Terms Of Service
This Customer Agreement (together with the Registration Form, this ("Agreement") is entered into by and between Next Caller, Inc. a Delaware corporation with mailing address at 46 Lispenard St, #1E, New York, NY 10013 ("Company") and the entity identified in the Registration Form being submitted to the Company in connection with entry into this Agreement as "Customer" (such entity, the "Customer").
By creating an account, making an API call to our Service(s), or paying for or using our Service(s), You (or, if applicable, the entity you are acting for or on behalf of) accept that the terms, obligations, rights and conditions specified here will form a legally binding agreement (the "Agreement") between You and Next Caller.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT AND, "YOU" AND "YOUR" IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
1. ACCESS TO SERVICES
Subject to Your compliance with the terms and conditions of this Agreement, Next Caller®grants You a non-exclusive, revocable right to access and use the Services during the Term. Next Caller reserves the right to temporarily suspend or discontinue, with or without notice, a Next Caller session at any time should Next Caller reasonably believe that such action is required, or to avoid an imminent threat of harm to Next Caller, Affiliated Entities, other Clients or any third party, subject to the terms of this agreement. We may change, add, or remove portions of these Terms of Service at any time, which shall become effective immediately upon posting. It is your responsibility to review these Terms of Service prior to each use of the Service. By continuing to use Next Caller, you are accepting any change to these terms.
2. OWNERSHIP OF INTELLECTUAL PROPERTY, SOFTWARE AND SERVICES
The Software and Services are licensed, not sold, solely for use by Client and its Users under the terms of this Agreement. Except as specifically set forth herein, Next Caller and the Affiliated Entities retain all right, title, and interest, including all intellectual property and moral rights, relating to or embodied in the Software or Services, including without limitation all technology, hardware, software, systems and copies of the foregoing relating to the Software or Services. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names (collectively, the "Marks") relating to the Software or Services are the trademarks of Next Caller and/or the Affiliated Entities. You are prohibited from using any Marks without the prior written permission, which shall be at the sole and exclusive discretion, of Next Caller or the applicable Affiliated Entities. Next Caller reserves all rights and interests not expressly granted in this Agreement, and no direct or indirect ownership interest or license right in or to the Next Caller of Affiliated Entities' Marks, the Services, Software or any other Next Caller or Affiliate Entity intellectual property is granted to Client or created by implication in this Agreement. Unless you direct otherwise, you agree that Next Caller may list you as a client of the firm in our marketing, business development and/or public relations materials and announcements.
You shall not reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of the Software or Services. Unless expressly granted written permission, You may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, the Software (in whole or in part) or any rights in the Services. You may not resell or act as a service bureau for the Services or any component thereof. You may not remove from the Software or Services, or alter or add, any Marks or copyright notices or other proprietary rights markings.
You assume full responsibility for the direct use of our data. You agree to use our data in a legally responsible manner. You agree to not use our data for any unwarranted or illegal communication, including all forms of spamming, both phone and electronic. It is the sole responsibility of the Client to ensure that no spamming or unwarranted solicitation occurs as a result of the data provided by Next Caller. Next Caller was created to help business assist consumers, not to pester them. Next Caller reserves the right to suspend your account without notice if we feel you are using our data in any irresponsible or unethical fashion. customer account we feel is using our data in an irresponsible manor.
4. MAINTENANCE AND CLIENT SERVICE
Next Caller will perform regular maintenance. In certain circumstances Next Caller may need to perform emergency maintenance and will, to the extent reasonably possible, provide advance notice of such emergencies. Any such maintenance, whether regular or emergency, will not in any way qualify as a Services "Unavailability".
5. ELECTRONIC COMMUNICATIONS; NOTICES
The Services are conducted electronically and You agree that Next Caller may communicate electronically with You and any Users for any matters relating to the Services or Software, including but not limited to information and notifications regarding product updates, incentive and rewards programs, training opportunities and ways to more efficiently use the Services, and legal notices of any kind, including cancellation and termination, unless prohibited by law. Any notices required under this Agreement to Next Caller shall be in writing and shall be either (i) personally delivered or delivered via overnight courier or (ii) via certified mail, return receipt requested, at the address provided to you for such notices, or such new address as may from time to time be designated in writing by Next Caller, and to the attention of the individuals likewise provided to you, or, if authorized by Next Caller (iii) to the email address supplied to you for the purposes of the applicable notice. Notice shall be deemed to have been given by Next Caller on the date Next Caller sent the relevant electronic communication with applicable receipt of delivery.
6. UPDATES; APPLICABLE TERMS AND AUTHORIZATION FOR AUTO UPDATES
Next Caller may, in its sole discretion, provide, and this Agreement shall apply to, all updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Software or Services (collectively, "Updates") that Next Caller may provide or make available generally to its clients after the date that the Services commence, subject to any additional terms and conditions provided by Next Caller applicable to such Updates. You hereby authorize Next Caller to, in accordance with Next Caller standard operating procedures, automatically and in good faith transmit, install, and otherwise provide Updates to the Software upon Your access to the Services or Software without further notice or consent.
7. RETENTION OF CONTENT
As long as your account is active, you shall be responsible for managing and retaining any of Your Content. Other than as required by applicable law or legal process or as otherwise agreed, Next Caller shall not be responsible for retaining any of Your Content after account termination or for archiving purposes. You acknowledge that all Client Content may be deleted by Next Caller after the account is terminated, subject to the terms of this Agreement and/or any termination or transition of Services Agreement the parties may enter.
8. GLBA Information Security Program
This section summarizes Next Caller’s (the “Institution”) comprehensive written information security program (the “Program”) mandated by the Federal Trade Commission’s Safeguards Rule and the Gramm – Leach – Bliley Act (“GLBA”). In particular, this document describes the Program elements pursuant to which the Institution intends to (i) ensure the security and confidentiality of covered records, (ii) protect against any anticipated threats or hazards to the security of such records, and (iii) protect against the unauthorized access or use of such records or information in ways that could result in substantial harm or inconvenience to customers. The Program incorporates by reference the Institution’s policies and procedures enumerated below and is in addition to any institutional policies and procedures that may be required pursuant to other federal and state laws and regulations, including, without limitation, FERPA.
Designation of Representatives: The Institution’s Chief Information Officer is designated as the Program Officer who shall be responsible for coordinating and overseeing the Program. The Program Officer may designate other representatives of the Institution to oversee and coordinate particular elements of the Program. Any questions regarding the implementation of the Program or the interpretation of this document should be directed to the Program Officer or his or her designees.
Scope of Program: The Program applies to any record containing nonpublic financial information about a student or other third party who has a relationship with the Institution, whether in paper, electronic or other form, that is handled or maintained by or on behalf of the Institution or its affiliates. For these purposes, the term nonpublic financial information shall mean any information (i) a student or other third party provides in order to obtain a financial service from the Institution, (ii) about a student or other third party resulting from any transaction with the Institution involving a financial service, or (iii) otherwise obtained about a student or other third party in connection with providing a financial service to that person.
Elements of the Program:
A. Risk Identification and Assessment. The Institution intends, as part of the Program, to undertake to identify and assess external and internal risks to the security, confidentiality, and integrity of nonpublic financial information that could result in the unauthorized disclosure, misuse, alteration, destruction or other compromise of such information. In implementing the Program, the Program Officer will establish procedures for identifying and assessing such risks in each relevant area of the Institution’s operations, including:
- Employee training and management. The Program Officer will coordinate with representatives in the Institution’s Human Resources deparmtment to evaluate the effectiveness of the Institution’s procedures and practices relating to access to and use of student records, including financial aid information. This evaluation will include assessing the effectiveness of the Institution’s current policies and procedures in this area.
- Information Systems and Information Processing and Disposal. The Program Officer will coordinate with representatives of the Institution’s Department of Information Technology to assess the risks to nonpublic financial information associated with the Institution’s information systems, including network and software design, information processing, and the storage, transmission and disposal of nonpublic financial information. This evaluation will include assessing the Institution’s current polices and procedures relating to Acceptable Use of the Institution’s network and network security, document retention and destruction. The Program Officer will also coordinate with the Institution’s Department of Information Technology to assess procedures for monitoring potential information security threats associated with software systems and for updating such systems by, among other things, implementing patches or other software fixes designed to deal with known security flaws.
- Detecting, Preventing and Responding to Attacks. The Program Officer will coordinate with the Institution’s Department of Information to evaluate procedures for and methods of detecting, preventing and responding to attacks or other system failures and existing network access and security policies and procedures, as well as procedures for coordinating responses to network attacks and developing incident response teams and policies. In this regard, the Program Officer may elect to delegate to a representative of the Department of Information Technology the responsibility for monitoring and participating in the dissemination of information related to the reporting of known security attacks and other threats to the integrity of networks utilized by the Institution.
B. Designing and Implementing Safeguards. The risk assessment and analysis described above shall apply to all methods of handling or disposing of nonpublic financial information, whether in electronic, paper or other form. The Program Officer will, on a regular basis, implement safeguards to control the risks identified through such assessments and to regularly test or otherwise monitor the effectiveness of such safeguards. Such testing and monitoring may be accomplished through existing network monitoring and problem escalation procedures.
C. Overseeing Service Providers. The Program Officer shall coordinate with those responsible for the third party service procurement activities among the Department of Information Technology and other affected departments to raise awareness of, and to institute methods for, selecting and retaining only those service providers that are capable of maintaining appropriate safeguards for nonpublic financial information of students and other third parties to which they will have access. In addition, the Program Officer will work with the Office of General Counsel to develop and incorporate standard, contractual protections applicable to third party service providers, which will require such providers to implement and maintain appropriate safeguards. Any deviation from these standard provisions will require the approval of the Office of General Counsel. These standards shall apply to all existing and future contracts entered into with all third party service providers and respective clients.
D. Adjustments to Program. The Program Officer is responsible for evaluating and adjusting the Program based on the risk identification and assessment activities undertaken pursuant to the Program, as well as any material changes to the Institution’s operations or other circumstances that may have a material impact on the Program.
You may submit questions or comments to Next Caller from time to time. Next Caller reserves the right to use in whole or part the content any such questions or comments and all such communications, comments, feedback, suggestions, ideas, and other submissions related to the Software or Services submitted to Next Caller, excluding your Confidential Information (collectively, "Submissions") will become and shall thereafter remain Next Caller property, and all worldwide right, title, and interest in all copyrights and other intellectual property in all Submissions are assigned (and in the future deemed to be assigned) by you to Next Caller.
You may use Next Caller Confidential Information solely in connection with your use of Services, as permitted under this Agreement, and will not disclose any Next Caller Confidential Information at any time. Both parties will hold in strict confidence and not use or disclose to any third party any Confidential Information of the other party, other than as permitted by this Agreement. Each party will take all reasonable measures to avoid disclosure or unauthorized use of Confidential Information, but in no event less than a reasonable degree of care. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Services.
11. COMPLIANCE WITH APPLICABLE LAW
You agree (i) not to use the Software or Services for any illegal purposes and (ii) to comply with all applicable local, state, national, and international laws and regulations, including without limitation laws relating to recording conversations, privacy, and data protection and public displays or performances, and United States export laws and regulations regarding the transmission of technical data exported from the United States through the Software or Services. You further agree that this Agreement does not require Next Caller or any of the Affiliated Entities to exercise any right or remedy in order to benefit or protect anyone, although Next Caller reserves the right to do so in its sole discretion.
You agree to defend, indemnify, and hold harmless Next Caller from and against any and all claims and liabilities (including, but not limited to, fees, costs and other reasonable expenses of attorneys and expert witnesses, but excluding any loss, liabilities, costs, damages or other expenses attributable solely to Next Caller negligent acts/omissions or willful misconduct) made by any third party related to or arising from: (i) Your use of the Software or Services (including without limitation, any User or person accessing the Services using Your password or access key with or without Your permission), (ii) any actual or alleged violation of this Agreement or applicable law, and/or (iii) any actual or alleged infringement or violation (by You or any User or person accessing the Services using Your password or access key with or without Your permission) of any intellectual property or privacy or other right of any person or entity. Notwithstanding the foregoing Your potential indemnification liability shall exclude, to the extent permitted by applicable state, federal or international laws, any special, incidental, punitive or consequential damages to Next Caller or its Affiliates other than those arising from or related to Your negligent or willful: (x) misappropriation of Content or trade secrets; (y) actual or alleged infringement of a third party's intellectual property rights; or (z) breach of the confidentiality obligations provided.
13. DISCLAIMER OF WARRANTIES
ALL SOFTWARE AND SERVICES ARE PROVIDED AS IS AND WITH ALL FAULTS AND WITHOUT ANY WARRANTY BEYOND THE SOLE AND LIMITED WARRANTY THAT SERVICES WILL PERFORM SUBSTANTIALLY AS DESCRIBED IN APPLICABLE NEXT CALLER USER DOCUMENTATION. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION EACH OF NEXT CALLER AND THE AFFILIATED ENTITIES HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), EXPRESS, IMPLIED, OR STATUTORY, UNLESS PROHIBITED BY LAW, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE, OF ACCURACY, OF SYSTEM INTEGRATION OR COMPATIBILITY, OR OF WORKMANLIKE EFFORT. THE FOREGOING DISCLAIMERS INCLUDE, WITHOUT LIMITATION, ANY WARRANTY, DUTY, OR CONDITION THAT: THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERROR-FREE, VIRUS-FREE, OR CORRESPOND TO ANY CONDITION; THAT MESSAGES OR REQUESTS WILL BE DELIVERED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SOFTWARE OR SERVICES, ANY CONTENT, SYSTEMS, SERVERS, AND INFORMATION THAT IS IN OR UTILIZED BY THE SOFTWARE AND/OR SERVICES WILL BE FREE OF HARMFUL ASPECTS.
14. NO LIABILITY FOR CONTENT
YOU AGREE THAT NEXT CALLER AND THE AFFILIATED ENTITIES WILL NOT BE LIABLE FOR ANY CONTENT, INCLUDING BUT NOT LIMITED TO CONTENT THAT IS SENT, RECEIVED, HELD, RELEASED OR OTHERWISE CONNECTED IN ANY RESPECT TO THE SOFTWARE OR SERVICES, CONTENT THAT IS UPLOADED OR DOWNLOADED BUT NOT RECEIVED, AND CONTENT SENT USING AND/OR INCLUDED IN THE SERVICES, INCLUDING WITHOUT LIMITATION ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT; FURTHER, YOU AGREE THAT NEXT CALLER AND THE AFFILIATED ENTITIES WILL NOT BE LIABLE FOR ANY ACCESS TO OR ALTERATION OF SUCH CONTENT OR FOR ANY INFRINGEMENT OF ANOTHER'S RIGHTS, INCLUDING PRIVACY, INTELLECTUAL PROPERTY, OR DATA PROTECTION RIGHTS ARISING FROM SUCH CLIENT CONTENT OR FROM THE CONDUCT OF CLIENT OR THIRD PARTIES OTHER THAN WHICH MAY BE THE RESULT OF NEXT CALLER WILLFUL ACTIONS.
15. MISCELLANEOUS; SEVERABILITY
To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect. Next Caller failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless agreed to by Next Caller in a writing signed by a duly authorized officer of Next Caller.
16. FORCE MAJEURE
Next Caller and its Affiliated Entities will not be liable for non-performance or delay in performance caused by any event reasonably beyond the control of such party including, but not limited to wars, hostilities, revolutions, riots, civil commotion, acts of terrorism, national emergency, epidemics, fire, flood, earthquake, force of nature, explosion, zombie apocalypse, embargo, any act of God, or any other event of a similar nature.
17. ENTIRE AGREEMENT
The Agreement, including any additional document incorporated by reference, constitutes the entire agreement of the parties with respect to the Software and Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non-electronic, between Next Caller and you regarding them. Next Caller performance of this Agreement is subject to existing laws and legal process, and you agree that Next Caller may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term of this Agreement or that policy. A printed or electronic version of this Agreement and of any notice given to You in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
18. MODIFICATIONS TO THIS AGREEMENT
Next Caller may amend this Agreement from time to time by posting an amended version at its website or sending you written notice in accordance with this Agreement's notice provisions. Such modifications will be deemed accepted and become effective after such notice (the "Proposed Amendment Date") unless you give Next Caller written notice of your rejection of the amendment(s). Your continued use of Services following any Proposed Amendment Date stated in the website positing or writing notice will confirm your consent to any modifications. This Agreement may not be otherwise amended by you in any other way except through a written agreement executed by authorized representatives of each party.