Digital AI℠ – Master Services Agreement
CALLSOURCE provides a service known as “Digital AI” that tracks and accurately attributes cross-domain Web and social media traffic in the form of leads, chats, or calls, identifies online prospects most likely to buy, reports vehicles most often viewed in the Licensee’s market area and compares the Licensee’s pricing with competitors’ pricing. Digital AI can automatically manage dynamic telephone tracking numbers (provided by CallSource. Like all other session-based dynamic numbers, ad blockers may prevent the source identification on some calls). The terms and conditions below apply to Digital AI:
Terms and Conditions
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, CALLSOURCE will use commercially reasonable efforts to provide LICENSEE the Services. LICENSEE will identify an administrative user name and password for LICENSEE’s CALLSOURCE account.
1.2 Subject to the terms hereof, CALLSOURCE will provide LICENSEE with reasonable technical support services in accordance with CALLSOURCE’s standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 LICENSEE will not, directly or indirectly: reverse engineer, decompile, otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by CALLSOURCE or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices.
2.2 LICENSEE covenants, and warrants to use the Services only in compliance with applicable laws and regulations. LICENSEE hereby agrees to indemnify and hold harmless CALLSOURCE against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from use of Services by LICENSEE or LICENSEE. CALLSOURCE has no obligation to monitor LICENSEE’s use of the Services but may do so and may prohibit any use it believes may be (or alleged to be) in violation of the foregoing.
2.3 LICENSEE shall be responsible to obtain and maintain any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). LICENSEE shall also be responsible for maintaining the security of the Equipment, LICENSEE account, passwords and files, and for use of LICENSEE account or the Equipment with or without LICENSEE’s knowledge or consent.
2.4 LICENSEE agrees that this Agreement is not to be construed as an exclusive right or license and acknowledges that the LICENSEE is solely responsible for complying with laws and regulations applicable to its own business, including, where applicable, sales taxes.
CallSource Service consists of CallSource Tracking Numbers, Unlimited Real Time Reporting and other features noted in Addendum A, B, F, M, V or Other (“The Addenda”) to this contract.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 CALLSOURCE may disclose business, technical or financial information relating to CALLSOURCE’S business (“Proprietary Information”). Proprietary Information includes non-public information regarding features, functionality and performance of the Service. LICENSEE agrees to take reasonable precautions to protect such Proprietary Information, and not to use or divulge it to any third person. The foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that (a) is or becomes generally available to the public, or (b) was in its possession or known prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 CALLSOURCE shall own and retain all right, title and interest in and to the Services and Software, all improvements, enhancements or modifications thereto, any software, applications, inventions or other technology developed in connection with Implementation Services or support, and all intellectual property rights related to any of the foregoing.
3.3 CALLSOURCE may collect and analyze data and other information relating to the provision of various aspects of the Services and related systems (including, without limitation, information concerning LICENSEE’s customers’ Data and data derived therefrom), and CALLSOURCE will be free to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other CALLSOURCE offerings, disclosing such data solely in aggregate or de-identified form. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 LICENSEE will pay to CALLSOURCE the applicable fees described in the Digital AI Addendum in accordance with the terms therein (the “Fees”). CALLSOURCE reserves the right to institute new charges and Fees at the end of the Service Term or then current renewal term, upon thirty (30) days prior notice to LICENSEE. If LICENSEE believes that CALLSOURCE has billed incorrectly, LICENSEE must contact CALLSOURCE no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to CALLSOURCE’s LICENSEE support department.
4.2 CALLSOURCE may choose to bill by invoice, in which case, full payment for invoices issued in any given month must be received by CALLSOURCE thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of the maximum permitted by law, plus all expenses of collection and may result in immediate termination of Service. LICENSEE shall be responsible for all taxes associated with Services other than U.S. taxes on CALLSOURCE’s net income.
5. TERM AND TERMINATION
5.1 Subject to early termination as provided below, this Agreement is for the Service Term specified in the Addendum, and shall be automatically renewed for additional periods of the same duration unless either party requests termination in writing at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. LICENSEE will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
CALLSOURCE shall use reasonable efforts consistent with industry standards to maintain the Services in a manner which minimizes errors and interruptions. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by CALLSOURCE or by third-party providers, or because of other causes beyond CALLSOURCE’s reasonable control, but CALLSOURCE shall use reasonable efforts to provide advance notice of any scheduled disruption. CALLSOURCE DOES NOT WARRANT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE NOR MAKE ANY WARRANTY AS TO RESULTS FROM THEIR USE. EXCEPT AS SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND CALLSOURCE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. INDEMNITY
CALLSOURCE shall hold LICENSEE harmless from liability to third parties resulting from infringement by the Service of any US patent or any copyright or misappropriation of any trade secret, provided CALLSOURCE is promptly notified of any threats, claims and proceedings related thereto and given reasonable assistance and opportunity to assume sole control over defense and settlement; CALLSOURCE will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by CALLSOURCE, (ii) made in accordance with LICENSEE specifications, (iii) that are modified after delivery by CALLSOURCE, (iv) combined with other products, processes where the alleged infringement relates to such combination, (v) where LICENSEE continues allegedly infringing activity after notification thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where LICENSEE’s use of the Service is not in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court to be or are believed by CALLSOURCE to be infringing, CALLSOURCE may, at its option and expense (a) replace or modify the Service to be non-infringing, provided that such modification or replacement contains substantially similar functionality, (b) obtain for LICENSEE a license to continue using the Service, or terminate this Agreement and LICENSEE’s rights hereunder and provide LICENSEE a refund of any prepaid, unused fees for the Service.
8. LIMITATION OF LIABILITY
CALLSOURCE, ITS OFFICERS, AFFILIATES, RESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OR TERMS AND CONDITIONS OF THIS AGREEMENT; UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS, INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR LOSS OF BUSINESS; (B) FOR ANY DIRECT, INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND CALLSOURCE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY LICENSEE TO CALLSOURCE FOR THE SERVICES FOR THE MONTH PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT CALLSOURCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. This Agreement is not assignable, transferable or licensable by LICENSEE except with CALLSOURCE’s prior written consent. CALLSOURCE may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the understanding of the parties and supersedes all previous agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and LICENSEE does not have any authority of any kind to bind CALLSOURCE in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
