How we bill for our application and usage
- Fastcall offers Essential, Pro, and Custom plans to fit your needs. Free trials are available.
- A 15% discount is available for annual agreements and non-profits. Visit www.fastcall.com/pricing for details.
- Fastcall plans start at 10 users.
- We will email you to ask about your requirements and subscription needs. If we are unsure about your needs the 7-day free trial will end.
- If you do not require a 7-day free trial and wish to begin using Fastcall without trial limitations please email Fastcall support (email@example.com) to begin your paid subscription.
- Fastcall creates a Twilio subaccount in your company’s name.
- Fastcall will bill for usage in the Twilio subaccount. You are solely responsible for usage in the subaccount.
- Fastcall may require a deposit for usage in the Twilio subaccount.
- Twilio is required to use the Fastcall application and your agreement to the Twilio Terms of Service is required to use the Fastcall application in Salesforce.
- Fastcall bills in advance of each usage period. If the application subscription is ended within a billing period, we do not provide a prorated refund.
- The Fastcall subscription will be managed in Salesforce. You will be able to add or remove users, edit the credit card and end a subscription. There is no notice requirement to manage your subscription using the self service tools.
- In the event that you email Fastcall support to end your subscription we require 30-day notice. This notice is not required when using the self-service options.
- An application license is required for each user of the Fastcall application.
- Salesforce controls access to custom objects and custom fields.
- When the application subscription is ended you are expected to uninstall the application from your Salesforce org within 30 days. If the Fastcall application is not uninstalled within 30 days, we reserve the right to charge a maintenance fee for each month the application remains installed.
- Fastcall may offer a discount on the application subscription for annual agreements, non-profits or other limited promotions. These discounts do not apply to the Twilio subaccount created for you.
How we support you and your team
- We try to keep the cost of the application low and make our application available to companies of all sizes. Our low monthly fees do not include application setup. We will help with support. Your Salesforce admins are expected to set-up the application and provide end-user support.
- Fastcall is a Salesforce-native application and is easy to set-up for a Salesforce Admin with basic skills. Typically set-up takes between 30 minutes and 2 hours.
- Fastcall has detailed online documentation with screenshots and/or videos. We are happy to help guide you – the installing admin – through the set-up of the application.
- We assume you have resources available to administer both Salesforce the installed Fastcall application, we are available to setup the application for you for a fee.
- Fastcall can make priority support available for an additional fee. Our standard support response time is under 24 hours. This is our included Service Level Agreement (SLA) to you.
- There is a free trial in production or a demo account in a sandbox or developer org.
- Twilio will be connected when Fastcall is installed in your production (paid) Salesforce org. Fastcall gives a 7-day free trial in production and US $5.00 of Twilio credit.
- Fastcall can end the free trial and remove the limit on the Twilio account.
- Fastcall will provide limited basic support in your Salesforce sandbox with no charge. Additional support is available when testing in a sandbox for a fee.
- Once Fastcall is set up in your production Salesforce org, we will support one sandbox installation. We do not provide unlimited support in your salesfox sbox.
- Fastcall will support your administrators who in turn will support your end users. We limit our end user support. We will respond to submitted cases within 24 hours.
- We will never make changes to your Salesforce org without the approval of your admins.
- When we do interact with your end-users, we will CC your admins and require that the admin remains the point of contact for the support issue.
- Fastcall will support our application settings and will work diligently to indentify and fix software issues (bugs). We are receptive to our user’s needs and will try to improve the application to satisfy our subscribers.
- Fastcall does not support your users hardware, computers, routers, internet connections, browsers, operating systems or other equipment or other installed software.
- We will try to identify any issues and be a resource to you, but tier one support is the responsibility of your admin or IT resources.
- If Fastcall does identify an issue outside of our scope of support we may bill for the support time.
- Fastcall will act as a liaison if a case is opened with Twilio to help troubleshot a call quality issue.
- Fastcall will make best efforts to support your installing admin. We do expect your admin to have basic Salesforce skills and a willingness to learn a new application. Your admin should read the support documentation.
- When submitting cases to Fastcall support we ask that you are detailed in explaining the situation. Please outline the steps taken so far. Fastcall will support your admin, but we are not your Salesforce admin. Your admin should review the end user’s problem and outline the steps taken toward resolution.
- We know that many Salesforce subscribers do not have internal support teams and will look to other Salesforce partners – system integrators or SIs – for help. Salesforce has partners worldwide. Which is awesome. But not all Salesforce partners have the same level of skill or dedication. You’ve paid for this resource to help you. If they turn around and ask us to do the work, we will try to help. We expect the resource you’ve hired to do the job you’ve paid for. We will not provide unlimited support to third party resources. We will also not respond to cases submitted by third party resources unless authorized by you first.
Fastcall Terms of Service
Current as of August 1, 2021
Fastcall provides its Services subject to the terms and conditions in this Terms of Service (“Terms” or “Agreement”). When we refer to our “Services” in these Terms, our services, which includes all of our programs, features, functions and report formats, instructions, online help files and technical documentation, our website, technical support, as well as any upgrades or updates to any of these, made generally available by us, and includes APIs or software provided to you in connection with your use of our services.
To be eligible to register for a Fastcall account and use Fastcall’s Services, you must review and accept the terms of this Agreement by clicking on the “I Accept” button or other mechanism provided. PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND FASTCALL. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” BUTTON AND YOU SHOULD NOT USE FASTCALL’S SERVICES.
In this Agreement, “we,” “us,” “our” or “Fastcall” will refer to Fastcall411 Inc., 8033 Sunset Blvd, # 927, Los Angeles, CA 90046. And, the terms “you,” “your” and “Customer” will refer to you. If you are registering for a Fastcall account or using Fastcall’s services on behalf of an organization, you are agreeing to these terms for that organization and promising Fastcall that you have the authority to bind that organization to these Terms (and, in which case, the terms “you” and “your” or “customer” will refer to that organization).
IMPORTANT NOTE: FASTCALL DOESN’T PROVIDE WARRANTIES FOR ITS SERVICES, AND THESE TERMS LIMIT OUR LIABILITY TO YOU.
IN ADDITION, DISPUTES ABOUT THESE TERMS OR RELATING TO YOUR FASTCALL ACCOUNT OR FASTCALL’S SERVICES GENERALLY MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.
1. Changes to These Terms
We may revise these Terms from time to time. If we do, those revised Terms will supersede prior versions. Unless we say otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. We will make commercially reasonable efforts to provide you advance notice of any material revisions. This notice will be provided via the Fastcall application and/or via an email to the email address we have on file. For other revisions, we will update the effective date of these Terms at the top of the page. We encourage you to check the effective date of these Terms whenever you visit Fastcall’s website or application. Your continued access or use of our Services constitutes your acceptance of any revisions. If you don’t agree to the revisions, you should stop using Fastcall’s Services and we are not obligated to provide you with the Services.
2. Changes to Our Services
The features and functions of our Services and Fastcall’s service level agreement (SLA), may change over time. It is your responsibility to ensure that any changes, updates or edits you make in Salesforce are compatible with our then-current Services. Although we try to avoid making changes to our Services that are not backward compatible, if any such changes become necessary, we will use reasonable efforts to let you know prior to implementing those changes.
3. Your Account(s)
To use our Services, you will install the Fastcall application in your Salesforce account. As part of the account creation process, information including your email address on file with Salesforce will be shared with Fastcall. You are not creating an account with Fastcall outside Salesforce; you will not have a password with Fastcall outside Salesforce. Until you install our application in Salesforce, Fastcall Services will be limited to what is available to the general public. After installing Fastcall in Salesforce an account record will be created in the Fastcall Salesforce account. You must provide true, accurate, current, and complete information about yourself during the installation process. You must also keep that information true, accurate, current, and complete after your initial installation. You may also install multiple instances of Fastcall in Salesforce sandboxes or development accounts.
“Fastcall” means the application provided by us according to these Terms, and for all purposes of these Terms, such application excludes all Third-Party Offerings. Fastcall may make changes to our Services at any time. “Subscription Term” means the subscription period for Customer’s use of Fastcall (i) as stated in an Order Form, (ii) from Acceptance until any applicable trial period is terminated or Customer enters into a paid subscription per an Order Form, or (iii) from Customer’s Acceptance until the expiration, cancellation, revocation, termination, or another conclusion of the test environment Customer utilizes to download Fastcall. Fastcall, any services related to or performed in connection with the use of Fastcall (including without limitation the transmission of information from Fastcall to Salesforce or Salesforce to Fastcall) and Support Services together are the “Fastcall Services”. “Professional Services” means the consulting services delivered by Fastcall employees or representatives with regards to Fastcall and the use of Fastcall within the Customer’s organization.
Subject to the terms and conditions contained in these Terms, Customer may purchase Fastcall subscriptions for Customer’s employees, consultants, contractors, agents, and third parties who are authorized by Customer to access and use Fastcall during the Subscription Term, and if applicable, pursuant to Order Forms (“Users”). “Order Form” means the web interface used to subscribe to Fastcall Services or other ordering documents for Fastcall Services to be purchased by Customer that are executed under these Terms by the parties.
Subject to these Terms and Customer’s compliance with these Terms, Fastcall hereby grants to Customer, during the relevant Subscription Term, a limited, non-exclusive, non-transferable license to install Fastcall via the Salesforce.com website where applications that interoperate with Salesforce.com, Inc. (“Salesforce”) services are located (i.e., the Salesforce “AppExchange”) solely for Customer’s (i) internal commercial purposes, if the Subscription Term is a paid subscription per an Order Form, or (ii) internal non-commercial purposes, if Customer is accessing Fastcall for a trial period or in a test environment, and not for the benefit of any other person or entity. Customer’s use of Fastcall may be subject to certain limitations arising from or connected to the Third Party Offerings, third party services, or otherwise.
You are solely responsible for all use (whether or not authorized) of our Services under your account(s), including for the quality and integrity of your Customer Data. You are also solely responsible for all use and for all acts and omissions of anyone that has access to your Salesforce application (“End Users“). You agree to take all reasonable precautions to prevent unauthorized access to or use of our Services and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use of your account.
For the purchase of any phone number for which Fastcall or its 3rd Party telecommunications carriers is required to have an address for you on record, it is your obligation to provide us with an accurate and current address to associate with that number. You are responsible for updating that address within fifteen (15) days of a change of address.
4. Access and Use of Our Services
THIRD-PARTY SERVICES AND OFFERINGS.
As a condition to using Fastcall and receiving the Fastcall Services, Customer must (i) enter into an agreement for the use of the applicable services offered by Salesforce; (ii) download all necessary applications or software for such use; (iii) remain in good standing with Salesforce; and (iv) maintain a current agreement and subscription for any Salesforce services required to use Fastcall. Any acquisition by Customer of Salesforce services, and any exchange of data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or any User and received and analyzed by Salesforce, as hosted by Customer or Salesforce (“Customer Salesforce Data”), is solely between Customer and Salesforce, provided that certain User Data (defined below) will be provided by Customer to Fastcall as provided in these Terms and certain Customer Salesforce Data will be processed by Fastcall, as hosted by Customer or Salesforce, to provide the Fastcall Services as provided in these Terms.
Integration with Third-Party Offerings.
Fastcall contains features designed to interoperate with certain software or services delivered or performed by third parties, which may include but are not limited to Salesforce and Twilio and that these services are required for the operation of Fastcall (“Third Party Offerings”). To use such features, Customer may be required to obtain access to such Third-Party Offerings from their providers. If the provider of any Third Party Offering stops making the Third Party Offering available for interoperation with Fastcall features on reasonable terms, Fastcall may stop providing such features. Fastcall will use its best efforts to provide Customer with advance notice of such changes. Fastcall does not warrant or support Salesforce or any Third Party Offerings, except as stated in these Terms.
Access to Salesforce. To the extent that Fastcall requires that Customer grant Fastcall authorizations to access Salesforce (“Access”) to enable interoperability with Fastcall or provide the Fastcall Services, Customer shall promptly provide such Access. Fastcall shall not disclose any Access except to employees or contractors engaged in the performance of such services. Access shall constitute Customer’s Confidential Information. Fastcall agrees to access and use Customer’s Salesforce account solely for Customer’s benefit. Fastcall will not ask for user names or passwords.
Compliance with Third Party Terms. Customer represents that Customer is in compliance with and agrees to be bound by all agreements, terms, conditions, and policies (including without limitation privacy policies) of Salesforce, Twilio, or other Third Party Offerings or services that are applicable to Customer’s use of Fastcall.
SUPPORT SERVICES; UPGRADES; PROFESSIONAL SERVICES.
Fastcall may from time to time provide limited support and maintenance services to Customer (“Support Services”). Customer agrees that Fastcall may rely and act on all information and instructions provided to Fastcall by Users unless otherwise specified in writing by Fastcall.
Fastcall has the right to push the most recent updated version of Fastcall to Customers with or without Customer consent. The successful implementation of the Subscription Software into the Customer’s environment requires Customer’s commitment to and cooperation in the implementation process. Fastcall may offer to provide Professional Services to Customer, as described in an Order Form and Statement of Work (“SOW”). Customer shall provide the necessary system access and Customer personnel to allow for the timely and successful completion of the agreed-upon Professional Services. Customer agrees to abide by all requirements, as described below pertaining to said Professional Services.
As provided for in the SOW and concurrent with payments as outlined in any accompanying proposal, Fastcall shall make available to the Customer qualified representative(s) who will provide installation and training support services for each application of the Licensed Software delivered. See the SOW for a description of the services provided and the applicable fees and procedures.
(b)Customer agrees to provide the management interface and support necessary to successfully complete the implementation of the Licensed Software. This support includes upper-level management’s priority and timely involvement during and after the Professional Services delivered by Fastcall within the Customer’s environment, in subsequent Customer operations relating to the software implementation and/or after changes in Customer’s internal policies or procedures which directly affect the implementation of the Subscription Software.
(c)Customer shall assign an upper-level employee to serve as the Customer Liaison for the duration of the Licensed Software implementation. If Customer must replace the Customer Liaison for reasons beyond its control, Customer will assign a new Customer Liaison as soon as reasonably possible. Fastcall is not responsible for any delay caused directly or indirectly by the reassignment of the Customer Liaison. In addition to other duties and responsibilities, the Customer Liaison shall:
(i)Provide timely answers to Fastcall’’s requests for information;
(ii)Coordinate a mutually agreeable implementation and training schedule;
(iii)Provide contact information and access to leadership, management, operations, and Salesforce administrators;
(iv)In situations where Customer participation is required and with executive support, schedule time, meeting room(s), and training sessions for managers;
(v)Grant Fastcall temporary login access to the Customer’s Salesforce org (if necessary);
(vi)Have authority to sign for and obligate Customer to any matters relating to service requests, requirements documents and/or delivery and service dates
(d)Customer shall provide qualified personnel with sufficient backup to be trained to use the Subscription Software and to interpret the output. Applying the output information in Customer’s environment is Customer’s sole responsibility.
We will make our Services available to you in accordance with our SLA, which may be updated from time to time.
You may use our Services, on a non-exclusive basis, solely in strict compliance with these Terms and the Fastcall’s Acceptable Use Policy (“AUP“), which may be updated from time to time, and applicable law, including:
- Using our Services as needed in an interface with your Salesforce subscription (“Your Salesforce“),
- Making our Services available to End Users of Your Salesforce subscription, and
- Otherwise using our Services solely in connection with and as necessary for your activities under these Terms.
5. Our Use and Storage of Customer Data
Except as agreed by Fastcall and you in writing, Fastcall may periodically delete your Customer Data. Further, 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.
- Except as provided herein (Access and Use of Our Services), you agree not to transfer, resell, lease, license or otherwise make available our Services to third parties or offer them on a standalone basis.
- You will ensure that our Services are used in accordance with all applicable Law and third party rights, as well as these Terms and the Fastcall AUP, as amended from time to time.
- You will ensure that we are entitled to use your Customer Data, including content of communications stored on our systems, as needed to provide our Services and will not use our Services in any manner that violates any applicable law.
- Except as allowed by applicable law, you will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with our Services.
- We reserve the right to reclaim any phone number from your account and return that number to the relevant numbering plan if you do not send sufficient traffic over that phone number such that the phone number is unutilized or underutilized, as defined by any local, federal, and/or national regulatory agency and/or governmental organization with oversight over the relevant phone number and numbering plan. If we seek to reclaim a phone number from your account, excluding suspended and trial accounts, we will send you an email telling you that we are reclaiming the phone number, unless we’re otherwise prevented from doing so by the applicable regulatory agency or governmental organization. We also reserve the right to reclaim phone numbers from accounts suspended for failure to pay and/or suspended for suspected fraud, and to reclaim phone numbers in free trial accounts.
- You acknowledge that Fastcall or its Third Party telecommunications provider is the “customer of record” for all phone numbers provided as part of our Services. As the customer of record, Fastcall or its Third Party telecommunications provider 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 and until the end of the Terms Period. 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 upgraded 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.
7. Export Controls
Our Services, including any software we may provide in connection with those Services, may be subject to applicable U.S. export control laws and economic sanctions regulations. In receiving this software or our Services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to this software and our Services, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or our other aspects of our Services. These laws include restrictions on destinations, End Users, and end-use. Without limitation, you may not transfer any such software or another aspect of our Service without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of our software and Services if you become placed on any such list or under the control of or an agent for any entity placed on such a list.
Affiliates are any entity or person that controls you, is controlled by you, or under common control with you, such as a subsidiary, parent company, or employee. (Similarly, if we refer to our affiliates, we mean an entity or person that controls us, is controlled by us or is under common control with us.) If applicable to you, your affiliates may order Services directly from us under these Terms, provided that all of your affiliate’s activities are subject to these Terms. You will be responsible for the acts and omissions of your affiliates in connection with each affiliate’s use of our Services.
9.1 Fastcall may make available through the Fastcall Services additional features, functionality, and services offered by its third-party partners (“Add-ons“). Your use of Add-ons is subject to these Terms and to the applicable fees. You acknowledge for each Add-on you purchase through the Fastcall Services, these Terms constitute a binding agreement between you and the third party licensor of that Add-on (“the Add-on Partner“) only. The Add-on Partner of each Add-on is solely responsible for that Add-on, the content therein, and any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge that you are purchasing the license to each Add-on from the Add-on Partner of that Add-on; Fastcall is acting as agent for the Add-on Partner in providing each such Add-on to you; Fastcall is not a party to the license between you and the Add-on Partner with respect to that Add-on; and Fastcall is not responsible for that Add-on, the content therein, or any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge and agree that Fastcall, and Fastcall’s subsidiaries, are third-party beneficiaries of the agreement between you and the Add-on Partner for each Add-on and that Fastcall will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third-party beneficiary thereof.
9.2 By purchasing an Add-on, you grant Fastcall permission to share your Application, Content, and user information with the Add-on Partner as necessary in order to provide you the Add-on.
9.3 The license granted to you to use any Add-on is personal to you and is not sublicensable to your End Users. You may not provide or resell Add-ons to others.
10. Fees, Payment Terms, Taxes
10.1 Fees. You agree to pay the usage fees set forth in your “Rate Schedule” (which is either our standard schedule of fees, as may be updated from time to time, and/or any other order forms for our Services ordered by you and accepted in writing by us). In addition, you agree to pay any applicable support fees in connection with your order of any support services pursuant to our Support Terms.
10.2 Taxes. Unless otherwise stated in your Rate Schedule, you are responsible for and shall pay all applicable taxes. This includes all federal, state, and local taxes, fees, charges, carrier surcharges or other similar exactions, imposed on or with respect to our Services whether these taxes are imposed directly on you or on Fastcall and include, but are not limited to, sales and use taxes, utility user’s fees, excise taxes, VAT, any other business and occupations taxes, 911 taxes, franchise fees, and universal service fund fees or taxes. For purposes of this section, taxes do not include any taxes that are imposed on or measured by the net income, property tax or payroll taxes of Fastcall.
All fees due under these Terms are payable in United States dollars. Payment obligations can’t be canceled and fees paid are non-refundable. If you are overdue on any payment and fail to pay within ten (5) business days of a written notice of your overdue payment, then we may assess and you must pay a late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by law, whichever is less. We may also suspend our Services to your account until you pay the amount you are overdue plus the late fee.
10.4 Fee Disputes. You must notify us in writing if you dispute any portion of any fees paid or payable by you under this Agreement. You must provide that written notice to us within sixty (60) days of the applicable charge and we will work together with you to resolve the applicable dispute promptly. If you do not provide us with this written notice of your fee dispute within this 60 day period, you will not be entitled to dispute any fees paid or payable by you.
10.5 Suspension. If your use of our Services exceeds the amounts prepaid by you or of if you fail to pay any amounts due by you, we may suspend our Services associated with your account without prior notice to you. We will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any suspension of our services pursuant to this section.
11. Ownership and Confidentiality
1.1 General. As between you and Fastcall, we exclusively own and reserve all right, title and interest in and to our Services. As between you and Fastcall, you exclusively own and reserve all right, title and interest in Your Applications and the content of any communications sent through integration with our Services.
11.2 Suggestions and Contributions. We welcome your feedback on our Services. But please know that by submitting suggestions or other feedback about our Services (“Contributions“) you agree that:
- we are not under any obligation of confidentiality with respect to your Contributions;
- we may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way;
- you irrevocably, non-exclusively license to us rights to exploit your Contributions; and
- you are not entitled to any compensation or reimbursement of any kind from us under any circumstances for your Contributions.
11.3 Use of Marks. Subject to these Terms, we both grant each other the right to use and display each other’s name and logo (the Licensor Marks) on our respective websites and in other promotional materials solely in connection with each of our respective activities under these Terms. All of this use of the Licensor Marks will be in accordance with the each other’s applicable usage guidelines and will inure to the benefit of Licensor. The one of us using the other’s Licensor Marks under this subsection will not use, register or take other action with respect to any of the Licensor Marks, except to the extent allowed in advance in writing by the one of us whose Licensor Marks are being used. In using the Licensor Marks under this subsection, the one of us using the other’s Licensor Marks will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. The one of us using the other’s Licensor Marks will not, at any time, misrepresent the relationship between us. The one using the other’s Licensor Marks will not present itself as an affiliate or other legal agent of the one of us whose Licensor Marks are being used. The rights to use and display each other’s Licensor Marks under this subjection will end automatically in the event these Terms terminate.
11.4 Confidentiality. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. “Confidential Information” does not include any information which: (i) is publicly available through no fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of disclosing party’s rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information
Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.
11.5 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section 11 and that, in the event of an actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section.
12. Warranties and Disclaimers
12.1 NO WARRANTY. WITHOUT LIMITING FASTCALL’S EXPRESS WARRANTIES AND OBLIGATIONS UNDER THESE TERMS, FASTCALL HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 12 AND Fastcall’S SLA (AND SUPPORT TERMS), Fastcall’S SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
12.2 BETA SERVICES. FROM TIME TO TIME, YOU MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH FASTCALL WHERE YOU GET TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES AND DOCUMENTATION (“BETA SERVICES”) OFFERED BY US. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, WE ARE PROVIDING THE BETA SERVICES TO YOU “AS IS.” WE MAKE NO WARRANTIES OF ANY KIND WITH RESPECT TO THE BETA SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NOTWITHSTANDING ANY PUBLISHED DOCUMENTATION THAT STATES OTHERWISE, Fastcall DOES NOT WARRANT THAT THE BETA SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
You will defend, indemnify and hold Fastcall and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, third-party discovery demand, governmental investigation or enforcement action arising out of or relating to your activities under these Terms or your acts or omissions in connection with the provision of Your Application, including, without limitation, any intellectual property claims relating to the Your Application and any violation by you or your End Users of the terms of Section 6 (Restrictions) (“Claim”). We and our affiliates will cooperate as fully as reasonably required in the defense of any Claim, at your expense. We reserve the right, at your expense, to retain separate counsel for ourselves in connection with any Claim or, if you have not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which you are a named party and that is otherwise subject to indemnification under this Section 13 (Indemnification). You will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against us in connection with any Claim. You will also be liable to us for any costs and attorneys’ fees we incur to successfully establish or enforce our right to indemnification under this Section.
14. Exclusion of Damages; Limitations of Liability
EXCEPT FOR LIABILITY ARISING FROM VIOLATIONS OF SECTIONS 6 (RESTRICTIONS), 11 (OWNERSHIP) OR 13 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL FASTCALL BE LIABLE TO YOU FOR ANY 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 WE HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS DESCRIBED IN THIS SECTION 14, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL Fastcall BE LIABLE TO YOU FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF THIS SECTION 14 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.
FASTCALL’S SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS OR SMS MESSAGES TO ANY EMERGENCY SERVICES. NEITHER FASTCALL NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD FASTCALL HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE OUR SERVICES TO CONTACT EMERGENCY SERVICES.
15. Termination of These Terms
15.1 Terms Period. The period of these Terms will commence on the date these Terms are accepted by you during the Application installation, and continue monthly. This is called the Initial Period. These Terms will automatically renew for additional one-month periods (each, a “Renewal Period”), unless either you or Fastcall provides notice of non-renewal at least thirty (30) days prior to the end of the Initial Period or a Renewal Period. The Initial Period and all Renewal Periods will be referred to in this agreement as the “Terms Period”. The Application subscription can also be terminated or amended in Salesforce without a required notice period. Fastcall may offer an optional one year renewal term (“One Year Term.”)
15.2 Termination and Suspension of Services. Either party may terminate your account for any reason upon 30 days written notice to the other party. Either party may also terminate or suspend your account in the event the other party commits any material breach of these Terms and fails to fix that breach within 5 days after written notice of that breach. If we terminate these Terms due to your material breach, we may terminate or suspend of your account(s) as well.
In addition to suspension of our services for non-payment of fees, we may also suspend our Services immediately for cause if: (a) you violate (or give us reason to believe you have violated) the Fastcall AUP; (b) there is reason to believe the traffic created from your use of our Services or your use of our Services is fraudulent or negatively impacting the operating capability of our Services; (c) we determine, in our sole discretion, that providing our Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide our Services; or (d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If we suspend our Services to your account, we will make a reasonable attempt to notify you.
Upon termination or expiration of these Terms, your payment obligations, the terms of this Section, and the terms of the following Sections will survive (i.e. still apply): Our Use and Storage of Customer Data, Restrictions, Ownership and Confidentiality, Warranties and Disclaimer, Indemnification, Exclusion of Damages; Limitation of Liability and Section General.
17.1 Compliance with Laws. Both you and Fastcall will comply with the applicable law relating to each of our respective activities under these Terms, including privacy and data protection laws and applicable rules established by the Federal Communications Commission.
17.2 No Waiver. Fastcall’s failure to enforce at any time any provision of these Terms or our AUP does not waive our right to do so later. And, if we do expressly waive any provision of these Terms or our AUP, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by and us to be legally binding.
17.3 Assignment. You will not assign or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be null and void. Subject to this Section 16.3, these Terms will be binding on both you and Fastcall and each of our successors and assigns.
17.4 Relationship. You and Fastcall are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. You and Fastcall will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents. You and Fastcall will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these Terms. Neither you nor Fastcall has the authority to commit the other of us in any way and will not attempt to do so or imply that it has the right to do so.
17.5 Unenforceability. Except as described in Section 18 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
17.6 Notices. Any notice required or permitted to be given under these Terms will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email upon confirmation of receipt. Notices to Fastcall shall be copied to legalnotices@Fastcall.com, Attn: General Counsel.
17.7 Entire Agreement. Except as provided in these Terms and any attachments to these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by Fastcall, its agents or employees will create a warranty or in any way increase the scope of the warranties in these Terms.
17.8 Force Majeure. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
17.9 Government Terms. We provide our Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of these Terms. If you (or any of your End Users) are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of our services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms. All other use is prohibited and no rights other than those provided in these Terms are conferred. Our services were developed fully at private expense.
17.10 Governing Law and Venue. The enforceability and interpretation of Section 18 (Agreement to Arbitrate) will be determined the Federal Arbitration Act (including its procedural provisions). Apart from Section 18, these Terms will be governed by and interpreted according to the laws of the State of California without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 18 (Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or our Services shall be instituted in either the state or federal courts of Los Angeles, California, and we each consent to the personal jurisdiction of these courts.
18. Agreement to Arbitrate
18.1 We Both Agree to Arbitrate. If we can’t resolve our dispute through our customer support, you or any of your affiliates on one hand and Fastcall and any of Fastcall’s affiliates on the other hand, all agree to resolve any dispute arising under these Terms, or Privacy Notices, or in relation to our Services by binding arbitration in Los Angeles, California, or in another location that we have both agreed to.
This applies to all claims under any legal theory, unless the claim fits in one the exceptions below (Exceptions to Agreement to Arbitrate). It also applies even after you have stopped using your Fastcall account or have deleted it. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that, too.
18.2 Exceptions to Agreement to Arbitrate. You and your affiliates on one hand, and Fastcall and its affiliates on the other hand, agree that we will go to court to resolve disputes relating to:
- Your, your affiliate’s, Fastcall’s or Fastcall’s affiliates intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents); or
- Your violation of Fastcall’s AUP.
Also, any of us can bring a claim in small claims court either in Los Angeles, California, or the county where you live, or some other place we both agree on, if it qualifies to be brought in that court.
In addition, if any of us brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
18.3 Details of Arbitration Procedure. Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879.
The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the “Rules”) and will be held with a single arbitrator appointed in accordance with the Rules. To the extent any thing described in this Section 18 conflicts with the Rules, the language of this Section 18 applies.
Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 18 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms.
Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
18.4 Class Action Waiver. Both you and your affiliates, on one hand, and Fastcall and its affiliates on the other hand, agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor Fastcall and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Fastcall customers, and cannot be used to decide other disputes with other customers.
If a court decides that this Class Action Waiver is not enforceable or valid, then the entire Agreement to Arbitrate will be null and void (i.e., go away). But, the rest of the Terms will still apply.
For Customers who reside in the European Union only:
A. Data Protection Addendum. Fastcall customers wishing to execute the GDPR Fastcall Data Protection Addendum (DPA) may do so by submitting a request. Upon receipt of your request we will send you a pre-signed version of the DPA ready for execution.
B. You will ensure that Fastcall is enabled to use all Customer Data as necessary to provide the Services.
C. The primary characteristics of the Services, as agreed upon between you and Fastcall will remain available to you during the Terms Period.
D. The following shall apply in relation to the limitation of liability:
- The Parties shall only be fully liable for intent and gross negligence as well as damages caused by injury to life, body or health;
- In an event of slight negligence, the Parties shall be liable only for breaches of a material contractual obligation (cardinal duty). A “cardinal duty” in the sense of this provision is an obligation whose fulfillment makes the processing of this Agreement possible in the first place and on the fulfillment of which the other Party may therefore generally rely;
- In any of the above mentioned cases, the Parties shall not be liable for any lack of commercial success, lost profits and indirect damages
- Liability in accordance with the above clauses shall be limited to the typical, foreseeable damages: and
- Except where otherwise stated in this Agreement, the Parties shall not be liable for any loss or damage or any costs, expenses or other claims including without limitation loss of profit, business, revenue, goodwill or anticipated savings, loss of any data or information and/or special or indirect loss or consequential loss or otherwise which arise out of or in connection with this Agreement.
G. Fastcall may amend or modify this Agreement from time to time, in which case the new Agreement will supersede prior versions. Fastcall will notify Customer via e-mail prior to the effective date of any such amendment or modification and will inform you about the intended amendments or modifications. If you do not object to the amendment or modification within 30 days from aforementioned notice, such non-objection may be relied upon by Fastcall as your consent to any such amendment. Fastcall will inform you about your right to object and the consequences of non-objection with the aforementioned notice.