Introduction
Thank you for using the Callblitz LLC (dba CallBlitz) Services! In the rest of this document, Callblitz LLC. (dba CallBlitz) is hereby referred to as CallBlitz. These Terms of Service (the "Terms"), and any associated order for Services (the Order), and any amendments there
to signed by you and CallBlitz are, together, the Agreement that governs your access to
and use of the CallBlitz Services (which include the CallBlitz website, the CallBlitz hosted services, and the Software (as defined below), all together, the "Services").
Please read them carefully before using the Services. By using the Services you are agreeing to the terms and conditions of the Agreement. If you are using the Services
on behalf of an organization, you are agreeing to the Agreement on behalf of that organization and representing that you have the authority to bind that organization
to the Agreement. In that case, "you" and "your" will refer to that organization. CallBlitz
and you are each a Party to the Agreement.
You may use the Services only in accordance with the Agreement. You may use the Services only if you have the legal power and capacity to form a contract with CallBlitz. The Services will continue to evolve as we refine features and functionality, and we may modify the Services, in general or with respect to you, from time to time without prior notice. We may delete any content or data from the Services to meet our regulatory obligations or protect you, other CallBlitz Customers, and/or the Services.
Your Data
In order to use our Services you must link one of your e-mail accounts to your CallBlitz account per authorized user, defined herein as an employee, contractor, or agent of yours who is authorized to use the CallBlitz Services and who has access to the CallBlitz Services via a unique username and password under your account with CallBlitz (Your Authorized Users). You retain full ownership of all of the call history, call recordings and files you upload or otherwise provide to CallBlitz (Your Data). We do not claim any ownership over any of Your Data.
You are solely responsible for your conduct, the content of Your Data and your communications with others while using the Services. For example, it's your responsibility to ensure that you have all rights and permissions needed to comply with the Agreement and to avoid infringement or violation of any rights of others. You acknowledge that CallBlitz has no obligation to monitor any information on the Services and that we are not responsible for the accuracy, completeness, appropriateness, safety or legality of Your Data or any other information or content you may be able to access using the Services. Nothing in the Agreement will restrict CallBlitz from collecting, using and analyzing general information and data from its customers (including you) in an aggregated manner for purposes of improving and enhancing the quality and nature of the Services, or to market or publish general information and statistics.
CallBlitz will implement appropriate technical and organizational measures designed to protect Your Data in accordance with Applicable Data Protection Laws, which mean the relevant data protection and data privacy laws, rules and regulations applicable to the Processing of Customer Personal Data under the Agreement including any binding laws
or regulations ratifying, implementing, adopting, supplementing or replacing the foregoing; in each case, to the extent in force, and as such are updated, amended
or replaced from time to time. To the extent that CallBlitz may process Your Data that includes personal data (as defined by Applicable Data Protection Laws) pursuant to the Agreement, each Party will comply with the obligations set forth in this Data Processing Agreement, which is incorporated by reference into these Terms.
Sharing Your Data, Third Party Products and Your Privacy
The Services allow you to share Your Data with other users. If you choose to share Your Data, we cannot be responsible for what those other users do with Your Data, so please carefully consider what you share and with whom you share it.
A Third Party Product is any third party product, application, service, software, network, system, directory, website, database and/or information obtained separately by you which links to the Services, or which you may connect to or enable in conjunction with
the Services, including, without limitation, Third Party Products which may be integrated directly into the Services by you or at your direction. If you or your Authorized Users choose to share Your Data in any manner, including through a Third Party Product or integration you are solely responsible for what that third party may do with Your Data, and your relationship with that third party. Likewise, you are solely responsible for any of the effects a Third Party Product may have on Your Data, including deleting or corrupting Your Data. You acknowledge that CallBlitz is not responsible for the disclosure of Your Data by you
or your agents (including your Authorized Users) to any third parties or the effects of any Third Party Product on Your Data.
Your Responsibilities
Information and content accessible through the Services may be protected by intellectual property rights of others. Please do not copy, upload, download, or share any information or content unless you have the right to do so. You, not CallBlitz, will be fully responsible and liable for what you copy, share, upload, download or otherwise use while using the Services. You must not upload spyware or any other malicious software to the Services,
or use the Services to spam others.
You acknowledge that, as between you and CallBlitz, CallBlitz owns and retains all right, title and interest in the Intellectual Property Rights in the Services. You own and retain all right, title, and interest in the Intellectual Property Rights in Your Data. Intellectual Property Rights means: (i) copyrights and other rights associated with works of authorship; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; and (v) all registrations, applications, renewals, extensions, continuations, divisions, or reissues now or in the future.
You, and not CallBlitz, are responsible for maintaining and protecting all of Your Data. CallBlitz will not be liable for any loss or corruption of Your Data, or for any costs
or expenses associated with backing up or restoring any of Your Data.
If any information related to your account changes, you must notify us promptly and keep your information current. The Services are not intended for use by you if you are under 18 years of age. By agreeing to these Terms, you are representing to us that you are over 18.
The Services are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500).
You will not import, export, re-export, transfer or otherwise use the Services in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country, (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Departments Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the Services, you represent and warrant that you are not located in any such country or on any such list.
You will not engage in activity that would cause CallBlitz to be in violation of these laws and regulations, and will indemnify CallBlitz for any fines, penalties or other liabilities incurred by CallBlitz for your failure to comply with this provision.
You must use CallBlitz in compliance with applicable laws, rules, and regulations, including but not limited to: (a) ensuring that proper consent to record phone calls is obtained prior to making any such recording in accordance with applicable laws, rules, and regulations and (b) data privacy laws (i.e. GDPR, CCPA). All requests for deletion of personal information must be forwarded to the CallBlitz team directly to info@callblitz.com. While CallBlitz provides features to help you comply with call recording laws, regulations and rules, CallBlitz makes no representations or warranties with respect to call recording.
CallBlitz reserves the right at all times to disclose any information if required by applicable law, regulation, legal process or governmental request.
You agree to indemnify, defend and hold harmless CallBlitz and its officers, directors, owners, employees, agents, consultants and vendors from and against any and all liabilities, losses, claims, damages, causes of action, costs and expenses (including attorneys fees) that may be incurred by CallBlitz arising out of or related to users acts
or omissions in connection with CallBlitz.
Termination/Suspension of Service
If CallBlitz determines in its sole discretion that you or any of Your Authorized Users have violated any element of these Terms, you or Your Authorized Users access may be immediately suspended or terminated, up to and including the termination of the Agreement by CallBlitz, with or without notice. CallBlitz shall not be liable for any damages of any nature suffered by any user, or any third party, resulting in whole or in part from CallBlitz' exercise of its rights under these Terms.
Account Security and Updates
You are responsible for keeping the password that you use to access the Services secure and you agree not to provide your password to any third party. You are responsible for
all activity using your account, whether or not authorized by you. Accordingly, you should notify CallBlitz immediately of any unauthorized use of your account. You acknowledge that if you wish to protect Your Data when you are transmitting it to CallBlitz, other than
via the CallBlitz Services, it is your responsibility to use a secure encrypted connection
to do so.
Some parts of our Services may require you to download a client software package ("Software"). Subject to your compliance with the Agreement, CallBlitz hereby grants you
a limited, nonexclusive, nontransferable, non sublicensable, revocable license to use the Software, solely to access the Services. This license will be automatically revoked if you violate the Agreement. We reserve all rights not explicitly granted in the Agreement. You must not attempt to reverse engineer the Software or encourage or assist anyone else
to do so; however, this restriction will not prohibit reverse engineering for interoperability
in the European Union to the extent European Union law forbids such a restriction.
The Services may automatically update the Software on your device when a new version becomes available.
Nondisclosure of Confidential Information
During the Term of the Agreement and for a period of one (1) year thereafter (except
for trade secrets, which shall be held in confidence for so long as they constitute trade secrets, and confidentiality obligations as required by applicable law), each Party (the Receiving Party) that receives Confidential Information (as defined below) of the other Party (the "Disclosing Party") will not use, other than in connection with the provision or receipt of the Services, or disclose to anyone, other than officers, employees, contractors, or representatives of the Receiving Party with a need to know for purposes of the Agreement and who are subject to confidentiality obligations no less stringent than
the terms of the Agreement (Representatives), any Confidential Information disclosed
to the Receiving Party by or on behalf of the Disclosing Party. The Receiving Party will safeguard disclosure of such Confidential Information to the same extent that Receiving Party safeguards its own Confidential Information, but in any case will at a minimum use reasonable care. Upon request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy, certifying in writing to the Disclosing Party
the destruction of such Confidential Information, the Disclosing Partys Confidential Information in its possession or under its control.
Confidential Information means all information, material and data of the Disclosing Party which (i) is labeled or designated in writing as confidential or proprietary, (ii) the Receiving Party is advised is proprietary or confidential, or (iii) in view of the nature of such information and/or the circumstances of its disclosure, the Receiving Party knows or reasonably should know is confidential or proprietary. Confidential Information includes, without limitation, the terms and conditions of the Agreement, the Services, Your Data,
and all information relating to the Disclosing Partys business plans, marketing plans, customers, technology, employee and organizational information, product designs, product plans and financial information.
These confidentiality obligations will not apply to any information which (i) is or becomes publicly known without any fault of or participation by the Receiving Party or its Representatives; (ii) was in Receiving Party's possession prior to the time it was received from Disclosing Party or came into Receiving Party's possession thereafter, in each case lawfully obtained from a source other than Disclosing Party or its Representatives and
not subject to any obligation of confidentiality or restriction on use; (iii) is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the Receiving Party will, unless prohibited by law, notify the Disclosing Party
of the requirement of disclosure before making such disclosure and will comply with any protective order or other limitation on disclosure obtained by the Disclosing Party; or (iv)
is independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information.
Feedback
While we appreciate it when users send us feedback, comments, and/or suggestions about our Services (Feedback), please be aware that we (or others we authorize) may
use in any manner any feedback, comments, or suggestions you post in our forums
or otherwise provide without any obligation to you. You agree that we (or others we authorize) may freely use, disclose, reproduce, license, distribute, or otherwise exploit
in any manner any Feedback you post in our forums or otherwise provide to us about
our Services without any obligation to you, restriction of any kind (including on account
of any Intellectual Property Rights), and without paying any compensation to you or any third party.
Other Content
The Services may contain links to websites or resources of others. We do not endorse
and are not responsible or liable for their accuracy, availability, content, products, services or anything else. You are solely responsible for your use of any such websites or resources. Also, if we provide you with any Software under an open source license, there may be provisions in those licenses that conflict with the Agreement, in which case the open source provisions will apply with respect to the code to which those provisions apply.
Billing
All payments are to be paid in accordance with the Agreement. For any questions regarding billing please contact CallBlitz at info@callblitz.com. Unless otherwise indicated on an Order Form or Statement of Work (SOW), all fees will be due and payable upon commencement of the Services (Service Fees). If you fail to pay Service Fees within five (5) business days of notice to you that payment is due or delinquent, or if you do not update payment information upon request, we may suspend or terminate access to
the Services by you or your Authorized Users.
If during the then-current Initial Term or Renewal Term of the applicable Order (as the case may be) you increase the quantity of CallBlitz Services you are purchasing via an expansion Order Form or (if applicable), CallBlitz will invoice you for such increase, at the then-current pricing, pro-rated for the remainder of such Initial or Renewal Term. CallBlitz shall not be obligated to consider modifications to the Services in your subscription for
the upcoming Renewal Term, unless you have given notice of such requested changes,
at least 30 days prior to the end of your then-current Initial Term or Renewal Term, as the case may be. Except as otherwise set forth in the Agreement, Order(s) are non-cancelable and non-refundable.
You will pay all applicable sales, use, service, value-added, consumption or other taxes associated with the Services you purchase. CallBlitz will pay all taxes on its income and
all taxes and insurance associated with its personnel.
Payments made by credit card or debit card may be billed and processed by an agent on behalf of CallBlitz. Such agent shall act solely as a billing and processing agent for and on behalf of CallBlitz and shall not be construed to be providing the Service. If you mandate the use of any specific payment portal or other processing agent which charges a fee
to CallBlitz of any kind, you shall be invoiced the cost of such fee and obligated to pay it.
After the Initial Term, the Service Fees are subject to change and may be changed upon notice to you at least sixty (60) days prior to the start of any Renewal Term (as defined below).
Term and Termination; Suspension
The Agreement shall begin on the effective date as specified in your Order (Order Effective Date) and shall continue as specified in your Order (the Initial Term), automatically renewing thereafter (unless otherwise agreed to by the Parties in the applicable Order)
for successive periods of twelve months each (each a Renewal Term, and together with the Initial Term, the Term) unless earlier terminated by the Parties in accordance with
the Agreement. We reserve the right to suspend or terminate the Services in whole or part
at any time, with or without cause, and with or without notice, without incurring liability
of any kind. For example, we may suspend or terminate your use if you are not complying with the Agreement, or if you use the Services in any way that may cause us legal liability or disrupt others' use of the Services or damage to our business or reputation, or for any other reason. If we suspend or terminate your use, we will try to let you know in advance and help you retrieve data, though there may be some cases (for example, repeatedly
or flagrantly violating the Agreement, a court order, or danger to other users) where we may suspend or terminate immediately. You acknowledge that if your access to the Services is suspended or terminated, you may no longer have access to Your Data that
is stored with the Service. Either Party may terminate the autorenewal of the Agreement and/or the autorenewal of any Order upon written notice to the other Party, which notice
is given at least thirty (30) days prior to the end of the applicable then-current Initial Term or Renewal Term, as the case may be. If notice of termination is not provided within such time frame, the subscriptions under the then-current Order(s) will auto-renew under the existing terms and conditions of the Agreement.
Indemnification
Your indemnity to us: you will defend and hold us and our affiliates, employees, officers, directors, agents, successors and assigns, harmless at your own expense, against any
and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Your Data; (ii) your violation of any third party rights (including third party intellectual property rights
or privacy rights); and (iii) your use of the Services in any way contrary to the Agreement.
Our indemnity to you: We will defend and hold you and your employees, officers, directors, agents, successors and assigns, harmless at our own expense, against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with any third party claims that the Services infringe or misappropriate the intellectual property rights of a third party.
We shall have no liability under this section to the extent that an alleged infringement
of Intellectual Property Rights arises from (i) use of the CallBlitz Services and/or Software
in combination with other equipment or software not provided or approved by us in writing, if such claim would have been avoided but for such combined use; (ii) any modification to the Software made by you or any other third party not approved by us in writing or permitted under the Agreement; (iii) your failure to install any Software updates provided by us; or (iv) use of the CallBlitz Services and/or Software other than in the manner permitted or authorized under the Agreement. In the event that your right to continue using the Services and/or Software are likely to be enjoined in our sole discretion we may (A) attempt to obtain the right for you to continue to use the Services and Software; or (B) replace or modify the Services and/or Software so that they no longer infringe but function substantially equivalently or (C) if neither (A) or (B) is commercially practicable, we shall have the right to terminate the Agreement and the license granted hereunder, and within thirty (30) days of the return of all Confidential Information to us
by you, and return of Your Data to you, refund to you all unearned fees paid by you, if any,
for any Services not yet performed. THE PROVISIONS OF THIS SECTION STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF CallBlitz TO YOU, AND YOUR SOLE REMEDY, WITH RESPECT TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
The Party seeking indemnification under the Agreement will: (i) give the indemnifying Party prompt written notice of the claim, (ii) tender to the indemnifying Party control of
the defense and settlement of the claim, and (iii) cooperate with the indemnifying Party
in defending or settling the claim. The indemnified Party will have the right to participate at its own expense in any indemnification action or related settlement negotiations using counsel of its own choice. Neither Party may consent to the entry of any judgment or enter into any settlement that adversely affects the rights or interests of the other Party without that Partys prior written consent, which may not be unreasonably withheld.
Warranties
CallBlitz warrants that: (i) it will provide the Services in a professional manner, consistent with good commercial practices; (ii) it will comply with all applicable law, and will be duly licensed and otherwise authorized to provide the Services; and (iii) it has the authority
and right to enter into the Agreement and to observe and perform its respective obligations contained in the Agreement.
Customer warrants that it has the authority and right to enter into the Agreement
and to observe and perform its respective obligations contained in the Agreement.
WITH THE EXCEPTION OF THOSE EXPRESS WARRANTIES MADE IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, CallBlitz DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL CallBlitz, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT CallBlitz HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS
OF ITS ESSENTIAL PURPOSE. THE AGGREGATE LIABILITY OF CallBlitz TO YOU, ANY AFFILIATE
OR ANY THIRD PARTY FOR ALL CLAIMS RELATING TO THE SERVICES OR CONNECTED WITH
THE AGREEMENT, REGARDLESS OF THE DAMAGES THEORY, WILL NOT EXCEED THE FEES PAID
OR OWING TO CallBlitz UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING
THE DATE THE CLAIM AROSE. THE LIMITATION OF LIABILITY PROVIDED IN THIS PARAGRAPH WILL APPLY IN THE AGGREGATE TO YOU AND YOUR AFFILIATES AND SHALL NOT BE CUMULATIVE.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PURPOSE OF THIS PARAGRAPH IS TO PROVIDE FOR THE ALLOCATION OF RISK AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES PAID, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY THAN PROVIDED FOR HEREIN.
Some states do not allow the types of limitations in this paragraph, so they may not apply to you. IN THOSE JURISDICTIONS, CallBlitz' LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
In addition, CallBlitz and its authorized personnel may require access to Your Data or account. Neither CallBlitz nor any of its employees will be liable in cases where this access exposes us to your private data, including prospect info and e-mail metadata and content. By using CallBlitz, you agree to permit CallBlitz representatives these permissions. We reserve the right to access such Data in these ways and will keep information confidential.
Modifications
We may revise these Terms from time to time and the most current version will always
be posted on our website. We will notify you of any change (for example via e-mail to the e-mail address associated with your account or by a notification when you sign in or by some other method). By continuing to access or use the Services after revisions become effective, you are agreeing to be bound by the revised Terms. If you do not agree to the new Terms, simply don't use the Services after the change is effective, in which case the change will not apply to you.
Miscellaneous Legal Terms
Neither Party will be liable for any delay or default in its performance of any obligation under the Agreement (other than a payment obligation) caused directly or indirectly
by fire, flood, act of God, acts of government, an act or omission of civil or military authority of a state or nation, strike, lockout or other labor problem, inability to secure, delay in securing or shortage of, labor, materials, supplies, transportation or energy, failures of suppliers, or by war, riot, embargo or civil disturbance, breakdown, or destruction of plant or equipment arising from any cause whatsoever, or any cause
or causes beyond such Partys reasonable control (collectively, Force Majeure Events).
This provision will in no way impair either Partys right to terminate the Agreement. The Agreement and the use of the Services will be governed by Delaware law except for its conflicts of laws principles. All claims arising out of or relating to the Agreement or the Services must be litigated exclusively in the federal or state courts of Delaware, and both Parties consent to venue and personal jurisdiction there. These Terms, together with the associated Order, constitute the entire and exclusive Agreement between you and CallBlitz with respect to the Services, and supersede and replace any other agreements, terms and conditions applicable to the Services. In the event of any conflict or inconsistency between a provision in these Terms and a provision in the applicable Order, the provision in the Order will take precedence and prevail. The Agreement creates no third party beneficiary rights. CallBlitz' failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted to reflect our intent as closely as possible. You may not assign any of your rights under the Agreement, and any such attempt is void, but CallBlitz may assign its rights and obligations to any of its affiliates or subsidiaries, or to any successor in interest of any business or assets associated with the Services. CallBlitz may identify you as a customer in general listings of customers that CallBlitz may make available on its website or in promotional or marketing materials. Your Authorized Users who have access to certain additional features and functionalities of the CallBlitz Services to monitor and administer your CallBlitz account are defined herein as Your Admin Users. Your Admin Users may agree to additional terms related to Support requests, access to CallBlitz Beta programs, community forums, or other features as may be introduced by CallBlitz from time to time. Except as otherwise expressly set forth in the Agreement, all notices given to the Parties under the Agreement will be in writing and will be given by nationally recognized overnight courier service, certified mail (return receipt requested), facsimile or e-mail with electronic confirmation, or personal delivery, if to you at the address indicated on the applicable Order, and if to
CallBlitz at:
Callblitz LLC.
Attn: Legal Notices
6168 Lungo Lago Drive
Sarasota, FL 34241
With a copy e-mailed of even date to: info@callblitz.com