MSA

1. SERVICES INCLUDED

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.

2. LIMITATION OF LIABILITY.
   1. Subscriber expressly acknowledges that, in no event shall CallSource be liable for any loss or damage resulting from any act, omission or failure of performance by CallSource, its employees, agents, or representatives. Further, CallSource shall not be liable for computer error, telephone or system failure, or any loss therefrom.  In no event shall CallSource be liable for any sum in excess of 1 month’s service charges paid by the Subscriber.
   2. CallSource agrees to hold harmless and indemnify Subscriber against all costs incurred by the Subscriber because of any third-party claim that Subscriber’s use of the CallSource services in accordance with this Master Service Agreement or any Addenda thereto infringes any patent, copyright, trade secret or similar right of any third party. Apart from claims related to infringement, Subscriber expressly agrees to indemnify and hold harmless CallSource, its shareholders, directors, officers, employees, agents, representatives, successors and assigns against any liabilities, demands, claims, actions, assessments, losses, costs, damages or expenses, including reasonable attorneys’ fees arising out of any litigation, claim or liability arising from Subscriber’s use of the CallSource services. This provision will survive beyond the termination or cancellation of this Agreement but not beyond the legally prescribed statute of limitations period.
   3. Subscriber acknowledges the accuracy of CallSource reports and analyses depends upon Subscriber’s correct placement of each assigned CallSource number in its appropriate advertising source, and Subscriber’s provision of accurate ad budget information to CallSource.
   4. Call Recording, Outbound Calling & Texting Responsibility and Indemnification
      1. CallSource services optionally include a “virtual tape recorder” capable of recording certain inbound or outbound telephone calls. For certain products, CallSource may answer calls on behalf of the Subscriber. As with a physical tape recorder, it is the responsibility of the Subscriber to understand and comply with the consent regulations involved with call recording. Important: Recorded notification of recording is provided only on inbound calls. It is the responsibility of Subscriber to notify called parties if Subscriber elects to utilize outbound call recording.
      2. Because these regulations are complicated and the penalties for infringement are strict, it is important for the Subscriber to protect its interests. The federal government, state governments, and the FCC all have different regulations that generally include wiretapping and eavesdropping legislation to determine call recording legality. The most common determinant of legality for all of these entities is the presence of consent.
      3. The laws and regulations continually change or are amended. Therefore, it is imperative that the Subscriber apprise itself of the current status of the applicable law and regulations at all times. For example, at present, approximately 11 states require all parties to a call provide informed consent to the recording, while, in other states, only one party to the call must be aware of the call recording, even if that party is the one conducting the recording. The limit and scope of the consent, and applicable exceptions (including, but not limited to obtaining consent, caller notification, inbound versus outbound calls, conflicting state laws when two or more states are involved, etc.) vary from jurisdiction to jurisdiction.
      4. Subscribers who serve residents of California and/or other states with laws similar to the California Consumer Privacy Act agree to comply with said laws and to notify CallSource, via email addressed to ccpa@callsource.com, whenever a consumer from such state requests a report of or requests deletion of said consumer’s personal information collected by CallSource on your behalf.
      5. For additional information (without vouching for its accuracy), one can review The Reporters Committee for Freedom of the Press, at www.rcfp.org/taping/states.html.
      6. Neither CallSource nor any of its officers, directors, employees, or agents shall have any liability to Subscriber or to any third party for any direct, indirect, incidental, special, punitive or consequential losses or damages, statutory fines or penalties, including, without limitation, emotional or mental distress, loss of or injury to reputation, or compensatory losses, attorneys’ fees, or costs resulting directly or indirectly out of or otherwise arising in connection with any allegation, claim, suit or other proceeding arising from improper call recording, outbound calling or texting, including claims or contentions involving texting without legally required consent, Do Not Call violations, wiretapping, eavesdropping, violation of privacy, injury to reputation, infliction of emotional or mental distress, trespass, invasion, or conspiracy to engage in improper call recording or similarly based charges or causes of action, whether under statutory law, case law, administrative law, or otherwise
      7. Subscriber shall defend (with counsel reasonably acceptable to CallSource), indemnify and hold harmless CallSource and its officers, directors, employees, agents, contractors, and representatives from and against any and all claims and expenses, including attorneys’ fees, costs, and fines and penalties relating to or arising out of Subscriber’s recording of inbound or outbound telephone calls. or generation of outbound telephone calls or text messages.
      8. If Subscriber’ Service Agreement includes LeadScore®, DealSaver®, Telephone Performance Analysis®, Coaching or other call analytics, Subscriber authorizes and instructs CallSource to utilize its employees, software, and/or third-party analysts to deliver said service(s).
      9. Recordings of calls that have been analyzed for Telephone Performance Analysis, Enhanced Call Processing, LeadScore, or DealSaver are automatically deleted after 13 months. all other call recordings are automatically deleted after 30 days unless your Agreement with CallSource specifies otherwise.
   5. Subscriber agrees to comply with all “Do Not Call List” Regulations.
   6. If Subscriber’s Service Agreement includes MailMaster® addition of caller names and addresses to caller telephone numbers, Subscriber authorizes and instructs CallSource to access a third-party database to append and report said data.
   7. If Subscriber elects to utilize local tracking numbers instead of toll-free numbers, Subscriber acknowledges and accepts the following risks:  Local numbers may be reassigned to another user by the telephone carrier that provides them. The carrier may not provide CallSource with any notice of such reassignment. Further, whereas toll-free numbers can be moved from one carrier to another within seconds, it may take days or weeks to transfer a local number to an alternative carrier. This makes local numbers susceptible to carrier-specific service interruptions. Unlike toll-free numbers, with local numbers, FCC regulations prohibit CallSource from displaying the originating telephone numbers of callers who utilize Caller ID Blocking.
3. SUBSCRIBER’S OBLIGATIONS.
   1. Subscriber hereby agrees and acknowledges that CallSource may review and evaluate digitized telephone calls for CallSource’s internal quality assurance or at the Subscriber’s request and may utilize and publish call traffic statistics without identifying Subscriber.  CallSource will not resell Subscriber’s proprietary information. CallSource will not reveal Subscriber’s data to any third party without the express, written consent of the Subscriber. Subscriber acknowledges CallSource reports are solely for use by Subscriber and its employees or agents.  Resale or distribution of this information, directly or indirectly, by Subscriber or any affiliate of Subscriber, is prohibited. Lists of caller phone numbers and names and addresses are provided for the Subscriber’s use in contacting customers or prospects. Subscriber’s distribution or resale of such information is prohibited.
   2. Subscriber hereby agrees to notify present and future employees that their conversations may be recorded. Subscriber acknowledges that this shall be relied upon by CallSource and is essential to the ability of CallSource to provide the services set forth herein.
   3. Subscriber is responsible to notify CallSource of any change of local area code at subscribing site.
   4. Except in the case of numbers ported in to CallSource by the Subscriber, during the Term of the Agreement, CallSource shall remain the sole owner of all numbers. At the end of the Term, upon written request (payments on account must be current) CallSource will release any or all “non-vanity” numbers assigned to the Subscriber.  For purposes of this Agreement, a Vanity Number is a toll-free number that begins with area code “800”, a toll-free number with digits that repeat or that form an easy-to-remember sequence or pattern, or a toll-free number with digits that form a word or name on the alphanumeric keypad of a telephone. A word or name translation may be shorter than or may extend past a phone number’s seven digits. Such numbers are assigned under a separate, superseding Agreement or Addendum. CallSource retains the ownership of “Vanity numbers” and will not release them to the Subscriber.
   5. Subscriber agrees to place each CS number in a unique marketing source or ad campaign.
   6. If Subscriber chooses a toll-free target number, CallSource is not liable for loss of service.
   7. Although CallSource uses great care in provisioning and maintaining tracking numbers, errors can occur.  Subscriber expressly assumes the final responsibility to test all tracking numbers before publishing them and to promptly notify CallSource of any problems arising during the Term of this Agreement.
   8. Subscriber acknowledges that, like all phone numbers, CallSource tracking numbers may receive unwanted calls due to misdials, solicitations, or various forms of autodialed “hacking” or “spam” calls. Subscriber agrees to pay for all calls, regardless of their source or nature.

4. TERM OF AGREEMENT / CHARGES / PAYMENTS.

Subscriber agrees to the following terms and payment conditions. The Term of this agreement is as stated in The Addenda commencing with the date of first activation. This Agreement may be terminated at any time by either party, effective immediately upon notice, if the other party (a) becomes insolvent; (b) files a petition in bankruptcy, or (c) makes an assignment for the benefit of its creditors. Either party may terminate this Agreement upon 30-day written notice in the event that the other party breaches any of its material responsibilities or obligations under this Agreement (including, without limitation, failure to pay) which breach is not remedied within thirty (30) days following receipt of said written notice. Notwithstanding any other language in this Agreement, in the event Subscriber’s payment for any CallSource invoice is past-due by thirty (30) days or more, CallSource may suspend service until payment is received. Rates for each service are denoted in The Addenda for such services.  Site means a facility at a single location.  Any Activation Fee is due upon signing of this Agreement.  Payment for each period’s service is due on the 1st day of that Period (as defined in The Addenda).  Fees are based upon minimum term subscription. Sales tax will apply to any services attached to this Master Service Agreement or agreed upon hereafter that fall into a jurisdiction that taxes such services.  To dispute any charges on a CallSource Invoice, Subscriber must notify CallSource within forty five (45) days of the invoice date, stating the invoice date, line item of the invoice, the disputed amount, the trouble ticket number (if applicable) and a detailed explanation of the dispute with supporting documentation. Subscriber shall timely pay all charges not disputed in this manner. Unless a notice of claim is received by CallSource within forty-five (45) days, an invoice shall be deemed accurate and undisputed and therefore not eligible for dispute. If CallSource determines that a billing dispute claim is incomplete, CallSource will inform Subscriber of the identified deficiency and request re-submission. CallSource will review billing disputes within thirty (30) business days of acceptance of the claim, and work with Subscriber to determine whether to credit, partially credit, or refuse such disputed items. Such determination shall be final. In no event shall CallSource’s liability to customer for any reason exceed the amount paid by customer to CallSource hereunder during the three months preceding the date of initial claim.

Individual numbers may be added as needed or cancelled upon four (4) week written notice.  Mid-cycle changes will be prorated in two-week increments. Additional feature(s) may be obtained upon written request for an additional fee. Additional toll-free numbers, additional blocks of minutes, and additional name/address matches will be billed monthly. If the account has been paid in full, and upon written request, at the end of the Term, CallSource will release tracking numbers to Subscriber (excluding “vanity”, “repeaters”, and “true 800” numbers). A transfer fee of fifty dollars ($50) per number will apply.  Full payment of all sums due under the remaining term of this Agreement shall immediately become due upon early cancellation or other material breach by the Subscriber.  Unless written notice is received at 5601 Lindero Canyon Road, Suite 200, Westlake Village, CA 91362 four weeks prior to the end of the Term, this Agreement will automatically renew for a like period with rate adjustment not to exceed 5%. If the prepayment amount due is not paid in full prior to current Term expiration, contracts will renew for a like term at a monthly billing rate. Due to expense and inherent delays in the transfer process, CallSource recommends against the transfer of local numbers from Subscriber’s current RespOrg or carrier. However, should Subscriber request such a transfer, CallSource will attempt to port in Subscriber’s local telephone number(s). Subscriber acknowledges that, due to carrier charges and administrative expense, a one-time fee of fifteen dollars ($15.00) will apply to each such number. In addition, Subscriber acknowledges that, due to frequent processing delays on the part of the releasing carrier, the port-in of a number may require as long as several weeks to complete. This is entirely beyond CallSource’s control.

 

5. CAPTIONS / GOVERNING LAW / ATTORNEYS’ FEES / SEVERABILITY.

Titles or paragraph headings are solely for convenience of reference and are not intended and shall not be deemed to modify, explain, or place any construction on any provision of this agreement. This agreement is executed in and governed by the laws of California and subject to the venue of Los Angeles County. In the event any party brings an action to enforce the terms of this agreement or declare rights hereunder, the non-prevailing party agrees to pay the prevailing party or parties’ costs and reasonable attorneys’ fees incurred in connection therewith. This printed Agreement is the complete and final contract between the parties.  No modifications of this Agreement are valid unless signed by both CallSource and Subscriber.  If any of the provisions or portions of this agreement are held unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby.