ResponseTap Master Terms and Conditions

1 AGREEMENT

These ResponseTap Master Terms and Conditions (the “Agreement”) apply to and govern each service relationship between the undersigned customer (“Customer”) and ResponseTap, Inc. (“ResponseTap”), pursuant to which ResponseTap will provide to Customer the services described herein or on an associated Service Order Form between ResponseTap and Customer (the “Services”). For the purposes of this Agreement, each of ResponseTap and Customer is a “Party” and together the “Parties.”

2 TERM 
The initial term of this Agreement shall begin on the date Customer activates an online account (“Effective Date”) and shall continue for the Term Length specified on each Service Order Form, as applicable (the “Initial Term”). Unless otherwise terminated earlier as set forth herein, the Agreement shall automatically renew for successive terms of the same length as the Initial Term unless Customer provides 30 days’ notice prior to the end of the term. Notwithstanding anything above, for any Service Order Form with a trial period, the Effective Date shall be the date the trial period ends.

3 TERMINATION
If a party is in material breach of this Agreement, the non-breaching party may give written notice that if such breach is not cured within (a) ten (10) days (in the case of a failure to make payment or a violation of ResponseTap’s Terms of Use) or (b) thirty (30) days (in the case of any other material breach), as applicable, the Agreement will, at the end of the applicable cure period, a Party shall have the option to terminate the Agreement immediately; provided, with respect to a Customer breach, ResponseTap may suspend Services until Customer cures a material breach. Customer may terminate this Agreement for any reason or no reason upon thirty (30) days’ notice, provided however that a termination fee will be due which is calculated as twice the remaining fixed license fees for the Services for the remainder of the Term as set forth on the Service Order Form. For any Service Order Form with a trial period, this Agreement may be freely terminated with no penalty within the trial period.

4 SERVICE, SUPPORT AND MAINTENANCE
ResponseTap agrees to provide Services materially in conformance with the applicable Service description located herein. Additional information may also be found at web-dev.responsetap.com. In the event of Service disruptions, ResponseTap will provide support and maintenance in accordance with the then current Call Tracking Service – Service Level Agreement (“SLA”), the current version of which is provided to the Customer at web-dev.responsetap.com/us/call-tracking-sla.

The rtap-session Service is a call tracking solution that will track phone calls at a session level. This service can be used in order to track Google Adwords Campaigns.

The rtap-experience Service is a visitor level call tracking solution, which means it will track where possible the visitors to Customer Websites and when those visitors make a phone call to a Call Tracking Number. 

4.1
Both the rtap-session and rtap-experience Services include the use of the following (as may be amended from time to time by ResponseTap in accordance with this Agreement and as further detailed on web-dev.responsetap.com/us/calltrackingpackages:

(a) Tracking Code: all and any software, JavaScript code and/or any other code provided or made available by ResponseTap for inclusion, incorporation or use on or in any Customer Website for the purpose of providing the Call Tracking Service including one standard number placeholder;

(b) Call Tracking Numbers: the numbers provided for Callers to dial in order to be connected to the telephone number within the geographic territory designated by the Customer to receive Calls when a Call Tracking Number is called (the “Destination Number” of the Customer);

(c) Call Routing: the connection of a telephone call from a Call Tracking Number to the relevant Destination Number by ResponseTap;

(d) Online Account: an online reporting facility available via the Customer’s Online Account (or via any alternative method agreed with ResponseTap from time to time) which enables the Customer to view, access and download certain data, information and/or reports collected or generated by ResponseTap in connection with the Call Tracking Service; and

(e) Call Recordings: means any computer based recording of a Call stored by ResponseTap, if requested by the Customer in accordance with the following:

I. A Customer may activate Call Recordings via the Customer’s Online Account. Where the Customer activates Call Recordings, ResponseTap shall provide an announcement to be played to each Caller. For the avoidance of doubt, ResponseTap shall not take recordings of any Calls unless an Authorised User activates the Call Recording facility.

II. The Customer acknowledges and agrees that it is solely responsible for ensuring that the use of the Call Recording facility complies with applicable laws, and the Customer shall indemnify ResponseTap against any claims, proceedings, losses, liabilities, damages, fines, penalties, costs and expenses (including reasonable legal costs) suffered or incurred by ResponseTap as a result of the Customer’s failure to so comply.

III. ResponseTap shall store Call Recordings for a period of thirty (30) days following the date of a Call, during which period the Customer may export any Call Recordings to its own systems in their current format via its Online Account. After such thirty (30) day period, the Customer will not be able to access or retrieve the Call Recordings.

(f) Google Analytics integration;

(g) Google Adwords integration;

(h) Spam guard;

(i) Missed call email alerts;

(j) Mobile click-to-call link.

For the R-Tap Experience packages, features also include:

(k) Mobile click-to-call button;

(l) Variable benchmarks;

(m) API access;

(n) Custom variable and cookie capture; and

(o) Auto Number Placeholders.

Other features may be activated via the Customer Online Account as further detailed on web-dev.responsetap.com/us/calltrackingpackages

4.2 STATIC TRACKING NUMBERS 
As part of the Services the Customer can also manually provision up to ten single numbers (“Static Tracking Number”) via their Online Account. The Customer may assign Static tracking Numbers with campaign details, which ResponseTap will use to report to the Customer if a Static tracking Number is called.

4.3 OWNERSHIP OF PHONE NUMBERS 
ResponseTap retains the sole and exclusive right to any phone numbers, local or toll free, provided to the Customer in connection with the Services.

4.4 CUSTOM CLI 
As part of the Call Tracking Service, the Customer may choose to activate the “Custom CLI” service through its Online Account. The Custom CLI service changes the calling line identity (“CLI”) to a unique identification number the “Custom CLI Number”).

(a) Where the Customer activates Custom CLI, the Customer acknowledges and agrees that: (i) each Custom CLI Number provided to the Customer is not a genuine CLI and that the Customer shall not attempt to dial the Custom CLI Number; (ii) ResponseTap cannot guarantee that the Custom CLI Number for a Call will not be filtered, validated, blocked or changed by any third party telecommunications or network providers, operators or carriers; (iii) Customer will not notify or report to any governmental or regulatory body that any Custom CLI Numbers provided by ResponseTap are incorrect CLI, except as may be required by law, by any governmental or regulatory agency or body, or by a court or other authority of competent jurisdiction.

(b) ResponseTap may, without liability to the Customer, change, remove or terminate Custom CLI immediately upon giving written notice to the Customer, if reasonably required as a result of changes in applicable laws or regulations.

4.5 RESPONSETAP API 
As part of the Service, the Customer may have access to the ResponseTap API. Please refer to the website at web-dev.responsetap.com for details of the API use permitted as part of the Call Tracking Service. ResponseTap may at any time change the scope of the Customer’s permitted usage of the API in respect of any individual or all end points upon providing at least 30 days’ written notice to the Customer. Use of the API is subject to the Customer’s confidentiality obligations set out in this Agreement.

4.6 USE OUTSIDE OF THE USA 
Customer understands and agrees that use of the Services outside the USA, including in the EU, is subject to the laws and regulations of those territories. The Services in this Agreement are provided for use in the USA only, and any use outside of that territory is permitted by this Agreement, but only to the extent that Customer is wholly responsible for any regulatory compliance and agrees to fully indemnify, defend, and hold ResponseTap harmless from and against any damages, costs, losses, or fees (including reasonable attorneys’ fees) that result from such use.

4.7 PROFESSIONAL SERVICES
ResponseTap in its sole discretion may from time to time offer associated services to the Customer, such as Support Services, Reporting Services, and Insight Services (Professional Services). Professional Services may also include the provision of certain technical services required in order to integrate the Call Tracking Service with other third party software or solutions (Integration Services).

4.8 BOLT-ON PACKAGES
The following additional features are available at the Customer’s request for inclusion in the Services, subject to payment of the applicable additional charges:

(a) The Media Bolt-On;

(b) The Insight Bolt-On;

(c) The Call Handling Bolt-On; and

(d) The Customer Success Bolt-On.

Further details of the features of each Bolt-On (and other Bolt-On’s which may be made available from time to time), and options available to the Customer in respect of each Bolt-On, are displayed on ResponseTap’s website at https://www.responsetap.com/boltonpackages.

5 BILLING AND PAYMENT TERMS
Customer shall pay ResponseTap for the Services in accordance with the billing and payment terms set forth herein. Invoices shall be issued monthly in arrears and are payable 30 days from receipt. All pricing and billing is exclusive of any taxes owed by Customer. No more than once per year, ResponseTap may on thirty days’ notice to Customer, increase any fees. Notwithstanding the above ResponseTap may on thirty days’ notice to the Customer, change minute charges due hereunder to account for changes in third party telecom costs. Upon receipt of any notice from ResponseTap to increase any fees, the Customer shall have the right to terminate this Agreement upon providing ResponseTap with 30 days written notice, provided that such termination notice is provided to ResponseTap within 14 days of the Customer’s receipt of the notice of increase.

6 LICENSE AND INTELLECTUAL PROPERTY
ResponseTap is and shall be the sole owner of all right, title and interest, in and to all ResponseTap Platform (as defined below). ResponseTap shall be the sole owner of all right, title and interest, in and to all work product, written materials, notes, designs, drawings, documentation, technology, algorithms, code, ideas, concepts, know-how, techniques, processes, methods, inventions, discoveries, developments, innovations, and improvements, tangible or intangible, that are discovered, invented, created, conceived, made or reduced to practice in connection with the Services performed by ResponseTap under this Agreement, whether alone by ResponseTap or with others excluding any third party elements (the “ResponseTap Platform”) including all copyright, rights in software, rights in databases, patents and rights in inventions, trademarks, rights in domain names, registered designs, design rights, know-how, trade secrets and other rights in confidential information and all other intellectual property rights, in each case whether registered or unregistered including applications for registration and the right to apply for registration for any of the rights listed above that are capable of being registered anywhere in the world, and all other rights having equivalent or similar effect anywhere in the world therein, but specifically excluding any of Customer’s Confidential Information (as defined below) or third party materials contained therein. Customer’s use of the ResponseTap Platform shall be limited and revocable (upon termination of this Agreement for any reason) and for use solely in connection with the Services. ResponseTap shall have no obligation to provide Customer with the source code for the ResponseTap Platform in relation to the Services. The parties agree that the Services may include certain third party materials, not owned or controlled by ResponseTap.

7 CONFIDENTIALITY
Each Party acknowledges that during the Term, and for three years thereafter, it will have access to and become acquainted with various trade secrets, inventions, innovations, processes, information, records and specifications owned or licensed by and/or used by the other Party in connection with the operation of its business (“Confidential Information”). Each Party agrees that it will not disclose to any third party, other than its employees and authorized and contractors, who shall have agreed to be bound by the terms of this Agreement, any Confidential Information, directly or indirectly, or use it in any manner, either during the term of this Agreement or for three years thereafter, except as required in the course of this Agreement, or as may be required by law. The Parties agree to collect, use, and store any Confidential Information using reasonable security, including appropriate physical, administrative, and technical safeguards. Except as provided elsewhere herein, upon the expiration date (or earlier termination) of this Agreement, each Party shall immediately deliver to the other Party, or destroy, all Confidential Information of the other Party in its possession. Confidential Information shall not include: (a) information generally available to the public, through no fault of the receiving Party and its employees and authorized contractors and without breach of this Agreement; (b) information already in the possession of the receiving Party without restriction prior to any disclosure by the disclosing Party in connection with this Agreement; (c) information lawfully disclosed to the receiving Party by a third party without an obligation of confidentiality; or (d) information independently developed by the receiving Party without use of Confidential Information disclosed to the receiving Party.

8 NON-SOLICITATION
Customer acknowledges that ResponseTap’s personnel performing services for Customer represent a significant investment by ResponseTap in recruitment and training. Customer therefore agrees that for the term of this Agreement and for a period of one (1) year thereafter, Customer will not directly or indirectly, recruit, hire, employ, or engage any ResponseTap employee.; provided, however, that Customer may (i) solicit for employment any persons who are no longer employed by ResponseTap at the time of Customer’s first contact with them or (ii) engage in general solicitations of employment (and subsequent hiring) not specifically directed at employees of ResponseTap. The parties agree that any breach of this Section 8 will give rise to a claim for twice the applicable employee’s annual salary.

9 ENFORCEMENT
Customer agrees that, in the event of a breach or threatened breach of this Agreement, ResponseTap or its successors or assigns may, in addition to other rights and remedies existing in their favor at law or in equity, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof (without posting a bond or other security) or require Customer to account for and pay over to the Company all compensation, profits, moneys, accruals, increments or other benefits derived from or received as a result of any transactions constituting a breach of Customer’s covenants contained in this Agreement, if and when the judgment of a court of competent jurisdiction is so entered against Customer.

10 WARRANTY
ResponseTap makes no warranty expressed or implied regarding the services, expressly disclaims the warranties of merchantability and fitness for a particular purpose, and provides no warranty against infringement. The services are provided “as is.”
ResponseTap’s ability to provide the Services may be affected or limited by events or actions outside of its reasonable control, such as labor actions, failure of third-party suppliers, war, riots, terrorism, and civil insurrection, fires, floods, earthquakes and loss of public utilities, changes in applicable laws and regulations or any similar actions or events beyond the control of the affected Party (“Force Majeure”). ResponseTap shall not be responsible to Customer for any failure to provide the Services due to Force Majeure. Customer shall not be liable for Service Fees during any Force Majeure period during which ResponseTap is unable to provide Services.

12 INDEMNIFICATION
ResponseTap shall defend, indemnify and hold Customer harmless from and against all loss, damages, liability, cost and expenses, including reasonable attorneys’ fees from third party claims of infringement of copyright or other intellectual property rights arising out of Customer’s use of the ResponseTap Platform in accordance with this Agreement. Customer shall defend, indemnify and hold ResponseTap harmless from and against all loss, damages, liability, cost and expenses, including reasonable attorneys’ fees from third party claims arising out of (i) Customer’s use of the Services; (ii) Customers violation of this Agreement; (iv) Customer’s violation of any applicable law or regulation; or (v) information and materials provided by Customer.

13 LIMITATION OF LIABILITY
Except for willful misconduct, neither party will be liable for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this agreement (including loss of business, lost revenue, lost profits, loss of use, loss of data or loss of other economic advantage), however it arises, whether such liability is for breach of contract, tort, or any other legal wrong doing, even if the party alleged to have caused such damage has been previously advised of the possibility or likelihood of such damage. Except for indemnification obligations or breaches of confidentiality, neither party shall be liable in aggregate for any amounts above the amounts paid or payable to ResponseTap in the prior twelve months

14 NOTICE
Notices under this Agreement shall be delivered in writing (a) by email or (b) by U.S. mail or a recognized delivery service via overnight mail, to the recognized head office addresses of the parties, or to such other address as provided by the recipient party to the notifying party from time to time.

15 MISCELLANEOUS
(a) Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the state of New York, without giving effect to its conflict of law principles. This Agreement shall be deemed written and negotiated by both parties, and an ambiguity or inference shall not be interpreted or construed for or against either party as its drafter. Any claim, dispute, or controversy arising in connection with this Agreement shall be resolved by final, non-appealable, arbitration, conducted by a single arbitrator in accordance with the then current rules of the American Arbitration Association, and be held in New York, New York. Any arbitration award may be enforced in any court of competent jurisdiction.

(b) Entire Agreement and Amendment. The terms in this Agreement, together with any order forms, schedules, or exhibits to the foregoing, contain the entire, final, and integrated Agreement of the parties regarding and in connection with the provision of the Services. This Agreement may only be modified by a written document signed by both parties, and for ResponseTap by one of its officers.

(c) Assignment. Except to an entity that controls, is controlled by, or is under common control with Customer, or to an entity that acquires substantially all of Customer’s assets or stock, Customer may not assign this Agreement, including by operation of law, without the prior written permission of ResponseTap.

(d) Severability. If any part of this Agreement is unenforceable, the parties intend for the remaining provisions to be enforced.

(e) Waiver. The failure of either party to enforce any right shall not be construed as a waiver with respect to any other right under this Agreement.

(f) Publicity. Neither party may use the name or service marks of the other without the prior written consent of the other, such consent not to be unreasonably withheld or delayed.

(g) Descriptive Headings. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

(h) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.