This Agreement is a legal contract between you, your company or any of its affiliates (referred to as "you" or "your"), and TaskCall Inc. ("us", "we" or "our"), that governs your use of our services and access to them.
We strongly recommend that you read and understand all the terms and conditions of this agreement carefully. It is essential to note that this agreement contains an arbitration provision that requires any disputes to be resolved using arbitration on an individual claim basis only, and there will be no right to a jury trial.
The "Services" referred to in this Agreement include one or more of the following depending on what you have ordered: (i) Our cloud-based application, mobile app, and platform for IT on-call management, alerting, incident tracking, automation, and analytics; (ii) Our stand-alone software applications; (iii) Our support and maintenance services; and (iv) Our Professional Services. "Software" includes all updates, libraries, plugins, and components of the software we provide for your on-site installation and use during the Subscription Term specified in your order that are made generally available to licensed users without additional fees. This may include code licensed under third-party terms, such as open source software. "Professional Services" refer to consulting, training, configuration, or similar services set forth in an order form and statement of work. An "Incident" is an event that triggers the Platform to alert your personnel using Contact Information provided and maintained by you. Contact Information includes personal information of individuals who have consented to receive such messages via the Service. You must designate individuals authorized to maintain the Contact Information, configure the Services, and receive reports from the Services, as well as individuals authorized to use each Service ordered. We may suspend or terminate your use of a Service if you breach any terms of this Agreement, including failing to pay Fees due on time. You can find instructions on how to configure the Platform, provide Contact Information, and get the full benefit of the Services in the Documentation provided on our website – https://www.taskcallapp.com and https://docs.taskcallapp.com.
If any of your affiliated companies use the Service(s) under this Agreement, they will be subject to the same terms and conditions as you. You will be responsible for their actions and omissions during the Subscription Term of their orders, including any breaches of this Agreement, even if you no longer maintain control over them. If any of your affiliates have a claim against us, it must be brought by you on their behalf. However, we have the right to refuse to provide the Service(s) to any affiliate that does not pass our reasonable background or financial checks. An "affiliate" is any entity that is directly or indirectly controlled by, controls, or is under common control with you, where "control" means owning or controlling over 50% of the voting interests of the entity.
If you signed up for a trial, you can use the Service(s) for a limited time period of fourteen (14) days or as stated in your order, starting from the date you registered with the Service(s) for evaluation purposes without paying any fee. At the end of the Trial Period, you must choose a subscription plan for your company. If you do not choose one by the end of the trial period, your company account will be switched to the Free plan. In some cases TaskCall may choose to extend the Trial Period in its sole discretion, but the same rules will apply at the end of the trial. The switch to the Free plan may result in feature loss and loss of Customer information and data. During the Trial Period, you can add or remove Users as needed for evaluation, but you can only add or remove Users according to the terms of the specific plan or term you choose for paid subscription or under the Free Plan. If you choose to use the Platform under the limited free to use option and TaskCall agrees (the "Free Plan"), you understand that TaskCall may stop your use of the Service(s) under the Free Plan at any time and without notice. During the Trial Period and when using the Free Plan, TaskCall has no obligation to continue providing the Service(s), and you have no claim or remedy for any failure of the Service(s). These limitations are in addition to the warranty disclaimers and liability limits set forth in this Agreement.
Occasionally, we may offer you beta or pre-release versions of our services for testing purposes, referred to as "Pre-Release Technology," at no additional cost, at our discretion. If you decide to use Pre-Release Technology, the terms of this section will apply, and will override any conflicting provisions in this agreement. Pre-Release Technology is confidential and you may not disclose it to any third party. You may only use Pre-Release Technology for internal testing and evaluation, and we provide it "AS IS" without any warranty, support, or indemnification. We are not committed to making Pre-Release Technology generally available, and we may modify or terminate your access to it at any time in our sole discretion. If you provide us feedback regarding Pre-Release Technology, it will be subject to the Feedback section of this agreement. Our liability (excluding indirect, special, and consequential damages) for any claim arising from your use of Pre-Release Technology will not exceed one thousand US dollars ($1,000 USD).
We give you the right to use our Services as long as you pay the fees and comply with the terms and conditions of this Agreement. You can only use the Services for your internal use and according to the instructions in the Documentation. There may be certain limits on the number and types of Users, email alerts, phone call alerts, SMS alerts, and Instances of installed Software as specified on our website or in your order. If you exceed these Usage Limits, we will charge you the applicable fees. You can add Platform Users subject to paying additional fees. User subscriptions cannot be shared, but they can be reassigned to new Users. It's your responsibility to keep your account and User passwords secure and confidential, and to restrict access to the Services. We are not responsible for any damage or loss resulting from unauthorized access to your account due to your failure to protect your login information. The Services may have other limitations, such as limits on disk storage space, the rate of incoming email requests, the number of inbound and outbound calls permitted, the number of alerts that can be sent, and the number of permitted Instances of installed Software, as specified in the Documentation. If you exceed these limitations, it may cause the Service to malfunction, accrue additional fees, or result in suspension of the Service until compliance has occurred.
This agreement states that you can only use the Services and Documentation in the manner outlined in the agreement. You cannot modify the Services or Documentation, transfer or sell the rights to them, attempt to access the source code, or use them in a way that interferes with others' use of the Services. You also cannot use the Services or Documentation to violate the law or infringe on the rights of others, or store or transmit unlawful material. If you breach any of these restrictions, the company may suspend the Services immediately upon notice.
By creating an account on the Platform, you acknowledge and agree that you will receive various types of messages from us, including SMS messages (“Messaging”). Additionally, you represent and warrant that you will obtain and maintain consents from each Contact Person who will receive messages, as well as procedures for each Contact Person to opt-out of receiving Messaging. You also agree that once a Contact Person has opted-out, you will not enroll them in Messaging again unless you have obtained renewed consent from the Contact Person. You are responsible for complying with all applicable laws relating to Messaging and data privacy in your use of the Platform, including but not limited to the Telephone Consumer Protection Act and CAN-SPAM.
We will offer assistance for the Services you choose based on the support plan you select when signing up for the Service.
We are committed to ensuring the security, confidentiality, and integrity of Platform Contact Information, and we have implemented administrative, physical, and technical safeguards to protect it. We will not modify Contact Information without the prior written consent of you or the Contact Person, except as required to provide the Service or as required by law or governmental process. We will not disclose Contact Information to third parties, except as necessary to provide the Service or as required by law or governmental process. We will access Contact Information only as necessary to provide the Services and address Service or technical issues. In the event of a security breach, we will conduct a thorough investigation and take appropriate measures to remedy the issue, recover any data disclosed, and notify you once the investigation is complete and we have taken steps to secure customer data, provided such notification would not further compromise data security.
You agree to allow us to collect, use, and disclose statistical or aggregate information about your use of our Services, including performance data, for various business purposes such as analytics, marketing, and service improvement. This data will be anonymous and will not identify you or your affiliates. We own all right, title, and interest in this derived data, while you retain all rights to any underlying customer data. Your Contact Information will be treated in accordance with our Privacy Policy, which can be found on our website.
You are responsible for paying all Fees related to your usage of the Services, as listed on our website. The "Subscription Term" refers to the time period for which you have agreed to use the Services, as specified in the relevant order form or self-service check-out.
All our plans are month-to-month and are governed by the following conditions:
It is your responsibility to ensure that your account information, including payment card, address, and contact information, is accurate and up-to-date. By providing us with your payment card information, you represent and warrant that you have the right to do so and authorize us to charge your payment card for all fees associated with the Services. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with any purchase or transaction with the Services at the then-current prices. All fees are payable in United States dollars and are non-cancelable and non-refundable unless otherwise stated herein. You are responsible for paying all sales, use, value-added, or other taxes, except those based on our income.
In the event of unpaid payments that are not properly disputed, we may, without waiving or prejudicing any other rights or remedies available to us, (a) charge the lesser of 1% per month or the maximum rate permitted by applicable law, (b) immediately suspend the Services until your fees are brought current, and/or (c) where applicable, automatically accelerate all remaining payments such that the total fees under the order become immediately due and payable. You will reimburse us for any costs or expenses (including reasonable attorneys’ fees) incurred by us to collect any amount that is not paid when due and not properly disputed.
If you are paying by payment card and the payment card is declined for any installment, we may suspend the Services immediately until the payment is brought current, beginning five (5) days after the unsuccessful charge. If a purchase order (PO) number is required for an invoice to be paid, you must provide such number by emailing billings@taskcallapp.com within three (3) days of executing the order form. However, you acknowledge that failure to provide a PO number does not relieve you of your obligation to pay your fees.
a. In case of a good faith dispute regarding the Fees or taxes payable by you under this Agreement, you shall notify us in writing by sending an email to billings@taskcallapp.com. You shall provide such notice to us before the due date of the invoice containing the disputed Fees or taxes, and the parties shall cooperate to resolve the dispute expeditiously. Any amounts that are determined to be payable by you through the resolution of the dispute (whether through adversarial proceedings, agreement, or otherwise) shall be paid by You within ten (10) days following the resolution.
As used in this Agreement, the term "Confidential Information" refers to any information disclosed by one party ("Disclosing Party") to the other party ("Receiving Party"), whether in writing or orally, that is marked as confidential or that should reasonably be understood as confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Contact Information and any supplementary information, such as account details and alert priorities. Confidential Information does not include any information that (i) is generally known to the public without a breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party before its disclosure by the Disclosing Party as evidenced by written records, or (iii) was independently developed by the Receiving Party without the use of the Disclosing Party's Confidential Information.
The Receiving Party is obligated to keep the Disclosing Party's Confidential Information confidential and not disclose it to any third party, except as permitted by this Agreement. The Confidential Information may only be used by the Receiving Party to fulfill its obligations under this Agreement. The Receiving Party shall use the same degree of care to protect the confidentiality of the Confidential Information as it does to protect its own confidential and proprietary information, but no less than reasonable care. The Receiving Party may disclose the Confidential Information to its employees, consultants, and agents who need to know the Confidential Information for purposes of this Agreement. However, the Receiving Party must ensure that its employees, consultants, and agents are bound by confidentiality obligations that are substantially similar to the obligations set forth in this section. The Receiving Party will be responsible for any disclosures of Confidential Information by its employees, consultants, and agents that violate this section.
The Receiving Party may be required to disclose Confidential Information of the Disclosing Party by law or a governmental authority. In such a case, the Receiving Party will provide prior notice to the Disclosing Party of the compelled disclosure to the extent legally permitted and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to challenge the disclosure. The Receiving Party shall only disclose Confidential Information as strictly necessary to comply with the governmental request. Any disclosure made pursuant to this Section shall not affect the confidential treatment of the disclosed Confidential Information.
Receiving Party agrees that a breach of this Section may result in immediate and irreparable harm to Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
In the event of a breach of this Section by the Receiving Party, the Disclosing Party acknowledges that such breach may result in immediate and irreparable harm that cannot be adequately compensated by monetary damages alone. Therefore, the Disclosing Party shall be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction, or permanent injunction, without the need to post a bond or other security.
You hereby agree to indemnify, defend and hold harmless us against all claims, losses, damages, suits, fines, government investigations, actions, settlements, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from any breach of Your representations, warranties, and covenants as described in Section 8 (Warranty Related to SMS Use in the United States) above.
To be eligible for indemnification under this Section 12, the party seeking indemnification must fulfill the following conditions: (i) promptly inform the indemnifying party of the claim; (ii) allow the indemnifying party exclusive control over the defense and settlement of the claim; and (iii) provide assistance, at the indemnifying party's expense, in defending or settling the claim. The indemnifying party must keep the indemnified party informed of the progress of such litigation or settlement, and must consult with the indemnified party regarding it. Furthermore, the indemnifying party may not settle any such claim in a way that does not unconditionally release the indemnified party without the written consent of the indemnified party, which consent may not be unreasonably withheld or delayed.
Our warranty for the Platform is that it will operate in accordance with the Service Level Agreement (SLA) stated on our website at https://www.taskcallapp.com/service-level-agreement. If there is a breach of this warranty or the Service fails to perform, the sole remedy will be as set forth in that SLA.
We warrant that the Software will substantially conform with the Software Documentation during the first ninety (90) days of the Subscription Term under normal operating conditions. If there is a breach of this warranty, you must notify us in writing with reasonable detail during the warranty period. Upon receipt of such notice, we will, at our option, either use commercially reasonable efforts to modify and update the Software to meet the warranty requirement, or provide a commercially reasonable work-around within a reasonable period of time. This section outlines your exclusive rights and remedies and our sole liability for the Software's performance.
We warrant that the Professional Services will be performed competently and in accordance with accepted industry practices and the terms and conditions of the Agreement. However, if you fail to provide us timely access to Your Customer Materials during our performance of the Professional Services, Our performance will be excused until you do so. If there is a breach of this warranty, you must notify us in writing within thirty (30) days of the non-conforming Services. Upon receipt of such notice, we will, at our option, either use commercially reasonable efforts to re-perform the Professional Services in conformance with these warranty requirements, or terminate the affected Professional Services and refund you the prorated amount of Fees for the unperformed and non-conforming Professional Services. This section outlines your exclusive rights and remedies and our sole liability for the performance of Professional Services.
Except for the warranties provided in sections a, b, and c above, We provide the Services and Documentation "as is" without any warranty whatsoever, and We hereby disclaim all warranties, including, without limitation, that the Services will be free from errors or viruses, implied warranties of merchantability, non-infringement, fitness for a particular purpose, reliability, accuracy, security of data, or achievement of results.
We do not warrant, endorse, guarantee, or assume responsibility for any product, service, or content advertised or offered by a third party through the Services or any hyperlinked website, service or content. We shall not be a party to, liable for, nor do we monitor in any way, any transaction between You and third-party providers of other products or services.
In the event that Your purchases are made through one of Our authorized resellers ("Reseller"), you are responsible for paying any amounts owed to the Reseller as agreed between you and the Reseller. If we do not receive payment of Fees from the Reseller, We may suspend or terminate your use of the Services.
You may place your order through the Reseller by either submitting an order directly to us or by using the self-service function in the Service. You will be responsible for paying any invoices generated for orders placed via self-service. Both you and the Reseller are responsible for ensuring the accuracy of orders placed.
The Reseller is not authorized to modify this Agreement or make any commitments on our behalf. Only this Agreement governs our obligations to you.
The amount paid by the Reseller to Us for Your use of the Services under this Agreement will be considered the amount actually paid under this Terms of Service for the purpose of calculating our liability under Section 15 (General Limitation of Liability).
Renewal pricing will be communicated to you by the Reseller in accordance with the terms you have with the Reseller or Us prior to the renewal Subscription Term, as described in Section 21 (Term and Termination).
Except for Customer's indemnification obligations under Section 14, neither party shall be held liable to the other under any legal or equitable theory, including contract, tort (including negligence), or strict liability, for any special, indirect, incidental, punitive, or consequential damages, or lost profits, regardless of foreseeability and even if such party has been advised of the possibility of such damages. Except for Customer's indemnification obligations under Section 14 and as otherwise explicitly indicated, a party's liability arising out of or in connection with this Agreement shall not exceed the amounts paid or payable hereunder in the twelve (12) month period immediately prior to the event giving rise to such liability.
We shall not be held liable for any failure of a service arising from or related to: (I) any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access; (II) your or your users' failure to configure the service in conformance with the documentation; (III) your or your users' failure to provide accurate contact information to the service; or (IV) any messaging laws.
This limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
If the total fees paid and payable by you to us for the Service in the twelve (12) months preceding the claim exceed five thousand United States dollars (US$5,000), the limitation of liability in Section 17 shall not apply to our indemnification obligation under Section 14. However, if the total fees paid and payable by you to us do not exceed that amount, then Section 17 shall apply to our indemnification obligations under Section 14.
At our discretion, we may modify or replace any portion of this Agreement by either posting a revised Agreement on our website or notifying you of the change. Modifications will take effect at the beginning of the following month for self-service month-to-month plans and at the end of the prepaid Subscription Term for all other plans, as indicated in the notice.
In the event of any dispute between you and us, you agree to first attempt to resolve the dispute with Us informally by contacting Us at legal@taskcallapp.com. If we are unable to resolve the dispute within sixty (60) days, then any dispute arising out of or related to this Agreement or its breach shall be resolved through binding arbitration in Delaware, USA, on an individual basis only and not on behalf of a class, in accordance with the then-current rules of JAMS, Inc. (“JAMS”) for the Optional Expedited Arbitration Procedures. The arbitration award shall be final, binding, and enforceable. Judgment on the arbitration award may be entered in any court having jurisdiction. However, nothing in this section shall prevent either party from seeking injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of data security requirements, intellectual property rights, or other proprietary rights.
When you accept the terms of this Agreement, it begins and ends on the date of expiration or termination of all Subscription Terms. The Subscription Term for the Services ordered will be stated in each order. If it is not stated, the Subscription Term will be one year from the order date.
Both parties agree not to disclose the identity of the other party in promotional material, publications, or any other form of publicity relating to the Service without prior written consent. However, we may use your name and logo for the sole purpose of identifying you as a customer of Our Services on Our websites and other marketing materials distributed by us, as long as we adhere to any trademark usage policies or brand guidelines you provide to us for such purposes.
If you purchase Professional Services, You will have certain responsibilities and understand that failing to fulfill them may result in a delay in performance, which could lead to additional charges. If we terminate the Professional Services section of the Order Form due to your breach of these obligations, no refunds of Professional Services fees will be provided. Your responsibilities include providing access as needed for us to fulfill the Professional Services, offering us reasonable support such as access to facilities, resources, and employees, and making timely decisions or approvals necessary for Us to complete the tasks agreed to within ninety (90) days of the Order Form Effective Date. Additionally, you must assign specific personnel as a Project Sponsor, who will act as our executive-level contact and have full authority to make major project decisions related to Professional Services, secure timely resources, and communicate project goals and benefits to the organization. You are also responsible for configuring your management systems to send Customer Materials to us, providing access to your directory service or a list of Users to provision Users in Our Service platform, providing a list of services and teams you want to provision, and working with us to create and provide escalation policies, including associated schedules.
You agree that we have the right to audit your records and logs relating to your use of our services to ensure compliance with our agreement. If we discover an underpayment of fees during the audit, you agree to pay us immediately. This audit section will remain in effect for two years after the termination of our agreement.
You will only use the Services in accordance TaskCall policies, including TaskCall’s Acceptable Use Policy, available at https://www.taskcallapp.com/acceptable-use-policy, (“AUP”) and with applicable law, including without limitation all export control laws. This Agreement shall be governed by and interpreted in accordance with the laws of the state of California without regard to its conflict of laws provisions. You may not assign, sublicense, delegate or otherwise transfer any of your rights or obligations under this Agreement without Our prior written consent. We may assign this Agreement at Our sole discretion. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be construed to reflect the parties’ original intent, and the remainder of this Agreement shall remain in full force and effect. This Agreement constitutes the entire understanding and Agreement of the parties with respect to its subject matter and supersedes all prior and contemporaneous Agreements or understandings. The failure of either party to enforce any of the provisions of this Agreement shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions. The parties to this Agreement are independent contractors and no agency, partnership, joint venture, employment or similar relationship exists between them. Neither party has the authority to bind the other or incur any obligation on its behalf. Notices required hereunder shall be effective upon their delivery by email, courier or delivery service, or first class United States mail, return receipt requested (effective upon receipt).