Please read these terms of service (this “Agreement”) carefully. This Agreement is between you and MINDK LLC DBA ServiceCall, and its affiliates (“ServiceCall,” “we,” “us,” or “our”) and governs your access to and use of our Services and Software, unless you and ServiceCall have entered into a written Master Subscription Agreement (MSA), in which case such MSA will govern your access to and use of the Services and Software and not these Terms of Service. You may enter into this Agreement on behalf of yourself or on behalf of a legal entity. If you enter into this Agreement on behalf of a legal entity, you represent that you are a duly authorized representative with the authority to bind that legal entity to this Agreement. All references to “you” and “your” in this Agreement mean the person accepting this Agreement as an individual or the legal entity for which the representative is acting.
We may provide the Services and Software through Zoom Video Communications, Inc., our affiliate(s), or both. You may only use the Services and Software in accordance with the terms and subject to the conditions of this Agreement.
ACCOUNT INFORMATION; SHARING
1.1 Registration; Username and Passwords. You may be required to provide information about yourself to register for and to access or use the Services. You represent and warrant that any such information, including Customer Data, is and will remain accurate and complete, and that MindK LLC has no liability whatsoever for errors and omissions in your Customer Data. You may also be asked to choose a username and password to access or use the Services and Software. We may reject, or require that you change, any such username or password, in our sole discretion. You are entirely responsible for maintaining the security of your username and password, and you agree not to disclose or make your username or password accessible to any third party.
1.2 Prohibition on Sharing. You may not share an account, Host rights, or any other user rights with any other individual, unless otherwise expressly pre-approved by ServiceCall in writing. You may not share any login credentials or passwords regarding the foregoing with any other individual. You acknowledge that sharing of any such rights is strictly prohibited. Your right to use or access the Services is personal to you and not assignable or transferable. You may not assign or transfer any account, Host rights, or any other user rights with any other individual, except upon (i) an individual termination of employment or relationship with their employer, as applicable
2.1 Order Form. You may order the Services through an online registration or order form approved and authorized by ServiceCall (each an “Order Form”). Any order for the Services made pursuant to an Order Form is subject to the terms of this Agreement. An Order Form may contain additional or different terms, conditions,
and information regarding the Services you are ordering as authorized and agreed to by ServiceCall. In the event of any conflict or inconsistency between this Agreement and any Order Form authorized and agreed to by ServiceCall, the applicable Order Form controls and governs over this Agreement, to the extent necessary to resolve the particular conflict or inconsistency only. ServiceCall will provide the Services set forth in your Order Form and standard updates to the Services that we make generally available at no additional cost to similarly situated customers in the same geographic region during the applicable Initial Subscription Term or then-current Renewal Term. ServiceCall may, in its sole discretion, (i) discontinue the Services, or (ii) modify the features or functionality of the Services or Software.
2.2 Minimum Commitment. You will maintain your minimum quantity of the Services set forth on your Order Form for the duration of the applicable Initial Subscription Term or then-current Renewal Term. Any timely and contractually available modification to the Services set forth on your Order Form will be effective only upon the commencement of your next Renewal Term, unless you request an increase in the Services, which will take effect as indicated in the applicable Order Form.
2.3 Outstanding Balance; Late Payment. Without limiting our rights in this Agreement, including Sections 12.7 and 14.3, you acknowledge that ServiceCall is not required to provide any new Services set forth in an Order Form until all outstanding balances due and owing for existing Services are paid in full.ACCESS AND USE; SOFTWARE LICENSE
3.1 Access and Use; Software License. Subject to the terms and conditions of this Agreement, you may access and use, during the Initial Subscription Term or then-current Renewal Term, the Services as set forth on each applicable Order Form. If access to or use of any portion of the Services requires or allows for you to download, use, or install ServiceCall software (“Software”), ServiceCall grants you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, and royalty-free license to use the Software in object code format on a compatible device for your internal use only, solely to access and use the Services during the applicable Initial Subscription Term or then-current Renewal Term. You acknowledge and agree that your access to and use of the Services and Software under this Section 3.1 (and as otherwise provided in this Agreement) is revocable in ServiceCall sole discretion.
3.2 Documentation License. Subject to the terms and conditions in this Agreement, ServiceCall grants you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, and royalty-free license for you to use ServiceCall-provided product and services documentation (“Documentation”) solely for your internal business purposes in connection with use of the Services or Software during the applicable Initial Subscription Term or then-current Renewal Term.
3.3 Ownership. You acknowledge that, notwithstanding anything to the contrary herein, the Services are provided to you on a subscription basis, and the Software and Documentation is provided to you under a limited license, and neither has been sold to you. You also acknowledge that you have neither obtained nor will obtain any ownership or other right, title, or interest in or to the Services, Software, or Documentation or any Proprietary Rights relating thereto. Any copies of Software will remain the exclusive property of ServiceCall. The Software may include code that is licensed to you under third party license agreements, including open source software made available or provided with the Software. Without limiting the generality of the foregoing, ServiceCall owns all right, title, and interest in and to all upgrades, enhancements, new releases, changes, and modifications to the Services or Software, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services and Software. Under no circumstances will you be deemed to receive, have, or be granted title to all or any portion of the Services, Software, or Documentation, title to which at all times vests
exclusively in ServiceCall. None of the Services, Software, or Documentation, or any component thereof, is or shall be deemed to be a “work made for hire,” as that term is defined in 17 U.S.C. § 101.
RESPONSIBILITY FOR USE AND END USERS
4.1 Use of the Services; End User Responsibility. You will, and you will cause your End Users to, abide by and ensure compliance with, all the terms and conditions of this Agreement. Use of the Services is void where prohibited. You are responsible for your and your End Users’ access to and use of the Services and Software. You are responsible for the activities of all your End Users, including ensuring that all End Users will comply with the terms and conditions of this Agreement and any applicable ServiceCall policies. You acknowledge that you remain liable for the acts and omissions of any third party that you allow, enable, or otherwise provide access to the Services or Software, whether or not such access was expressly permitted by ServiceCall. 4.2 Violations by End Users or Third Parties. ServiceCall assumes no responsibility or liability for violations of this Agreement by End Users or any other third party that you allow, direct, or enable to access the Services or Software.
4.3 Liability for Content and Data. Under no circumstances will ServiceCall be liable in any way for any data or other content viewed while using the Services, including any errors or omissions in any such data or other content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or other content.
4.4 Investigation of Use. ServiceCall may investigate any complaints and violations that come to our attention and may take any action, in its sole discretion, including issuing warnings, suspending or disconnecting the Services or Software, removing the applicable data or other content, terminating accounts or End User profiles, or taking other reasonable actions in its sole discretion.
SYSTEM REQUIREMENTS; CHANGES
Your use of the Services and Software requires one or more compatible devices, Internet access, and certain third-party software, and you may be required to obtain updates or upgrades from time to time for Software or third-party software, which may result in additional costs to you. Because use of the Services and Software involves hardware, software, and Internet access, your ability to access and use the Services and Software may be affected by the performance of the foregoing. High-speed Internet access is recommended. You are solely responsible for any fees that may apply to your access to or use of the Services and Software, including fees for hardware, software, Internet access, or text messages. You agree that the foregoing requirements are your responsibility, and ServiceCall may, in its sole discretion, discontinue availability or compatibility of the Services or Software, on a particular operating system, device, or platform.
USE OF BETA SERVICES
If you use any beta services, products, or software offered or made available by ServiceCall, then you acknowledge that your use of the services, products, or software are governed by separate Beta Program Terms of Use and not by this Agreement.
RECORDINGS
You are responsible for compliance with all Laws governing the monitoring or recording of conversations as the Host or Phone Host. A Host or Phone Host can choose to record, for example, meetings, webinars, or a phone call. By using the Services, you authorize ServiceCall to store recordings. You will receive a notification (visual or otherwise) when recording is enabled. If you do not consent to being recorded, you can choose to leave the recorded session.
PROHIBITED USES
You agree that you will not, and will not permit any End Users to, directly or indirectly: (i) use the Services or Software in violation of our Acceptable Use Guidelines (which are hereby incorporated into this Agreement); (ii) modify, customize, disassemble, decompile, prepare derivative works of, create improvements, derive innovations from, reverse engineer, or attempt to gain access to any underlying technology of the Services or Software, including any source code, process, data set or database, management tool, development tool, server or hosting site; (iii) knowingly or negligently use the Services or Software in a way that abuses, interferes with, or disrupts ServiceCall networks, your account, Host rights, or any other user rights, or the Services; (iv) engage in activity that is illegal under applicable Law, fraudulent, false, or misleading; (v) transmit through the Services or Software any material that may infringe, misappropriate, or violate the Proprietary Rights of third parties; (vi) build or benchmark a competitive product or service, or copy any features, functions, or graphics of the Services or Software; (vii) use the Services or Software for the development, production, or marketing of a service or product substantially similar to the Services or Software; (viii) use the Services or Software to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would infringe or violate the Proprietary Rights of any party, or is otherwise unlawful, or would give rise to civil or criminal liability, under any applicable Law; (ix) upload or transmit any software, Customer Content, or code that does or is intended to harm, disable, destroy, or adversely affect performance of the Services or Software in any way or which does or is intended to harm or extract information or data from other hardware, software, networks, or other users of the Services or Software; (x) engage in any activity or use the Services, Software, or your account in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, Software, or any servers or networks connected to the Services or ServiceCall security systems; (xi) use the Services or Software in violation of any ServiceCall policy or in a manner that violates applicable Law, including anti-spam, import and export control, intellectual property, privacy, anti-terrorism, anti-bribery, foreign corrupt practices, and any other Laws requiring the consent of subjects of audio and video recordings; (xii) remove, delete, alter, or obscure any Proprietary Rights notices provided on or with the Services or Software, including any copy thereof; (xiii) make, use, or offer the Services or Software for lease, rent, or sale, or reproduce, resell, distribute, publish, display, assign, transfer, sublicense, lend, use on a timeshare or service bureau basis, or use the Services or Software for any commercial or other purpose that is not expressly permitted by this Agreement; or (xiv) make available the Services or Software, or any features or functionality thereof, to any third party for any reason or by any manner, unless expressly permitted by this Agreement or otherwise expressly agreed to in writing by you and ServiceCall.
COMPLIANCE WITH LAWS
You are solely responsible for your and your End Users’ compliance with all Laws that apply to your and your End Users’ access to and use of the Services and Software, including Laws requiring you to provide proper End User notifications and to obtain proper End User consents, which may be necessary to allow ServiceCall and ServiceCall authorized third parties to access, use, and share Customer Content. You shall comply with, and ensure that all End Users comply with, all applicable Laws in connection with your obligations under this Agreement, including access to and use of the Services and Software.
DATA USAGE, LICENSES AND RESPONSIBILITIES
10.1 Customer Content. Data, content, communications, messages, files, documents, or other materials that you or your End Users generate or provide in connection with the Services or Software, together with any resulting transcripts, recordings, outputs, visual displays, or other content, is referred to as Customer Content.
10.2 Permitted Uses and Customer License Grant. ServiceCall will only access, process or use Customer Content for the following reasons (the “Permitted Uses”): (i) consistent with this Agreement and as required to perform our obligations and provide the Services; (ii) in accordance with our Privacy Statement; (iii) as authorized or instructed by you; (iv) as required by Law; or (v) for legal, safety or security purposes, including enforcing our Acceptable Use Guidelines. You grant ServiceCall a perpetual, worldwide, non-exclusive, royalty-free, sublicensable, and transferable license and all other rights required or necessary for the Permitted Uses.
ServiceCall does not use any of your audio, video, chat, screen sharing, attachments or other communications-like Customer Content (such as poll results, whiteboard and reactions) to train ServiceCall or third-party artificial intelligence models.
10.3 Our Obligations Over Your Customer Content. ServiceCall will maintain reasonable physical and technical safeguards to prevent the unauthorized disclosure of or access to Customer Content. ServiceCall will notify you if it becomes aware of an unauthorized disclosure or unauthorized access to Customer Content. ServiceCall may use consultants, contractors, service providers, subprocessors, and other ServiceCall-authorized third parties in connection with the delivery of the Services or Software. ServiceCall will ensure that any sharing of Customer Content with an authorized third party will be in compliance with applicable Law. 10.4 Customer Responsibilities. You are solely responsible for compliance with all Laws and regulations pertaining to the Customer Content, including Laws requiring you to obtain the consent of a third party to use, license or generate Customer Content and to provide appropriate notices of third party rights. ServiceCall may delete any Customer Content, at any time without notice to you if ServiceCall becomes aware that it violates any provision of this Agreement or any applicable Laws. You retain all ownership rights in your Customer Content subject to any license or other rights granted herein.
10.5 Service Generated Data. Telemetry data, product usage data, diagnostic data, and similar data that ServiceCall collects or generates in connection with your or your End Users’ use of the Services or Software are referred to as Service Generated Data. ServiceCall owns all rights, title, and interest in and to Service Generated Data.
ELIGIBILITY; RESTRICTION ON USE BY CHILDREN
11.1 Eligibility. You affirm that you are of legal age to enter into this Agreement and to use the Services and Software. You affirm that you are otherwise fully able and competent to enter into and abide by the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement. Your access may be terminated without warning if it comes to our attention that you are under the legal age to enter into this Agreement or are otherwise ineligible to enter into this Agreement or to use the Services and Software. 11.2 Restrictions on Use by Children. ServiceCall is not intended for use by individuals under the age of sixteen (16) years old, unless it is through a School Subscriber (as defined in the ServiceCall Services Description) using ServiceCall for Education (K-12).
PAYMENTS AND CHARGES
12.1 Charges. You agree that ServiceCall may charge your credit card, debit card, or other payment mechanism selected by you and approved by ServiceCall (“Payment Method”) for all amounts due and owing in connection with your use of the Services, as set forth in the applicable Order Form or otherwise used or ordered by or for you through the Services, including set up fees, one-time fees, non-recurring fees, overages, per-use charges, subscription fees, recurring fees, and any other fees and charges associated with the Services or your account (“Charges”). As provided in Section 13, unless otherwise expressly specified an Order Form, all Charges are exclusive of Taxes and Fees. You agree to promptly update your Payment Method to allow for
timely payment. Changes made to your Payment Method will not affect Charges that ServiceCall submits to your chosen Payment Method before ServiceCall could reasonably act on your changes. Additionally, you agree to permit ServiceCall to use any updated Payment Method information provided by your issuing bank or the applicable payment network and to charge your current primary Payment Method by using the details of such Payment Method saved in our system, even if such Payment Method is declined. ServiceCall further reserves the right to use your backup Payment Method to the extent one is provided. By adding a backup Payment Method, you authorize ServiceCall to process any applicable Charges on your backup Payment Method if your primary Payment Method is declined.
12.2 Non-Cancelable and Non-Refundable Charges. You agree that all payments are non-cancelable for the Initial Subscription Term or the then-current Renewal Term, as applicable, and are final and non-refundable, unless otherwise agreed to by ServiceCall, required by Law, or set forth in your Order Form. 12.3 Changes to Pricing. ServiceCall may change prices for the Services at any time, in its sole discretion. For changes to your Charges, ServiceCall will provide you with not less than (i) thirty (30) calendar days prior notice, or (ii) the time period prescribed by applicable Law (each, (i) and (ii), a “Rate Change Notice”). Unless prohibited by the terms of your Order Form, any changes to your Charges will be effective upon the commencement of your next Renewal Term or other date calculated in accordance with applicable Law. If you seek to terminate or modify the Services affected by a Rate Change Notice, then you must terminate or modify your affected Services within the applicable Rate Change Notice time period. If you do not terminate or modify the affected Services within the applicable Rate Change Notice time period, then you shall be deemed to have automatically accepted the change to your Charges, unless your affirmative, express consent to such change is required under applicable Law. If required by applicable Law, we will remind you of your termination and modification right, any applicable time-period, and the consequences of not terminating. 12.4 Promotional Rates and Discounts. Prices specified in an Order Form may include a promotional rate, discount, sale, or special offer, which may be temporary and may expire (i) per the terms of the offer, or (ii) upon the commencement of a Renewal Term. The expiration of the discount or promotional pricing may expire without additional notice to you, unless specified in an Order Form or as required by applicable Law. ServiceCall reserves the right to discontinue or modify any promotion, discount, sale, or special offer in its sole discretion.
12.5 Collection of Charges. You agree that if ServiceCall is unable to collect the Charges for the Services through your Payment Method, ServiceCall may, to the extent not prohibited by applicable Law, take any other steps it deems necessary to collect such Charges from you and that you will be responsible for all costs and expenses incurred by ServiceCall in connection with such collection activity, including collection fees, court costs, and attorneys’ fees. You further agree that, to the extent not prohibited by applicable Law, ServiceCall may collect interest at the lesser of 1.5% per month or the highest amount permitted by Law on any Charges not paid when due.
12.6 Support Services and Updates. ServiceCall will provide, at no additional costs, (i) standard support as set forth in our then-current Documentation (see ServiceCall Help Center), and (ii) standard updates to the Services and Software that are made generally available by ServiceCall to similarly situated customers in the same geographic region during the Initial Subscription Term or any applicable Renewal Term. In accordance with applicable Law and the terms of this Agreement, ServiceCall reserves the right to (a) modify its standard support and charge you for standard support and (b) charge you for any updates to the Services or for any premium features or functionality.
12.7 Termination or Suspension for Nonpayment. Without limiting our rights in any other section of this Agreement, including 14.3, if any failure to pay Charges continues for five (5) calendar days following the due date, ServiceCall may terminate, suspend, or disconnect your Services immediately and without prior notice.
12.8 Billing Communications. You agree that ServiceCall may contact you via email or otherwise at any time with information relevant to your use of the Services, including billing communications, regardless of whether you have opted out of receiving marketing communications or notices.
12.9 Withdrawal; Cooling-Off Period. If under applicable Law you have a time period to terminate your Services based on a right of withdrawal, or a cooling-off period, you may request to terminate the affected Services in accordance with applicable Law and, if applicable, receive a pro rata refund of any prepaid and unused Charges. If the Services begin before any withdrawal or cooling-off period, or you fail to terminate your Services during the right of withdrawal or cooling-off period, then you acknowledge that you lose any termination rights under this Section 12.9. Nothing in this Section 12.9 is intended to limit or exclude any of your rights that cannot be limited or excluded under applicable Law.
SMS COMMUNICATIONS
13.1 Consent to Receive SMS Messages: By signing this Master Subscription Agreement, the counterparty ("You" or "Your") expressly consents to receive SMS (Short Message Service) messages generated by ServiceCall. The SMS messages are an integral part of ServiceCall service provision.
13.2 Purpose and Frequency of Messages: These SMS messages may include transactional information, service-related notifications, and other relevant communications related to the services provided under this Agreement. The frequency of messages may vary depending on Your use and interaction with ServiceCall. 13.3 Opt-Out Rights: You acknowledge and agree that You have the right to opt-out of receiving SMS messages from ServiceCall at any time. Instructions on how to opt-out will be included in every SMS message sent to You. Opting out of SMS messages may impact your use or the functionality of ServiceCall and ServiceCall shall not be liable for any loss, inconvenience, or changes in service quality or delivery as a result of such opt-out. 13.4 Standard Rates Apply: You understand that, depending on Your mobile carrier and plan, charges for receiving SMS messages may apply, and You consent to bear any such charges.
13.5 Compliance with A2P 10DLC Policy: This clause has been crafted in adherence to the A2P 10DLC guidelines. You acknowledge and understand that you take its compliance obligations seriously, and by providing Your consent to receive SMS messages, You are entering a binding clause of this Agreement.
TERMINATION AND SUSPENSION
14.1 Term; Automatic Renewal. Each Order Form will specify your Initial Subscription Term and any applicable Renewal Term for the Services. Unless your Order Form expressly states otherwise or applicable Law prohibits automatic renewal, each Renewal Term for the Services will begin automatically at the end of the then-current
Initial Subscription Term or Renewal Term, as the case may be, unless either party provides written notice of termination or modification of the Services provided under such Order Form (i) at least thirty (30) calendar days prior to the commencement of the next Renewal Term, or (ii) within the notice period required by applicable Law (collectively, (i) and (ii), the “Renewal Notice Period”). In order to terminate or modify the affected Services, you must provide notice to ServiceCall, via the billing portal (if available for your account) or in an email to renewals@ServiceCall.us, in accordance with the Renewal Notice Period. Any statutory rights you may have under the applicable Laws to terminate your Services at an earlier time during the Initial Subscription Term or any given Renewal Term remains unaffected by this clause, and, if required by applicable Law, we will send you a reminder notice prior to the commencement date of the Renewal Term (and in
accordance with the notice periods specified in this Agreement or other such deadline set by applicable Law that may apply to you) reminding you of your right to terminate the affected Services and how to do so. 14.2 Customer Termination. You may find information on how to terminate your account and Services located here. If you have subscribed to one or more Services for a specific term, such termination will be effective as to each such Service on the last day of the then-current term for each applicable Service, provided that you provide proper and timely notice pursuant to Section 14.1. You may terminate this Agreement by providing written notice of termination if ServiceCall has materially breached this Agreement and has not cured such material breach within thirty (30) business days of ServiceCall’s receipt of your written notice of such breach. Your notice shall state the specific provision in this Agreement that you contend ServiceCall has breached and set forth in reasonable detail the facts and circumstances you allege provide the basis for such breach. 14.3 ServiceCall Termination Rights and Suspension. Notwithstanding anything to the contrary herein, if you fail to comply with any provision of this Agreement or any referenced policies, guides, notices, or statements, ServiceCall may (i) immediately suspend your access to the Services, or (ii) terminate this Agreement, effective immediately. If ServiceCall chooses to suspend your Services and the failure to comply continues, ServiceCall may exercise any or all of its termination rights in this Section 14.3. Additionally, ServiceCall may terminate this Agreement, for any reason or no reason, upon thirty (30) business days’ advance notice. 14.4 Effect of Termination or Suspension. Upon any termination of this Agreement, you must cease any further use of the Services and Software, except for any access rights granted in Section 14.5. No expiration or termination of this Agreement will affect your obligation to pay all Charges that may have become due before such expiration or termination, including that ServiceCall may retain any Charges previously paid by you if this Agreement is terminated, unless prohibited by applicable Law. If your Services are suspended for your failure to comply with this Agreement, you will be liable for all Charges due and owing during the period of suspension.
14.5 Deletion and Access to Customer Content After Termination. For thirty (30) calendar days following expiration or termination of this Agreement, ServiceCall will provide you access to retrieve your Customer Content, after which time your Customer Content will be deleted according to applicable Law, this Agreement, and our regularly scheduled deletion protocols, policies, and procedures. All access during the period set forth in this Section 14.5 is provided to you subject to and governed by this Agreement.
CONFIDENTIALITY
17.1 Definition. “Confidential Information” means: (i) with respect to ServiceCall, any information disclosed by, for, or on behalf of ServiceCall, directly or indirectly, to you or any End User in connection with this Agreement, the Services or Software, or learned or accessed by you or any End User in connection with the Services or Software, including business information, development plans, product roadmap details, systems, strategic plans, source code, services, products, pricing, methods, processes, financial data, programs, trade secrets, know-how, and marketing plans, however it is conveyed in any form or medium, together with all information derived from the foregoing, and any other information that is designated as being confidential (whether or not it is marked as “confidential”) or which is known by you or the End User or reasonably should be understood by you or the End User to be confidential (“ServiceCall Confidential Information”); and (ii) with respect to you, any information disclosed by you to ServiceCall that (a) must be kept confidential pursuant to applicable Law or (b) is sensitive security and technical information that is clearly and conspicuously marked as “confidential” by you (“Customer Confidential Information”). Customer Content is not Customer Confidential Information; however, Customer Content will be protected in accordance with Section 10.3. 17.2 Exclusions. Confidential Information does not include information that: (i) is already rightfully known to
the receiving party at the time it is received, free from any obligation to keep such information confidential; (ii) becomes publicly known or available through no act or omission of the receiving party or any third party; (iii) is rightfully received from a third party without restriction and without breach of this Agreement; or (iv) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information.
17.3 Obligation of Confidentiality. You and ServiceCall shall take reasonable steps to maintain the confidentiality of each other’s Confidential Information using measures that are at least as protective as those taken to protect its own information of a similar sensitivity, but in no event using less than a reasonable standard of care. Neither you nor ServiceCall will disclose the other party’s Confidential Information to any person or entity except to its employees, advisors, and attorneys who have a strict need to know the information in connection with this Agreement and who are bound by confidentiality obligations at least as protective as the provisions herein. In addition to the foregoing permitted disclosures, ServiceCall also may disclose Customer Confidential Information to its consultants, contractors, service providers, subprocessors, and other third parties who are bound by confidentiality obligations at least as protective as the confidentiality provisions herein.
17.4 Permitted and Compelled Disclosures. Notwithstanding the restrictions in this Section 17 and without limiting any other rights of ServiceCall, including our disclosure rights without notice in Section 13.8, we may disclose Customer Confidential Information received in connection with this Agreement, the Services, or Software to the extent authorized in our Government Request Guide or as required by applicable Law; provided, however, that ServiceCall will first notify you, unless providing such notice or timely notice is: (i) prohibited by applicable Law; or (ii) determined by ServiceCall in its sole discretion to be (a) a risk or potential risk of harm to a person or to the health of a person, (b) a risk or potential risk of damage to property, (c) an emergency, or (d) a threat to the Services, Software, or ServiceCall’s rights or property.
THIRD PARTY PROPRIETARY RIGHTS
You agree to not, and to not permit any End User to, post, modify, distribute, or reproduce in any way in connection with your or your End Users’ use of the Services or Software any copyrighted material, trademarks, or other proprietary material that may infringe, misappropriate, or otherwise violate another’s Proprietary Rights without obtaining the prior written consent of the owner of the Proprietary Rights. You represent and warrant that you are either the author of all Customer Content to be provided under this Agreement or have obtained and hold all rights necessary to provide such Customer Content and receive all Customer Content in the form provided by ServiceCall, in connection with your or your End Users’ use of the Services or Software. ServiceCall may deny access to the Services to any End User who is alleged to infringe another person’s Proprietary Rights and may remove any stored Customer Content upon ServiceCall’s receipt of notice by the Proprietary Rights owner (e.g., a takedown request). Without limiting the foregoing, if you believe that any of your Proprietary Rights have been infringed in connection with the Services, notify ServiceCall as specified here.
NO HIGH RISK USE AND SAFE USE
THE SERVICES AND SOFTWARE ARE NOT DESIGNED FOR USE IN HAZARDOUS OR HIGH-RISK ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT, COMBAT OPERATIONS, OR WEAPONS SYSTEMS. YOU SHALL NOT USE THE SERVICES AND SOFTWARE FOR OR IN CONNECTION WITH ANY HIGH-RISK ENVIRONMENT. YOU FURTHER AGREE NOT TO USE THE SERVICES OR SOFTWARE IN AN UNSAFE MANNER,
INCLUDING WHILE DRIVING, WALKING, OR OTHERWISE WITHOUT YOUR FULL ATTENTION WHERE RISK TO YOU, YOUR END USERS, OR OTHERS MAY ARISE OR RESULT.
NO WARRANTIES
YOU AGREE THAT THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND SERVICECALL, ITS AFFILIATES, SUPPLIERS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ServiceCall, ITS AFFILIATES, SUPPLIERS, AND LICENSORS MAKE NO GUARANTEE, PROMISE, WARRANTY, OR REPRESENTATION (i) REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR SOFTWARE, (ii) REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR SOFTWARE, OR (iii) THAT THE SERVICES OR SOFTWARE WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES OR SOFTWARE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES OR SOFTWARE. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES OR SOFTWARE REMAINS WITH YOU. ServiceCall DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY DATA, INCLUDING CUSTOMER CONTENT AND CUSTOMER DATA, USER INFORMATION, OR COMMUNICATIONS BETWEEN USERS. USE OF THE SERVICES AND SOFTWARE IS AT YOUR SOLE RISK.
INDEMNIFICATION
To the extent not prohibited by applicable Law, you agree to indemnify, defend, and hold ServiceCall and its affiliates and each of our licensors and suppliers (“Indemnified Parties”) harmless, including any officers, directors, employees, shareholders, members, consultants, and agents of the Indemnified Parties, from any third party allegation, claim, proceeding, liability, damage, or cost (including reasonable attorneys’ fees) arising out of or related to (i) your or your End User’s use of the Services or Software, (ii) your or your End User’s breach of this Agreement or violation of applicable Law, (iii) your or your End User’s infringement or violation of any Proprietary Rights or other right of any person or entity, (iv) your relationship with your End User or any dispute between you and your End User, or (v) a personal injury or property damage to a third party relating to your or your End User’s acts or omissions.
LIMITATION ON LIABILITY
READ THIS SECTION CAREFULLY AS IT LIMITS OUR LIABILITY TO YOU.
ServiceCall AND ITS AFFILIATES AND EACH OF THEIR LICENSORS, AND SUPPLIERS WILL NOT BE LIABLE FOR ANY:
● SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES; ● LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF BUSINESS OPPORTUNITY;
● UNAUTHORIZED ACCESS TO, LOSS OF, DELETION OF, OR ALTERATION OF SYSTEM DATA, CUSTOMER CONTENT, OR CUSTOMER DATA;
● COSTS RELATED TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
● TERMINATION, SUSPENSION, DISCONTINUANCE, OR DISCONNECTION OF THE SERVICES; ● A FAILURE OF YOUR INTERNET SERVICES, DOWNTIME, OR MAINTENANCE;
● OUR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES; OR
● DAMAGES, IN THE AGGREGATE FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEEDING THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS.
THESE EXCLUSION OF DAMAGES AND LIMITATIONS ON AVAILABLE DAMAGES APPLY TO ALL CLAIMS, OBLIGATIONS, AND LIABILITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, AND WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), STATUTE, CONTRACT, OR ANY OTHER LEGAL THEORY, EVEN IF ServiceCall, ITS AFFILIATES, OR OUR LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY BE INCURRED BY YOU AND EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OF DAMAGES OR LIMITATIONS ON LIABILITY, THE ABOVE LIMITATION ONLY APPLIES TO YOU TO THE EXTENT THAT THE EXCLUSIONS OF DAMAGES OR LIMITATIONS ON LIABILITY ARE NOT PROHIBITED UNDER APPLICABLE LAW.DISPUTE RESOLUTION, ARBITRATION AGREEMENT, AND CLASS ACTION WAIVER
You agree to resolve certain disputes with ServiceCall through binding arbitration (“Arbitration Agreement”). Arbitration means that an arbitrator, and not a judge or a jury, will decide the dispute. The parties expressly waive the right to bring or participate in any kind of class, collective, or mass action, private attorney general action, or any other representative action. This Arbitration Agreement supersedes all prior versions. 27.1 Covered Disputes. You and ServiceCall agree that any dispute or claim between you and ServiceCall arising out of or relating to this Agreement or the Services (a “Dispute”), including any related software, hardware, integrations, advertising or marketing communications, your account, or any aspects of your relationship or transactions with ServiceCall, will be resolved by binding arbitration, rather than in court. For purposes of this Arbitration Agreement, a Dispute will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement. LAWSUITS AND ARBITRATIONS HAVE BEEN FILED, OR MAY BE FILED IN THE FUTURE, WHICH COULD AFFECT YOU. YOUR AGREEMENT TO THIS ARBITRATION AGREEMENT COULD AFFECT YOUR PARTICIPATION IN THOSE ACTIONS.
27.2 Exceptions to Arbitration. This Arbitration Agreement shall not require arbitration of the following types of claims brought by either you or ServiceCall: (i) small claims court actions, if the requirements of the court are met and the claims are only on an individual basis; and (ii) claims pertaining to intellectual property rights, including trademarks, trade dress, domain names, trade secrets, copyrights and patents. 27.3 Informal Dispute Resolution First. We want to address any Disputes without needing arbitration. If you have a Dispute with ServiceCall, prior to initiating arbitration, you agree to mail an individualized request (“Pre-Arbitration Demand”) to ATTN: Litigation Department, ServiceCall Video Communications, Inc., 55 Almaden Blvd., San Jose, CA 95113 so that we can work together to resolve the Dispute. A Pre-Arbitration Demand is only valid when it pertains to, and is on behalf of, a single individual. A Pre-Arbitration Demand brought on behalf of multiple individuals is invalid as to all. The Pre-Arbitration Demand must include: (i) your name, telephone number, mailing address, and email address associated with your account; (ii) the name, telephone number, mailing address and email address of your counsel, if any; (iii) a description of your Dispute; and (iv) your signature. Likewise, if ServiceCall has a Dispute with you, ServiceCall will send an email with its individualized Pre-Arbitration Demand, including the requirements listed above, to the email address associated with your ServiceCall account. If the Dispute is not resolved within sixty (60) calendar days of when either you or ServiceCall submitted a Pre-Arbitration Demand, an arbitration can be brought. If you or ServiceCall have a Dispute involving claims under the exception to arbitration in Section 27.2(2), then this Section 27.3 does not apply to such Dispute. You agree that compliance with this Section 27.3 is a condition precedent to commencing arbitration, and that the arbitrator shall dismiss any arbitration filed without fully
and completely complying with these informal dispute resolution procedures.
27.4 Arbitration Procedure. If, after completing the informal dispute resolution process set out in Section 27.3, either you or ServiceCall wishes to initiate arbitration, the initiating party must serve the other party with a demand for arbitration. Any demand for arbitration by you shall be sent to the ServiceCall Litigation Department address in Section 27.3. ServiceCall will send any arbitration demand to the email address associated with your ServiceCall account or to your counsel, if any. You and ServiceCall agree that the Federal Arbitration Act (“FAA”) governs this Arbitration Agreement. If the FAA cannot apply for whatever reason, then the state laws governing arbitration procedures where you reside apply.
The applicable arbitration provider depends on where you live. If you are a California resident, the arbitration shall be administered by ADR Services, Inc. (“ADR Services”) under its Arbitration Rules, available at https://www.adrservices.com/services-2/arbitration-rules. If you are not a California resident, the arbitration shall be administered by National Arbitration and Mediation (“NAM”) under its operative Comprehensive Dispute Resolution Rules and Procedures, available at https://www.namadr.com/resources/rules-fees-forms. This Agreement will govern to the extent it conflicts with the arbitration provider’s rules. If the applicable arbitration provider is not available to arbitrate, the parties will select an alternative arbitration provider. If the parties cannot agree on an appropriate alternative arbitration provider, then the parties will ask a court of competent jurisdiction to appoint an arbitrator pursuant to 9 U.S.C. § 5. To the extent there is a dispute over which arbitration provider has jurisdiction, a NAM arbitrator shall be appointed to resolve that dispute. Arbitration hearings will take place through videoconferencing by default, unless you and ServiceCall agree upon another location in writing. A single arbitrator will be appointed. The arbitrator may award damages, declaratory or injunctive relief, and recoverable costs. Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction. An arbitration award shall have no preclusive effect in another arbitration or court proceeding involving ServiceCall and a different individual. The arbitrator shall have the exclusive authority to resolve all threshold arbitrability issues, including whether this Agreement is applicable, unconscionable, or enforceable, as well as any defense to arbitration. However, a court has exclusive authority to rule on the Mass Action Waiver in Section 27.6, including any claim that the section is unenforceable, illegal, void or voidable, or that it has been breached.
If a request to proceed in small claims court (see Section 27.2(1)), is made after an arbitration has been initiated, but before an arbitrator has been appointed, such arbitration shall be administratively closed. Any controversy over the small claims court’s jurisdiction shall be determined by the small claims court. If you or ServiceCall challenges the small claims court election in your Dispute, and a court of competent jurisdiction determines that the small claims court election is unenforceable, then such election shall be severed from this Arbitration Agreement as to your Dispute. However, such court determination shall have no preclusive effect in another arbitration or court proceeding involving ServiceCall and a different individual. 27.5 Jury Trial Waiver. You and ServiceCall hereby waive any constitutional and statutory rights to sue in court and have a trial in front of a judge or a jury. You and ServiceCall are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 27.2 above. Court review of an arbitration award is subject to very limited review. Discovery may be limited in arbitration, and procedures are more streamlined than in court.
27.6 Mass Action Waiver. You and ServiceCall agree that, except as specified in Section 27.7 below, each of us may bring claims against the other only on an individual basis and not on a class, collective, representative, or mass action basis, and the parties hereby waive all rights to have any Dispute be brought, heard, administered, resolved, or arbitrated on a class, collective, representative, or mass action basis. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s
individual claim. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section 27.6 are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and ServiceCall agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and shall be pursued in the state or federal courts located in San Jose, California. This subsection does not prevent you or ServiceCall from participating in a class-wide settlement of claims.
27.7 Bellwether Arbitrations. To increase the efficiency of administration and resolution of arbitrations, you and ServiceCall agree that if there are fifty (50) or more individual arbitration demands of a substantially similar nature brought against either party by or with the assistance of the same law firm, group of law firms, or organizations within a one hundred and eighty (180) day period (“Mass Filing”), the parties shall select sixteen (16) individual arbitration demands (eight (8) per side) for arbitration to proceed (“Bellwether Arbitrations”). Only those sixteen (16) arbitration demands shall be filed with the arbitration provider, and the parties shall hold in abeyance, and not file, the non-Bellwether Arbitrations. ServiceCall will pay the arbitration provider’s costs for the sixteen (16) Bellwether Arbitrations. The statutes of limitation, including the requirement to file within one (1) year in Section 27.10 below, shall remain tolled when non-Bellwether arbitration demands are held in abeyance. While the Bellwether Arbitrations are adjudicated, no other demand for arbitration that is part of the Mass Filing may be processed, administrated, or adjudicated, and no filing or other administrative costs for such a demand for arbitration shall be due from either party to the arbitration provider. If, contrary to this provision, a party prematurely files non-Bellwether Arbitrations with the arbitration provider, the parties agree that the arbitration provider shall hold those demands in abeyance. All parties agree that arbitration demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. Any party may request that the arbitration provider appoint a sole standing administrative arbitrator (“Administrative Arbitrator”) to determine threshold questions such as (i) whether the Bellwether Arbitration process is applicable or enforceable, (ii) whether particular demand(s) are part of a Mass Filing, and (iii) whether demands within a Mass Filing were filed in accordance with this Agreement, including Section 27.3. In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree that the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s costs shall be paid by ServiceCall.
The parties shall work in good faith with the arbitrator to complete each Bellwether Arbitration within one hundred and twenty (120) calendar days of its initial pre-hearing conference. The parties agree that the Bellwether Arbitration process is designed to achieve an overall faster, more efficient, and less costly mechanism for resolving Mass Filings, including the claims of individuals who are not selected for a Bellwether Arbitration.
Following resolution of the Bellwether Arbitrations, the parties agree to engage in a global mediation of all remaining arbitration demands comprising the Mass Filing (“Global Mediation”). The Global Mediation shall be administered by the arbitration provider administering the Bellwether Arbitrations. If the parties are unable to resolve the remaining demands for arbitration comprising the Mass Filing within thirty (30) calendar days following the mediation, the remaining demands for arbitration comprising the Mass Filing shall be filed and administered by the arbitration provider on an individual basis pursuant to the arbitration provider’s rules, unless the parties mutually agree otherwise in writing. Any party may request that the arbitration provider appoint an Administrative Arbitrator to determine threshold questions regarding the newly filed demands. The parties agree to cooperate in good faith with the arbitration provider to implement the Bellwether Arbitration process, including the payment of filing and administrative costs for the Bellwether Arbitrations,
deferring any filing costs associated with the non-Bellwether Arbitration Mass Filings until the Bellwether Arbitrations and subsequent Global Mediation have concluded, and cooperate on any steps to minimize the time and costs of arbitration, which may include: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) the adoption of an expedited calendar of the arbitration proceedings. This Bellwether Arbitration provision shall in no way be interpreted as authorizing a class, collective, or mass action of any kind, or an arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision. The statutes of limitation applicable to each arbitration demand within a Mass Filing, including the requirement to file within one (1) year in Section 27.10 below, shall remain tolled from the time a party makes a Pre-Arbitration Demand to the time when that party files the arbitration demand with the arbitration provider.
27.8 Settlement Offers and Offers of Judgment. At least ten (10) calendar days before the date set for the arbitration hearing, you or ServiceCall may serve a written offer of judgment upon the other party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance shall be submitted to the arbitration provider, who shall enter judgment accordingly. If the offer is not accepted prior to the arbitration hearing or within thirty (30) calendar days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given as evidence in the arbitration. If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover their post-offer costs and shall pay the offering party’s costs from the time of the offer (which, solely for purposes of offers of judgment, may include reasonable attorneys’ fees to the extent they are recoverable by statute, in an amount not to exceed the damages awarded).
The parties agree that any disputes with respect to settlement offer(s) or offer(s) of judgment in a Mass Filing are to be resolved by a single arbitrator to the extent such offers contain the same material terms. For arbitrations involving represented parties, the represented parties’ attorneys agree to communicate individual settlement offer(s) or offer(s) of judgment to each and every arbitration claimant or respondent to whom such offers are extended.
27.9 Arbitration Costs. Except as provided for in a Mass Filing (see Section 27.7), your responsibility to pay any filing, administrative, and arbitrator costs will be solely as set forth in the applicable arbitration provider’s rules. If you have a gross monthly income of less than 300% of the federal poverty guidelines, you may be entitled to a waiver of certain arbitration costs.
27.10 Requirement to File Within One Year. To the extent permitted by applicable Law, and notwithstanding any other statute of limitations, any claim or cause of action under this Agreement (with the exception of disputes under Section 27.2(2)) must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be permanently barred. The statute of limitations and any arbitration cost deadlines shall be tolled while the parties engage in the informal dispute resolution process required by Section 27.3 above.
27.11 Opt-Out. You may reject this Arbitration Agreement and opt out of arbitration by sending an email to opt-out@joinservicecall.com within thirty (30) calendar days of the date you created your account if you are a new user. Your opt-out notice must be individualized and must be sent from the email address associated with your individual ServiceCall account. An opt-out notice that purports to opt out multiple parties will be invalid as to all such parties. No individual (or their agent or representative) may effectuate an opt out on behalf of other individuals. Your notice to opt-out must include your first and last name, address, the email address associated with your ServiceCall account, and an unequivocal statement that you decline this Arbitration Agreement. If you do decide to opt out, that opt out will apply to this Arbitration Agreement and all previous versions thereof, and neither party will have the right to compel the other to arbitrate any Dispute. However, all other parts of this Arbitration Agreement will continue to apply to you, and opting out of this Arbitration
Agreement has no effect on any other arbitration agreements that you may enter into in the future with us. 27.12 Severability. Except as provided in Section 27.6 above, if any provision of this Arbitration Agreement is found to be illegal or unenforceable, then that provision will be severed; however, the remaining provisions shall still apply and shall be interpreted to achieve the closest possible intent to the original intent of this section, inclusive of the severed provision.
ANONYMIZED AND AGGREGATED DATA
You agree that ServiceCall may obtain and aggregate technical and other data about your and your End Users use of the Services and Software on a de-identified or anonymized basis (“Aggregated Anonymous Data”), and ServiceCall may use the Aggregated Anonymous Data in accordance with applicable Law, including to analyze, develop, improve, support, and operate the Services and Software provided to you or other unrelated customers, during and after the term of this Agreement, including to generate industry benchmarks or best practices guidance, recommendations, or similar reports.US STATE LAW PRIVACY ADDENDUM Where we process your personal data, personal information, or personally identifiable information in the provision of Services to you, you acknowledge that ServiceCall is acting on your behalf and you determine the means and purposes of the processing.
If you are (i) a “business” and we process “personal information” (as those terms are defined by the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020) on your behalf, (ii) a “controller” and we process “personal data” (as those terms are defined by other applicable US state data privacy Laws) on your behalf, or (iii) you meet both criteria set out in (i) and (ii), then our US State Law Privacy Addendum is incorporated herein by reference and applies to our “processing” of your “personal information” and “personal data” (as those terms are defined under the aforementioned Laws).
MISCELLANEOUS
33.1 Assignment; Successors and Assigns. You may not assign your rights or transfer any of your obligations under this Agreement without our prior express written consent. Any purported assignment or transfer in violation of this section is null and void. We may assign our rights or transfer any or all of our obligations under this Agreement at any time, without prior notice to you, (i) in the event of a merger, acquisition, or sale of all or substantially all of our assets, or (ii) to our affiliate. This Agreement is binding upon, and inures to the benefit of, the parties and their respective permitted successors and assigns.
33.2 Governing Law; Jurisdiction; and Venue. The laws of the State of California, U.S.A., regardless of conflict of laws principles, govern all matters arising out of or relating to this Agreement, including its interpretation, construction, performance, and enforcement, except that the Federal Arbitration Act governs provisions relating to arbitration. Except as otherwise provided in Section 27, the parties consent to the exclusive jurisdiction and venue of the state courts located in and serving Santa Clara County, California, and the federal courts in the Northern District of California. Notwithstanding the above, you and ServiceCall agree that this paragraph does not preclude either you or us from initiating any proceedings (including nullity proceedings) before the United States Patent Trial and Appeal Board (PTAB), United States Trademark Trial and Appeal Boards (TTAB), the United States Patent and Trademark Office (PTO), the United States Copyright Office, or any foreign patent, trademark, or copyright office, as long as any such proceeding relates to the validity, enforceability, or unenforceability of any copyright, patent, trademark, or other intellectual property right owned or assigned to either you or ServiceCall. If you are acting as a consumer under this Agreement and are domiciled in a Member State of the European Union or the European Economic Area, or in the United
Kingdom, the foregoing choice of governing law will not deprive you of the protection afforded to you by provisions that cannot be derogated from by agreement by virtue of the Laws applicable to you where you habitually reside.
33.3 Language and Translations. All notices and communications under this Agreement must be provided in the English language. If we provide a translation of the English-language version of this Agreement, then the English-language version of this Agreement controls in the event of conflict or inconsistency.
33.4 Merger; Integration. This Agreement constitutes and embodies the final agreement between you and ServiceCall and contains the complete and exclusive expression of your and our agreement pertaining to its subject matter. All prior or contemporaneous writings, negotiations, and discussions between you and ServiceCall regarding the subject matter hereof are expressly merged into and superseded by this Agreement. We expressly object to and do not agree to any terms and conditions presented by you that are in addition to or different from those contained in this Agreement or an Order Form. You acknowledge that no terms and conditions presented by you that purport to add to, modify, or vary the terms and conditions of this Agreement or an Order Form will be binding on us, including (i) text or information set forth on any purchase order, email correspondence, invoice or invoice process, or preprinted form, or (ii) terms and conditions of any request for proposal, request for bid, request for information, or questionnaire. In entering into this Agreement, neither you nor ServiceCall has relied upon any statement, representation, warranty, or agreement of the other party except to the extent expressly contained in this Agreement.
33.6 No Agency Relationship. ServiceCall and you are independent contractors and do not intend to create an express or implied agency relationship by entering into this Agreement, whether arising under federal or state common law of agency.
33.7 No Third-Party Rights or Remedies. This Agreement does not and is not intended to confer any enforceable rights or remedies upon any person other than ServiceCall and you.
33.8 Notice. We may give notice to you by (i) electronic mail to your email address on record in your account information, (ii) written communication sent by letter delivered by a nationally recognized overnight delivery service, or (iii) first-class postage prepaid mail to your address on record in your account information. You are responsible for ensuring that your email address and property address on record are current. You agree that
any notice sent to the then-current email or property address in our systems is adequate and binding notice upon you. You will provide notice to us (such notice is deemed given when received by ServiceCall) by email to customercare@joinservicecall.com
33.9 Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement are not affected or impaired in any way. You and ServiceCall intend that any invalid, illegal, or unenforceable portions of this Agreement will be interpreted to provide the greatest effect and intent of the original. If a construction of the invalid, illegal, or unenforceable portion is not possible, the invalid, illegal, or unenforceable portion will be severed from this Agreement and the rest of this Agreement will remain in full force and effect.
33.10 Survival. All sections of this Agreement which, by their nature should survive termination or expiration, will survive, including sections pertaining to confidential information, ServiceCall’s Proprietary Rights, license rights granted by you to ServiceCall, payment obligations, warranty disclaimers, indemnification, arbitration, and the limitation on liability.
33.11 Waiver. ServiceCall’s failure to exercise any right or enforce any condition or provision under this Agreement does not operate as a current or future waiver. For any waiver to be effective against us, the waiver must be in a writing signed by ServiceCall’s duly authorized representative.
33.12 Interpretation. Any heading, caption, or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will have the same meanings when used in the plural and vice versa, where appropriate and unless otherwise specified. Any use of the term
“e.g.” or “including” or variations thereof in this Agreement will be construed as if followed by the phrase “without limitation.”
34 DEFINITIONS
The following definitions apply to this Agreement. Service-specific definitions are located in the ServiceCall Services Description.
“Customer Data” means information provided to ServiceCall so that ServiceCall can fulfill the terms of this Agreement and provide access to the Services (e.g., company name, billing address, contact name and information).
“End User” means a Host or Participant who uses the Services.
“Host” means an individual who is an identified employee, contractor, or agent of Customer to whom Customer assigns the right to host Meetings. A Host may hold an unlimited number of Meetings during the Initial Subscription Term or Renewal Term (as applicable), but the number of Meetings a Host may host concurrently shall depend on whether Customer orders a Concurrent Meetings package on an Order Form.
“Initial Subscription Term” means the initial subscription term for a Service as specified in an Order Form.
“Law” means all U.S. or non-U.S. national, regional, state, provincial or local law, statute, rule, regulation, ordinance, administrative ruling, judgment, decree, order, directive, or policy applicable to ServiceCall provision of and your use of the Services or Software.
“Meeting” means a ServiceCall Video meeting.
“Participant” means an individual, other than the Host, who accesses or uses the Services, with or without the permission and knowledge of the Host.
“Phone Host” means the individual assigned to access and use the ServiceCall Phone Service. A Phone Host is a “Host” for purposes of the definitions of “Host” and of “End User” used in this Agreement.
“Proprietary Rights” means any copyright, patent, trade secret, know-how, trademark, servicemark, trade name, rights of publicity, or other intellectual property or proprietary rights.
“Renewal Term” means the renewal subscription term for a Service commencing after the Initial Subscription Term or another Renewal Term as specified in an Order Form.
“Services” means (i) any services described in the Services Description and made available to you as set forth in an Order Form that references this Agreement, (ii) any free services provided by ServiceCall to you, in its sole discretion, in connection with this Agreement and whether or not described in the Services Description, (iii) any support services provided by ServiceCall to you in accordance with our then-current Documentation, an Order Form that references this Agreement, or both, and (iv) the ServiceCall Website, including any access to or use of the ServiceCall Web-based Application.
“Taxes and Fees” means all applicable sales, use, environmental or regulatory taxes (including VAT), fees, tariffs, duties (including customs duties), or other charges, surcharges or assessments of similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the foregoing) levied on or otherwise associated with the provision of the Services to you or your use thereof (exclusive of any income tax imposed on ServiceCall).
“ServiceCall Web-based Application” means ServiceCall web client available through the ServiceCall Website that allows you and End Users to join a Meeting in a web browser without downloading any plugins or software.
“ServiceCall Website” means ServiceCall website located at https://joinservicecall.com/ or such other website as ServiceCall may maintain from time to time.