MSA DDC

Terms and Conditions

1.  SERVICES INCLUDED

CallSource Service and pricing are as described in Addendum A, V, or Other (“The Addenda”)

2. LIMITATION OF LIABILITY

1. Subscriber acknowledges that, except in the event of gross negligence or willful misconduct on the part of CallSource, CallSource is not 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 carrier 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. 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 ten years beyond the termination or cancellation of this Agreement.
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 Responsibility and Indemnification:
   1. CallSource Service optionally includes a “virtual tape recorder” capable of recording certain telephone calls. 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.
   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 12 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, conflicting state laws when two or more states are involved, etc.) vary from jurisdiction to jurisdiction.
   4. 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.
   5. 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, including claims or contentions involving 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.
   6. 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 use of the content of such calls. This provision will survive six (6) years beyond the termination or cancellation of this Agreement.
5. Subscriber agrees to comply with all “Do Not Call List” Regulations.
6. 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. CallSourcewill 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, 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 agrees to notify present and future employees and agents 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. During the Term of the Agreement, CallSource shall remain the sole owner of all toll-free 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. A transfer fee of fifty dollars ($50) per number will apply, except there will be no charge to release numbers originally ported in from 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 (the number to which tracked calls are routed), CallSource is not liable for loss of service.
7. Although CallSource uses great care in provisioning and maintaining tracking numbers, errors can occur. Subscriber 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.
9. As a Subscriber to CallSource call management solutions under the Dealer.com Certified Provider Program, I hereby authorize to share my company’s call traffic data with Dealer.com for the purposes of reporting integration.  This consent is effective until cancelled by the Subscriber authorizing agent with written notice to CallSource.

4. TERM OF AGREEMENT / CHARGES

Subscriber agrees to the following terms and payment conditions. The Term of this agreement is one year, commencing with the date of first activation of any tracking number. 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 month’s Service is due on the 1st day of that month (as defined in The Addenda).   Sales tax will apply to any Services in a jurisdiction that applies sales tax to such Services. Individual numbers may be added as needed.  Mid-cycle changes will be prorated in two-week increments. Additional feature(s) may be obtained by written Addendum for additional fee(s). At the end of the Term, if the account has been paid in full, upon written request, CallSource will release tracking numbers to Subscriber (excluding “vanity numbers” as defined above). Full payment of all sums due under the remaining term of this Agreement shall immediately become due upon early cancellation (outside the 30-day guarantee period) or other material breach by the Subscriber. Unless written notice is received at CallSource’s Westlake Village, CA offices, one month prior to the end of the Term, this Agreement will automatically renew for a like period with rate adjustment not to exceed 5%.  CallSource can port in exiting telephone numbers from Subscriber. However, due to expense and delays inherent in the transfer process, CallSource recommends against the transfer of local numbers. Should Subscriber request such a transfer, 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.