UPCALL TERMS OF SERVICE

Last revised: December 6, 2016

UPCALL TERMS OF SERVICE

1.              THESE TOS ARE A BINDING CONTRACT BETWEEN UPCALL AND ITS WEB SITE USERS, CUSTOMERS AND FREELANCE CALLERS.  BY ACCESSING OR USING ANY PART OF THE WEB SITE OR THE UPCALL SERVICES, OR BY ACTING AS A FREELANCE CALLER, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TOS. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS OR USE THE WEB SITE, THE SERVICES, OR PERFORM ANY FREELANCE CALLING SERVICES. THESE TOS CONTAINS A WAIVER OF JURY TRIAL RIGHTS AND CLASSWIDE PROCEEDINGS WHICH MAY BE ENFORCED BY THE PARTIES.  ADDITIONALLY, IF YOU REGISTER FOR A FREE TRIAL OF OUR SERVICE, THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL.

 

2.              ABOUT THE UPCALL SERVICE

a.        Upcall, Inc. (“Upcall” or “Company”) provides a platform for collaboration and communication between calling agents (“Freelancer Users,” “Freelancers” or “Upcallers”) and users seeking to outsource their outbound calling campaigns (“User” or “Client”). The Upcall service (“Services”) provides access to Upcall’s virtual community of Freelancer Users, easy collaboration through Upcall’s communication management tools; and simple, secure payment and invoicing tools.

b.       Upcall is a software platform and industry marketplace—not a caller center. Upcall does not initiate calls or offer call services directly. Freelancer Users are not the employees or agents of Upcall. Upcall is not involved in agreements between Users or in the representation of Users. At no point will Upcall be held liable for the actions or omissions of any Freelancer User performing calling services for you.

c.        Upcall is not an Employment Agency. Upcall does not select or endorse any individual Freelancer User to service a User. While Upcall uses commercially reasonable efforts to verify that our registered Freelancer Users are qualified, we do not make any warranty, guarantee, or representation as to the ability, competence, quality, or qualifications of any Freelancer User.

d.       Upcall does not vouch for any of its Users. Providing a service where potential Clients and calling professionals can meet does not imply an endorsement of any service provider.

 

2.     FREELANCER USERS

a.        Upcall may terminate its relationship with any Freelancer User at any time in its sole discretion with or without cause, including without limitation if Freelancer is determined by Upcall to have violated any term herein or any relevant instruction of the Client on whose behalf the Freelancer is making calls.

b.       Freelancer Users are independent professionals who offer to perform calling services for Clients directly and not for or to Upcall. They are not employees or agents of Upcall, which is merely a software solution and marketplace for product sellers to find and hire callers.

c.        Freelancer Users-Client Relationship through Service Use. A relationship may be formed through the use of the Service between Clients and Freelancer Users only. Clients may post Call Campaigns through the Service. Freelancer Users may join the Call Campaigns at their own discretion. Upon acceptance, the scope of a Freelancer User’s representation is strictly limited to the matter agreed upon in the Call Campaign. Upcall takes every reasonable effort to ensure the privacy of Call Campaigns and other personal messages on our Service, but it cannot guarantee confidentiality. Communications requiring confidentiality should take place outside the Upcall Service.

d.       Any Freelance User must ensure that its services are in full compliance with all applicable laws and regulations.  Upcall does not assume responsibility for ensuring that Freelancer’s marketing meets applicable legal requirements.  Rather, Upcall relies primarily on its clients to ensure that the marketing is compliant. To the extent that Freelancer makes any of their own compliance decisions, with the consent of the Client, Freelancer must comply with the law.  Upcall will not assume any liability if Freelancer or a Client suffers any loss due to an actual or alleged law violation.  Notwithstanding the foregoing, Freelancer acknowledges that Upcall has and is taking active steps to ensure the compliance of its vendors and affiliates, including by having Freelancer agree to these terms and otherwise.  Notwithstanding anything contained herein to the contrary, Freelancer shall indemnify and defend Upcall (including for its attorney’s fees) from and against any actual or alleged TCPA or other law violation related to Freelancer’s Services provided hereunder.

e.        Freelancer will properly disposition and honor all opt outs and transmit the same back to the relevant Client.

f.        Freelancer will represent the truthful, authorized name of the Client when calling on a Client’s behalf, and adhere to the script provided by Client, so long as the same complies with the law.

g.        Freelancer will at all times act in a professional manner while calling for Clients and not use profanity, vulgarity, or any discriminatory/inflammatory/offensive statements of any kind.

h.       To the extent allowed by law, Freelancer shall at all times be a 1099 independent contractor of Upcall, and not of the Client, and shall not be an employee, co-venturer or co-owner of either.  Freelancer shall take all necessary steps to file appropriate tax statements and will cooperate with Client and Upcall as necessary to facilitate any necessary filings on Freelancer’s behalf.  Freelancer will not work more hours than would be permitted for an independent contractor in the jurisdiction in which Freelancer resides or performs the services.

i.         Freelancer will not request or obtain any sensitive or personal financial or health information, including without limitation any credit card number, unless authorized by law and by the Client.

j.         Freelancer certifies that they have truthfully represented all qualifications and experience to Upcall, and that they never been convicted of a crime of fraud or dishonesty, or any felony of any kind, within 10 years preceding or during the time in which work is performed for Upcall Clients.

k.       Freelancer will accept, record and transmit to the Client, and internal opt-out Freelancer receives, and shall never call such individual again on behalf of that Client.

l.         Upcall shall not be liable for any accident occurring at Freelancer location of work and Freelancer shall obtain, prior to performing any services for Upcall Clients, commercially reasonable general liability insurance with a policy limit of at least $1,000,000 and shall list Upcall as an additional insured on any such policies.  Freelancer shall provide Upcall with documentation demonstrating such insurance is in place, upon request.

m.      Freelancer shall refrain from sales misrepresentations and shall accurately describe any product or service offered and shall comply with any applicable mandatory disclosure rules, including without limitation, any scripting or instructions provided by the client, as well as any consumer cancellation rights or refund-related disclosures.

n.       Freelancer Users are solely responsible for ensuring that any information they post or place on the Website, or communicate through our Platform including without limitation Calling Tasks, User-Generated Content, and any communications they may have with prospective Clients through the Website or the Service, fully comply with all applicable laws and rules of professional conduct.

o.       Freelancer shall use commercially reasonable technology to secure any Upcall or Client data it possesses as part of performing its services.

p.       Upcall may, in its discretion or if requested by the Client, require Freelancer to take and pass reasonable tests regarding performance, competency and compliance.

q.       Work Environment Freelancer Users acknowledge and agree that neither Upcall nor the Client will control the work environment in which a Freelancer User will perform services for Client. Client will be solely responsible for ensuring that the work environment is safe and free from harassment and discrimination as required by applicable law.

r.        Payment of Freelancer Users. Freelancer Users who accept and perform Call Campaigns through the Service must receive payment through the Service relating to that User. Upcall will terminate a Freelancer User’s access to and use of the Website if such Freelancer User is found to be accepting payment outside the Service for Clients found through the Service.

s.        Freelancer shall be prohibited from removing/diverting any Client away from Upcall, directly or indirectly, intentionally or negligently, and shall pay liquidated damages in the amount equal to Upcall’s anticipated fees related to that Client for the subsequent 10 years.

 

3.     UPCALL CLIENTS WHO USE THE SERVICES

a.        Upcall may cease providing services to any Client without cause, or if Client is determined by Upcall in its sole discretion to have violated any law or any provision herein.

b.       Client will remain responsible and ensure that all data submitted through Upcall to Freelancers are compliant.  This includes, without limitation, ensuring that Client has the proper consent, established business relationship (“EBR”) or other exemption to call the telephone numbers submitted.  This also includes ensuring that any scripting submitted, or product offered therein, complies with applicable laws.

c.        As applicable by Client’s industry, Client will maintain standards necessary to comply with CI Level 1 and HIPAA rules.

d.       Client will remain responsible for ensuring that its processes and scripts comply with call recording law, timezone (“curfew”) rules, and licensing obligations. Client may alter the standard permissible calling hours only at their own risk.

e.        Client is responsible for compliance with all caller ID and “spoofing” rules, even if Client rents an outbound DID from Upcall or a Freelancer.

f.        Any Upcall Client who makes use of the Services (“Clients”) of Upcall or its Freelancers must ensure that its products and marketing are in full compliance with all applicable laws and regulations, including without limitation, all state, federal and international: (1) product-specific offer regulations; (2) Do-Not-Call (“DNC”) list prohibitions, including by obtaining a SAN and providing that to Upcall upon request; (3) licensing and bonding requirements; (4) consumer cancellation rights; (5) wireless calling restrictions; (6) restrictions on the use of automatic telephone dialing systems and pre-recorded messages; (7) opt-out rules; (8) mandatory disclosures (9) intellectual property rights and restrictions; and (10) document retention regulations.  Client agrees that it has read and understands the FTC’s Telemarketing Sales Rule (“TSR”) and the FCC’s Telephone Consumer Protection Act (“TCPA”), and all other applicable laws and regulations. Client should review these rules with Client’s own legal counsel to ensure that Client understands and is fully compliant.  Upcall does not assume responsibility for ensuring that Client’s marketing meets applicable legal requirements.  Rather, Upcall is relying on Client and Freelancer, as the marketing experts, for that expertise.  Upcall will not assume any liability if Freelancer or Client suffers any loss due to an actual or alleged law violation.  Notwithstanding the foregoing, Client acknowledges that Upcaller has and is taking active steps to ensure the compliance of its Clients, including by having Client agree to these terms and otherwise.  Notwithstanding anything contained herein to the contrary, Client shall indemnify and defend Upcall (including for its attorney’s fees) from and against any actual or alleged TCPA or other law violation related to the calls or Services provided hereunder.

g.        Client’s compliance obligation includes, without limitation, refraining from initiating any call, text or message using an autodialer, as defined by the FCC, to send a marketing message to a cell phone or any device where the called party is charged for the call, without prior express written consent. Upcall’s system was designed not to be an autodialer, but Client assumes all risks related to misinterpretations of the same. Neither Upcall, not its clients or independent Upcallers, shall be permitted to alter or manipulate the calling system in order to add any autodialer features in the future.

h.       Clients’s compliance obligation also includes, without limitation, refraining from initiating any call, text or message for marketing purposes, to any individual on any federal or state DNC list, without express written consent or an established business relationship, as defined by law.

i.         Client will manually call cell phones, rather than autodial, unless Client or its agents have prior express written consent from the called party, as defined by the TCPA.

j.         Client will honor all opt outs and government DNC lists and if any error is made, Client will promptly report the same to Upcall.

 

4.     PAYMENTS ON UPCALL

a.        Time Logs are generated automatically when a Freelancer User starts calling on behalf of Clients and irrevocably authorizes and instructs Upcall to (i) create an invoice on behalf of Freelancer User for payment due based upon the minutes recorded on the Time Log. By recording time on a Time Log and allowing an invoice to be created based on that Time Log, Freelancer User represents and warrants that (a) Freelancer User has completed the applicable Services fully and satisfactorily; and (b) the hours reported are true, accurate and complete.

b.       Client refunds shall only be given in Upcall’s sole discretion.

c.        Billable minutes and hours may be rounded up by Upcall to the nearest minute.

d.       Client may also pay Freelancer Users a bonus/commission, tip, expense, or other miscellaneous payment, at Client’s discretion, using the Site. To pay a bonus to a Freelancer, Client must follow the instructions and links on the Site and provide the information requested. Upcall may take a reasonable commission on any such bonused service.

e.        Any dispute related to a commission shall be decided in Upcall’s sole discretion.

f.        Client must have an Account in good standing order, a valid and authenticated default Payment Method, and Client must agree to automatically pay for minutes billed by Upcall. Within a Review Period of 7 days, Client must submit a Dispute specifically identifying the calls that are not clearly related to Client instructions in the Call Campaign. Upcall will investigate and determine in its sole discretion whether the above terms and conditions are met. Payment Protection for Clients does not create any warranties, express or implied, beyond those expressly stated in the Terms of Use.

g.        Upcall provides a multi-currency system that allows Clients registered with the local versions of the services to pay in a currency other than American Dollars.

h.       It is understood that the exchange rate is freely fixed by Upcall and may not be contested. It may be revised at any time without the need for a specific communication to Clients.

i.         Upcall uses a system of prior purchase of credits that allows the Client to order services. The pricing is detailed on the Upcall pricing page.

j.         Your credits do not have an expiration date are valid and can be used for any type of Campaign.

k.       It is not possible to use credits on a site other than Upcall or one of its affiliates or partners. Only Upcall is authorized to sell the credits used on Upcall. Giving credits away or reselling credits is strictly forbidden.

l.         It is understood that once purchased, the credits can in no way be converted into money.

m.      Upcall provides an invoice each time the Client purchases credits. This invoice serves as a receipt and will be used as a reference in the event of any potential account-related conflict between Upcall and the Client.

n.       Free call minutes have a validity of 6 months. At the end of this period, credits will lose their value and will be removed from your account. There is no possibility to renew the unused credits after the expiration period.

o.       Upcall uses a system of payment per rounded minute of effective call, calculated based on the Client’s contact lists. The rounded minute is the unit of calculation used on Upcall.

p.       The Freelancer Users must have a PayPal account in order to receive their earnings. Upcall is not responsible for the processing fees occurred by PayPal.

q.       Usage of Upcall’s products and services constitutes customer's acceptance of Upcall's billing policy. The following is Upcall's billing policy with which all customers must comply: All accounts are set up on a prepaid basis. Payment must be received by Upcall before any billable product or service is provided/activated. Customers are required to keep a valid credit/debit card on file to charge for recurring monthly subscription fees, call minutes, bonus, commission and all other options and related service fees. All customers must pay by credit/debit card. Upcall does not accept international checks. Subscription billing as well as CallerID service is based on availability of products and services, not based on usage. Customers are responsible for keeping all credit/debit card details and contact information current. This can be done by sending an email to support@upcall.com. All recurring subscriptions are automatically invoiced and charged to the credit/debit card on file.

r.       Credit/Debit Card Billing: All credit/debit cards are automatically charged on the customer's specific billing cycle date. If the credit/debit card is declined, Upcall will attempt to charge the card on file for 30 days. Late Fee: All accounts more than 30 days past due may be assessed a late fee. No fewer than three attempts to contact the customer will be made before any late fee is assessed. Non-Payment Account Suspension Rights: Upcall may terminate customer’s subscription if the billing or contact information provided by customer is false or fraudulent. Upcall has the option to suspend access to an account where any payment is due. Where an annual payment is uncollected, Upcall may convert the subscription to an annual subscription billed monthly. Customer acknowledges and agrees that if the account is suspended, Upcall is not liable to customer or any third party for any damages caused by the suspension of the account due to customer non-payment of fees. Delinquent Accounts: All accounts past due may be disabled until balances are paid in full. When disabled, all access will be suspended and data will be unavailable. Deactivation: After an account is delinquent 60 days, it may be cancelled due to non-payment. Once cancelled, the customer will not be able to recover any files until the account is current. Application data will be stored for 90 days post cancellation. After that, application data will not be available. The account record and delinquent balance will be submitted to a third-party collection service.

s.       FEES Late Fee: Upcall may assess a $15.00 late fee for accounts with past due payments. Chargebacks: If a customer initiates a chargeback, Upcall may assess a $50.00 processing fee for each individual chargeback. Collections Fee: In the event an account is submitted to a third-party collections service, a $15.00 processing fee may be assessed to the existing account balance. This fee is in addition to any other fees previously assessed on the account. Interest: Any charges not paid when due are subject to interest at a rate equal to the lesser of: (i) one and one-half percent (1.5%) per month; or (ii) the maximum interest rate allowed by applicable law.

t.       Invoices are generated and payments are collected at the beginning of each billing period. Customer billing periods typically begin on the day of the month in which customers purchase their Upcall subscription. Customers may cancel their subscriptions at any time. In the event of cancellation, customers will still have access to their applications through the end of their current billing period. Upcall will not prorate any portion of unused subscription services. All subscription fees are nonrefundable.

u.       Upcall accepts payments via credit/debit card. Payment by any other means, such as by check, is on a per-customer basis and must be agreed to by Upcall. Checks must be paid in U.S. dollars and issued from a U.S. bank. Payment by check is acceptable only for prepayment twelve months of subscription services. Upcall currently accepts American Express, MasterCard, Discover and Visa credit/debit cards.

v.       Cancellations must be done by sending an Email to support@upcall.com, stating that you wish to terminate your account, along with your full name and registered email address.Customers are encouraged to keep records of all cancellation communication. Cancellations will take effect on the last day of the billing period in which the cancellation request was received. Closing an account with Upcall cannot be done by simply canceling the credit/debit card. Upcall will continue to treat this as an open account and the billing cycle will continue, resulting in a past due account that may be turned over to a third-party collection service. Cancellation of an account does not dismiss outstanding invoices. At the time of cancellation, any outstanding balance must be settled. All cancelled accounts with an outstanding balance may be automatically turned over to a third-party collection service.

w.       As a current or prior customer of Upcall, each customer agrees to provide Upcall 30 days to attempt settlement of any billing dispute before disputing with any third-party credit/debit card Upcall or bank. Upcall must be the first option in billing disputes. Should Upcall receive a chargeback from a third-party credit/debit card Upcall or bank on the customer's behalf before Upcall has been given a chance to resolve the issue, Upcall has the right to collect on the rendered services and any fees associated with those disputes. Regardless of the outcome of the chargeback, Upcall retains the right to collect on any rendered services or fees that are due. Upcall will submit any disputed amounts to a collection agency. Once a chargeback has been received, Upcall will immediately suspend the account until the matter is resolved. Upcall reserves the right to terminate the service agreement for any Customer at any time at its sole discretion. Obligations of Customer under this Agreement shall survive for a period of three years following termination of this Agreement. Notwithstanding the previous sentence, any protection afforded the intellectual property rights of Upcall, including without limitation any copyrightable works, any trademarks, and any trade secrets shall remain binding upon Customer for the longest period of time allowed by law and shall be perpetual if allowed by law.

x.       By signing up for any direct service provided by Upcall and by providing either credit card, debit card or ACH transaction information, Customer consents to the subsequent recurring billing for services/access provided by Upcall on an ongoing basis. Such recurring billing shall continue until such time as the Customer cancels the service in accordance with the cancellation policy.

 

5.     PRIVACY POLICY

a.        Please refer to the Company’s Privacy Policy which explains how we collect, use, and disclose information that pertains to your privacy.  When you access or use the Service, you signify your agreement to this Privacy Policy.

 

6.     REGISTRATION; RULES FOR USER CONDUCT AND USE OF THE SERVICE

a.        You need to be at least 18 years to register for and use the Service, or become a Freelancer.

b.       If you are a user who signs up for the Service, will create a personalized account, which includes a unique email address and a password to access the Service and to receive messages from the Company.  You agree to notify us immediately of any unauthorized use of your password and/or account. The Company will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your email address, password and/or account.

 

7.     USE RESTRICTIONS.

a.        Your permission to use the Site is conditioned upon the following Use Restrictions and Conduct Restrictions: You agree that you will not under any circumstances:

       post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;

       use the service for any unlawful purpose or for the promotion of illegal activities;

       attempt to, or harass, abuse or harm another person or group;

       use another user’s account without permission;

       provide false or inaccurate information when registering an account;

       interfere or attempt to interfere with the proper functioning of the Service;

       make any automated use of the system, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;

       bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology, or device to scrape, spider, or crawl the Service or harvest or manipulate data; or

       publish or link to malicious content intended to damage or disrupt another user’s browser or computer.

.

8.     POSTING AND CONDUCT RESTRICTIONS

a.        You are solely responsible for the User Content that you post, upload, link to or otherwise make available via the Service.  You agree that we are only acting as a passive conduit for your online distribution and publication of your User Content.  The Company, however, reserves the right to remove any User Content from the Service at its discretion.

b.       The following rules pertain to User Content. By transmitting and submitting any User Content while using the Service, you agree as follows:

       You are solely responsible for your account and the activity that occurs while signed in to or while using your account;

       You will not post information that is malicious, false or inaccurate;

       You will not submit content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such content; and

       You hereby affirm we have the right to determine whether any of your User Content submissions are appropriate and comply with these Terms of Use, remove any and/or all of your submissions, and terminate your account with or without prior notice.

c.        You understand and agree that any liability, loss or damage that occurs as a result of the use of any User Content that you make available or access through your use of the Service is solely your responsibility.  The Company is not responsible for any public display or misuse of your User Content.  The Company does not, and cannot, pre-screen or monitor all User Content.  However, at our discretion, we, or technology we employ, may monitor and/or record your interactions with the Service.

 

9.     ONLINE CONTENT DISCLAIMER

a.        Opinions, advice, statements, offers, or other information or content made available through the Service, but not directly by the Company, are those of their respective authors, and should not necessarily be relied upon.  Such authors are solely responsible for such content.  The Company does not guarantee the accuracy, completeness, or usefulness of any information on the Service and neither does the Company adopt nor endorse, nor is the Company responsible for, the accuracy or reliability of any opinion, advice, or statement made by parties other than the Company.  The Company takes no responsibility and assumes no liability for any User Content that you or any other user or third party posts or sends over the Service.  Under no circumstances will the Company be responsible for any loss or damage resulting from anyone’s reliance on information or other content posted on the Service, or transmitted to users.

b.       Though Upcall strives to enforce these Terms of Use, you may be exposed to User Content that is inaccurate or objectionable.  The Company reserves the right, but has no obligation, to monitor the materials posted in the public areas of the service or to limit or deny a user’s access to the Service or take other appropriate action if a user violates these Terms of Use or engages in any activity that violates the rights of any person or entity or which we deem unlawful, offensive, abusive, harmful or malicious. E-mails sent between you and other participants that are not readily accessible to the general public, will be treated by us as private to the extent required by applicable law. The Company shall have the right to remove any such material that in its sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, or that might violate the rights, harm, or threaten the safety of users or others.  Unauthorized use may result in criminal and/or civil prosecution under Federal, State and local law.  If you become aware of misuse of our Service, please contact us support@upcall.com.

 

10.  LINKS TO OTHER SITES AND/OR MATERIALS

a.        These links are provided as a courtesy to Service subscribers.  The Company has no control over Third Party Sites and Third Party Applications, Software or Content or the promotions, materials, information, goods or services available on these Third Party Sites or Third Party Applications, Software or Content.  Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by the Company, and the Company is not responsible for any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content.  Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by the Company.  If you decide to leave the Site and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern.  You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site or relating to any applications you use or install from the site.

 

11.  RESPONSIBILITY FOR CALL RECORDING AND CALL TRANSCRIPTION

a.        Please note that Upcall offers the option for you to record and transcript calls, if you choose to use this service, then you must comply with all state and federal laws, regulations and rules prior to recording any telephone calls and you expressly warrant and represent to Upcall that you shall comply at all times. We make no representations or warranties with respect to call recording and call transcription. You acknowledge that these representations and obligations are essential to the ability of Upcall to provide you with access to call recordings and transcription and you further agree to indemnify, defend and hold Upcall and its officers, directors, owners, employees, agents, consultants and vendors harmless from and against any and all liabilities, losses, claims, damages, causes of action, costs and expenses (including attorneys’ fees) that may be incurred by Upcall arising out of or related to your acts or omissions in connection with call recordings, whether such claims arise under contract, tort, statute or other legal theory.

 

12.  COPYRIGHT COMPLAINTS AND COPYRIGHT AGENT

a.        Termination of Repeat Infringer Accounts.  The Company respects the intellectual property rights of others and requests that the users do the same.  Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, the Company has adopted and implemented a policy that provides for the termination in appropriate circumstances of users of the Service who are repeat infringers.  The Company may terminate access for participants or users who are found repeatedly to provide or post protected third party content without necessary rights and permissions.

b.       DMCA Take-Down Notices.  If you are a copyright owner or an agent thereof and believe, in good faith, that any materials provided on the Service infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending the following information in writing to the Company’s designated copyright agent at:

Upcall Inc.

562 Kendall Avenue

Palo Alto, 94306, CA.

1.              The date of your notification;

2.              A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

3.              A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

4.              A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;

5.              Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and/or email address;

6.              A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

7.              A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

c.        (c) Counter-Notices. If you believe that your User Content that has been removed from the Site is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:

1.              Your physical or electronic signature;

2.              A description of the content that has been removed and the location at which the content appeared before it was removed;

3.              A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and

4.              Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in New York and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

d.       If a counter-notice is received by the Company copyright agent, the Company may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days.  Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may (in the Company’s discretion) be reinstated on the Site in 10 to 14 business days or more after receipt of the counter-notice.

 

13.  LICENSE GRANTED TO UPCALL

a.        By posting any User Content via the Service, you expressly grant, and you represent and warrant that you have a right to grant, to the Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, if applicable, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service.

 

14.  NON-DISCLOSURE, NON-CIRCUMVENT AND INTELLECTUAL PROPERTY

a.        “Upcall,” “Upcall.com,” “Upcallers,” and all related trade and service marks shall remain the exclusive intellectual property of Upcall and neither Freelancer nor any Client may make any use of the same without written authorization from Upcall. Client trade and service marks shall remain the intellectual property of the Client.  Upcall reserves all rights not expressly granted herein.  To the maximum extent allowed by applicable law, Freelancer and Client agree to keep all Upcall information strictly confidential and to guard the same and never sell, share or otherwise transmit the same to an unauthorized party.  This includes, without limitation, refraining from divulging or using for personal gain, any Upcall or Client script, prospect or customer list, strategy, software, marketing techniques and the like. Neither Freelancer nor any Client shall circumvent Upcall while this agreement is in effect or for a period of at least 1 year thereafter, by working directly with the other without Upcall’s written authorization.

 

15.  EMAIL MAY NOT BE USED TO PROVIDE NOTICE

a.        Communications made through the Service’s e-mail and messaging system, will not constitute legal notice to the Company or any of its officers, employees, agents or representatives in any situation where notice to the Company is required by contract or any law or regulation.  Email is also not guaranteed to be a secure means of communication.

 

16.  USER CONSENT TO RECEIVE COMMUNICATIONS IN ELECTRONIC FORM

a.        For contractual purposes, you (a) consent to receive communications from the Company in an electronic form via the email address you have submitted; and (b) agree that all Terms of Use, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing.  The foregoing does not affect your non-waivable rights.

b.       We may also use your email address, to send you other messages, including information about the Company and special offers. You may opt out of such email by changing your account settings or sending an email to support@upcall.com or mail to the following postal address:

Customer Support

Upcall Inc.

562 Kendall Avenue

Palo Alto, 94306, CA.

c.        Opting out may prevent you from receiving messages regarding the Company or special offers.

 

17.  WARRANTY DISCLAIMER

a.        WITHOUT LIMITING THE FOREGOING, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SERVICE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.

 

18.  LIMITATION OF DAMAGES; RELEASE

a.        TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL UPCALL, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE,  OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR USER CONTENT; (B) YOUR USE OR INABILITY TO USE THE SERVICE; (C) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH THE COMPANY OR ANY OTHER USER OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF LIABILITY, SO THIS PROVISION MAY NOT APPLY TO YOU.

b.       If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.  If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

 

19.  CLASS ACTION/JURY TRIAL WAIVER

a.        WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

 

20.  MODIFICATION OF TERMS OF USE

a.        We can amend these Terms of Use at any time and will update these Terms of Use in the event of any such amendments.  It is your sole responsibility to check the Site from time to time to view any such changes in the Agreement.  If you continue to use the Site, you signify your agreement to our revisions to these Terms of Use.  However, we will notify you of material chances to the terms by posting a notice on our homepage and/or sending an email to the email address you provided to us upon registration.  For this additional reason, you should keep your contact and profile information current.  Any changes to these Terms (other than as set forth in this paragraph) or waiver of the Company’s rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of the Company.  No purported waiver or modification of this Agreement by the Company via telephonic or email communications shall be valid.

 

21.  GENERAL TERMS

a.        If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed consistent with applicable law.  The remaining portions will remain in full force and effect. Any failure on the part of the Company to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision.  Our rights under this Agreement will survive any termination of this Agreement.

b.       You agree that any cause of action related to or arising out of your relationship with the Company must commence within ONE year after the cause of action accrues.  Otherwise, such cause of action is permanently barred.

c.        These Terms of Use and your use of the Site are governed by the federal laws of Belgium, without regard to conflict of law provisions.

d.       The Company may assign or delegate these Terms of Use and/or the Company’s Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms of Use or Privacy Policy without the Company’s prior written consent, and any unauthorized assignment and delegation by you is void.

 

22.  YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE, UNDERSTAND THE TERMS OF USE, AND WILL BE BOUND BY THESE TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THESE TERMS OF USE TOGETHER WITH THE PRIVACY POLICY REPRESENT THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.