Terms of Service (“Terms”)
Last Updated on August 10, 2022
These Terms, together with our Privacy Policy, found at https://calldna.ai/, govern your access to and use of our Service and/or https://calldna.ai/ website (the “Site”) operated by Belit Services Limited (“CallDNA”, “us”, “we”, or “our”).
PLEASE READ THESE TERMS OF SERVICE AND OUR PRIVACY POLICY (COLLECTIVELY “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY CallDNA. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING CONTRACT FOR YOUR USE OF THE SITE AND THE SERVICE. BY USING THE SITE AND/OR THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS OR PRIVACY POLICY, PLEASE DO NOT ACCESS OUR SITE.
1. Definitions
“Documentation” means any information and/or documentation regarding the Service that is provided by CallDNA to Customer in electronic or other form.
“CallDNA Property” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information acquired, created, developed or licensed by CallDNA prior to or outside the scope of this Agreement and any improvement, modification, extension or other derivative works thereof and all intellectual property rights thereto including without limitation the Service and Documentation.
“Personal Data” has the same meaning as under General Data Protection Regulations (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC) (“GDPR”) and/or under other privacy laws if applicable.
“Service” means any and all service(s) (including any CallDNA Property used to provide such service(s)), as hosted by or on behalf of CallDNA and provided to Customer under this Agreement.
“You”, “User” or “Customer” means any subject (a person(s) or company(s)) that use(s) or browse(s) our Site, Services or system.
2. Service
2.1 Service launch
Each party will provide their best to provide the other with reasonable cooperation, assistance, information, and access as may be necessary to initiate Customer’s use of the Service. CallDNA will provide services to the Customer in accordance with the purchased Service as described on our Pricing Offer is placed at the Site.
2.2 Service access and availability
Customer Systems. Customer is responsible for providing (I) all equipment, subscriptions, and credentials necessary for CallDNA to receive audio, text data, information, documents, or any other electronic materials/data it shall provide, may or consider to provide us (the “Customer Data”) and (II) all servers, devices, storage, software, databases, network and communications equipment and ancillary services needed to connect to, access or otherwise use the Service at its facility (collectively, “Customer Systems”). Customer shall ensure that all Customer Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation.
Service access. As part of the implementation process, Customer will identify a primary administrative email address (a login) and password that will be used to set up Customer’s account. Customer shall be responsible for the acts or omissions of any person who accesses the Service using passwords or access procedures provided to or created by Customer. CallDNA reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement. Customer agrees to notify CallDNA immediately upon learning of any unauthorized use of Customer’s account or any other breach of security.
If you register for the Services as an individual, you cannot use the Services on behalf of a company, and you must only use them for yourself. You must be at least 18 years old or the applicable age of majority in your jurisdiction, to create an account or use our Services. Individuals under the applicable age must at all times use our Services only in conjunction with and under the supervision of a parent or legal guardian who is at least 18 years of age or greater if it is prescribed by the law in your jurisdiction. In all cases, such parent or legal guardian is the Customer and is responsible for any and all activities under the account.
2.3 Service availability
CallDNA will use commercially reasonable efforts to maintain the Service availability to send and receive data, in case of downtimes resulting from maintenance, repairs, and upgrades. CallDNA will attempt to notify Customer electronically in advance of any planned downtimes. Notwithstanding the foregoing, CallDNA will not be liable for any failures in the Service or any other problems which are related to (a) the Customer Data or Customer Systems or (b) outages to any telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of CallDNA’s facilities or control.
2.4 Services
In accordance with terms of Pricing Offer and during the Service only (unless otherwise expressly stated hereto in this Agreement), CallDNA grants Customer a nonexclusive, non-transferable, revocable right to (a) access and use the Service as described herein, solely for Customer’s internal business purposes and (b) upload Customer Data in connection with Customer’s authorized use of the Service. The Service is made available to Customer solely as hosted by or on behalf of CallDNA, and nothing in this Agreement shall be construed to grant Customer any right to receive any copy of the Service or any software. Customer’s access and use of the Service shall comply with all other conditions set forth in the Pricing Offer and Documentation (including any requirements regarding data formats).
2.5 Service support
CallDNA will use commercially reasonable efforts to provide Customer with e-mail and on-line support (e.g., by means of skype) for Customer’s use of the Service. Customer agrees that CallDNA is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer Systems.
2.6 Professional services
From time to time, Customer may request and CallDNA may agree to provide certain consulting, training or other professional services as mutually agreed to by the parties (“Professional Services”). The terms and conditions of any such arrangement for Professional Services shall be set forth in a separate statement of work executed by the parties that specifically references this Agreement (each, a “Statement of Work”), each of which shall be governed by the terms of this Agreement with the fee set by CallDNA and agreed by the parties. Unless otherwise agreed to by the parties and set forth in the applicable Statement of Work, all intellectual property, and all rights embodied therein, that are created by CallDNA during the performance of Professional Services shall be owned solely and exclusively by CallDNA.
3. Service restrictions and customer obligations
3.1 Service restrictions
Customer shall not directly or indirectly: (I) use the Service or any of CallDNA Property or Confidential Information to create any service, software or documentation that performs substantially the same functionality as the Service, (II) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms, or trade secrets underlying the Service, (III) encumber, sublicense, transfer, distribute, rent, lease, time-share or use any CallDNA Property in any service bureau arrangement or otherwise for the benefit of any third party, (IV) adapt, combine, create derivative works of or otherwise modify any CallDNA Property, or (V) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information Customer obtains or learns pursuant to this Agreement in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction.
3.2 Unauthorized use of service
Customer shall not directly or indirectly: (I) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (II) bypass any privacy settings or measures CallDNA may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service);
3.3 Privacy and data protection
Customer shall not provide any personally identifiable information relating to individual persons in connection with their use of the Service, unless CallDNA expressly agrees to receive such information and then solely as necessary in connection with Customer’s use of the Service. Customer acknowledges and agrees that only it is responsible for any such information that it provides CallDNA and further warrants that it will provide Personal Data as strictly as under all applicable privacy laws. Customer will respect Privacy Policy and shall comply with all applicable laws relating to the collection and use of personally identifiable information and Customer Data.
4. Fees and payments
4.1 Service fees
Customer shall pay a fee for the right to use the Service (“Service Fees”) in the amount set forth in the chosen plan under the Pricing Offer. The Service shall be purchased beforehand and will remain active as long as a Customer has an active user account and unused credits (e.g., minutes, etc.) under the applicable plan(s). CallDNA remains the right to suspend any use of the Service when paid credits end.
From time to time and, in its sole discretion, CallDNA may provide Service for free (e.g., for a trial period) within conditions which it may freely establish, change and withdraw at any time without notice and for any reason or without one.
4.2 Payment terms
Payments shall be made in US dollars as set forth in the Pricing Offer options, in full without set-off, counterclaim or deduction right after the applicable services are chosen from the Pricing Offer or agreed as Professional Services. Therefore, CallDNA shall receive the set fee before services are provided.
Customer agrees to reimburse CallDNA for all costs (including attorneys’ fees) incurred by CallDNA in collecting late payments. In addition to its other rights and remedies, CallDNA may, at its option, suspend Customer’s access to the Service or terminate this Agreement in the event that Customer has debts in the payment of fees owed to CallDNA.
Transaction Fees. In some instances, your bank, credit card issuer, payment provider or any other institution you chose to pay through, may charge you transaction or similar fee or charge. Before purchasing any Services, please check with your bank, credit card issuer, payment provider or any other institution you chose to pay through, for more information about its policies regarding transaction and similar fees and charges.
4.3 Taxes
All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon CallDNA’s net income. All amounts payable by Customer hereunder, including all Service Fees, shall be grossed-up for any withholding taxes imposed by any foreign government on Customer’s payment of such amounts to CallDNA.
5. Confidentiality
5.1 Scope
“Confidential Information” means any information marked confidential, proprietary, or any other similar legend on the time of disclosing as well as any and all financial, business, operational, marketing or technical information disclosed by or for a party in relation to this Agreement whether disclosed in tangible, written, oral or electronic form that is of a nature that should reasonably be considered to be confidential and proprietary. Without limitation, (a) the Service, CallDNA Property and pricing information are CallDNA’s Confidential Information and (b) all Customer Data shall be deemed Customer’s Confidential Information for purposes of this Section 5. Confidential Information expressly excludes any information to the extent that a recipient can demonstrate such information is (a) already known by recipient prior to receipt for the disclosing party without restriction, (b) rightfully furnished to recipient without restriction by a third party not in breach of any obligation of the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by the recipient without reference to or use of any of the disclosing party’s Confidential Information.
5.2 Confidentiality
Except for the specific rights expressly granted by this Agreement, the receiving party shall not use, copy or disclose any of the disclosing party’s Confidential Information without disclosing party’s prior written consent. The receiving party shall use the disclosing party’s Confidential Information solely for the purpose of exercising its rights and performing its obligations hereunder. The receiving party shall only disclose Confidential Information to its employees, contractors and agents (“Representatives”) who have a need to know for the purposes of this Agreement and are bound by substantially similar confidentiality obligations and shall use reasonable care to safeguard the disclosing party’s Confidential Information. Each party shall be responsible for any breach of confidentiality by its Representatives. Promptly upon the disclosing party’s request at any time, the receiving party shall return all of the disclosing party’s tangible Confidential Information, permanently erase all Confidential Information in electronic form and destroy all information, records, copies, summaries, analyses and materials developed therefrom.
5.3 Compelled disclosure
Nothing herein shall prevent a party from disclosing this Agreement or any of the other’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
6. Proprietary rights
6.1 Results and customer data
Customer shall own all rights, title and interest (including all intellectual property and other proprietary rights) in and to the Results (any and all materials, texts, documents, analytics, and derivatives resulting from processing of Customer Data), Customer Data and Customer Systems. Customer hereby grants CallDNA nonexclusive, irrevocable, worldwide, sublicensable, royalty-free right and license to access, use, copy, process and store the Customer Data and Results solely for the purpose of providing the Service. Customer agrees that the Service depends on the availability of the Customer Data. Customer will be solely responsible for all Customer Data provided to the Service including the accuracy and completeness of such information. CallDNA shall not have any obligation to store any Customer Data or Results after User account has been deactivated or deleted. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Results, Customer Data and Customer Systems.
6.2 Service feedback
Customer may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Service (“Feedback”). All Feedbacks shall be solely owned by CallDNA (including all intellectual property rights therein and thereto) and shall also be CallDNA’s Confidential Information. Customer shall and hereby does make all arrangements necessary to achieve such ownership.
6.3 CallDNA property
You acknowledge and agree that copyright, trademarks and other intellectual property rights, including registered and unregistered intellectual property rights of any kind, in the Services and the content provided as part of the Services are owned by us or used under the exclusive license of us. You are not granted any rights with respect to the Services or the content provided as part of the Services, except as expressly set forth in these Terms. All rights not expressly granted here are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission or publication of any copyrighted material is strictly prohibited without the written consent of the copyright owner or licensee.
You acknowledge and agree that we have the right to disclose your identity to any third party who claims that any Customer Data or content posted or uploaded by you to our Site or Service constitutes a violation of their intellectual property rights or their right to privacy or any other law.
In the event when CallDNA includes CallDNA Property in the Results, then, subject to all terms and conditions of this Agreement, CallDNA agrees to grant Customer (without the right to sublicense) a nonexclusive, non-transferable, revocable, non-sublicensable, royalty-free right and license to use such CallDNA Property as combined with or embodied in the applicable Results, solely for Customer’s internal business purposes in connection with Customer’s use of the Results. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and CallDNA (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Service and the CallDNA Property.
6.4 General data; aggregated data
Customer agrees that CallDNA is free to (I) collect, use and create derivative works of data regarding Service use and performance derived from the Results; (II) aggregate such data with other data to create compilations and analysis of such data (the “Aggregated Data”); and (III) use, copy, modify, create derivative works, publish and disclose such Aggregated Data in a manner that does not directly or indirectly identify Customer or any individual person.
CallDNA shall own all rights, title and interest to the Aggregated Data and any derivative works thereof. In addition, CallDNA shall be free to reuse all general data, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Service (including without limitation, that which it could have acquired performing the same or similar services for another customer).
7. Customer conduct
The Customer further agrees and warrants not to use the Site or the Services to:
(a) upload, post, email, transmit or otherwise make available Customer Data or any other content/information that is unlawful (e.g., prostitution), harmful, threatening, abusive, harassing, tortious, defamatory, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way or commit abuse;
(c) impersonate or misrepresent your affiliation with, including acting as an employee of, us or our affiliated entities;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of Customer Data or any other content/information transmitted through the Services;
(e) upload, post, email, transmit or otherwise make available Customer Data or any other content/information that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as Personal Data, inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post, email, transmit or otherwise make available Customer Data or any other content/information that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person;
(g) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “affiliate marketing codes”, “link referral code”, or any other form of commercial solicitation;
(h) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware, networks or telecommunications equipment;
(i) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services, including using any device, software or routine to bypass our robot exclusion headers;
(j) violate any applicable local, state, national or international law, including, but not limited to, any and all applicable privacy laws (including GDPR), regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, but not limited to, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(k) provide material support or resources (or conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
(l) “stalk” or otherwise harass another person or User;
(m) collect or store Personal Data about other Users or persons without their consent (including, but not limited to, through the use of scripts, bots or web crawlers) or upload, post, email, transmit, chat or otherwise disclose any person’s private information.
8. Warranties and disclaimers
8.1 Warranties
Customer claims and warrants that it owns all rights, title, interest, permits, consents, or possesses sufficient license rights, in and to the Customer Data, Personal Data and any other data/information in whatever form it sends us or as may be necessary to use Services under this Agreement (all together, for the purpose of this Clause 8 “Content”).
Customer confirms and guarantees that: (i) the Content belongs to it and/or Customer have the right to use it and the right to grant us the rights and licenses as provided in these Terms; (ii) transiting its Content on or through Service (a) does not violate the privacy rights, rights of publicity, copyrights, contract rights or any other rights of any person or entity including patent, trademark, trade secret or other proprietary rights (b) does not constitute a defamation, invasion of privacy or otherwise violate any rights of any third party (c) does not constitute any illegal activity or promote illegal activity, harmful to any person or entity, or discriminatory based on race, gender, national origin, disability, sexual orientation or age; (iii) Content does not contain hate speech, predatory behaviour, images of violence, malicious attacks, or content that promotes harmful or dangerous behaviour, nudity, or content of a sexual nature. We reserve the right immediately and without prior notice and with no liability to remove any Content and/or terminate this Agreement or suspend any account when violating any laws, rules or the Terms at our sole discretion. CallDNA is not responsible and shall not be liable for any Content you send us directly or through the Service.
Customer claims and warrants that it and/or any of its subsidiaries or, to the knowledge of the Customer, any director, officer, agent, employee or affiliate of the Customer or any of its subsidiaries is not currently the subject or the target of any sanctions administered or enforced by the U.S. government, including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), and the Customer will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or (ii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
CallDNA claims and warrants to Customer that it will use commercially reasonable efforts to provide the Service in a professional manner in accordance with the terms of this Agreement and the Documentation. Any warranty claims under this Section 8.1 must be made in writing within ten (10) days after performance of the portion of the Services giving rise to the claim. CallDNA’s sole liability and Customer’s exclusive right and remedy for a breach of such warranty is for CallDNA to correct or re-perform the nonconforming Service.
8.2 Disclaimers
THIS SITE, THE SERVICES AND ALL ITS CONTENT ARE PROVIDED “AS IS”. YOU SHOULD NOT RELY ON ANY INFORMATION PUBLISHED BY OR RELATED TO SITE WITHOUT FIRST MAKE YOUR OWN INQUIRIES TO REPRESENT THAT IT IS ACCURATE, CURRENT AND COMPLETE. WE DO NOT AND CLEARLY REFUSE ANY STATEMENTS, GUARANTEES, AGREEMENTS AND CONDITIONS THAT ARE OBVIOUS OR IMPLIED, ARISING FROM THE LAW, THE COURSE OF BUSINESS CASES, TRADE USE OR OTHERWISE, INCLUDING ANY OBVIOUS OR IMPLIED WARRANTIES AND CONDITIONS: COMMERCIAL SUITABILITY; FITNESS FOR A PARTICULAR PURPOSE; NON-INFRINGEMENT; SAFETY; QUALITATIVE; FREEDOM FROM DEFECTS OR CORRECTION OF DEFECTS; UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE USE OF THIS SITE OR SERVICES; OR THE ACCURACY, CURRENCY, RELIABILITY, COMPLETENESS OR COMPLIANCE WITH THE RELEVANT CONTENT OF THIS WEBSITE.
Without limiting the generality of the foregoing, we make no warranty that your use of the Services will be secure, uninterrupted, always available, error-free or will meet your requirements, or that any defects in the Services will be corrected. We make no warranties as to the results that may be obtained from the use of our Site or Services, or as to the accuracy or reliability of any information obtained through Site or Services. No advice or information, whether oral or written, obtained by you through this Site or the Services or from us or our subsidiaries/other affiliates shall create any warranty.
9. Indemnification
9.1 CallDNA indemnity
Except as provided below, CallDNA agrees to (a) defend Customer against any allegation demand, claim, action, proceeding or lawsuit (each, a “Claim”) by a third party stating that Customer’s authorized use of the Service infringes any US patent or copyright or misappropriates any trade secret of such third party and (b) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees, “Loss(es)”) awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement arising out of such Claim; provided, that (I) Customer promptly provides CallDNA with a written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (II) CallDNA shall have sole control and authority to defend, settle or compromise such Claim. If the Service becomes or, in CallDNA’s opinion, is likely to become, the subject of any injunction preventing its use as contemplated herein, CallDNA may, at its option (1) obtain for Customer the right to continue using the Service or (2) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to CallDNA, then it may terminate this Agreement upon notice to Customer. CallDNA shall have no liability or obligation to Customer hereunder with respect to any Claim or Loss to the extent based upon (a) any unauthorized use of the Service, (b) any modification or combination of the Service with data, software, hardware, or systems not provided by CallDNA, (c) any portion of the Service that implements Customer’s specific requirements, (d) Customer’s continuing allegedly infringing activity after being notified to cease use as provided for herein or (e) Customer’s continuing use of any version of the CallDNA Property after being provided modifications that would have avoided the alleged infringement. The foregoing states the sole and exclusive liability of CallDNA, and Customer’s sole and exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Service or any part thereof or by its use or operation.
9.2 Customer indemnity
Customer agrees to indemnify and holds us, our parent, subsidiaries, and affiliated entities, and ours and their shareholders, directors, officers, employees, agents, contractors, licensors and licensees, harmless from any loss, liability, Claim, demand or expense, including but not limited to, reasonable attorney’s fees, made by any third party due to or arising out of Customer’s use of our Site or the Services, or any Customer’s breach or violation of this Agreement, or its representations and warranties set forth hereto.
10. Limitation of liability
TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL CallDNA OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUBSIDIARIES, AFFILIATES, LICENSORS AND SUPPLIERS BE LIABLE FOR ANY RANDOM, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE; AND ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR USER ACCOUNT OR THE INFORMATION CONTAINED THEREIN; ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM USER ACCESS TO OR USE OF THE SERVICE; ANY UNAUTHORIZED ACCESS TO OR USE OF THE CallDNA PROPERTY, CallDNA’S SERVERS, FACILITY AND/OR ANY AND ALL PERSONAL DATA STORED THEREIN; ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE; ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY. IN NO EVENT, CallDNA AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUBSIDIARIES, AFFILIATES, LICENSORS AND SUPPLIERS SHALL BE LIABLE FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE FUNDS PAID BY USER TO US HEREUNDER IN THE PRECEDING 6 MONTHS TO THE INCIDENT GIVING RISE TO THE LIABILITY.
11. Term and termination
The term of this Agreement (“Term”) begins and you may begin using the Services when you agree to these Terms of Service by completing your Account registration process and starting to use the Services, or by clicking to agree to these Terms of Service when such the opportunity is given to you. This Agreement shall remain in effect until terminated by you or CallDNA in accordance with this Section 11. You may terminate this Agreement for any reason or no reason at all, at your sole discretion, by closing your account and ceasing to use the Service without any refund from CallDNA. To delete/close your account, you shall use an account functionality or contact us via ‘contact us’ page.
We may suspend your right to use any or all of the Services or terminate this Agreement in its entirety (and therefore terminate all Services to you) for any or no reason at our sole discretion at any time and without any liability.
Upon termination of these Terms, you may be entitled to refund of Service Fees under conditions stated hereinbelow. Refund may be made if Customer stops using our Service within a first-time experience, subject to its direct refund request to us. Decisions will be made on an individual basis, and we remain the right to refuse any refund request if we have any suspicions regarding User’s statement of a bad experience interacting with our Service.
All decisions regarding the termination of accounts shall be made by us in our sole discretion. We are not required, and may be prohibited, from disclosing to you the reason for termination of your account.
In the event of an account being suspended or terminated, we have all rights to delete any and all data you have sent to us including Customer Data.
Notwithstanding any expiration or termination of this Agreement, Customer’s obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of this Agreement, confidentiality, proprietary rights provisions, warranties and disclaimers, indemnification, limitation of liability, and general provisions shall survive.
12. General provisions
12.1 Entire agreement
This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties after the date hereof, shall have no force or effect under this Agreement. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any use of the terms “include,” “included” or “including” shall also be deemed to mean “but not limited to” or “without limitation.”
12.2 Governing law and dispute resolution
This Agreement shall be governed by and construed in accordance with the laws of the state of California, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to this Agreement. Except with respect to claims for injunctive or other equitable relief, which may be brought at any time before any court of competent jurisdiction, in the event of any dispute arising from or relating to the subject matter of this Agreement, the parties shall use good faith efforts to attempt to amicably resolve the dispute within thirty (30) day period. In the event the parties are unable to amicably resolve the dispute within such thirty (30) day period, the dispute shall be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of a sole arbitrator. The place of the arbitration will be San Francisco, California, United States of America. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The decision of the arbitrator shall be binding and conclusive upon the Parties.
12.3 Compliance with laws
Customer shall comply with all applicable, laws and regulations in connection with the performance of its obligations and the exercise of its rights under this Agreement.
12.4 Remedies
Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, which may be available by law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5 (Confidentiality) or 6 (Proprietary Rights) or the scope of any license granted hereunder, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy by law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
12.5 Force majeure
A party will not be deemed to have breached this Agreement to the extent that performance of such party’s obligations (except payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials or supplies, labour unrest or other cause beyond the reasonable control of such party (a “Force Majeure”); provided that the party whose performance is delayed or prevented promptly notifies the other party of the Force Majeure preventing or delaying performance.
12.6 Publicity
Unless otherwise stated herein or agreed by the parties CallDNA will not use Customer’s trademarks, service marks and logos (“Customer Marks”) in press releases or as a testimonial without obtaining Customer’s prior approval. Customer hereby consents to inclusion of its name and logos in customer lists that may be published as part of CallDNA’s marketing and promotional efforts.
12.7 Communications, notices
By creating an account on our Service, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any e-mail we send.
You agree that CallDNA can provide disclosures and notices regarding the Service to you by posting such disclosures and notices on our website, or emailing them to the email address listed in your CallDNA account. You are responsible for keeping your e-mail address up to date. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy. Such disclosures and notices shall be considered to be received by you within 24 hours of the time it is posted on our Site or when emailed to you unless we receive notice that the email was not delivered.
12.8 Assignment
Except as expressly provided herein, this Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by you without our prior written consent. However, without consent, we may assign this Agreement to any successor in terms of all or substantially all of its activities that concern this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Any assignment in violation of this Section 12.8 shall be deemed null and void ab initio. CallDNA may use contractors and other third party service providers in performing the Service. This Agreement shall be binding upon, and inure to the successors, any representatives and permitted assigns of the parties hereto.
12.9 Independent contractors
The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose.
12.10 User interactions and disputes.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS OF THE SITE AND SERVICES. YOU UNDERSTAND AND AGREE THAT WE HAVE NO OBLIGATION TO SCREEN OUR USERS; INQUIRE INTO THE BACKGROUNDS OF OUR USERS; OR ATTEMPT TO VERIFY THE STATEMENTS OF OUR USERS. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS. IF YOU FIND OTHER USERS’ INFORMATION TO BE OFFENSIVE, HARMFUL, INACCURATE AND/OR DECEPTIVE, YOU MAY CONTACT US VIA ‘CONTACT US PAGE’.
WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR DISPUTES BETWEEN YOU AND OTHER USERS OR TO TERMINATE OR BLOCK YOU AND OTHER USERS FOR VIOLATIONS OF THESE TERMS. PLEASE ALSO USE CAUTION, COMMON SENSE, AND SAFETY WHEN USING THE SERVICES TO INTERACT WITH OTHER USERS. We further reserve the right, but have no obligation, to conduct any credit, criminal or other background checks using publicly available records, at any time, to confirm your compliance with these Terms.
In the event that you have a dispute with one or more other users, you hereby release us, our parent, subsidiaries and affiliated entities, and ours and their shareholders, directors, officers, employees, agents, successors and assigns from any and all claims, demands, damages (actual and consequential), losses and liabilities of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favour at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
12.11 Miscellaneous
Changes. CallDNA reserve the right, at its sole discretion, to modify or replace these Terms with or without notice, at any time by posting new versions on the Site. Your continued access or use of the Site or any of the Services following such changes shall be deemed acceptance of such changes.
Links. Our Site and/or the Services may contain links or banner ads to websites that are not under CallDNA control (“Third Party Website”). We are not responsible for the contents or functionality of any Third Party Website or any website that can be accessed via links on any Third Party Website. Such links to you may be provided as a convenience and the inclusion of any such links does not constitute or imply our endorsement or validation of any Third Party Website. Please note, that by clicking to Third Party Site link you will be left our Site. Your use of Third Party Sites is regulated by their terms and policies, not ours, and we cannot guarantee that they will adhere to the same privacy and security practices as us. You agree that we shall have no liability for any losses, damages, liabilities or expenses you may incur due to your use of such Third Party Websites, and you agree to indemnify us and hold us harmless for any such use.
Third Party Content. In addition to our content, Site and/or Services may contain, or the Site may link to content of third parties. We assume no responsibility for, the content, privacy policies, or practices of any third party. In addition, we must not censor or edit the content of any third-party. You acknowledge and agree that CallDNA shall not be liable, directly or indirectly, for any claims, demands, damage or loss of any kind and nature caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on any “Third Party Website” or placed on Site by third parties.
Class Action Waiver. IN ANY DISPUTE, NEITHER YOU NOR ANY OTHER PERSON SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER AFFILIATES OR PERSONS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. YOU ACKNOWLEDGE THAT YOU ARE GIVING UP YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY SUCH CLAIM.