In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes e-mails.
2. BASIS OF CONTRACT
2.1 The Contract shall commence on the e-signing of the CloudCall Order. The minimum Term shall run from the Billing commencement date and shall be for the term specified in the CloudCall Order.
2.2 In the event that the Billing commencement date as specified on the CloudCall Order is subsequently postponed to a later date, the minimum Term shall commence from the later date and shall be for the term specified in the CloudCall Order.
2.2a If, in CLOUDCALL's reasonable opinion, the Customer has a technical or reasonable commercial reason for needing to delay the service, CLOUDCALL will agree to postponing the Billing commencement date up to a maximum period of 3 months. After such period, the Customer accepts that no customer caused delays will be accepted by CLOUDCALL as reason for further postponement of the Billing commencement date.
2.3 The Contract constitutes the entire Agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of CLOUDCALL which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by CLOUDCALL, and any descriptions or illustrations contained on the CLOUDCALL websites or brochures of CLOUDCALL, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 In the event of the Customer having multiple contracts, the contract terms of the most recent order shall apply to all contracts.
3. SUPPLY OF SERVICES
3.1 CLOUDCALL shall supply the Services to the Customer in accordance with the CloudCall Order in all material respects.
3.2 CLOUDCALL shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and CLOUDCALL shall notify the Customer in any such event.
3.3 CLOUDCALL warrants to the Customer that the Services will be provided using reasonable care and skill.
4. OBLIGATIONS OF THE CUSTOMER
4.1 The Customer shall:
(a) Pay the Charges in accordance with the Contract;(b) ensure that the terms of the CloudCall Order are complete and accurate;
(b) ensure that the terms of the CloudCall Order are complete and accurate;
(c) co-operate with CLOUDCALL in all matters relating to the Services; including acting promptly to take decisions or actions required in order to allow CLOUDCALL to commence the provision of the Services
(d) provide CLOUDCALL, its employees, agents, consultants and subcontractors, with access to the premises of the Customer, office accommodation and other facilities as reasonably required by CLOUDCALL to implement and supply the Services;
(e) provide CLOUDCALL with such information and materials as CLOUDCALL may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(f) prepare the premises of the Customer for the supply of the Services;
(g) keep and maintain all materials, equipment, documents and other property of CLOUDCALL (Supplier Materials) at the premises of the Customer in safe custody at its own risk, maintain Supplier Materials in good condition until returned to CLOUDCALL, and not dispose of or use Supplier Materials other than in accordance with the written instructions or authorisation of CLOUDCALL;
4.2 If the performance by CLOUDCALL of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) CLOUDCALL shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the performance of CLOUDCALL of any of its obligations;
(b) CLOUDCALL shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the failure or delay of CLOUDCALL to perform any of its obligations as set out in this contract; and
(c) the Customer shall reimburse CLOUDCALL on written demand for any costs or losses sustained or incurred by CLOUDCALL arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The Charges shall be as set out in the CloudCall Order.
5.2 Unless specifically detailed otherwise on the CloudCall Order, CLOUDCALL shall invoice the Customer for all Set-up Charges immediately upon the Customer e-signing the CloudCall Order. CLOUDCALL shall not be obliged to commence the Set up of the Services until such time as it has received payment for the invoice rendered to the Customer for the Set up.
5.3 As Set-up includes elements of planning and discovery, the Customer agrees that once any element of the Set-up process has begun, the whole Set-up process will be deemed to be completed. Therefore, all Set-up Charges, including any staggered or spread payments, will be immediately payable in full in the event that the Customer terminates the Set-up before completion, or where the Customer cancels the service for any reason.
5.4 Unless agreed and detailed otherwise on the CloudCall Order, CLOUDCALL shall invoice the Customer for all Hardware immediately upon receiving the signed CloudCall Order. CLOUDCALL shall not be obliged to deliver the Hardware until such time as it has received payment for the invoice rendered to the Customer for the Hardware.
5.5 In the event that any Charges for Hardware are staggered or spread, the Customer acknowledges that they have agreed to purchase the Hardware in full and that this commitment will stand in any circumstance, including where the Customer cancels the Service. The Customer further acknowledges that, returning the Hardware in lieu of payment is not an option.
5.6 Notwithstanding clause 5.4 and 5.5;
(a) title to the Hardware shall not pass to the Customer until full payment has been received by CLOUDCALL.
(b) CLOUDCALL will not accept any returned Hardware, unless this Hardware is in it’s original condition and original packaging
5.7 CLOUDCALL shall commence invoicing the Customer for the Monthly Service Fees on the 1st day of the month following the month containing the Billing Commencement date. The initial invoice shall be for the Monthly Service Fees, prorated to cover the proportion of the month between the billing commencement date and end of the month. All subsequent invoices will be issued on the 1st of the month and shall be for the entire Monthly Service Fees.
5.8 The Customer shall pay each invoice submitted by CLOUDCALL by credit/debit card or direct debit unless otherwise agreed in writing by CLOUDCALL within the terms stated on the invoice.
5.9 The Customer authorises CLOUDCALL to collect credit/debit card and direct debit payments from the Customer in respect of CLOUDCALL invoices on a monthly basis without further instructions being required from the Customer to do so. In particular, the Customer agrees that if a direct debit payment from the Customer to CLOUDCALL is not made for the full amount owing in cleared funds, that CLOUDCALL may process a credit/debit card payment for the full amount outstanding against the Customer's credit/debit card;
5.10 The Customer has been assigned a credit limit. CLOUDCALL will email the Customer if the Customer's credit balance reaches 75% of its allocated credit limit. If a Customer's credit limit, which can be viewed in CLOUDCALL’s portal is reached, the Customer Account shall be disabled and suspended so that no calls may be either made or received.
5.11 CLOUDCALL shall not be liable for any losses resulting from a Customer Account being disabled due to clause 5.10
5.12 Without limiting any other right or remedy of CLOUDCALL, if the Customer fails to make any payment due to CLOUDCALL under the Contract by the due date for payment (Due Date), CLOUDCALL shall have the right to charge interest on the overdue amount at the lesser of (i) the rate of 18% per annum or (ii) the maximum amount permitted under applicable law, from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.13 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against CLOUDCALL in order to justify withholding payment of any such amount in whole or in part. CLOUDCALL may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by CLOUDCALL to the Customer.
5.14 Any 'unlimited' call package provided by CLOUDCALL as part of the Services will be subject to a reasonable fair usage limit. Should a Customer regularly, in CLOUDCALL’s sole opinion, abuse this fair limit CLOUDCALL may, by writing to the Customer, upgrade the Customer to a more expensive call package or convert the Customer to a pay per call Customer.
5.15 When not part of a call package, Call Charges are calculated using the Customers relevant Call Rates published on CLOUDCALL’s website which may change from time to time. Calls are calculated on a per second basis with all calls rounded up to the nearest Cent. Some calls incur set up fees.
5.16 Customers who have purchased a Memorable Number as part of the Services may not port that Memorable number away from CLOUDCALL unless the Customer has paid the full Charges for the for the minimum Term.
6. MISUSE OF CLOUDCALL SERVICES
6.1 The Customer shall not, and shall take all reasonable steps to ensure that no officer, employee or sub-contractor of the Customer shall use the Services:
(a) to make offensive, indecent, menacing, nuisance or hoax calls; or
(b) for a fraudulent purpose; or
(c) in any manner that does not comply with all applicable laws and regulations in the jurisdiction or jurisdictions in which the Customer uses the Services.
6.2 The Customer hereby indemnifies CLOUDCALL against any and all losses or expenses (including all professional fees and other expenses) sustained or incurred by CLOUDCALL as a result of the Customer misusing the Services.
6.3 In the event that a Customer is prevented from using the Services or any part of the Services as a result of legislation or regulations not permitting the Services (or any part of the Services) from being used in a certain jurisdiction, the Customer will remain responsible for all Charges owing by the Customer to CLOUDCALL under the Contract.
7. INTERRUPTIONS TO SERVICES AND SERVICE LEVEL AGREEMENT (SLA)
7.1 Following the implementation of a Service the Customer acknowledges and agrees that the Service may be interrupted from time to time. CLOUDCALL cannot guarantee that the Services will never be faulty or interrupted and CLOUDCALL shall not be liable to the Customer for such faults and interruptions save as provided in the SLA.
7.2 The Customer acknowledges and agrees that CLOUDCALL may be required to carry out planned or emergency maintenance in respect of the Services, to alter access codes, access numbers or the technical specification associated with the Service for operational reasons. CLOUDCALL will give the Customer as much notice as it reasonably can when it is required to do this.
7.3 CLOUDCALL's Service is subject to an SLA (Service Level Agreement) and monitored against the same by an external independent monitoring company Monitis. In the event that CLOUDCALL falls short of a 99.99% uptime guarantee as monitored by Monitis, the Customer may request that it receives a service credit against the Customer's Account on the following basis:
Minimum uptime % achieved
% Monthly Service Discount
7.4 Customers must make any claims for service credits in accordance with this clause in writing to support@CLOUDCALL.com within 14 days of the end of the month in which the uptime failure occurred. Service credits will be credited to the Customer's Account within 30 days after the claim being verified and accepted by a director of CLOUDCALL (such process not to be unreasonably delayed by CLOUDCALL).
7.5 All service credits resulting from the failure of CLOUDCALL to achieve its uptime guarantees will be given as percentage discounts from the Charges payable by the Customer. Charges for successful phone calls made by the Customer are not included in such service credits and will still need to be paid by the Customer in accordance with these Conditions.
7.6 Customer acknowledges that whist CLOUDCALL offers an uptime guarantee in respect of it’s CloudCall Service. It can offer no guarantees if the failure is due to a failure of the general internet, or the Customers network.
8. EMERGENCY CALLS
8.1 CLOUDCALL will provide the Customer with the ability to make emergency 911 calls as part of the Services. It is the Customer's responsibility to ensure that address information is updated with CLOUDCALL for each of the users within that organisation. Address information may be updated using the CLOUDCALL web portal.
8.2 In circumstances where the Customer is using a VoIP Phone in conjunction with the Services the following terms apply:
(a) Enhanced 911 Versus Basic or Limited E911. VoIP 911 Dialing ("911 Dialing") is different from traditional 911 service. VoIP Customers have access to either basic 911 or Enhanced 911 ("Enhanced E911") service, depending on the capability of their emergency center.
(i) Enhanced E911 Service. With Enhanced E911 service, when a VoIP Customer dials 911, the telephone number and registered address is simultaneously sent to the local emergency center assigned to Customer's location, and emergency operators have access to the information they need to send help and call back if necessary.
(ii) Basic and Limited E911 Service. VoIP Customers in locations where the emergency center is not equipped to receive, capture or retain the caller's telephone number and/or address have basic 911 or limited E911. With basic 911 or limited E911, the local emergency operator answering the call may not have a call back number or the VoIP caller's exact location, so the VoIP caller must be prepared to give this information. Until the VoIP caller gives the operator a phone number, the operator may not be able to call the VoIP caller back or dispatch help if the call is dropped or disconnected, or if the VoIP caller is unable to speak.
(iii) As additional local emergency centers upgrade to Enhanced E911 and become capable of receiving all of a VoIP Customers' information, CLOUDCALL will automatically upgrade Customers with basic or limited 911 to Enhanced E911 service. CLOUDCALL will not give notice of the upgrade.
(iv) By using CLOUDCALL's service, Customer authorizes CLOUDCALL to disclose Customer's telephone number, name and address to third-parties involved with providing 911 Dialing to Customer, including, without limitation, call routers, call centers and local emergency centers.
(b) Customer Must Notify All Users that 911 Dialing is different than traditional 911 Service. Customer shall inform all employees, guests and other third persons who may be present at the physical location where Customer utilizes CLOUDCALL's service of the important differences in and limitations of CLOUDCALL's 911 Dialing as compared with basic 911 or Enhanced E911. The documentation provided by third parties that accompanies each VoIP device enabled for service (the "Device" or "Devices") should include a sticker concerning the potential non-availability of basic 911 or Enhanced E911 (the "911 Sticker"). It is Customer's responsibility, in accordance with the instructions that accompany each Device, to place the 911 Sticker on each Device that is used with the Service. If Customer did not receive a 911 Sticker with its Devices, or requires additional 911 Stickers, Customer must contact its VoIP vendor to obtain the same.
(c) Customer Must Register the Location of its Physical Address. For each VoIP phone line and telephone number that Customer utilizes with the CLOUDCALL service, Customer must register with CLOUDCALL the physical location where Customer or its Users will be using the CLOUDCALL service with that phone number. Customer's initial location will be registered as a part of subscribing to the CLOUDCALL service. It is incumbent on Customer to confirm the accuracy of the physical address recorded for Customer, and if Customer has any changes, additions or transfers of phone numbers, Customer shall must notify CLOUDCALL immediately by calling +1 617 982 1600 or through the CLOUDCALL web portal. CLOUDCALL is providing a VoIP trunking solution for businesses intended strictly for use at the physical address of the business. Users who are residential users or who have nomadic equipment or phones where the calling location changes as the Device moves to another location may not use CLOUDCALL's service. If you are a residential user or nomadic user who attempts to make unauthorized use of CLOUDCALL's service from the new location, 911 calls made will be sent to an emergency center near the old address.
(d) Outages May Disrupt the CLOUDCALL Service and/or E911 Dialing.
(i) Service Outages due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the CLOUDCALL service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, Customer may need to reset or reconfigure the Device prior to utilizing the CLOUDCALL service, including 911 Dialing.
(ii) Service Outages Due to Internet Outage or Suspension or Disconnection of Broadband Service or Internet Service Provider ("ISP") Service. Service outages or suspensions or disconnections of service by the underlying broadband provider or ISP will prevent all CLOUDCALL service, including 911 Dialing, from functioning.
(iv) Service Outage Due to Disconnection of Customer's CLOUDCALL Account. Service outages due to disconnection of the Customer Account will prevent all CLOUDCALL service, including 911 Dialing, from functioning.
(v) Service Outages Due to Customer Premise Equipment, ISP or Broadband Provider Blocking of Ports or Other Acts. Customer's firewall, Internet service provider, broadband provider or other third party may intentionally or inadvertently block the ports over which the CLOUDCALL service is provided or otherwise impede the usage of the CLOUDCALL service. If Customer suspects this has happened, Customer should alert CLOUDCALL to this situation and CLOUDCALL will attempt to resolve the issue. During the period that the ports are being blocked or CLOUDCALL service is impeded, the CLOUDCALL Service, including 911 Dialing, may not function. Customer acknowledges that CLOUDCALL is not responsible for the blocking of ports by any firewall or third party or any other impediment to Customer's usage of the CLOUDCALL service, and any loss of CLOUDCALL service, including 911 Dialing, which may result. In the event Customer loses service as a result of blocking of ports or any other impediment to usage of the CLOUDCALL service, Customer will continue to be responsible for payment for the Charges unless and until Customer disconnects the CLOUDCALL service in accordance with the terms of this Contract
(e) Other Service Outages. If there is a service outage for any reason, such outage will prevent all CLOUDCALL service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this policy.
(f) Network Congestion May Reduce Speed of Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the CLOUDCALL service as compared to traditional 911 Dialing over traditional public telephone networks.
(g) Changes to Address or Use of a Non-Native Number May Cause Delays in Assistance. Address changes through the process described in clause 12.1 above require processing, and delays in updating to the new address in an applicable automatic location information (ALI) database my impair or restrict the ability of emergency personnel to help Users. Customer should allow at least 48 hours for the ALI database to update before the new address will be available to emergency personnel, where available. In addition, if a User moves to a location that uses a different area code, exchange or other number system from the telephone number that has been assigned to Customer, processing an emergency call may be delayed by a local emergency center.
(h) Disclaimer of Liability and Indemnification. CLOUDCALL does not have any control over whether, or the manner in which, calls using CLOUDCALL's 911 Dialing service are answered or addressed by any local emergency response center. CLOUDCALL disclaims any and all responsibility for the conduct of local emergency response centers. CLOUDCALL relies on third parties to assist it in routing 911 Dialing calls to local emergency response centers. CLOUDCALL disclaims any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. None of CLOUDCALL, its affiliates, or any of their partners, shareholders, members, directors, managers, officers, employees or agents may be held liable for any claim, cause of action, damage, loss, liability, expense, cost, fee, charge, or penalty, and by using the CLOUDCALL service and Customer hereby waives any and all such claims, causes of action, damages, losses, liabilities, expenses, costs, fees, charges, or penalties, arising from or relating to CLOUDCALL's 911 Dialing service unless such claims, causes of action, damages, losses, liabilities, expenses, costs, fees, charges, or penalties arose solely from CLOUDCALL's gross negligence or willful misconduct. Customer shall defend, indemnify, and hold harmless CLOUDCALL, its affiliates, all of their partners, shareholders, members, directors, managers, officers, employees and agents, and any other service provider who furnishes services to Customer or its Users in connection with the CLOUDCALL service, from any and all claims, causes of action, damages, losses, liabilities, expenses, costs, fees, charges, or penalties (including, without limitation, attorneys' fees) by, or on behalf of, Customer, User or any third party relating to the absence, failure or outage of the CLOUDCALL service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the CLOUDCALL service to be able to use 911 Dialing or access emergency service personnel.
(i) Customer May Want to Make Alternate 911 Arrangements or Choose Not to Use CLOUDCALL Service. If Customer or its Users are not comfortable with the limitations of the 911 Dialing service, they should consider having an alternate means of accessing traditional 911 or E911 services or disconnecting the CLOUDCALL service.
9.1 The Customer shall take all reasonable precautions to ensure that all usernames and passwords for accessing the Services are kept confidential and secure.
9.2 If the Customer believes that any Customer username or password has become known to somebody not authorised by the Customer to use it, or if any password is being or is likely to be used in an unauthorised way, the Customer must immediately inform CLOUDCALL.
9.3 In the event of a Customer's Account being accessed and used to make unauthorised calls, the Customer is solely responsible to CLOUDCALL for paying the Call Charges.
9.4 For security purposes, calls to US and international premium rate numbers are blocked and cannot be called from any CLOUDCALL Service.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by CLOUDCALL.
10.2 Where CLOUDCALL software is supplied by CLOUDCALL to enable the Customer to use the Services, CLOUDCALL grants the Customer a non-exclusive, non-transferable licence to use the software for that purpose only.
10.3 The Customer agrees that it shall not copy, modify, reverse engineer, decompile or otherwise endeavour to obtain the source code of the software supplied to it by CLOUDCALL, except where CLOUDCALL has specifically permitted the Customer to do so in writing.
10.4 If the Customer plays music whilst a caller is placed on hold, the Customer is solely responsible for ensuring that they hold a valid copyright licence to use the relevant music for these purposes.
11. CONFIDENTIALITY & PERSONAL INFORMATION
11.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to, or otherwise obtained by, the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the business of Disclosing Party or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the obligations of the Receiving Party under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 11 shall survive termination of the Contract.
11.2 CLOUDCALL’s use, handling, receipt, maintenance and disclosure of Customer’s Personal Information, shall be undertaken strictly in accordance with applicable law, including but not limited to the Communications Act of 1934 as amended and applicable state regulations. All Customers Personal Information will be kept in the US or the UK. CLOUDCALL acknowledges that it has a duty and Customer has a right under federal and applicable state law to protect and have protected the confidentiality of Customer’s Personal Information. CLOUDCALL shall not share Customer Personal Information with any other agents, contractors, consultants or partners, or identified except as explicitly permitted or as required to provide service under the individual orders hereunder, without advance written notice to Customer and Customer’s written consent, which may be withheld in Customer’s sole discretion. Notwithstanding the foregoing, Customer agrees and authorises CLOUDCALL and its affiliates to use Personal Information and to disclose such Personal Information to CLOUDCALL's agents, related companies, credit reporting agencies, credit providers, carriers, carriage service providers and any relevant regulatory authorities for the following purposes:
(a) considering or applying CLOUDCALL's credit policy to the Customer's application and maintaining credit records about the Customer which may be used for debt tracing and fraud prevention;
(b) management of the Customer's Account, including billing and collection of overdue payments;
(c) research, marketing and calculating call statistics
(d) provision, operation and administration of the Service
11.3 The provisions of clause 16.1 shall be deemed to be Customer’s opt-in approval to use its Personal Information for purposes of providing or marketing service offerings among the categories of service (i.e., local, interexchange, and interconnected VOIP) to which Customer already subscribes, and also other products or services to which Customer does not already subscribe, and is valid until Customer affirmatively revokes or limits such approval or denial in writing.
12. LIMITATION OF LIABILITY
12.1 Nothing in these Conditions shall limit or exclude the liability of CLOUDCALL for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.2 Subject to clause 12.1:
(a) IN NO EVENT WILL CLOUDCALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT CLOUDCALL HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LOST PROFITS OR REVENUES (COLLECTIVELY, "INDIRECT DAMAGES").
(b) CLOUDCALL'S LIABILITY UNDER THIS CONTRACT, WHETHER ARISING OUT OF BREACH OF CONTRACT (INCLUDING BREACH OF WARRANTY) OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WILL IN NO EVENT EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER FOR SERVICES UNDER THIS CONTRACT DURING THE 30-DAY PERIOD IMMEDIATELY BEFORE THE MONTH IN WHICH THE FIRST EVENT OCCURRED FROM WHICH SUCH DAMAGE DIRECTLY AROSE (OR IF 30 DAYS HAVE NOT PASSED, THE AMOUNT EXPECTED TO BE PAID BY CUSTOMER DURING THE FIRST 30 DAYS OF THIS CONTRACT)
(c) CLOUDCALL shall under no circumstances be liable for any Customer printing or advertising costs where the Customer prints and/or advertises a telephone number provided to the Customer as part of the Services;
(d) CLOUDCALL shall under no circumstances be liable for any Customer using the Services in a jurisdiction in which the Services (or any part of the Services) are not permitted to be used as a result of applicable laws and regulations in that jurisdiction; and
(e) the total liability of CLOUDCALL to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount paid to CLOUDCALL for the Services by the Customer.
12.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.4 This clause 12 shall survive termination of the Contract.
12.5 Calls made using the “CloudCall Go!” mobile application may use the cellular and/or data network of a Customers existing mobile service provider and will be subject to the air time, call charges, roaming fees and data usage fees of such provider, as well as any mobile network limitations. The customer can disable 3G/4G calling by configuring the “CloudCall Go!” Application to make/receive calls only over a wi-fi connection.
12.6 All the restrictions related to Emergency calls in section 8 are applicable to the “CloudCall Go!” application. It is strongly recommended that the customer has an alternative means for placing emergency calls available at all times.
13. CALL RECORDING
13.1 As part of the Services the Customer may elect to use CLOUDCALL's call recording service.
13.2 Customers acknowledge and understand that there are federal and state statutes governing the electronic recording of telephone conversations and that SYNTY will not be liable for any illegal use of the service. As Customers circumstances vary widely, Customers should carefully review their own circumstances when deciding whether to use the recording features of the service and it is the Customer's responsibility to determine if the electronic recordings are legal under applicable federal and state laws. CLOUDCALL is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or the use of its products by the Customer, whether legal or illegal.
13.3 When using the call recording service, the Customer undertakes to ensure that it complies with all applicable laws in the State or other jurisdiction in which it is used.
13.4 CLOUDCALL will hold call recordings for Customer for the period specified in the Specification. If the Customer wishes CLOUDCALL to hold call recordings for longer than the specified period it must inform CLOUDCALL in writing and CLOUDCALL will specify how such recordings will be maintained and the Charges to the Customer associated with the same, including Charges for CLOUDCALL providing permanent copies of the recordings to the Customer if requested.
13.5 CLOUDCALL will use its reasonable endeavours to ensure that all call recordings are of sufficient quality to be fully understandable, provided, however, it provides no warranties as to the quality of any such recordings.
13.6 CLOUDCALL will use its reasonable endeavours to safely and securely store Customer's call recordings, provided, however, it provides no warranties should it fail to do so.
13.7 Recording Outbound Call. CLOUDCALL may assist Customers in notifying its callers that calls may be recorded. Customers acknowledge that these notifications will only work if a) the notification is enabled through the Portal for each of the Customer's user accounts and b) if the Customer's users make calls using one of the CRM Integrations provided by CLOUDCALL as part of the CloudCall Service. CRM Integrations are only available as part of the CloudCall Click and CloudCall Contact Centre licenses. Customers making calls directly from their hardware of software based SIP phones configured on CLOUDCALLs services will not receive or have access to these call recording notification tools and are strongly advised to verbally inform the caller that the call is being recorded or monitored with appropriate wording.
13.8 Recording Inbound Calls. CLOUDCALL provides all Customers with the ability to play a notification message to all inbound calls. CLOUDCALLs strongly advises Customers using CLOUDCALL's call recording features to verbally inform the caller that the call is being recorded or monitored with appropriate wording.
13.9 The Customer agrees that it shall defend, indemnify and hold CLOUDCALL harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees, asserted against CLOUDCALL, its agents, its Customers, officers and employees, that may arise as a result of call recordings made by CLOUDCALL for the Customer and the uses made by the Customer of such call recordings
14.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material or persistent breach of the Contract and (if such a breach deemed in CLOUDCALL’s sole view is remediable) fails to remedy that breach within 30 days of receipt of notice in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
14.2 Without limiting its other rights or remedies, CLOUDCALL may terminate the Contract with immediate effect if the Customer fails to pay any amount due under this Contract on the due date for payment.
14.3 Without limiting its other rights or remedies the Customer may terminate the Contract by giving one months' notice if CLOUDCALL fails to meet its monthly uptime guarantee set out in clause 7.3 for 3 consecutive months. The Customer will nevertheless be required to pay for the Services to the end of the notice period and for any phone calls made during this period.
15. CANCELLATION AND TERMINATION
15.1 The Contract(s) shall run until expiry of the minimum term as specified in the CloudCall Order.
15.2 After the expiration of the minimum term, either party may terminate the Contract by giving the other party no less that 3 months’ written notice of cancellation. Such notice to be emailed to firstname.lastname@example.org
15.3 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to CLOUDCALL all of the outstanding unpaid invoices and interest of CLOUDCALL and, in respect of Services supplied but for which no invoice has been submitted, CLOUDCALL shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of Supplier Materials and any Hardware which have not been fully paid for. If the Customer fails to do so, then CLOUDCALL may enter the premises of the Customer and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
16.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of CLOUDCALL including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of CLOUDCALL or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) CLOUDCALL shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents CLOUDCALL from providing any of the Services for more than 6 weeks, CLOUDCALL shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
16.2 Assignment and subcontracting:
(a) CLOUDCALL may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Customer shall not, without the prior written consent of CLOUDCALL, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.3 Governing law and jurisdiction: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the laws of the state of Delaware, excluding any conflicts of law provisions.
16.4 Arbitration. Any and all controversies and claims arising out of or relating to this Agreement, or to the interpretation, breach or enforcement thereof, shall be settled by final and binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association then in effect. Judgment upon the decision rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be held in Boston MA.
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision (or part of any provision) of the Contract is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16.7 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
16.8 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
16.9 Variation: Except as set out in these Conditions, any variation, including any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by CLOUDCALL.
The Customer agrees that it shall defend, indemnify and hold CLOUDCALL harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees asserted against CLOUDCALL, its agents, its Customers, officers and employees, that may arise or result from (i) Customers use of the Services or the Supplier Materials or any service provided or performed or agreed to be performed or any product sold by the Customer, its agents, employees or assigns or (ii) any injury to person or property caused by any service provided or performed or agreed to be performed or products sold by the Customer, its agents, employees or assigns, or otherwise distributed in connection with the Services, or (iii) violations by the Customer of any regulation, rule, statute or court order of any local state or federal governmental agency, court or body in connection with this Contract.
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