THESE TERMS OF CONDUCT ARE A BINDING CONTRACT BETWEEN UPCALL, INC. AND ITS WEB SITE USERS, CUSTOMERS AND FREELANCE CALLERS. BY ACCESSING OR USING ANY PART OF THE WEBSITE 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 TERMS OF CONDUCT. 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 TERMS OF CONDUCT 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.
These Terms of Conduct are a set of policies governing the use of the Upcall Platform (as defined below) operated by Upcall, Inc. (“Upcall” or “Company”). It contains specific policies governing use by customers seeking calling or telemarketing services (“Client Users”) and independent contractors who work through Upcall to provide freelance calling services (“Freelance Users,” “Freelancers” or “Upcallers”).
These Terms of Conduct are in addition to the SaaS and Service Agreement for Clients and the Upcall Independent Contractor Agreement for Freelance Users, the terms of each which are solely applicable to the class of users based on the service they are seeking or providing. For more information on your legal obligations, please consult the document applicable to you.
The Upcall Platform is to be used to help Client Users find Freelance Users to serve as calling agents for telemarketing and phone outreach campaigns. The Upcall service (“Services”) provides access to Upcall’s virtual community of Freelancer Users, easy collaboration through Upcall’s management tools; and simple, secure payment and invoicing tools (“Platform”).
Upcall’s Platform is a software platform not a call center nor is it an employment agency. Upcall does not initiate calls or offer call services directly, but brings together a team of freelance, independent contractors to serve the needs of Client Users.. At no point will Upcall be held liable nor is responsible for the actions or omissions of any Freelancer User performing calling services nor does any use of the Services by Client Users imply an endorsement.
Upcall does not make any warranty, guarantee, or representation as to the ability, competence, quality, or qualifications of any Freelancer User.
Freelancer Users are independent professionals who offer to perform calling and outreach services for Customers directly and not for or to Upcall. They are not employees or agents of Upcall, which is merely a software solution for businesses to find and hire callers.
Freelance Users must comply with and provide complete and promptly provide up to date information on the Services at all times. Failure to complete the sign-up process within thirty days of initiating the process will result in accounts not being activated. Further, failure to apply for call campaign opportunities within seven days of completing the registration will result in such accounts not being activated. Freelance Users shall also comply with, and be subject to Upcall’s Freelance User Rules and Policies.
Upcall may remove or terminate 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 agreements with Upcall, these Terms of Conduct or any legally permissible, relevant instruction of the Customer on whose behalf the Freelancer is making calls.
Freelancer Users-Customer Relationship through Service Use. An independent contractor relationship may be formed through the use of the Service between Customers and Freelancer Users only. Customers may post Call Campaigns through the Service. Freelancer Users may join or accept assignments for 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 makes strong efforts 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.
Any Freelancer User must ensure that their services are in full compliance with all applicable laws and regulations. Upcall does not assume responsibility for ensuring that Freelancer’s User meets applicable legal requirements. Rather, Upcall relies primarily on its Customers to ensure that the Call Campaign is compliant. To the extent that Freelancer User makes any of their own compliance decisions, with the consent of the Customer, Freelancer User must comply with the law. Upcall will not assume any liability if Freelancer User or a Customer suffers any loss due to an actual or alleged law violation. Notwithstanding the foregoing, Freelancer User acknowledges that Upcall has and is taking active steps to ensure the compliance of its vendors and affiliates, including by having Freelancer User agree to these terms and otherwise. Notwithstanding anything contained herein to the contrary, Freelancer User 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 User Services provided hereunder.
Freelancer User will properly document, process and honor all opt outs and transmit the same back to the relevant Customer.
Freelancer User will represent the truthful, authorized name of the Customer when calling on a Customer’s behalf, and adhere to the script provided by Customer, so long as the same complies with the law.
Freelancer User will at all times act in a professional manner while calling for Customers and not use profanity, vulgarity, or any inappropriate, discriminatory inflammatory, harassing or offensive statements of any kind.
To the extent allowed by law, Freelancer User shall at all times be a 1099 independent contractor of Upcall, and not of the Customer, 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 Customer and Upcall as necessary to facilitate any necessary filings on Freelancer User’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.
Freelancer User will not request or obtain any sensitive or personal or protected financial or health information, including without limitation any credit card number, unless authorized by law and by the Customer.
Freelancer User 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’s Customers.
Freelancer User will accept, record and transmit to the Customer, and internal opt-out Freelancer receives, and shall never call such individual again on behalf of that Customer.
Freelancer Users shall only use the Upcall platform to communicate with Customer.
Upcall shall not be liable for any accident occurring at Freelancer User’s location of work or any conduct of Freelancer User and Freelancer User shall obtain, prior to performing any services for Upcall’s Customers, 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 User shall provide Upcall with documentation demonstrating such insurance is in place, upon request.
Freelancer User 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 Customer, as well as any consumer cancellation rights or refund-related disclosures.
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 Customers through the Website or the Service, fully comply with all applicable laws and rules of professional conduct.
Freelancer User shall use commercially reasonable technology to secure any Upcall or Customer data it possesses as part of performing its services.
Upcall may, in its discretion or if requested by the Customer, require Freelancer User to take and pass reasonable tests regarding performance, competency and compliance, but is not responsible for or liable for Upcall Freelancer User behavior or conduct.
Work Environment. Freelancer Users acknowledge and agree that neither Upcall nor the Customer will control the work environment in which a Freelancer User will perform services for Customer. Customer will be solely responsible for ensuring that, with respect to their conduct and communications, the work environment is safe and free from harassment and discrimination as required by applicable law. Notwithstanding the foregoing, Upcall does not tolerate discrimination or harassment in violation of the law.
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 Customers found through the Service.
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.
Freelancer User shall comply with all procedures for using the Upcall platform, shall only use the Upcall platform to perform the services and consents to have their use of the Upcall platform tracked by Upcall.
Freelancer Users must have a PayPal account in order to receive their earnings. Upcall is not responsible for the processing fees occurred by PayPal and other third-party providers when receiving payments.
Customer may choose to offer incentives to Freelancer Users for reaching certain short-term goals on specific campaigns. If a Customer disputes incentive eligibility for a Freelancer User for any reason, Upcall will withhold payment of the incentive, review and make a determination in its sole discretion as regarding eligibility.
Freelance Users are not guaranteed any minimum number of hours and availability of work will depend on availability of Call Campaigns offered by Customer Users.
Freelance Users that do not apply for call campaign work and have not made calls on any existing call campaigns may be subject to automatic account deactivation.
Upcall reserves the right to terminate access to the Upcall platform and terminate services for any reason allowed under the Agreement, or if Customer is determined by Upcall in its sole discretion to have violated any law or any provision herein.
Customer will remain responsible and ensure that all data submitted through Upcall to Freelancer Users are compliant. This includes, without limitation, ensuring that Customer 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.
As applicable by Customer’s industry, Customer will maintain standards necessary to comply with all applicable laws, rules, regulations and ordinances, including, without limitation, CI Level , 1, and HIPAA, and Financial Services Modernization Act rules and regulations.
Customer will ensure that its processes and scripts comply with call recording law, timezone (“curfew”) laws, rules, regulations, ordinances and licensing obligations.
Customer is solely responsible and liable for compliance with all caller ID and “spoofing” rules at all times.
Any Upcall Customer who makes use of the Services (“Customers”) of Upcall or its Freelancer Users 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. Customer 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. Customer should review these rules with Customer’s own legal counsel to ensure that Customer understands and is fully compliant. Upcall does not assume responsibility for ensuring that Customer’s marketing meets applicable legal requirements. Rather, Upcall is relying on Customer and Freelancer, as the marketing experts, for that expertise and legal compliance. Upcall will not assume any liability if Freelancer or Customer suffers any loss due to an actual or alleged law violation. Notwithstanding anything contained herein to the contrary, Customer 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.
Customer is solely liable for and its compliance obligations 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 Customer assumes all risks related to misinterpretations of the same. Neither Upcall, not its Customers or independent Freelancers, shall be permitted to alter or manipulate the calling system in order to add any autodialer features in the future.
Customer’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.
Customer will manually call cell phones, rather than autodial, unless Customer or its agents have prior express written consent from the called party, as defined by the TCPA.
Customer will honor all opt outs and government DNC lists and if any error is made, Customer will promptly report the same to Upcall.
Company offers monthly and yearly plans with standard support, free training and documentation and purchase of Call Tokens. A description of the Upcall plans and fees can be found on https://www.upcall.com/en/pricing.
Referrals (e.g. call subject gives Freelance User different number to call same or different person) will expend an additional Call Token.
Call Tokens are not refundable and expire at the end of the period for the billing plan and do not roll over (e.g. Call Tokens purchased under a monthly plan expire at the end of the monthly billing cycle, Call Tokens for yearly plans expire at the end of the term).
When Call Token balance reaches zero you will be automatically charged for any overages at the standard rate. You agree to authorize Company to charge your payment source for such use.
All sales are final.
Call Tokens are not transferrable and have no exchange value.
Customer may also have the option to pay Freelancer Users a short-term incentive bonus at Customer’s own discretion, using the Site. To pay a bonus to a Freelancer User, Customer must follow the instructions and links on the Site and provide the information requested. Upcall may take a reasonable fee on top of any such bonus/commission service.
Any disputes related to incentives shall be determined by Upcall in its sole discretion.
Customer must have an Account in good standing order, a valid and authenticated default Payment Method, and Customer must agree to automatically pay for minutes/contacts billed by Upcall. Within a Review Period of 7 days, Customer must submit a Dispute specifically identifying the calls that are not clearly related to Customer instructions. Upcall will investigate and determine in its sole discretion whether the above terms and conditions are met.
Customer User’s Usage of Upcall’s products and services constitutes customer's acceptance of Upcall's SaaS and Services Agreement. and this Terms of Conduct.
Late Fees: 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. Chargebacks may result in a suspension of your account and access to the Services while it is being investigated.
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.
Cancellations must be done by sending an Email to email@example.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.
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.
Recurring Payments: If Customer orders a monthly or yearly plan requiring monthly or annual payments using a credit card, debit card or ACH, Customer acknowledges that it has authorized Upcall to bill Customer on a recurring basis and authorizes Upcall to do so. Upcallmay, at its option, give you advance notice of recurring billing and provide you with an electronic receipt of your authorization. Customer acknowledges that it understands that this authorization will remain in effect until Customer cancel it in writing, and agrees to notify Upcall in writing of any changes in their account information or termination of this authorization at least 15 days prior to the next billing date. If the above noted payment dates fall on a weekend or holiday, Customer understands that the payments may be executed on the next business day. For ACH debits to Customer checking/savings account, Customer understands and acknowledges that because these are electronic transactions, these funds may be withdrawn from the account as soon as the above noted periodic transaction dates. In the case of an ACH Transaction being rejected for Non Sufficient Funds (NSF) Customer understands that Upcall may at its discretion attempt to process the charge again within 30 days, and agree to an additional $15 charge for each attempt returned NSF, which will be initiated as a separate transaction from the authorized recurring payment. Customer acknowledges that the origination of ACH transactions to their account must comply with the provisions of U.S. law. Customer certifies that they are an authorized user of the credit card/bank account and will not dispute these scheduled transactions with their bank or credit card; so long as the transactions correspond to the terms indicated in this Agreement.
You need to be at least 18 years to register for and use the Service, or become a Freelancer User. Registration is required for both Customers and Freelancers.
If you are a Customer 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.
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:
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.
The following rules pertain to User Content. By transmitting and submitting any User Content while using the Service, you agree as follows:
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.
Though Upcall strives to enforce these Terms of Conduct, 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 Conduct 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 firstname.lastname@example.org.
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.
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:
340 S Lemon Ave #3753
Walnut, CA 91789
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:
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.
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.
EMAIL MAY NOT BE USED TO PROVIDE NOTICE
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.
USER CONSENT TO RECEIVE COMMUNICATIONS IN ELECTRONIC FORM
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 Conduct, 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.
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 email@example.com or mail to the following postal address:
340 S Lemon Ave #3753
Walnut, CA 91789
Opting out may prevent you from receiving messages regarding the Company or special offers.
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.
We can amend these Terms of Conduct at any time and will update these Terms of Conduct 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 Conduct. 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.