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TERMS AND CONDITIONS OF СALLUPPER

Effective from 27th of June 2018

1. APPLICABILITY

1.1. These are the TERMS AND CONDITIONS of Сallupper

1.2. “СallUpper”, “СallUpper Software”, “CallUpper platform”, “CallUpper API” and “Сallupper.com” are trade names solely belong to:
BSG ESTONIA OÜ
Company code: 12974765
Pae 25-47 Tallinn Harjumaa 11414, Estonia
contact email: info@Сallupper.com

1.3. These TERMS AND CONDITIONS are applicable to all legal acts by or on behalf of СallUpper. These general terms are also applicable to all present and future services which Сallupper offers and all additions and amendments thereto (the Services). The applicability of general terms used by any party contracting with СallUpper (Customer) is explicitly rejected.

1.4. By placing an order for one or more Services, by using the Services of СallUpper and/or by making payments for Services, Customer acknowledges its acceptance of the applicability of these general terms to the Services and any current and future legal relationship between Customer and СallUpper.

2. DELIVERY OF SERVICES

СallUpper hereby grants to the Customer a limited, non-exclusive, nontransferable, revocable, non-sublicensable right and license to use CallUpper’s Platform software API’s, enabling the Customer to use telecommunication services and the services of proprietary process information (all provided under CallUpper brand and referred. in the Agreement to as the Services). The use of licenses in certain areas may be limited by applicable regulation or technical characteristics of the provision of telecommunications services and/or infrastructure, or other technological reasons. Unless explicitly stated otherwise, any new features provided by CallUpper that augment or enhance the current Services shall also constitute the “Services” and shall be subject to these terms and conditions.

2.1. The content and specifications of the Services are determined by what is stated about the Services from time to time on the website of СallUpper (Сallupper.com) or any other website designated by СallUpper for the relevant Service from time to time (the Website). Where reasonably possible СallUpper will notify Customer in advance and in writing (by email or via the Website) of material changes to the Services.

2.2. СallUpper will use its reasonable efforts to safeguard the timely availability and quality of the Services. СallUpper, however, does not warrant the timely, continuous, error-free availability and quality of the Services.

2.3. A part of the Services is in fact provided by the relevant third-party providers of fixed and mobile telecommunication services. СallUpper will use its reasonable efforts to optimize the provision of services by these third-parties but does not accept any responsibility or liability for shortcomings in its Services caused by these third parties. In particular, СallUpper cannot accept responsibility for the timely and correct handling of such services.

2.4. СallUpper is entitled to suspend the services temporarily when this is necessary to implement a change to the Services or to conduct preventive or corrective maintenance activities with respect to the Services. СallUpper will inform Customer in advance and in writing (by email or via the Website) where reasonably possible in case of activities planned by СallUpper and of activities planned by third party providers of which СallUpper is aware, which have a foreseeable material impact on the Services.

2.5. Services shall be delivered not later than in one business day. Customer shall receive login data and all necessary tools automatically upon payment to CallUpper is made successfully.

2.6. Integration of CallUpper software to Customer’s web site shall be made by Customer; CallUpper provides everything necessary to integrate CallUpper Software to Customer’s website, but CallUpper does not provide integration.

2.7. CallUpper does not deliver any services to prohibited countries. In respect of this clause prohibited countries are: Democratic People’s Republic of Korea (DPRK), Ethiopia, Iran, Iraq, Serbia, Sri Lanka, Syria, Trinidad and Tobago, Tunisia, Vanuatu, Yemen.

3. OBLIGATIONS OF CUSTOMER

3.1. Customer must provide СallUpper at the start of and during the use of the Services on request and on its own initiative with all information and all data relevant to enable the provision of the Services. Customer vouches for the completeness and correctness of all supplied information.

3.2. In particular, Customer will keep СallUpper up to date of all foreseeable peaks or massive increases in its use of the Services to help prevent overloading the Services and/or the networks and systems of the suppliers of СallUpper.

3.2. СallUpper has no obligation to check completeness and correctness of the information provided by Customer. If СallUpper provides any advice on this, then this is done voluntarily and with the explicit exclusion of any liability for such advice.

3.3. For using the Services Customer will receive one or more sets of username/password combinations (the Log-in Data). With respect to the Log-in Data the following specific conditions apply:

a. The customer is fully responsible for any use and any misuse made with the Log-in Data;

b. Legal acts performed using the Log-in Data bind Customer;

c. The Log-in Data must be treated by Customer as strictly confidential information and will only be made available by Customer to persons if and when necessary to use the Services.

d. If Customer suspects that the confidentiality of the Log-in Data is violated or misuse is being made with the Log-in Data, then Customer will report this immediately to СallUpper. СallUpper will subsequently deactivate the Log-in Data as soon as reasonably possible.

3.4. Customer must report malfunctions in the Services immediately to СallUpper. Customer must provide all required cooperation to a possible investigation into a malfunction of the Services. In case a reported malfunction in the Services is not discovered or is caused by Customer, СallUpper is entitled to charge Customer for the reasonable investigation costs.

4. PRICES AND PAYMENTS FOR THE SERVICES

4.1. The prices applicable from time to time to the Services are set out on the Website and are (unless explicitly otherwise noted or agreed in writing) valid until publication of a change of the prices on the Website. Price increases are announced at least one month in advance, unless it concerns passing on the price increases of a third-party supplier of СallUpper which were notified to СallUpper less than a month in advance.

4.2. All prices are excluding applicable VAT and other applicable taxes and government charges and are in USD unless explicitly set out otherwise.

4.3. СallUpper is not bound by prices on the Website or any other publication of СallUpper if Customer could reasonably have understood that the relevant prices or pricing structure contained an apparent error or misprint.

4.4. Unless otherwise set out on the Website, all payments to СallUpper must be made within 14 days after invoice date in the manner indicated by СallUpper in the currency indicated on the invoice.

4.5. Objections of Customer against the amount of the invoice do not create the right to suspend payment of the invoice unless СallUpper acknowledges the objections. The customer is not allowed to set off or deduct any alleged counterclaims on СallUpper from sent invoices.

4.6. Subscription, license, connection or similar fixed, usage independent charges for the Services are, unless explicitly noted or agreed otherwise, due in advance. For periodic charges of this nature, these are due per usage period (month/quarter/year) in advance unless explicitly otherwise indicated on the Website.

4.7. Customer must buy credits for the use of the Services in advance. If Customer does not have a positive credit balance, it is not entitled to use the Services. Procured credits remain valid for one year.

4.8. Usage dependent charges are due monthly in arrears on the basis of registered users.

4.9. For determining the amounts due and the used and procured credits the data registered in the systems of СallUpper and of the telecommunication providers which actually provided the relevant Services are deciding.

4.10. СallUpper will in case Customer objects against the usage dependent charges or debited credits conduct an investigation into this in a reasonable and transparent manner and report the results to Customer. Customer explicitly does not have the right to suspend payment of any invoice on the basis of any such objection.

4.11 If Customer is in default of payment with respect to any amount due to СallUpper, then interest will accrue on the outstanding amount against the Estonian legal interest rate for business transactions. If Customer remains in default of payment after it has been sent a formal notice, then СallUpper can engage a third party to collect the payment, in which case Customer will also be due to pay the related collection costs and legal costs, with a minimum of 750 USD.

4.12 If СallUpper incurs additional costs or has to spend additional time to provide the Services due to a shortcoming of Customer or due to a violation of any legal or contractual obligation by Customer, then СallUpper can invoice these additional costs and the additionally spent time at its then current rates, without prejudice to the right of СallUpper to claim compensation for suffered damage.

4.11. If СallUpper has suspended payment because of a presumption as set out in subclause b above or if СallUpper has claimed repayment of already credited payments for the same, the relevant payments will not become payable to Customer until it has been established that the presumption was wrong.

4.12. Subscription/recurring payments can be canceled by Customer in any time within the Website, cancellation shall be effective within seven business days and subscription/recurring payments for future periods shall not be charged after the effective date of cancellation.

5. REFUND POLICY

5.1. CallUpper does not provide any refunds, because the delivery of the Services begins immediately upon payment is made.

6. USAGE LIMITATIONS FOR THE SERVICES

6.1. Customer will not use the Services in a manner which in any way hinders the Services of СallUpper and/or the networks and systems used to deliver the Services used by СallUpper or its third-party suppliers. Customer shall immediately follow any directions of СallUpper intended to prevent or stop such hinder and СallUpper is entitled to temporarily suspend the Services to prevent such hinder if the action of Customer to prevent it is delayed or if such action of Customer cannot reasonably be waited on.

6.2. Customer shall when using the Services and when conducting those parts of its business which use the Services or which are connected to the Services not violate: any applicable laws and regulations, the guidelines of the Estonian Authorities, the usage limitations for the relevant Service published from time to time on the Website and/or these TERMS AND CONDITIONS.

6.3. The customer is only entitled to use the Services for its own internal business purposes and is entitled to resell the Services neither stand-alone nor in combination with services of itself or to offer them or use them for the benefit of a third party.

6.4. It is not allowed to use the Services under a false name and/or by circumventing security measures imposed for the Services.

7. TERM AND TERMINATION OF THE SERVICES

7.1. Unless explicitly otherwise set out in the description of the relevant Service on the moment it is ordered, Customer procures each Service for an unlimited period of time and either party can terminate it at will by giving at least thirty calendar days’ notice.

7.2. СallUpper is entitled to terminate the agreement to deliver the Services out of court, in part or in whole, and without limiting СallUpper’s other rights:

a. If Customer is declared bankrupt, is granted a moratorium of payment or if bankruptcy or a moratorium of payment for Customer is requested;

b. If Customer is dissolved or liquidated or its business activities are stopped in whole or for a substantial part;

c. If Customer breaches its obligations under the agreement for the delivery of the Services to which these general terms are applicable.

8. LIMITATION OF LIABILITY

8.1. The liability of СallUpper in the context of the delivery of the Services and in the context of any agreement to which these general terms are applicable, on any legal ground, shall be limited as set out in this clause.

8.2. In case of intent or reckless acts of СallUpper with respect to the damage caused, no limitation of liability will be applicable.

8.3. СallUpper can only be in default with respect to an obligation after being put on formal notice by means of a letter sent by registered mail and after having been granted a reasonable period of time to cure the issue. All delivery terms and dates for Services of СallUpper are non-binding estimates.

8.4. In case of an attributable shortcoming of СallUpper with respect to the Services, liability for СallUpper can only arise if and in so far as СallUpper, after being put on formal notice allowing a reasonable cure period, has not cured the shortcoming by repairing the relevant Service or re-performing the relevant Service.

8.5. СallUpper is not liable for forms of damage like the lost profits, loss or damage to data, missed savings, claims of third parties, government charges, failed transactions and damage due to business interruptions.

8.6. Customer shall indemnify and hold СallUpper harmless from all claims of third parties which are in any way connected with the use by Customer of the Services and the services provided by Customer to its customers using the Services, and shall compensate СallUpper for all related costs including the costs for legal assistance.

8.7. Customer shall report to СallUpper all damage it suffers or will foreseeably suffer which is attributable to СallUpper as soon as possible and at the latest 30 days after the end of the month in which Customer is or should have been aware thereof and such report shall be in writing and supplemented with proper motivation, failing which the right to claim these damages is considered lapsed.

9. PRIVACY AND CONFIDENTIALITY

9.1. Both parties are obliged to keep confidential all confidential information which they get access to in the context of delivering the Services. Information is considered confidential this is so indicated by the other party or if this follows from the nature of the information.

9.2. СallUpper and Customer both commit to strictly comply with applicable privacy legislation when providing and using the Services.

9.3. СallUpper shall treat the personal and other data which Customer enters on the Website or in any other way supplies to СallUpper in the context of using the Services as strictly confidential and protect it against misuse and unauthorized access.

9.4. СallUpper shall use personal data which it receives from Customer in the context of supplying the Services (the Data) only for the delivery of the Services, observing the following usage limitations:

a. СallUpper shall only make such Data available to third parties if and to the extent, this is strictly necessary for the delivery of the Services or on the instruction of a competent government authority.

b. СallUpper is entitled to analyze the Data to enable the enhancement of the quality, reliability, and effectiveness of the Services. Such analysis shall be conducted in a strictly anonymous way by which no data traceable to specific persons are gathered.

9.5. The customer is responsible to ensure that when using the Services only personal data is entered or processed if and in so far as Customer is legally allowed to do this and has obtained the relevant permissions for this from the relevant persons.

9.6. CallUpper will not sell, purchase, provide, exchange or in any other manner disclose Account or Transaction data, or personal information of or about a Customer or Cardholder to anyone, except, it’s Acquirer, Visa/Mastercard Corporations or in response to valid government demands.

9.7. All data provided by Customer within the Website is protected by SSL.

10. INTELLECTUAL PROPERTY RIGHTS

10.1. All intellectual property rights related to all systems, documents and other works to which Customer gets access to in the context of the delivery of the Services, are the exclusive property of СallUpper and its licensors. The customer is only granted a temporary, personal, non-exclusive and non-transferable license to use with respect to these works to the extent such use is necessary for the use of the Services. This license ends immediately after the termination of the delivery of the Services to Customer by СallUpper.

10.2. Access numbers, keywords, and other codes, numbers, and words (the Codes) which in the context of delivering the Services are made available to Customer by СallUpper are only licensed for the duration of the delivery of the Services to Customer. After termination of the delivery of the Services to Customer for which Codes were made available to Customer, Customer has no right anymore with respect to such Codes and СallUpper is free to re-use these for itself or for another customer of СallUpper.

11. APPLICABLE LAW

11.1. These general terms and all legal relations between СallUpper and Customer shall be governed by the laws of Estonia.

11.2. Any dispute between СallUpper and Customer with respect to the Services, these general terms and any agreement to which these general terms are applicable shall exclusively be submitted to the courts of Tallinn, Estonia.

12. MISCELLANEOUS

12.1. СallUpper is at all times entitled to change or supplement these general terms. The changes will become effective after Customer has been informed of the change in writing via email or publication on the Website. Where reasonably possible each change will be announced to Customer.

12.2. СallUpper is entitled to transfer its rights and obligations under each agreement to which these general terms are applicable to a third party which is taking over the relevant part of the business of СallUpper, by giving written notice of such transfer to Customer.

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