Bipath LLC Terms of Service
Effective June 1, 2020
Last Modified: November 8, 2021
Please Read Carefully Before Using This Website: The following terms of service (“the Terms”) govern your use of the Bipath, and Contact Cloud website (the “Site”) and the Contact Cloud web-based application and services accessed through the Site (“Services”), all of which are operated by Bipath, LLC (“Bipath” or “we”).
To become eligible to use Bipath’s services, you must review and accept the Terms by clicking the “I accept” check box when you create your account or other mechanisms provided (such as in a contract).
By using the Site and/or the Service, you irrevocably agree that such use is subject to these Terms of Service. If you do not agree to these Terms of Service, you may not use the Site or the Service. You acknowledge that you have read, understand and agree to Bipath’s Acceptable Use Policy located at https://www.bipath.io/legal/policies, which is hereby incorporated into and made a part of these Terms of Service by this reference. If you are entering into these Terms of Service on behalf of an entity, you are binding such entity to these Terms of Service, you represent that you have the actual authority to bind such entity to these Terms of Service, and references to “you” mean such entity. For purposes hereof, the “Site” includes all subdomains and components of the Bipath, and Contact Cloud websites, including without limitation the Bipath Community.
Bipath expressly reserves the right to modify the Terms of Service at any time in its sole discretion by including such alteration and/or modification in these Terms of Service, along with a notice of the effective date of such modified Terms of Service. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing contact you designate in your Account (as defined below), through your Account or in the Service itself). To the extent you have purchased a subscription to the Service, the modified terms will be effective as to such subscription Service upon your next subscription renewal. In this case, if you object to the updated terms, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. In all other cases, any continued use by you of the Site or the Service after the posting of such modified Terms of Service shall be deemed to indicate your irrevocable agreement to such modified Terms of Service. Accordingly, if at any time you do not agree to be subject to any modified Terms of Service, you may no longer use the Site or Service.
Bipath is offering white labeled versions of some of the software services created by Calltrackingmetrics, LLC rebranded by Bipath, specifically the Contact Cloud platform. Use and access to both this website and the Cloud Contract Platform - https://www.contactcloud.us or https://www.bipath.io/contactcloud (“the “Services”) are also subject to these terms.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS.
Be advised that Bipath, including its employees are not offering or providing any financial or legal advice on its website or through its Services.
“Customer”: The individual accepting the Terms or the entity such individual represents. If you are accepting these Terms for a company or agency, you hereby warrant that you (1) have the legal right and authority to enter into these Terms for Bipath as named in the Account, (2) acknowledge that you are accepting these Terms on behalf of a company or other entity (3) you are binding Bipath or other entity to the Terms (4) if you becomes no longer affiliated with Bipath or entity in which you entered the agreement under, then the account and associated content and data is maintained as the property of Bipath or entity, and the authorized officers of that organization (5) You acknowledge that Bipath is offering white labeled versions of some of the software services created by Calltrackingmetrics, LLC rebranded by Bipath. You also acknowledge that CallTrackingMetrics is the “customer of record” for all phone numbers provided as part of our Contact Cloud branded Services and that as the customer of record, CallTrackingMetrics has certain rights with respect to porting phone numbers as described more fully within this Agreement below and (6) You acknowledge that you shall abide by certain provisions contained in the CallTrackingMetrics LLC Terms of Service as more fully described below in this Agreement (https://www.calltrackingmetrics.com/legal/tos/).
“Available Balance”: The money the Customer has added to the Account in advance, to fund usage in the Account.
“CCPA”: The California Consumer Privacy Act of 2018 (as amended) (see Cal. Civ. Code § 1798.100 – § 1798.199 et seq).
“Customer Data”: Data and other information made available to Bipath through the use of Bipath services under these Terms including call records, audio recordings, recording transcriptions, SMS records and SMS message content, and as further defined in section 6 of these Terms.
“Customer Personal Data”: means any personal data contained in the Customer Data (where “personal data” has the meaning given to it by the Data Protection Laws).
“Data Protection Laws”: means applicable legislation protecting the personal data of natural persons and the privacy of electronic communications, including in particular Regulation (EU) 2016/679 (“GDPR”) and any national legislation with supplements the GDPR, together with national legislation implementing Directive 2002/58/EC (and any legislation which replaces Directive 2002/58/EC), but excluding the CCPA.
“Services”: Bipath’s Services consist of the Contact Cloud platform, and other business management services including business consulting, software development and API integration services.
“Standard Contractual Clauses”: means the Standard Contractual Clauses (processors) for the purposes of Article 26(2) of Directive 95/46/EC set out in Decision 2010/87/EC as the same are revised or updated from time to time by the European Commission.
2. Electronic Communications:
When Customer visits or send emails to us, they are communicating with us electronically. When they create an account and enter their email address, subject to applicable law, they consent to receive communications from us electronically. We will communicate with Customer by e-mail or by posting notices on this site. Customer agrees that all agreements, notices, disclosures and other communications that we provide electronically satisfy any legal requirement that such communications be in writing.
Customer will be solely responsible for all use under its account, including end-users (whether or not authorized) of both the Bipath Services and Calltrackingmetrics' Services rebranded by Bipath. In accepting the Bipath Terms of Service Agreement, Customer also agrees to abide by and comply with the Calltrackingmetrics Terms of Service Agreement (https://www.calltrackingmetrics.com/legal/tos/) that enables Calltrackingmetrics to use all Customer Data as necessary to provide the Services and that protects Calltrackingmetrics’ rights to the same extent as the terms of this Agreement. Customer understands and agrees that it shall have a written agreement with each End User that enables CallTrackingMetrics to use all Customer Data as necessary to provide the Services and that protects CallTrackingMetrics’ rights to the same extent as the terms of this Agreement. The Agreement signed by end-users must include embedding the web page for the Calltrackingmetrics Terms of Service Agreement (https://www.calltrackingmetrics.com/legal/tos/) and highlighting in such end-user agreement the terms contained in the Calltrackingmetrics Terms of Service Agreement concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability, and, where the Customer is subject to the Data Protection Laws, data protection. Customer will promptly notify Bipath if it becomes aware of any breach of the terms of both the Bipath Terms of Service Agreement and Calltrackingmetrics Term of Service Agreement that may affect both Bipath and Calltrackingmetrics. Customer will take all reasonable precautions to prevent unauthorized access to or use of both Calltrackingmetrics and Bipath Services and notify Bipath promptly of any such unauthorized access or use. Customer also agrees to allow both Bipath and Calltrackingmetrics to use all Customer Data as necessary to provide its Services.
Services described on the Bipath sites may or may not be available in all countries or regions of the world and may be available under different trademarks in different countries. Customer agrees to use the Bipath Services in accordance with all applicable guidelines as well as all state and federal laws that the Services are subject to.
Specifically, and without limitation, Customer will ensure that Bipath is entitled to use the Customer Data as needed to provide the Bipath Services and will not use the Bipath Services in any manner that violates any Data Protection Laws, all applicable laws and regulations governing the making and sending of calls and text messages, and any other applicable regulation, order or similar law. Except as allowed by applicable law, with respect to any software provided to Customer hereunder, Customer will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive the source code of such software.
5. User Accounts
Customer may use the services through the services respective login portal: https://portal.bipath.io, and https://app.contactcloud.us through the use of their username and password login. Customer shall provide Bipath with accurate, complete and regularly updated profile information associated with their login. They agree to notify Bipath of any known or suspected unauthorized use of their user login account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. Customer shall be responsible for maintaining the confidentiality of their password. Any fraudulent, abusive, or otherwise illegal activity or actively prohibited by any regulation or statute may be grounds for termination of the user account, in Bipath's sole discretion, and Customer may be reported to appropriate law-enforcement agencies.
6. Our Use and Storage of Customer Data
All Customer Data has been designed, created and provided solely by Customer or by 3rd parties on its behalf without the participation or involvement of Bipath. Customer is responsible for any actions it takes with respect to Customer Data, including uploading it to the Services or using the Services to share or otherwise make available such Customer Data to third parties. Customer is responsible for ensuring that it has all the rights and permissions needed to use Customer Data in connection with the Services. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data made available to us through both Customer and any end-users use of the Services or by an entity on Customer’s behalf. Bipath assumes no responsibility for the accuracy, propriety, or usefulness to Customer of the Customer Data.
Bipath shall not be liable to Customer or any third-parties including end-users for any loss, damage or expense whatsoever and howsoever arising from information made available to us through your use and any end-users use of the Services or by an entity on Customer’s behalf. Customer acknowledges that Bipath will rely on the accuracy of the Customer Data provided to Bipath by Customer as it performs its requested functions under this Agreement.
Customer acknowledges that it owns all of the Customer Data or has all rights from any user including any end-users to grant such licenses to Bipath to use such Information in furtherance of providing the Services without infringement or violation of any third party rights. Bipath provides no warranties, representations or indemnification to Customer for its access to, and use of the Customer Data.
Customer gives consent to Bipath to use the Customer Data when integrating with third party company systems to perform services on Bipath’s behalf relating to the functionality of the Services and that Customer consents to Bipath using Customer Data that may include personally identifiable information containing social security numbers and credit card information.
Data storage is not guaranteed by us and you agree that we will not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that you may incur relating to the loss or deletion of Customer Data.
You further acknowledge and agree that we may access or disclose Customer Data, including the content of communications stored on our systems, if: (i) we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request, (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our services and products, (iv) to protect ourselves, our other customers, or the public from harm or illegal activities, or (v) to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.
7. User Accounts
Customer may use the service through the use of their username and password login. Customer shall provide Bipath with accurate, complete and regularly updated profile information associated with their login. They agree to notify Bipath of any known or suspected unauthorized use of their user login account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. Customer shall be responsible for maintaining the confidentiality of their password. Any fraudulent, abusive, or otherwise illegal activity or actively prohibited by any regulation or statute may be grounds for termination of the user account, in Bipath's sole discretion, and Customer may be reported to appropriate law-enforcement agencies. All accounting showing Customer accounts will be offered to customer in a separate accounting portal https://portal.bipath.io.
8. Price and Payment:
8.1 Account Available Balance: In order to start using a Bipath service, Customer will need to select a Subscription Plan. All Subscription Plans can be found at: https://www.contactcloud.us, https://www.bipath.io/contactcloud, https://bipath.io, or https://help.bipath.io
Once a Subscription Plan is selected, Customer pays the respective monthly, quarterly or annual fee upfront for the initial term. For the avoidance of doubt, 30 days is the initial term for a monthly subscription. If Customer has chosen a plan which requires a pre-paid deposit then a minimum amount in dollars must be added to that Account Available Balance to fund usage or other services. The minimum deposit amounts will be prescribed during the sign up process. The Customer may choose how much to initially add to the Available Balance and at what point it should automatically add funds so long as the minimum amount is met. Thereafter, the fees for the subscription plan, phone numbers, the per minute charges for minutes used, the per text message rates for text messages sent or received, and any other usage fees for services (e.g. premium Caller ID, keyword spotting, additional calls per second capacity, transcription services, form completions etc.) will all be deducted from the Available Balance, otherwise these fees will be billed daily or at the agreed frequency to the primary or secondary payment method.
8.2 Payment methods: Customer grants Bipath the right to charge the primary or secondary credit cards in their Account for all fees incurred in using the Services. Customer agrees to pay all applicable fees related to your use of our website and Services, all of which are described fully on the respective websites pricing page or as otherwise communicated by Bipath. All payments will be made in US Dollars. Bipath may suspend or terminate your account and/or access to the website and/or Services if your payment is late and/or your offered payment method (e.g., credit card) cannot be processed. By providing a payment method, Customer expressly authorizes Bipath and/or our third party payment processor to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on the particular services you use. You agree that we may invoice you any unpaid fees.
8.3 Subscription Length/Term/Frequency: Each subscription plan has an associated fee paid monthly, quarterly or yearly and will be charged to the account on the renewal date. The fee(s) for the chosen subscription plan will be charged to the Account available balance or billed at the agreed frequency to the primary or secondary payment method. Our subscription plans billing frequency/term is either monthly (every 30-days), quarterly (every 90 days), yearly (every 365 days). For the avoidance of doubt monthly subscription plans are for an initial period of 30 days and will thereafter automatically renew for successive 30-day periods. Quarterly subscription plans are for an initial period of 3 months (90 days) and will thereafter automatically renew for successive 3 month (90 days) periods. 12 month subscription plans are for an initial period of 12 months (365 days) and will thereafter automatically renew for successive 12 month (365 days) periods.The plan will continue to renew until Customer cancels the Account by sending an email to email@example.com or speaking with a support agent who confirms the cancellation.
8.4 Quarterly/Annual Plan discounts: If Customer is offered, and elects to sign up for a pre-paid Quarterly or Yearly subscription plan. In those plans, the monthly platform fee may be discounted and the initial term will be paid up front by the Customer. The term for those plans will automatically renew in accordance with section 8.3 to this Agreement. Customers on Quarterly or Annual plans can cancel by notifying our support team at least 30 days in advance of the renewal date. Customers can cancel these plans at any time but no refunds will be given for unused portions of the term.
8.5 Tracking Numbers: Each tracking number purchased is valid for 30 days of service and will thereafter automatically renew for successive additional 30-day periods. The monthly renewal fee for the number will be deducted from the available balance as described in Paragraph 8.1 or immediately billed to the primary or secondary payment method. Customer can cancel a tracking number by releasing it on the edit tracking number page.
8.6 Per Minute Charges: For clarification and without limitation to which plan has been selected, Bipath shall bill for all minutes of usage for each call from the instant a call is initiated by, or connected to, the Calltrackingmetrics network to the instant all parties to such call are disconnected. Call duration calculations will be rounded up to the nearest minute. The per minute rates shown on the pricing and signup page apply to the standard rate center for each country that matches the purchased tracking number. Actual per minute rates may be higher depending on the rate center of the receiving number. Customer can check the exact per minute rate of their receiving number rate center lookup here: https://www.bipath.io/contactcloud/rates OR https://www.contactcloud.us/rates
8.7 Licenses: Customers can choose to add on licenses to their account to use services such as “Chat”. These licenses renew every 30 days, at which point the monthly license fee is charged to the Account available balance or immediately billed to the primary or secondary payment method. Chat also renews yearly if the customer chooses to purchase a yearly chat license(s). If the Customer has multiple licenses renewing on the same day, they will be grouped into one deduction amount from the available balance or will be immediately billed to the primary or secondary payment method.
8.8 Collections: If Bipath requires use of collection agencies, attorneys, or courts of law for collection on the account, Customer will be responsible for those expenses. Customer will be responsible for all use, sales, and other taxes imposed on the Services provided under this policy.
8.9 Pricing Changes: Bipath may change any portion of the fees by posting the changes to the Sites or otherwise notifying customers of the change, such changes to take effect at the beginning of the next period of service.
8.10 Disputed Charges: Billing disputes must be submitted within 30 days of the applicable billing date or are deemed waived. Disputes shall be considered in the order received and are subject to determination in the sole judgment of Bipath. If a valid, settled transaction is disputed through the processing bank as a “chargeback” and thus the transaction is reversed, the amount of that transaction will be deducted from the current available balance of the corresponding account AND a $50 processing fee will be applied to the account. Please take care to not dispute valid transactions.
8.11 Use of Secondary Carrier: Customers may request tracking numbers that are not available through our primary carrier. These numbers may have different monthly and per minute rates than the standard rates for the plan. Customer will be notified of these differences prior to Bipath procuring the number and customer needs to agree in writing to ok the difference.
9. Lifetime Deal
Bipath may offer a limited number of lifetime plans which enables a Customer access to a certain product by paying a one time fee with no recurring platform fees so long as their account remains active and in good standing with Bipath.
Customer shall be responsible for any usage incurred through calling, dialing, or chat or if they choose add on services plans. However, if a customer chooses a lifetime plan then they would never pay any recurring platform charges for the life of their account with Bipath. If the account is terminated by Bipath or the customer, then the lifetime price will expire immediately. Lifetime plans shall only apply to the Contact Cloud application.
In the event that Bipath is sold or its assets are transferred, Customer understands and agrees that it is in the sole discretion of the new owner whether or not to discontinue the Lifetime Program. And, in the event that Bipath ceases operations, Customer understands and agrees that Bipath is not liable for any additional payments to the Customer and that Customer can elect to transfer their services to CallTrackingMetrics.
10.1 Contact Cloud: Bipath charges Customers for either a Monthly, Quarterly, Annual platform fee. Customer shall pay for daily usage charges for telephone usage which includes text messaging and chat licenses. For example, Customer is utilizing prepaid billing with Bipath. If a phone call or text message is made today, Bipath shall bill Customer today by immediately deducting the cost of calls or messages from the Account Available Balance. If the customer was not utilizing prepaid billing, then Bipath would invoice and charge for this activity tomorrow (paid in arrears).
10.1(a) Collection and Suspension: If a Customer fails to pay their platform fees within five (5) calendar days of its due date then Bipath may freeze Customer’s account which shall prevent Customer from any further use of the Services until Customer updates its payment information and the Customer notifies Bipath that the situation has been remedied. Customer agrees that Bipath shall not be liable to Customer or any third party for any damages suffered by Customer as a result of freezing Customer’s account for failing to pay platform fees.
If a Customer payment source fails for any daily usage invoice or Account available balance recharge then Customer must update that payment method within 24 hours of the failure - otherwise Bipath will freeze Customers account and prevent further usage until the payment information is updated and the customer informs us that the situation has been remedied.
Bipath will immediately notify Customer via email and or text message (if they subscribe to those alerts) for payment failures.
11. Account Suspension and Termination of Agreement
11.1 Term: The term will commence on the date these Terms are accepted by Customer and continue until either party terminates the Account, except for those Customers who have entered into supplemental annual contracts through written amendments/order forms.
11.2 Termination by Bipath: Bipath may suspend or terminate an Account immediately upon notice for cause if:
(a) Customer violates (or gives Bipath reason to believe it has violated) any provision of these Terms;
(b) there is an unusual spike or increase in Customer’s use of the Bipath Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Bipath Services;
(c) Bipath determines, in its sole discretion, that its provision of any of the Bipath Services is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or
(d) subject to applicable law, upon Customer’s liquidation, commencement of dissolution proceedings, disposal of Customer assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if Customer becomes the subject of bankruptcy or similar proceeding.
(e) If Customer has subscribed to a Bipath service which allows pre-paid billing and the Available Balance falls to or below $0 in the Customer’s Account.
(f) If more than 5 days have elapsed since Customer failed to pay their platform fees and Customer has failed to remedy the situation, Bipath may suspend the account and prevent further usage until the payment information is updated and the customer informs Bipath customer support that the situation has been remedied.
(g) If more than 24 hours has elapsed since Customer failed to pay their usage fees and Customer has failed to remedy the situation. Bipath may suspend the account and prevent further usage until the payment information is updated and the customer informs Bipath customer support that the situation has been remedied.
(h) Or any other date upon which Bipath has the right to terminate the Account(s) or suspend the Service as provided in this Agreement or any other applicable agreement or policy.
Customer agrees that neither Bipath nor CallTrackingMetrics shall be liable to Customer or any third party for any damages suffered by Customer as a result of termination of this Agreement or cancellation or suspension of both Customer’s account and Customer’s use of any tracking numbers.
11.2a Data and record retention post cancellation: If an Account is terminated or cancelled for any reason, Bipath will retain Account records for up to 60 calendar days, depending on which service Customer has subscribed to. For Contact Cloud - all CalltrackingMetrics hosted past call data and reports will still be accessible to Customer for a period of 60 days post termination, but tracking numbers will be released as they come up for renewal and activity will be suspended in the Account. After 60 days the Account will be purged and all data inclusive of reports will be permanently deleted.
11.3 Termination By Customer: Customer may cancel Account and associated Services by emailing firstname.lastname@example.org.
11.4 When Customer cancels an account: For Contact Cloud they will be prompted to confirm the release of all active tracking numbers associated with the account. No phone calls will be connected through the tracking numbers once the account has been cancelled.
11.5 After canceling an account with an Available Balance, the Available Balance will be preserved for when/if the Customer reactivates the account. If Customer would like to request a refund of the Available Balance, please contact us at: email@example.com.
While not guaranteed, Bipath is generally able to refund any unused funds in the Available Balance upon cancellation provided the account is in good standing and the transactions funding the Available Balance have occurred within the past 3 months. Refunds can only be processed back to the card that was used to fund the Available Balance. For refunds in excess of $500, bank transaction fees will be withheld from any refunds– US fees are 4%, International fees are 5.5%
11.6. If Customer has elected to sign up for a pre-paid subscription plan or another type of annual commitment, the account can be cancelled but no refunds will be given for unused portion of the outstanding term.
11.7 When cancelling a monthly add on license such as “Chat” , the Customer will still be able to use the associated license through the end of the current billing cycle- unless they are also cancelling the associated Account (in which case, they will no longer be able to use “Chat”).
12.1 Unless otherwise stated, the Customer shall be responsible for maintaining an accurate Service Address for their Account and shall pay all Taxes imposed on or with respect to the Bipath Services that are the subject of this Agreement whether such Taxes are imposed directly upon the Customer or upon Bipath. “Taxes” mean all applicable federal, state and local taxes, fees, charges, carrier surcharges or other similar exactions, including, without limitation, sales and use taxes, communications service taxes, utility user’s taxes or fees, excise taxes, any other license or business and occupations taxes, 911 taxes, franchise fees and universal service fund fees or taxes.
12.2 For purposes of this Section, Taxes do not include any Taxes that are imposed on or measured by Bipath net income, property tax, or payroll taxes.
12.3 If a Customer is exempt from any such Taxes for any reason, we will exempt them from such Taxes on a going-forward basis once we receive a duly executed and dated valid exemption certificate to our tax department and our tax department has approved such exemption certificate. Such exemptions should be sent directly to: firstname.lastname@example.org.
If for any reason a taxing jurisdiction determines that the Customer is not exempt from any such exempted Taxes and then assesses us such Taxes, the Customer agrees to promptly pay to Bipath such Taxes, plus any applicable interest or penalties assessed.
13. Security Rules:
Customer is prohibited from violating or attempting to violate the security of the Bipath Sites and Services and from using the Bipath Sites and Services to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for Customer or logging into a server or account which Customer is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measurers without proper authorization; (c) attempting to interfere with service to any user of the Bipath Sites or Services, host or network, including, without limitation, via means of submitting a virus to the Bipath Sites, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing”; or (d) sending unsolicited e-mail, including promotions and/or advertising of products or services. Violations of system or network security may result in civil or criminal liability. Bipath may investigate violations of these Terms, and may involve and cooperate with law enforcement authorities in prosecuting users of the Bipath Sites who are involved in such violations.
14. Account Authorization:
New accounts may go through an authorization process which restricts usage in the account temporarily as we verify the information provided during the sign up process. We try and expedite this process as quickly as possible but it can take several days. Customers will receive emails or notifications within the application if their account activity is being restricted due to the authorization process. When necessary, we will reach out to the Customer to request additional information needed to fully authorize an account.
15. Compliance with Laws:
Customers using the Service for telemarketing or similarly regulated purposes are directly and solely responsible for compliance with applicable laws, including without limitation for filing, subscribing, or holding appropriate regulatory compliance documentation as required by competent jurisdictions and/or the purchase of access to any do-not-call lists and the like.
Customer acknowledge that (a) you exclusively are responsible for and control the timing, content, and distribution of all telephonic or electronic communications made or initiated to any person or entity in connection with your use of the Service, and (b) any such communications are made or initiated only as a result of your direct actions and requests to Bipath. You further warrant that all telephonic or electronic communications made or initiated in connection with your use of the Service comply with all applicable foreign and US federal or state laws and regulations, including without limitation the Telephone Consumer Protection Act, before you make or initiate any telephonic or electronic communication through the Service.
Customer agrees to familiarize himself with and abide by all applicable local, state, national and international laws and regulations and is solely responsible for all acts or omissions that occur under their account, including without limitation (a) the initiation or making of the phone calls and or messages transmitted through the Services or (b) the creation of and the specific content of the phone calls and messages.
Customer accepts that the Services are provided for professional use only, and agree that their use of the Bipath Sites or Services shall not include:
Customer will not purposely route calls to high cost non-RBOC (Regional Bell Operating Company) areas for origination or termination of telecommunications traffic on the Bipath system. Calls may be monitored and reported upon each billing cycle to ensure sound traffic patterns. Excessive routing of high-cost calls will be addressed to customer by Bipath and fines may be assessed to recover excess charges from Bipath carriers.
Any violation of Bipath policies will be grounds for termination of the Account, at Bipath's sole discretion, Customer may be reported to appropriate law enforcement agencies.
16. Changes to Service:
Bipath may at any time change or modify the features and functions of the Services may change over time. Bipath will use reasonable efforts to notify Customer at least 60 days prior to implementation of a change in Service and to provide information required for Customer to continue to use the Services.
17. Standard Support
17.1 Bipath Standard Support (“Standard Support”) is available to all Customers to help them with questions about their account https://help.bipath.io.
17.2. Standard Support is distinct from the Implementation Support, Dedicated Support, or Onboarding (“Customized Support”). To request Dedicated Support, Customers should send an inquiry to: email@example.com ro start a conversation with our chat support agents by utilizing our in application chat widget to discuss pricing and options.
17.3 Bipath may in its sole discretion determine the methods and channels for the provision of Standard Support.
17.4 Customers may contact Standard Support to ask questions about the Service, report issues in their Account, or even to recommend future features. Standard Support does not come with any response time or resolution guarantees.
17.5 The Standard Support Team can provide support to authorized users of an Account. Bipath may in its sole discretion limit the provision of Support to only individuals designated as authorized support contacts and/or may limit what topics can be covered based on the role the user has in the account.
17.6 Customers seeking Standard Support will be required to provide their account ID or global account ID, their first and last name, their email address and/or other identifying information reasonably deemed necessary by Bipath prior to receiving services.
17.7 The Standard Support Team cannot directly modify configurations or settings in a Customer’s account.
17.8 In an effort to assist Customers with their inquiry as efficiently and accurately as possible, Standard Support agents may refer Customers to web accessible help articles or guided tours for issues that are addressed by those articles as a resolution to the issue. If Customer wishes to instead have personalized walk-throughs of those tutorials, the agent can connect them with a sales rep who can go over pricing and details for Dedicated Support options.
17.9 Standard Support does not provide detailed orientations, onboarding, or assessments of a Customer’s account, nor can they provide detailed walkthroughs of complex features. If a Customer is looking for such guidance, the agents will connect the Customer with a sales rep who can go over Customized Support options.
17.10 Bipath has the discretion to limit the frequency in which a Customer can contact Standard Support. If Bipath determines that a Customer is requesting an excessive amount of time from Standard Support, Bipath may rate limit the number of inquiries responded to from that Customer or refuse service.
17.11 Standard Support agents are not experts on the systems that Bipath integrates with. Inquiries about integrations that involve the settings in another system will need to be addressed by the other system.
17.12 Standard Support inquiries can be answered by a variety of agents on the team. Customers cannot select or request to only work with particular agents. The Standard Support team may not be able to assist Customers with questions that require detailed knowledge about their specific account configurations and may recommend Customized Support options in those situations where the Customer would benefit from a more dedicated arrangement.
17.13 Standard Support agents are not experts on supporting hardware (computers, headsets, routers, etc.) and telephone devices. Customers are responsible for their hardware and its use with Bipath. Customers are solely responsible for supporting computer hardware and telephone devices when that hardware and those devices are deemed faulty by Bipath support agents or engineers.
18. Telephone Numbers:
18.1 CallTrackingMetrics will use commercially reasonable efforts to obtain the telephone number(s) requested, and use commercially reasonable efforts to initiate and complete port requests. Customer acknowledges that Bipath may need to change the telephone number assigned to the Customer (due to an area code reassignment or split, or for any other reason). Customer acknowledges that if the Service is suspended or terminated due to non-payment or breach of this Agreement, Customer may not be able to obtain the same local or toll free numbers should the Service be reactivated.
18.2 CallTrackingMetrics may, after 30 days post-cancellation of service and the inability or lack of desire to port the telephone number, remove all telephone numbers from Account.
18.3 You acknowledge that CallTrackingMetrics is the “customer of record” for all phone numbers provided as part of our Services. As the customer of record, CallTrackingMetrics has certain rights with respect to porting phone numbers. You understand and agree that you may use the phone numbers provided as part of our Services subject to these Terms. Unless otherwise required by law, we reserve the right to refuse to allow you to port away any phone number in our sole discretion. Regardless, we may allow you to port away phone numbers, so long as you (1) have an account in good standing, and (2) have either ported in or purchased the phone number more than 90 days prior to the port-away date. If porting a number away from CallTrackingMetrics, it is the Customer’s responsibility to confirm the completion of a port away request with the winning carrier and release the tracking numbers from their Account.
18.4 Any attempts to use CallTrackingMetrics merely as a source of numbers to be immediately ported away without use of the numbers on our system is not permitted and is grounds for Termination.
18.5 Phone numbers may not be immediately active from the time of purchase if the numbers require additional validation to be activated such as a local billing address or other identity verification depending on the country of origin.
19. Call Recording:
CallTrackingMetrics makes available technology that offers the ability to record incoming telephone calls. When a calling party initiates a call to a tracking phone number, CallTrackingMetrics will, at the Customer’s discretion, create a digital audio recording of the telephone call. CallTrackingMetrics provides the ability to play a customizable voice message at the beginning of each call to either or both parties (calling party and called party) announcing that the call will be recorded.
If Customer chooses to record telephone calls, they expressly agree and acknowledge that:
1) They authorize CallTrackingMetrics to make incoming call recordings on their behalf and
2) They either: 1. Authorize CallTrackingMetrics to play a voice message advising the caller that the call is being recorded prior to the call being connected to the party answering the call; OR 2. Have made the necessary arrangements to ensure that the caller is provided with the necessary warning about the presence of any recordings made in accordance with the law.
CallTrackingMetrics shall have no liability whatsoever in respect of any use made by Customer, their employees, contractor, officer, agent, authorized representative or other third party, of the recordings and its contents, and/or of any personal information.
20. CERTAIN USE LIMITATIONS
Bipath grants you a non-exclusive, non-transferable, limited permission to access and display the Web pages within this site as a user, customer or potential customer of the Services provided you comply with these Terms of Service, and all copyright, trademark, and other proprietary notices remain intact. You may only use a crawler to crawl this Web site as permitted by this Web site’s robots.txt protocol, and Bipath may block any crawlers in its sole discretion. The use authorized under this agreement is non-commercial in nature (e.g., you may not sell the content you access on or through this Web site.) All other use of this site is prohibited. All rights not expressly granted herein are reserved.
You may not copy, modify, distribute, sell, or lease any part of our Website or Services, nor may you reverse engineer or attempt to extract the source code of that software, unless applicable laws prohibit these restrictions or you have our written permission to do so.
Except for the limited permission in the preceding paragraphs, Bipath does not grant you any express or implied rights or licenses under any patents, trademarks, copyrights, or other proprietary or intellectual property rights. You may not mirror any of the content from this site on another Website or in any other media. Any software and other materials that are made available for downloading, access, or other use from this site with their own license terms will be governed by such terms, conditions, and notices. Your failure to comply with such terms or any of the terms on this site will result in automatic termination of any rights granted to you, without prior notice, and you must immediately destroy all copies of downloaded materials in your possession, custody or control.
You agree that at any time in our sole discretion, without notice to you and without liability of any kind, we may make improvements and/or changes to this Website, restrict or terminate your access to or use of any part or all of the Website, or refuse, move, or remove any material that you submitted to the Website.
You represent, warrant, and agree that any information or materials you submit to or post on the Website (a) shall be true, accurate, and current; (b) will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including without limitation any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy, or Fair Housing right; (c) will not be fraudulent, misleading, hateful, tortious, defamatory, slanderous, libelous, abusive, violent, threatening, profane, vulgar or obscene; (c) will not harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation or age, or otherwise interfere with another's use of the Website; (d) will not promote illegal or harmful activities; and (e) will not be illegal, unlawful or contrary to any applicable laws or regulations where created, displayed, or accessed.
You agree not to (and not to assist any third party to): (a) engage in commercial use of the Website or any content on the Website; (b) reproduce, copy, display, store, perform, re-post, publish, transmit, distribute, sell, offer for sale, license, modify, create derivative works, or otherwise use any portion of the content offered on the Website for other than your own personal, non-commercial use; (c) remove any copyright, trademark or other proprietary rights notices contained in or on the Website or any content or other material obtained via the Website or any services on the Website; (d) use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Website, such as for purposes of constructing or populating a searchable database of business or property reviews; (e) collect or harvest any information about other users for any purpose; (f) reformat or frame any portion of the web pages that are part of the Website; (g) create user accounts by automated means or under false, misleading or fraudulent pretenses; (h) create or transmit unwanted electronic communications such as “spam” to other users or otherwise interfere with other users’ enjoyment of the Website; (i) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature; (j) use the Website to violate the security of any computer network, crack passwords or security encryption codes, or transfer or store illegal material, including any material that may be deemed threatening or obscene; (k) copy or modify the HTML code used to generate web pages on the Website; (l) use any device, software or procedure that interferes with the proper working of the Website, or otherwise attempt to interfere with the proper working of the Website; (m) take any action that imposes an unreasonable or disproportionately large load on our IT infrastructure; (n) modify, adapt, translate, or reverse engineer any portion of the Website; (o) use the Website to violate any law or regulation, including but not limited to Fair Housing laws and regulations, or (p) use the Website for any purpose that is unlawful or prohibited or unauthorized by these Terms of Service.
21. PAYMENT. Payment information for website users. For Services offered on a payment or subscription basis, the following terms apply, unless Bipath or its third party affiliates notify you otherwise in writing. If you purchase any of our Services, you are also bound by any purchase orders you sign or enter into and you are also required to comply with the terms and conditions found in - https://www.contactcloud.us, https://bipath.io, and https://www.bipath.io/contactcloud. This Agreement also incorporates by reference and includes program ordering and payment terms provided to you on the website for the Services:
22. USE WITH YOUR MOBILE DEVICE
22.2 Apple and Android Devices
23. THIRD PARTY INFORMATION, MATERIALS, PRODUCTS, AND SERVICES
This Website may feature information, materials, products, and services provided by third parties, which may include content providers, payment processors, advertisers, and other users (collectively, the “Third Party Information”). All such information, materials, products, and services made available by a third party are those of the third party and not us. We make no representation or warranty with respect to, nor do we guarantee or endorse, and we disclaim any express or implied warranty relating to, the accuracy, completeness, quality, timeliness, non-infringing nature, legality, condition, or reliability of any third party information, materials, products, or services.
You agree that we have no responsibility or duty to review, pre-screen, or approve, and that we shall not be responsible or liable for, any third party information, materials, products, or services or any loss or damage of any kind suffered by you or any third party arising out of or relating to any of them.
If you choose to communicate or contract with any third party, or use any information, materials, services or products of any third party, you agree that you will address any issues or disputes regarding such matters directly with the third party, and not us. You acknowledge that your participation in any services provided by a third party or purchase of any product from a third party will constitute your consent to such third party's terms of service or Terms of Service with respect to such service or product.
24. LINKS TO THIRD PARTY SITES
This Website may contain links, inline frames, feeds, embedded content to or from websites (collectively, “Third Party Links” or "Links") operated by parties other than Bipath. Such links are provided for your convenience only, and do not indicate any endorsement of the material on such websites or any association with their operators. You agree that Bipath is not responsible or liable for such websites, the availability or contents of such websites, any products or services they offer, or any damages any of the foregoing may cause you.
IN NO EVENT SHALL BIPATH BE LIABLE FOR ANY DAMAGES SUFFERED BY A WEBSITE USER (WHETHER CONSEQUENTIAL, DIRECT, INCIDENTAL, EXEMPLARY, INDIRECT, PUNITIVE, SPECIAL OR OTHERWISE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, ANY LINKED SITE OR THIRD PARTY WEBSITE OR RELATED SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, STRICT LIABILITY, TORT OR OTHER THEORIES OF LIABILITY, AND ALSO REGARDLESS OF WHETHER BIPATH WAS GIVEN ACTUAL OR CONSTRUCTIVE NOTICE THAT SUCH DAMAGES WERE POSSIBLE.
The Website utilizes Google Maps, Google Translate and related content licensed to us by Google and its licensors. By using the Google Maps and Google Translate features available on the Website, you are agreeing to be bound by the applicable policies, terms and conditions of Google.
25. Linking to this site
Bipath consents only to links to this website in which the link and the pages that are activated by the link do not: (a) create frames around any page on this Web site or use other techniques that alter in any way the visual presentation or appearance of any content within this site; (b) misrepresent your relationship with Bipath; (c) imply that Bipath approves or endorses you, your Web site, or your service or product offerings; and (d) present false or misleading impressions about Bipath or otherwise damage the goodwill associated with Bipath name or trademarks. As a further condition to being permitted to link to this site, you agree that Bipath may at any time, in its sole discretion, terminate permission to link to this Web site. In such event, you agree to immediately remove all links to this Web site and to cease any related use of Bipath trademarks.
26. The Content of Others
Content (“content”) on our website may be produced by other users and other third parties (“third party content”) and may contain content or materials (“materials”) from publishers or other Users. Whether that content is posted publicly or sent privately, the content is the sole responsibility of the person or organization that submitted it. Although Bipath reserves the right to review all content that appears on the website or Services and to remove any content that violates these Terms, we do not necessarily review all of it. So we cannot—and do not—take responsibility for any content that others provide through the website or Services.
Any opinions, advice, statements, services, offers, or other information or content expressed or made available by Users and third parties, including information providers or any other users of the Website or Services, are those of the respective author(s) or distributor(s) and not of Bipath.
You are responsible for your use of the website and Services and for any Content you provide, including compliance with applicable laws, rules, and regulations. As such, you should only provide Content that you are comfortable sharing with others.
Any use or reliance on any Content or materials posted via the website or Services or obtained by you through the website or Services is at your own risk. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the website or Services or endorse any opinions expressed via the website or Services. You understand that by using the website or Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. All Content is the sole responsibility of the person who originated such Content. We may not monitor or control the Content posted via the website or Services and, we cannot take responsibility for such Content.
We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us.
Through these Terms, we make clear that we do not want the website or Services put to bad uses. But because we do not review all content, we cannot guarantee that content on the website or Services will always conform to our Terms.
You may be able to post User Content. You must not post any User Content that is threatening, abusive, unlawful, misleading, fraudulent, discriminatory, libelous, defamatory, obscene or otherwise objectionable, or that contains ethnic, sexual, racial or other discriminating slurs. You must also not post any User Content that contains proprietary information, trade secrets, confidential information, solicitations, advertisements, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us in writing), or encourages or causes spamming or flooding.
You are prohibited from posting any User Content containing state, government or federal identification information or numbers (whether your own or of another person), such as national identification number, social security number, passport number, insurance number, driver’s license number, immigration number, or any other similar number, code, or identifier. Posting such identification information could possibly cause identity theft. Bipath may remove any such identification information, but we are under no obligation to do so and have no responsibility and disclaim all liability or damages for any user posting of such identification information.
Bipath reserves the right to disclose all User Content and other relevant or related information, and the circumstances surrounding their transmission, to any third party in connection with operating the Site and Services; to protect itself, its affiliates, its partners and its users or visitors; and to comply with legal obligations or governmental requests. What this means is that we may honor law enforcement or court-mandated requests such as subpoenas or search warrants to reveal a user’s electronic address and identity, or other properly requested information.
Although we have no obligation to do so, we may monitor User Content, and reserve the right to
delete any User Content or portion thereof that, in Bipath’s sole discretion, violates the above rules, including any User Content that is unrelated to the specific area of the Site or Services on which it is posted, or that is an advertisement, or other commercial message, or that Bipath determines in its sole discretion to be inappropriate. If you believe that any User Content violates this Agreement or our policies, we encourage you to report the content or conduct to us so that we may have the opportunity to consider whether to remove the content or not. Just so there is no ambiguity in these terms and conditions, Bipath does not have any obligation to remove any User Content, and whether User Content is deemed to be inappropriate or violates any Bipath policy will always remain within the sole discretion of Bipath.
Please take note of the following: Section 230 of the U.S. Communications Decency Act provides that:
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content provider.
(2) Civil liability No provider or user of an interactive computer service shall be held liable on account of-
(A) any action voluntarily taken in good faith to restrict access to or availability of
material that the provider or user considers to be obscene, lewd, lascivious,
filthy, excessively violent, harassing, or otherwise objectionable, whether or
not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others
the technical means to restrict access to material described in paragraph (1).
27. License to User Content and Feedback
You retain your rights to any Content you submit, post or display on or through the website. What’s yours is yours — you own your Content (and your photos and videos are part of the Content).
By submitting, posting or displaying Content on or through the website, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Bipath to provide, promote, and improve the website or Services and to make Content submitted to or through the website or Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Bipath, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the website.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.
Only to the extent as permitted by law, if you post content or submit material to Bipath,
including photographs or material you grant Us a nonexclusive, worldwide, perpetual, (revocable only as described below), fully paid, royalty-free, sublicensable right and license to use, sell, make, sublicense, reproduce, distribute, perform, display, prepare derivative works from and otherwise exploit all such content and materials for the purpose of publishing material on the Services, Bipath’s website or its publisher partners, maintaining Bipath website and promoting Bipath without restriction. You further grant to Bipath, its affiliates, and sublicensees the right to use your user name and/or trademarks and logos in connection with any such User Content or Bipath marketing materials or content that we might publish or display on the site or Services.
As a user of the site or Services, you represent, warrant and acknowledge that: (i) you own the User Content that you submit, display, post or otherwise make available on or through the Site, or that you otherwise have the right to grant the license set forth in this section, (ii) that all such User Content, and its submission, display, posting or availability on or through the Site does not violate any applicable law or the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person or entity, and (iii) such submission, posting, display or availability on or through the Site does not result in or cause any breach of contract between you and any third party. You further agree to pay for all royalties, fees, damages, and any other monies of any kind owed to any person or entity by reason of such User Content. You agree to defend, indemnify and hold harmless Bipath and its affiliates and sublicensees from all claims of any kind resulting from any such User Content. If you desire to request to revoke the license granted by you in this Section for any such User Content, you must email Us at: firstname.lastname@example.org with a copy of your passport or national identity card (for identity verification purposes) and request removal of such User Content. Your certified letter of request to remove such User Content must include (a) your name, address, telephone number, and email address; (b) the signature of the applicable rights holder for such User Content or a person authorized to act on behalf of the rights holder; (c) identification of the User Content for which the license is to be revoked, and please provide all necessary information reasonably sufficient to allow Bipath to locate and remove such User Content on the Site; (d) a written statement certifying that you have a good faith belief that you are the rights holder or authorized by the rights holder to revoke the license for the designated User Content; and (e) a statement that the information in the request to remove the user content is accurate, and under penalty of perjury, that you are the rights holder or are authorized to act on behalf of the rights holder with respect to such User Content that you desire to be removed from the site.
Only if you desire to do so voluntarily, you may offer feedback to Bipath about the functionality and performance of the Site, including, without limitation, identifying ways to modify the site, potential errors, making improvements, fixing bugs, or enhancements (“Feedback”). By providing Feedback, you hereby grant to Bipath a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right and license to use, sell, make sublicense, reproduce, perform, distribute, display, prepare derivative works from and otherwise exploit all such Feedback for any purpose without restriction. You agree that Bipath may disclose any or all Feedback to any third party in any manner, and you agree that Bipath may sublicense any or all Feedback in any form to any third party without restriction. By providing any Feedback, you agree that your provision of such Feedback is unsolicited, gratuitous and without restriction, and will not put Bipath under any confidentiality, fiduciary, or other any obligation, and that Bipath is free to use such Feedback without any additional compensation to you, and that we are free to disclose such Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by accepting any Feedback, we do not waive any rights to use similar or related ideas previously known to Bipath, or developed or created by its employees, or derived from sources other than you.
28. Confidential information
Bipath does not want to receive confidential or proprietary information from you through our website. Please note that any information or material sent to Bipath will be deemed NOT to be confidential. By sending Bipath any information or material, you grant Bipath an unrestricted, irrevocable license to copy, reproduce, publish, upload, post, transmit, distribute, publicly display, perform, modify, create derivative works from, and otherwise freely use, those materials or information. You also agree that Bipath is free to use any ideas, concepts, know-how, or techniques that you send us for any purpose. However, we will not release your name or otherwise publicize the fact that you submitted materials or other information to us unless: (a) we obtain your permission to use your name; or (b) we first notify you that the materials or other information you submit to a particular part of this site will be published or otherwise used with your name on it; or (c) we are required to do so by law. Personally-identifiable information that you submit to Bipath for the purpose of receiving products or services will be handled in accordance with our privacy policies.
29. Global availability
Information Bipath publishes on the Internet may contain references or cross references to Bipath’s products, programs and services that are not announced or available in your country. Such references do not imply that Bipath intends to announce or make available such products, programs, or services in your country.
31. Respecting Copyright
We honor the requirements set forth in the Digital Millennium Copyright Act. We therefore take reasonable steps to expeditiously remove from our Website or Services any infringing material that we become aware of. And if Bipath becomes aware that one of its users has repeatedly infringed copyrights, we will take reasonable steps within our power to terminate the user's account.
We make it easy for you to report suspected copyright infringement. If you believe that anything on the the website infringes a copyright that you own or control, please contact Us:
Attn: Michael Barnett
If you file a notice by mail with Us, it must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). That means the notice must:
32. Intellectual Property Rights:
32.1 Ownership: The brand names, slogans, trademarks, service marks, designs, and logos used on the Bipath Website or in conjunction with the Services, including without limitation Bipath (collectively, the “Marks”) are the trademarks of Bipath and its licensors.
Customer further agrees not to use any domain name, trademark, trade name, service mark, logo, or other materials confusingly similar to the Marks without the prior written consent of Bipath.
32.2 Site Content: All information and materials published, transmitted, or otherwise available on the Bipath Website or through the Services (including, but not limited to, terms of service, use policies, service documentation, user help, informational resources, images, equipment configurations, audio clips, and video clips, collectively, “Content”) are protected by copyright or trademarked (as applicable), and owned or controlled by Bipath, its licensors, or affiliated companies. Customer shall abide by all copyright and trademark notices, limitations, and restrictions applicable to any Content or to the Services. Without limiting the foregoing, no Content may be copied, reproduced, republished, reused, uploaded, downloaded, posted, or transmitted, other than through the Services in accordance with its intended use, nor may derivative works be created from it or distributed in any way.
32.3 Proprietary Technology: The software, hardware, and other technologies which Bipath uses to deliver the Services (the “Bipath Technologies”) contain confidential and proprietary information, trade secrets, and other property rights belonging to Bipath and its licensors, and all rights to the Bipath Technologies and all property rights related to the Services, including without limitation all patents (registered or unregistered), trade secrets (including diagrams, drawings, processes, production methods, information, data, computer software, and formulas), copyrights (whether registered or unregistered), domain names and sub domains, end-user and consumer information, work product resulting from custom implementation services, and contract rights, including all derivative works thereof (whether produced by Bipath, Customer, or otherwise), shall remain exclusively with Bipath and its applicable licensors.
Customer rights to the Bipath Technologies are limited to a non-exclusive and non-transferable runtime right solely during the term of the applicable Account subscription and solely for the purpose of using the Services. All Services are hosted by Bipath and no software code (other than APIs if Bipath agrees to provide the same in its sole discretion) will be provided to Customer.
32.4 Derivative Works: Customer may not modify, create derivative works or, redistribute, sell, decompile, reverse engineer, or disassemble the Bipath Technologies or otherwise attempt to deduce the source code, design, or data transmission characteristics of the Bipath Technologies. Customer may not use packet sniffers or other network or IP tracing technologies on the Services or with the Bipath technologies except for the specific purpose of optimizing your network for use of the Services in accordance with Bipath Service documentation.
33. Use of Customer Name and Logo:
Customer hereby grants Bipath a royalty-free, nonexclusive, limited license to use the name and logo of Customer on the Bipath website or in other public relations materials to include Customer as a customer of Bipath. Customer may terminate such authorized use upon 30 days written notice.
You acknowledge that you have no right to have access to the website or Services in source-code form.
34. DISCLAIMER OF WARRANTIES:
We try to keep the website and Services up and running and free of annoyances. But we make no promises that we will succeed.
THE WEBSITE AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND TO THE EXTENT PERMITTED BY APPLICABLE LAW WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, WHILE BIPATH ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE DO NOT REPRESENT OR WARRANT THAT: (A) THE WEBSITE AND SERVICES WILL ALWAYS BE SECURE, ERROR-FREE, OR TIMELY; (B) THE WEBSITE AND SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS; OR (C) THAT ANY BIPATH CONTENT, USER CONTENT, THIRD PARTY CONTENT, MATERIALS OR INFORMATION YOU OBTAIN ON OR THROUGH THE WEBSITE OR SERVICES WILL BE TIMELY OR ACCURATE.
BIPATH TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR ANY CONTENT OR MATERIALS OF ANY KIND THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR WEBSITE AND SERVICES. YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH BIPATH WILL BE RESPONSIBLE FOR.
BIPATH DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY, OR USEFULNESS WITH RESPECT TO BIPATH'S SERVICES, THE WEBSITE, OR INFORMATION CONTAINED ON THE WEBSITE OR SERVICES INCLUDING ANY THIRD PARTY SITES OR THIRD PARTY LINKS.
TO THE EXTENT PERMITTED BY LAW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, OR SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
35. EXCLUSION OF DAMAGES, LIMITATION OF LIABILITY:
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL BIPATH BE LIABLE TO ANY WEBSITE USER OR VISITOR OR CUSTOMER FOR USING OUR SERVICES OR WEBSITE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF BIPATH HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL BIPATH BE LIABLE TO CUSTOMER FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE THREE MONTHS PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
THE BIPATH SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. NEITHER BIPATH NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD BIPATH HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE BIPATH SERVICES TO CONTACT EMERGENCY SERVICES.
TO THE EXTENT PERMITTED BY LAW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, OR SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
Indemnification by a Website User or Visitor: To the fullest extent permitted by law, you agree to indemnify and hold Bipath and its owners, members, managers, officers, employees, and affiliates harmless from and against all claims, demands, suits, damages, losses, liabilities, and expenses, including reasonable attorney’s fees, arising out of or relating to (a) your breach of any of these Terms of Service or other terms of Service contained on this Website; (b) your negligence, misconduct, or other wrongful act or omission; (c) your use or misuse of this Website or any of the Third Party Information, links, materials, products, or services available on or through this Website including any content you posted on the site; (d) any action of any person with whom you shared your password, account, computer, or other device; (e) any information or material you submitted to or posted on the Website; or (f) any violation or infringement of any intellectual property, privacy, publicity, confidentiality, Fair Housing, or proprietary rights of any third-party, or any violation of any law or regulation, arising from your use of the Website.
Indemnification by a Customer: With respect to any violation of this Agreement by Customer, Customer agrees to indemnify and hold harmless Bipath, and its subsidiaries, owners, parents, affiliates, managers, shareholders, officers, directors, agents, resellers, sales affiliates, licensees or other partners, and employees, from all claims, demands, liabilities, losses, damages and expenses (including without limitation reasonable legal fees and expenses), arising from or in connection with the use of the Services, any other parties’ use of the Customer Account, or any conduct while using the Services, violation of this Agreement, or violation of any rights of another, including without limitation any violation of applicable law or any tort committed while using the Services. This includes Customer indemnifying and holding harmless Bipath for any Customer Data, Customer Content or any Customer trademarks or service marks, or any use thereof, infringing the intellectual property rights or other rights, or has caused harm to a third party, or violates a law.
37. Applicable Law: This Agreement shall be governed by and construed in accordance with the laws of Delaware, without regard to principles of conflict of laws and will govern these Terms of Service and any dispute of any sort that might arise between a website user, Customer and Bipath.
Disputes. ANY DISPUTE RELATING IN ANY WAY TO YOUR USE OF BIPATH’S WEBSITE OR SERVICES SHALL BE SUBMITTED TO CONFIDENTIAL BINDING ARBITRATION IN BOSTON, MASSACHUSETTS EXCEPT FOR INTELLECTUAL PROPERTY CLAIMS BROUGHT BY EITHER PARTY (WHICH FOR PURPOSES OF THIS SECTION DO NOT INCLUDE PRIVACY AND PUBLICITY CLAIMS) AND CLAIMS THAT MAY BE BROUGHT IN SMALL-CLAIMS COURT.
CONFIDENTIAL ARBITRATION UNDER THIS AGREEMENT PERTAINING TO WEBSITE USERS SHALL BE RESOLVED EXCLUSIVELY UNDER THE CONSUMER ARBITRATION RULES THEN PREVAILING OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA'S CONSUMER RULES"), EXCLUDING ANY RULES AND PROCEDURES GOVERNING OR PERMITTING CLASS OR REPRESENTATIVE ACTIONS. THE RULES ARE AVAILABLE AT THE AMERICAN ARBITRATION ASSOCIATION'S WEBSITE.
CONFIDENTIAL ARBITRATION UNDER THIS AGREEMENT PERTAINING TO CUSTOMERS SHALL BE RESOLVED EXCLUSIVELY UNDER THE COMMERCIAL ARBITRATION RULES THEN PREVAILING OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA'S COMMERCIAL RULES"), EXCLUDING ANY RULES AND PROCEDURES GOVERNING OR PERMITTING CLASS OR REPRESENTATIVE ACTIONS. THE RULES ARE AVAILABLE AT THE AMERICAN ARBITRATION ASSOCIATION'S WEBSITE.
YOU AND BIPATH AGREE TO EXPRESSLY WAIVE ANY RIGHTS TO FILE CLASS OR REPRESENTATIVE ACTIONS OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS IN ANY JURISDICTION OR FORUM.
THE ARBITRATOR SHALL APPLY DELAWARE LAW, AND THE ARBITRATOR'S AWARD SHALL BE BINDING AND FINAL AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. THERE SHALL BE NO APPEAL FROM ANY AWARD OF THE ARBITRATOR. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION UNDER THIS AGREEMENT SHALL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY SUBJECT TO THIS AGREEMENT, WHETHER THROUGH CLASS ARBITRATION PROCEEDINGS OR OTHERWISE. IF ANY PART OF THIS ARBITRATION PROVISION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL, THE REST OF THIS PROVISION SHALL REMAIN IN EFFECT.
IF THE ENTIRE ARBITRATION PROVISION IS FOUND TO BE INVALID OR UNENFORCEABLE, THEN THE PARTIES CONSENT TO PERSONAL JURISDICTION AND EXCLUSIVE VENUE IN THE STATE COURT LOCATED IN BOSTON, MASSACHUSETTS.
38. Data Protection
38.1 Defined Terms: In this section 36, the terms “Controller”, “Data Subject”, “Personal Data Breach”, “Process” and “Processor” have the meanings given to them by the Data Protection Laws.
38.2 Application of Data Protection Laws: Where the Data Protection Laws apply to the delivery of the Services under these Terms, the parties agree that Bipath shall act as a Processor, and that Customer shall either be (i) a Controller; or (ii) another Processor, subject to a separate agreement with the Controller of the Customer Personal Data.
38.3 Obligations of Bipath: Bipath shall:
38.3.1 Process Customer Personal Data, as described in Annex 1 to these Terms, solely on the documented instructions of Customer, for the purposes of providing the Services and as otherwise necessary to perform its obligations under these Terms including with regard to transfers of Customer Personal Data to a third country outside the European Union or an international organization (unless required by Union or Member State law to which Bipath is subject, in which case Bipath shall inform Customer of that legal requirement before such Processing, unless that law prohibits such information on important grounds of public interest);
38.3.2 Ensure that persons authorized to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
38.3.3 Implement technical and organizational measures designed to ensure an appropriate level of security for Customer Personal Data, in accordance with Article 32 of the GDPR;
38.3.4 Be generally authorized to engage another Processor to Process the Customer Personal Data (“Sub-Processor“), subject to Bipath:
126.96.36.199 Notifying Customer of any intended changes to its use of Sub-Processors by posting notice of the intended change on Bipath'ss Sub-Processor Page.
188.8.131.52 Including terms in its contract with each Sub-Processor which are no less protective than those set out in these Terms; and
184.108.40.206 Remaining liable to the Customer for any failure by each Sub-Processor to fulfil its obligations in relation to the Processing of the Customer Personal Data.
In relation to any notice received under section 220.127.116.11, the Customer shall have a period of 30 (thirty) days from the date of the notice to register any reasonable objection to the use of that Sub-Processor on the grounds of data protection. The parties will then, for a period of no more than 30 (thirty) days from the date of the Customer’s objection, work together in good faith to attempt to find a commercially reasonable solution for the Customer which avoids the use of the objected-to Sub-Processor. Where no such solution can be found, either party may (notwithstanding anything to the contrary in these Terms) terminate the relevant Services immediately on written notice to the other party;
38.3.5 Notify Customer without undue delay of any communication from a Data Subject regarding the Processing of Customer Personal Data, or any other communication (including from a supervisory authority) relating to any obligation under the Data Protection Laws in respect of the Customer Personal Data and, taking into account the nature of the Processing, assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to requests for exercising the data subject’s rights. In respect of such assistance, Customer agrees to pay Bipath for time exceeding one person hour] and for out of pocket expenses incurred by Bipath in connection with the performance of its obligations under this section 36.3.5;
38.3.6 Notify Customer without undue delay upon becoming aware of any Personal Data Breach involving Customer Personal Data, and provide Customer with such information as is reasonably required by Customer to assist with its obligations to notify the Personal Data Breach under the Data Protection Laws, to the extent that this information is available to Bipath (and acknowledging that Bipath shall be entitled to provide this information in phases, as its investigation develops). Where it can be reasonably demonstrated that Customer (or any third party connected to Customer) was responsible for the Personal Data Breach (evidence of which shall include, but not be limited to, any related enforcement action taken against Customer or any connected third party by any supervisory authority), Customer shall reimburse Bipath's reasonable expenses in relation to its investigation and remediation of the Personal Data Breach;
38.3.7 Provide reasonable assistance to Customer, upon request, in relation to any data protection impact assessments, or related consultations with supervisory authorities, which Customer is required to undertake pursuant to Articles 35 to 36 of the GDPR;
38.3.8 To the extent that Customer is not able to self-serve its control or deletion of Customer Personal Data, provide reasonable assistance therewith to uphold the Customer’s right to have the Customer Personal Data returned or deleted following termination or expiry of these Terms;
38.3.9 Make available to Customer on request all information necessary to demonstrate compliance with this section 36, and provide, on request, and, subject to clause 36.3.10, in full satisfaction of Customer’s right of audit and inspection (which Customer hereby expressly acknowledges), an independent audit report of Bipath's security measures in respect of its processing of Customer Personal Data; and
38.3.10 Notwithstanding section 36.3.10, permit Customer, following a Personal Data Breach, and on at least 5 days’ prior notice, to inspect and audit the facilities used by Bipath for the processing of Customer Personal Data, subject to Customer bearing Bipath's reasonable costs.
38.3.11 International Transfers: Customer expressly acknowledges that Bipath's processing facilities are located in the United States of America. To ensure compliance under the Data Protection Laws, Customer (as “data exporter”) and Bipath (as “data importer”), with effect from the commencement of the relevant transfer, hereby enter into the Standard Contractual Clauses in respect of any transfer from Customer to Bipath (or onward transfer) where such transfer would otherwise be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address Data Protection Laws). Appendix 1 to the Standard Contractual Clauses shall be deemed to be pre-populated with the relevant sections of Annex 1 to these Terms and the processing operations are deemed to be those described in these Terms. Appendix 2 to the Standard Contractual Clauses shall be deemed to be prepopulated with the following “Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood for the rights and freedoms of natural persons, Bipath shall implement appropriate technical and organizational measures as set forth in these Terms.
38.3.11 Obligations of Customer: Customer acknowledges and confirms that: (i) all Customer Personal Data shall comply with and have been collected or otherwise obtained in compliance with Data Protection Laws, including by ensuring that there is a lawful basis for each Processing activity which Customer instructs Bipath to perform in relation to Customer Personal Data; (ii) Customer will take appropriate measures to ensure that the information referred to in Data Protection Laws, including Articles 13 and 14 of the GDPR, is made available to relevant Data Subjects in relation to the Processing by Bipath, for the purposes of which Customer may choose to reference the Application Privacy Notice made available by Bipath; and (iii) all instructions given by Customer to Bipath in respect of Customer Personal Data shall be in accordance with Data Protection Laws.
38.3.12 Where the CCPA applies, if Bipath receives any Personal Information (as such term is defined by the CCPA) from or on behalf of Customer, then:
38.3.13 Bipath will only process such Personal Information for the purpose of Bipath providing the Services;
36.3.14 Bipath will not retain, use, or disclose such Personal Information: (i) for any purpose other than to perform the Services or (ii) outside of the direct business relationship between Customer and Bipath;
38.3.15 Bipath will not sell, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate such Personal Information to any third party for monetary or other valuable consideration; and
38.3.16 Bipath certifies that it understands the restrictions on Bipath's processing such Personal Information as set forth in this section. Bipath may disclose Personal Information to Bipath's service providers in connection with such service providers providing services to Bipath; and Bipath may permit such service providers to process Personal Information as necessary for Bipath to provide the Services to Customer.
38.3.17 Use of Aggregated Data: Customer acknowledges that Bipath collects and uses data from across its customer base in order to improve its products and services for its customers, and to carry out related research. Bipath takes steps to aggregate or otherwise de-identify any Customer data used for these purposes, and therefore does not knowingly process any personal data. However, to the extent that any such data is held to be personal data (or the equivalent term) in a particular jurisdiction, Bipath shall be the Controller (or the equivalent term) for the purposes of the applicable laws.
39.1 Amendment: Bipath may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. Bipath will notify Customer of any such amendments and Customer’s continued use of the Bipath Services following the effective date of any such amendment may be relied upon by Bipath as Customer’s consent to any such amendment. Bipath's failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of the Agreement.
39.2 Enforceability: If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severed from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
39.3 Modification: Except when expressly provided by another written agreement with Bipath, this is the entire Agreement between the parties relating to the subject matter herein and shall not be modified except in writing signed by an authorized representative of Bipath. Customer agrees that Bipath may, in its sole discretion, from time to time add to, delete from, or modify this Agreement in any reasonable manner by providing notice as permitted above.
39.4 Force Majeure: Bipath shall not be deemed in breach of this Agreement, nor for any breach of any implied warranty or other obligation, for any failure in performance arising in connection with circumstances beyond its reasonable control, including, without limitation, fire, flood, storm, strike, lockout or other labor trouble, riot, war, rebellion, accident, or other acts of God.
39.5 Transferability: The right to use the Service and access the Account is not transferable, sublicenseable, and may not be sold, rented, or timeshared, unless expressly permitted in another agreement with Bipath. Bipath may assign this Agreement, in whole or in part, at any time with or without notice.
39.6 No Waiver: The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
39.7 Relationship: Each party is an independent contractor in the performance of each and every part of this Agreement. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of its activities, or those of its employees or agents, in the performance of this Agreement. Customer does not have the authority to commit Bipath in any way and will not attempt to do so or imply that it has the right to do so.
30 Newbury Street
Boston, MA 02116
ANNEX 1: DESCRIPTION OF PROCESSING OF CUSTOMER PERSONAL DATA
This Annex includes certain details of the Processing of the Customer Personal Data as required by Article 28(3) of the GDPR.
Subject matter and duration of the Processing of the Customer Personal Data: The subject matter and duration of the Processing of the Personal Data are set out in the Terms.
The nature and purpose of the Processing of the Customer Personal Data: Bipath is engaged to provide the Services to Customer which involve the Processing of Customer Personal Data.
The scope of the Services are set out in the Terms, and the Customer Personal Data will be Processed by Bipath to deliver those Services and to comply with the Terms.
The types of the Customer Personal Data to be Processed: Any personal data introduced by Customer, or Customer’s end users, onto the Bipath's platform, including (by way of example) names, telephone numbers, contents of telephone conversations.
The categories of Data Subject to whom the Personal Data relates: Customer’s employees or end users, or the customers or employees of Customer’s end users.
The obligations and rights of Customer: The obligations and rights of Customer are set out in these Terms.