Legal Information

Terms Of Use

PLEASE READ THIS AGREEMENT CAREFULLY.

The following terms and conditions (the “Terms of Service”) form an agreement (“Agreement”) between Callpop, Inc.. (“Callpop”), a company located at 285 East Main, American Fork, Utah 84003 and the customer identified in the enrollment (“Customer” or “you”) that you used in the online enrollment form or otherwise (“Enrollment Form”). Capitalized terms shall have the meanings set forth in Section 14 below or in the Section in which they first appear in these Terms of Service. By using or accessing the website www.callpop.com (the “Website”), you represent that you are at least 18 years old and that, if you are acting on behalf of a company or other entity, you are authorized to act on behalf of such entity. Callpop may modify this Agreement or any additional terms, which are relevant to a particular component of the Service or other products or services Callpop may provide, to reflect changes in the law or to the Service. Callpop will post the revised terms on the Website at https://callpop.com/legal/. YOU AGREE TO REVIEW THE SITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE SERVICE AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED AGREEMENT. You agree that we shall not be liable to you or to any third party for any modification of the terms. You also agree to be bound by the terms of the Privacy Policy.

1. Services And Software.

1.1 Access and Use. Subject to and conditioned upon Customer’s compliance with the terms and conditions of the Agreement, (a) Customer may access and use the Service during the Subscription Period solely for purposes of Customer’s internal business operations, and (b) if Customer downloads any Software, Callpop hereby grants Customer a limited license to install, access, and use the Software, in object code form only, in connection with Customer’s use of the Services. Customer may allow its Users to access and use the Service and install, access, and use the Software for the purposes set forth above, provided that Customer shall ensure its Users’ compliance with the terms and conditions of the Agreement, and Customer shall be responsible and liable for any User’s non-compliance with the terms and conditions of the Agreement. The foregoing authorizations granted to Customer are non-exclusive and non-transferable.

1.2 Updates. Callpop may, from time to time in its sole discretion, develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Service. Customer acknowledges and agrees that Callpop has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Service. If Customer downloads an Application on a device, when such device is connected to the Internet, either (a) the Application will automatically download and install all available Updates, or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer agrees to promptly download and install all Updates and acknowledges and agrees that the Applications or portions thereof may not properly operate should Customer fail to do so.

1.3 Limitations and Restrictions. Customer shall not, and shall not permit any User or other person or entity to, access or use the Service or Callpop Materials except as expressly permitted in the Agreement. Without limiting the foregoing, Customer shall not, except as expressly permitted in the Agreement: (a) copy, modify, or create derivative works or improvements of the Service or Callpop Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, or transfer any Service or Callpop Materials to any person or entity, including in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Callpop Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Service or Callpop Materials or access or use the Service or Callpop Materials other than through the use of then valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Service or Callpop Systems any Customer Data or other information or materials that (i) contain, transmit, or activate any Harmful Code, or (ii) are unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy right or right of publicity, or racially or ethnically

objectionable, or (iii) infringe upon or violate the Intellectual Property Rights of any third party; (g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service, Callpop Materials, or Callpop’s provision of services to any third party, in whole or in part; (h) remove, delete, alter, or obscure any Intellectual Property Rights notices from any Service or Callpop Materials; (i) access or use the Service or Callpop Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law; (j) access or use the Service or Callpop Materials for purposes of competitive analysis of the Service or Callpop Materials, the development, provision, or use of a competing service or product, or any other purpose that is to Callpop’s detriment or commercial disadvantage; or (k) otherwise access or use the Service or Callpop Materials beyond the scope of the rights granted under Section 1.1 (Access and Use) above.

2. Certain Customer Obligations.

2.1 Customer Control and Responsibility. Customer has and shall retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and Customer has and shall retain sole responsibility for: (a) all Customer Data, including its use, accuracy, quality, and reliability; (b) all information, instructions, and materials provided by or on behalf of Customer in connection with the Services; (c) the Customer Systems; (d) the security and use of Customer’s Access Credentials; and (e) all access to and use of the Service and Callpop Materials directly or indirectly by or through the Customer Systems or Customer’s Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Callpop is not liable for any loss or damage arising from Customer’s failure to protect its Access Credentials.

2.2 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 1.3 (Limitations and Restrictions), Customer shall, and shall cause its Users to, immediately (a) notify Callpop of any such actual or threatened activity, and (b) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects.

3. Data.

3.1 Customer Data. Customer represents, warrants, and covenants to Callpop that Customer owns or otherwise has (and, prior to Callpop’s receipt of Customer Data, will have) the necessary rights and consents in and relating to Customer Data, so that Callpop’s receipt and Processing of Customer Data in accordance with the Agreement does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any User or other person or entity, or any applicable law.

3.2 Prohibited Data. Customer acknowledges that the Service is not designed with security and access management for Processing the following categories of information: (a) any personal information that imposes specific data security obligations on Callpop for the Processing of such data, including any “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, and other similar information, however described, as defined under applicable law; (b) data that is classified and/or used on the United States Munitions list, including software and technical data; (c) articles, services, and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any User or other person or entity to, provide any Prohibited Data to, or Process any Prohibited Data through, the Service or Callpop Systems. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.

3.3 Data Backup. The Service does not replace the need for Customer to maintain regular data backups or redundant data archives. CALLPOP HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

3.4 Privacy Policy. All Customer Data and any other information Callpop collects when Customer accesses and/or uses the Service is subject to Callpop’s Privacy Policy (“Privacy Policy”) available at https://callpop.com/legal/, which is hereby incorporated herein by reference. Customer consents to all actions taken by Callpop with respect to such information in compliance with the Privacy Policy.

4. Content.

4.1 Services and Callpop Materials. As between Customer and Callpop, Callpop is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Services and Callpop Materials, including all Intellectual Property Rights therein and thereto. Other than the limited rights and licenses granted to Customer pursuant to Section 1.1 (Access and Use) above, nothing in the Agreement grants Customer any right, title, or interest in or to the Services or Callpop Materials, including any Intellectual Property Rights therein or relating thereto, whether expressly, by implication, estoppel, or otherwise, and all such rights are reserved to Callpop.

4.2 Work Product. Without limiting Section 4.1 (Services and Callpop Materials) above, Callpop is and shall remain the sole and exclusive owner of all right, title, and interest in and to all developments, inventions, technology, materials, and other work product made or conceived or actually or constructively reduced to practice by or on behalf of Callpop in the course of performing any Professional Services (collectively, the “Work Product”), including all Intellectual Property Rights therein and thereto. For clarity, Work Product does not include Customer Data. In the event Customer is a deemed owner of any right, title, or interest in or to any part of the Work Product, Customer agrees to assign, and hereby irrevocably assigns, to Callpop all of its right, title, and interest in and to the Work Product, including all Intellectual Property Rights therein and thereto. Customer agrees to give Callpop, and any person designated by Callpop, reasonable assistance, at Callpop’s expense, in perfecting and/or evidencing Callpop’s rights in and to the Work Product, including by executing and delivering all documents reasonably requested by Callpop for such purposes. Callpop hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use Work Product provided by Callpop to Customer in connection with the Professional Services solely for Customer’s internal business operations and in connection with the Service and Equipment, subject to all applicable terms and conditions of the Agreement.

4.3 Customer Data. As between the parties, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights therein and thereto, subject to the license granted herein to Callpop. Customer hereby grants to Callpop a non-exclusive, worldwide, transferable, sub-licensable (to its subcontractors), irrevocable, royalty-free, fully paid-up license to Process the Customer Data in order to provide the Services to Customer and its Users.

4.4 Service Analyses. Callpop may (a) compile statistical and other information related to the performance, operation, and use of the Service, and (b) use data from the Callpop Systems in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes ((a) and (b) collectively, “Service Analyses”). Callpop may make Service Analyses publicly available and use the Service Analyses for its business purposes; however, Service Analyses shall not incorporate Customer Data in a form that could serve to identify Customer or any individual. Service Analyses do not constitute Customer Data, and Callpop shall retain all right, title, and interest in and to Service Analyses, including all Intellectual Property Rights therein and thereto.

4.5 Uploaded Materials. Customer or Users may upload photos, reviews, stories, experiences, or other materials (“Uploaded Materials”) that may be covered by intellectual property laws and protections. By providing the Uploaded Materials or allowing them to be provided, Customer and User grant Callpop a perpetual, unrestricted, fully-assignable, worldwide, and royalty-free license to use such Uploaded Materials. Callpop shall have no obligation of any kind with respect to such Uploaded Materials, and Callpop be free to reproduce, use, disclose, exhibit, display, transform, edit, abridge, create derivative works from and/or distribute the Uploaded Materials without limitation or restriction (including in connection with the sale, acquisition, or merger of Callpop or of all or substantially all of Callpop’s assets), without compensation or any other obligations to customer or User.

5. Other Websites And Ancillary Services.

5.1 Links to Other Websites. Portions of the Service may contain links to websites operated by third parties. Such links are provided for Customer’s convenience only, and if Customer accesses any such linked websites Customer does so at its own risk. Callpop is not responsible for the content of any such websites, or the products and services sold on them, nor is Callpop responsible or liable for any loss or damage that may arise from Customer’s use of such websites. When Customer visits a linked website, Customer should read the terms and conditions and privacy policy that govern that particular website. Links to other websites do not imply Callpop’s endorsement of any content, advertising, products, services, or other materials on or available through such websites.

5.2 Ancillary Services. As part of the functionality of certain parts of the Service, Customer may have access to certain third party online financial, social media, and other services (“Ancillary Services”) and may post Customer Data using such Ancillary Services. The Service is designed to allow Customer to access accounts Customer may have on the Ancillary Services to allow the Service to access and aggregate information from such account(s) and to post Customer Data to such accounts. Customer acknowledges and agrees that (a) some third parties may not allow the Service to access certain Ancillary Services, and (b) third parties may make changes to their websites or other Ancillary Services, with or without notice to Callpop, that may affect overall performance of the Service and prevent or delay aggregation of information from Customer’s account(s) on such Ancillary Services. Customer acknowledges and agrees that Callpop has no control over any of the Ancillary Services, and will have no liability whatsoever for the Ancillary Services or any actions or inactions on the part of such third parties resulting in Customer’s inability to use the Service to access its accounts, obtain data, or otherwise access or use the Ancillary Services.

5.3 Collection of Ancillary Account Data. Customer acknowledges that in accessing the Ancillary Services through the Service, Customer’s username(s), password(s), and any other security or access information for Customer’s account(s) on such Ancillary Services, and data and other information in such account(s) (collectively, “Ancillary Account Data”), may be collected and stored through the Service. Customer authorizes Callpop, in conjunction with Callpop’s provision of the Services, to: (a) access Customer’s account(s) on Ancillary Services and collect and Process Customer’s Ancillary Account Data; (c) access the applicable third-party websites and Ancillary Services using Customer’s Ancillary Account Data; and (c) take such other actions as are reasonably necessary to perform the actions described in (a) and (b) above. Customer hereby represents and warrants to Callpop that Customer is the legal owner of Customer’s Ancillary Account Data and that Customer has the authority to appoint, and hereby expressly does appoint, Callpop as Customer’s agent with limited power of attorney to access and retrieve Customer’s Ancillary Account Data and to post Customer Data thereto on Customer’s behalf. Customer further acknowledges and agrees that all Ancillary Account Data constitutes Customer Data hereunder and is subject to the applicable terms and conditions of the Agreement.

6. Changes And Suspension.

6.1 Changes to the Services. Callpop reserves the right to make changes to the Services and Callpop Materials, or any portion thereof, for any reason. Customer agrees that Callpop will not be liable to Customer or third party for any such change.

6.2 Suspension of Access. Callpop may suspend Customer’s and/or any of its Users’ access to or use of all or any part of the Services or Callpop Materials, without incurring any resulting obligation or liability, if: (a) Callpop receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Callpop to do so; (b) Callpop believes, in its good faith and reasonable discretion, that Customer or any of its Users have violated the provisions of Section 1.3 (Limitations and Restrictions) or Sections 3.1 (Customer Data) or 3.2 (Prohibited Data); or (c) Customer fails to pay any amount when due under the Agreement. Any such suspension shall not excuse Customer from its obligation to make the payment(s) contemplated under the Agreement to Callpop. If Callpop suspends the Service, Callpop shall promptly restore Customer’s (or the applicable User’s) access to and use of the Service after the event giving rise to the suspension has been resolved to Callpop’s satisfaction.

7. Indemnification.

7.1 Indemnification of Callpop. Customer will indemnify, defend, and hold harmless Callpop, its affiliates, and its and their respective officers, directors, employees, and agents from and against all losses, damages, judgments, assessments, fines, costs, and expenses (including court costs and reasonable attorneys’ fees) arising out of or in connection with any third party claim, action, suit, or proceeding arising out of or related to: (a) Customer Data, including any Processing of Customer Data by or on behalf of Callpop in accordance with this Agreement and any use of the Ancillary Services by Callpop or Customer; (b) Callpop’s compliance with any specifications or directions provided by or on behalf of Customer; (c) any claim arising out of or related to a User’s use of the Services, Dedicated Device, or Callpop Materials; or (d) any breach or violation of this Agreement or applicable law by Customer, any User, or any other person accessing and/or using any of the Services or Callpop Materials directly or indirectly by or through the Customer Systems or Customer’s Access Credentials, with or without Customer’s knowledge or consent.

7.2 Indemnification Procedure. Upon receiving notice of a claim for which Callpop is entitled to indemnification by Customer, Callpop shall provide Customer with written notification and the opportunity to assume sole control over the defense or settlement of such claim and reasonable assistance to settle and/or defend such claim at Customer’s sole expense; provided, however, that: (a) any settlement which would impose a non-monetary obligation on and/or admission or finding of liability or wrongdoing by Callpop will require Callpop’s prior written consent; (b) the failure to provide timely notice, control, or assistance shall not relieve Customer of its indemnification obligations hereunder; and (c) Callpop may have its own counsel present at and participating in all proceedings or negotiations relating to a claim, at Callpop’s own expense, unless Customer fails or refuses to secure legal counsel to defend any claim in a timely manner, in which case Customer shall pay all expenses related to Callpop’s use of such counsel.

8. Term, Payment And Termination.

8.1 Term and Payment. The Agreement commences on the Effective Date and will remain in effect for the Subscription Period, unless terminated earlier in accordance with its express provisions. Thereafter, this Agreement will automatically renew for successive terms equal to the original Subscription Period unless terminated by either party by giving at least thirty (30) days written notice to the other party prior to the end of the applicable term. Payment shall be made as provided in the Enrollment Form.

8.2 Termination by Callpop. Callpop may terminate the Agreement and suspend or terminate Customer’s access to the Service, effective immediately upon written notice to Customer, if (a) Customer fails to pay any amount when due and such failure continues more than 15 days after delivery of written notice thereof, (b) Customer breaches any of Customer’s obligations under Section 1.3 (Limitations and Restrictions), (c) Callpop determines, in its sole discretion, that Customer’s business plans are competitive with those of Callpop, or (d) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Callpop’s ability to provide access to the Service to other customers; provided that in the case of subsection (d): prior to any such suspension or limitation, Callpop shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation, and Callpop may reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within 30 days of receipt of such notice. If Customer does not pay amount due within 45 days of the invoice date, Callpop has the option to apply a late fee of $50.00. Furthermore, each 30 days thereafter, an additional late fee of $50.00 may be applied. It is at the discretion of Callpop to waive late fees after the outstanding balance has been satisfied.

8.3 Mutual Right of Termination. Either party may terminate the Agreement, effective upon written notice to the other party, if the other party materially breaches any material provision of this Agreement (except as set forth in Section 8.2 (Termination by Callpop) above), and such breach is incapable of cure, or being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.

8.4 Effect of Termination. Upon any expiration or termination of the Agreement, all rights and licenses granted to Customer under the Agreement shall immediately terminate, and Callpop may disable Customer’s and its User’s access to the Service. In addition, Customer shall, and shall instruct its Users to, immediately cease using the Service and Callpop Materials and destroy all copies of the Callpop Materials in Customer’s possession or control. The expiration or termination of the Agreement shall not (a) prejudice or affect any right of action or remedy that has accrued or will accrue to either party due to the other party’s acts or omissions prior to the effective date of the termination or expiration, or (b) relieve Customer of its obligation to pay any charges that have accrued or have become payable to Callpop under the Agreement. Notwithstanding any of the foregoing to the contrary, if Customer desires to terminate this Agreement for any reason other than for breach by Callpop, it shall not be subject to termination fees, but it shall continue to pay the fees set forth in the Enrollment Form through the end of the Subscription Period.

8.5 Survival. Any right or obligation of the parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, shall survive any expiration or termination of the Agreement, including the provisions of Sections 1.3 (Limitations and Restrictions), 2.1 (Customer Control and Responsibility), 3 (Data), 4 (Ownership), 7 (Indemnification), 8.4 (Effect of Termination), 8.5 (Survival), 9 (Disclaimers), 10 (Limitations of Liability), 13 (General), and 14 (Definitions).

9. Disclaimers.

9.1 Disclaimer of Warranties. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES, DEDICATED DEVICE, AND CALLPOP MATERIALS IS AT CUSTOMER’S SOLE RISK. ALL SERVICES, DEDICATED DEVICE, AND CALLPOP MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND CALLPOP HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, TO THE EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, CALLPOP DOES NOT MAKE ANY WARRANTY OF ANY KIND THAT THE SERVICES, DEDICATED DEVICE, OR CALLPOP MATERIALS, OR ANY RESULTS OF THE USE THEREOF, SHALL MEET CUSTOMER’S REQUIREMENTS OR THE REQUIREMENTS OF ANY OTHER PERSON, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE SECURE, ACCURATE, FREE OF HARMFUL CODE, OR ERROR FREE.

9.2 No Professional Advice. The information provided on or through any of the Service is for informational purposes only and should not be construed as legal, financial, accounting, or other professional advice. Customer should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any information provided on or through any Service.

10. Limitation Of Liabilities.

10.1 Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CALLPOP, ITS AFFILIATES,OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SERVICE PROVIDERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, DAMAGE OR LOSS OF USE OF DATA, BUSINESS INTERRUPTIONS, AND LOST BUSINESS OPPORTUNITY), REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL CALLPOP, ITS AFFILIATES,OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (a) CUSTOMER’S USE, OR INABILITY TO USE, THE SERVICES, DEDICATED DEVICES, OR CALLPOP MATERIALS; (B) ANY CUSTOMER DATA, INCLUDING ANY UNAUTHORIZED ACCESS TO OR USE OF ANY CUSTOMER DATA; (c) INTERRUPTION OR CESSATION OF

TRANSMISSION TO OR FROM THE SERVICE; AND/OR (d) ANY HARMFUL CODE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES, DEDICATED DEVICES, OR ANY CALLPOP MATERIALS.

10.2 Maximum Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE COLLECTIVE AGGREGATE LIABILITY OF CALLPOP, ITS AFFILIATES,AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS AND SERVICE PROVIDERS UNDER OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS SUBJECT MATTER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO CALLPOP UNDER THE AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10.3 Basis of the Bargain. THE LIMITATIONS OF LIABILITY HEREIN ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECT A FAIR ALLOCATION OF RISK. THE SERVICES, DEDICATED DEVICE, AND CALLPOP MATERIALS WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS, AND CUSTOMER AGREES THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

11. Export Compliance.

Customer acknowledges that the Equipment and Callpop Materials may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not, and shall not allow any other person or entity to, remove or export from the United States or allow the export or re-export any Equipment or Callpop Materials or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the United States Commerce Department’s Table of Denial Orders or United States Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import laws of any United States or foreign agency or authority.

12. Additional Terms For Certain Applications.

The following additional terms and conditions apply to an Application only if it is designed for use on an Apple (“Apple”) iOS-powered mobile device. Customer and Callpop acknowledge that the Agreement is concluded between Customer and Callpop only, and not with Apple, and Callpop, not Apple, is solely responsible for the Application and the content thereof. Customer agrees that its license to use the Application is limited to the Apple iOS mobile device that Customer owns or controls and that Customer’s use of the Application shall be subject to the usage rules set forth in Apple’s then-current App Store Terms of Service. Customer and Callpop agree that Apple shall have no obligation to provide maintenance and support services with respect to the Application. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the Application. Customer agrees that Callpop, and not Apple, shall be responsible for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to the Application. Customer represents and warrants that Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Customer is not listed on any U.S. Government list of prohibited or restricted parties. Callpop’s contact information for any questions or inquiries with respect to the Application is set forth in Section 13.3 below. Customer agrees to comply with all applicable third-party terms of agreement when using the Application. Customer agrees that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service applicable to the Application. Upon Customer’s acceptance of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against Customer as a third-party beneficiary thereof.

13. General.

13.1 Entire Agreement; Amendment. The Agreement (including these Terms of Use, the Enrollment Form, and the Privacy Policy) constitutes the sole and entire agreement of the parties with respect to the subject matter herein and supersedes all prior and contemporaneous understandings, proposals, agreements, or communications, both written and oral, with respect to such subject matter. No amendment to or modification of the Agreement is effective unless it is agreed to by both parties in writing.

13.2 Geographic Restrictions. Callpop does not represent that the Service or any Callpop Materials are appropriate or available for use outside of the United States. Access to and use of the Service may not be legal by certain persons or in certain countries. If Customer accesses the Service from outside the United States, Customer does so on its own initiative and is responsible for compliance with all applicable laws.

13.3 Notices. Customer agrees that Callpop may communicate any notices to Customer under the Agreement through electronic mail, by posting on Callpop’s website, or by regular mail. Notices will be deemed effectively given to Customer immediately when sent by electronic mail or posted on Callpop’s website, or two (2) business days after being sent by regular mail. All notices, requests, and other communications to be given to Callpop hereunder shall be in writing and sent to Callpop by registered or certified mail, postage prepaid, return receipt requested to the following address: Callpop, [285 East Main Street, American Fork, Utah 84003] (or to such other address that Callpop may designate from time to time in accordance with this Section 13.3). Notices will be deemed effectively given to Callpop when received.

13.4 Governing Law; Jurisdiction and Venue. The Agreement as well as any dispute or claim arising out of or related to the Agreement, its subject matter, or its formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to the Agreement shall be instituted exclusively in the federal or state courts located in Salt Lake City, Utah, and Customer further agrees that such courts shall have in personam jurisdiction and venue with respect to Customer. Customer hereby submits to the in personam jurisdiction and venue of such courts and hereby waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts.

13.5 Limitation on Time to File Claims; Waiver of Jury Trial. ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THE AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. CUSTOMER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT.

13.6 Miscellaneous. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under the Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Callpop’s prior written consent. Callpop may assign this Agreement in connection with a merger, asset acquisition or other similar change of control transaction without prior notice or consent. The Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. Any remedy of Callpop set forth in the Agreement is in addition to any other that may be available to Callpop at law, in equity, or otherwise. Callpop’s failure to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of the Agreement will continue in full force and effect. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties. In the event of a dispute arising out of or related to this Agreement, the prevailing party in any litigation

will be entitled to recover its reasonable attorney fees and court costs from the non-prevailing party. Unless the context otherwise requires, for purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; (e) the headings in the Agreement are for reference only and do not affect the interpretation of this Agreement; and (f) the parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

13.7 Child Online Privacy Protection Act. The Child Online Privacy Protection Act (“COPPA”) restricts website operators from collecting or using any personal information from individuals under the age of 13. In order to exceed the compliance requirements of COPPA, we do not target children under 18, nor do we knowingly collect any information from children under 18 or allow plug-ins or other services to collect such information without express written consent from their parents or guardians. We also prohibit children under 18 from posting any information on the Website or Application without written parental consent. By using any of the Services or posting any information about yourself, you warrant that you are at least 18 years old. In addition, you may not post any photos or other information about any individual who is under 18. If you become aware of any materials posted by a child under age 18, please notify us immediately.

13.8 Copyright Provisions. We comply with the “safe harbor” provisions of the Digital Millennium Copyright Act of 1998. If you see any materials on the Website or Application that you believe violate any copyright rights, including yours, please send an e-mail describing the violation you believe exists to Callpop. If we become aware of any such items, we will promptly take action to ensure we are in full compliance with all privacy and copyright laws.

13.9 Linking Policy. If you link to this Website, we require that you follow these guidelines. The link to this Website must not damage, dilute or tarnish the goodwill associated with any Callpop names and/or intellectual property, nor may the link create the false appearance that your website and/or organization is sponsored, endorsed by, affiliated and/or associated with Callpop. You may not “frame” this Website or alter its intellectual property or material in any way. You may not link to the Website for purposes of harming the Website’s ranking in search engines. You agree that if Callpop requests that you remove a link to the Website for any reason, you will do so immediately without charge to Callpop. If you fail to remove any such link after request, you agree to pay Callpop’s costs incurred in enforcing this provision.

14. Definitions.

“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Service.

“Application(s)” means any software application(s) provided by Callpop to be used by Customer or made available to any User in connection with the Services, whether or not used on a Dedicated Device.

“Customer Data” means any and all information, data, and other content, in any form or medium, that is uploaded into the Software or otherwise provided to Callpop, directly or indirectly, by Customer or a User in connection with any of the Services. For purposes of clarity, and not by way of limitation, Customer Data includes photos, comments, reviews, and any other items uploaded by Customer or a User using the Dedicated Device and/or the Applications.

“Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third party services.

“Dedicated Device” means a Callpop proprietary caller identification device (“CID-ZERO”) or other dedicated device provided to Customer for use in connection with the Services.

“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any User from accessing or using the Service or Callpop Systems as intended by this Agreement.

“Intellectual Property Rights” means all forms of industrial and intellectual property rights and protections throughout the world, including any: (a) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof); (b) copyrights; (c) Internet domain names, trademarks, service marks, and trade dress, together with all goodwill associated therewith; (d) trade secrets; (e) rights in databases and designs (ornamental or otherwise); (f) moral rights, rights of privacy, rights of publicity, and similar rights; and (g) any other proprietary rights and protections, whether currently existing or hereafter developed or acquired arising under statutory or common law, including all applications, disclosures, and registrations with respect thereto.

“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy, and “Processing” and “Processed” have correlative meanings.

“Service” means use of the Website, the Applications, the Dedicated Device, and any other service referenced in the Enrollment Form.

“Callpop Materials” means the Callpop Systems, Software, and any and all other information, data, documents, materials, works, and other content that are provided or used by Callpop in connection with the Services or otherwise comprise or relate to the Services or Callpop Systems, including any third-party materials contained therein, but excluding the Customer Data. For the avoidance of doubt, Callpop Materials include all modifications and derivative works of any of the foregoing and to anything developed or delivered by or on behalf of Callpop under this Agreement.

“Callpop Systems” means the information technology infrastructure used by or on behalf of Callpop in providing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Callpop or through the use of third party services.

“Software” means Callpop’s proprietary software applications (including the Applications) and any third party or other software, and all Updates, new versions, revisions, improvements, and modifications of the foregoing, that Callpop provides access to and use of as part of the Services.

“Subscription Period” means the initial subscription period to the Services of one (1) year, or otherwise as set forth in a written agreement between Callpop and Customer.

“User” means an employee of Customer.

Privacy Policy

Protecting your private information is our priority. This Statement of Privacy applies to Callpop, Inc. (“Callpop”) websites, webservices, applications and governs data collection and usage. For the purposes of this Privacy Policy, unless otherwise noted, all references to Callpop include callpop.com website, Cloud-based Services, Applications and Devices. The Callpop website is a Corporate and Customer Portal site. By using Callpop, you consent to the data practices described in this statement.

Collection of your Personal Information

In order to better provide you with products and services offered on our Site, Callpop may collect personally identifiable information, such as your:

  • First and Last Name
  • Mailing Address
  • E-mail Address
  • Phone Number
  • Job Title

If you purchase Callpop’s products and services, we collect billing and credit card information. This information is used to complete the purchase transaction.

We do not collect any personal information about you unless you voluntarily provide it to us. However, you may be required to provide certain personal information to us when you elect to use certain products or services available on the Site. These may include: (a) registering for an account on our Site; (b) entering a sweepstakes or contest sponsored by us or one of our partners; (c) signing up for special offers from selected third parties; (d) sending us an email message; (e) submitting your credit card or other payment information when ordering an purchasing products and services on our Site. To wit, we will use your information for, but not limited to, communicating with you in relation to services and/or products you have requested from us. We also may gather additional personal or non-personal information in the future.

Use of your Personal Information

Callpop collects and uses your personal information to operate its website(s) and deliver the services you have requested.

Callpop may also use your personally identifiable information to inform you of other products or services available from Callpop and its affiliates.

Sharing Information with Third Parties

Callpop does not sell, rent or lease its customer lists to third parties.

Callpop may, from time to time, contact you on behalf of external business partners about a particular offering that may be of interest to you. In those cases, your unique personally identifiable information (e-mail, name, address, telephone number) is not transferred to the third party. Callpop may share data with trusted partners to help perform statistical analysis, send you

email or postal mail, provide customer support, or arrange for deliveries. All such third parties are prohibited from using your personal information except to provide these services to Callpop, and they are required to maintain the confidentiality of your information.

Callpop may disclose your personal information, without notice, if required to do so by law or in the good faith belief that such action is necessary to: (a) conform to the edicts of the law or comply with legal process served on Callpop or the site; (b) protect and defend the rights or property of Callpop; and/or (c) act under exigent circumstances to protect the personal safety of users of Callpop, or the public.

Tracking User Behavior

Callpop may keep track of the websites and pages our users visit within Callpop, in order to determine what Callpop services are the most popular. This data is used to deliver customized content and advertising within Callpop to customers whose behavior indicates that they are interested in a particular subject area.

Automatically Collected Information

Information about your computer hardware and software may be automatically collected by Callpop. This information can include: your IP address, browser type, domain names, access times and referring website addresses. This information is used for the operation of the service, to maintain quality of the service, and to provide general statistics regarding use of the Callpop website.

Links

This website contains links to other sites. Please be aware that we are not responsible for the content or privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of any other site that collects personally identifiable information.

Security of your Personal Information

Callpop secures your personal information from unauthorized access, use, or disclosure. Callpop uses the following methods for this purpose:

– SSL Protocol

– Callpop CallerID Device, Callpop Client Application, Callpop Agent Application

When personal information (such as a credit card number) is transmitted to other websites, it is protected through the use of encryption, such as the Secure Sockets Layer (SSL) protocol.

We strive to take appropriate security measures to protect against unauthorized access to or alteration of your personal information. Unfortunately, no data transmission over the Internet or any wireless network can be guaranteed to be 100% secure. As a result, while we strive to protect your personal information, you acknowledge that: (a) there are security and privacy limitations inherent to the Internet which are beyond our control; and (b) security, integrity, and privacy of any and all information and data exchanged between you and us through this Site cannot be guaranteed.

Children Under Thirteen

Callpop does not knowingly collect personally identifiable information from children under the age of thirteen. If you are under the age of thirteen, you must ask your parent or guardian for permission to use this website.

E-mail Communications

From time to time, Callpop may contact you via email for the purpose of providing announcements, promotional offers, alerts, confirmations, surveys, and/or other general communication. In order to improve our Services, we may receive a notification when you open an email from Callpop or click on a link therein.

If you would like to stop receiving marketing or promotional communications via email from Callpop, you may opt out of such communications by Customers may unsubscribe from emails by “replying STOP” or “clicking on the UNSUBSCRIBE link.”.

External Data Storage Sites

We may store your data on servers provided by third party hosting vendors with whom we have contracted.

Changes to this Statement

Callpop reserves the right to change this Privacy Policy from time to time. We will notify you about significant changes in the way we treat personal information by sending a notice to the primary email address specified in your account, by placing a prominent notice on our site, and/or by updating any privacy information on this page. Your continued use of the Site and/or Services available through this Site after such modifications will constitute your: (a) acknowledgment of the modified Privacy Policy; and (b) agreement to abide and be bound by that Policy.

Contact Information

Callpop welcomes your questions or comments regarding this Statement of Privacy. If you believe that Callpop has not adhered to this Statement, please contact Callpop at:

Callpop, Inc.
285 East Main
American Fork, Utah 84003

Email Address: support@callpop.com

Telephone number: 800-773-6898

Effective as of January 1, 2018

Business Associate Agreement

This Business Associate Agreement (“Agreement”), effective the day of signing by Parties (“Effective Date”), is entered into by and between Callpop, Inc. (“Callpop”) or (“Business Associate”) and the customer identified in the enrollment (“Customer” or “you”) that you used in the online enrollment form or otherwise (“Enrollment Form”). (each a “Party” and collectively the “Parties”).

The Parties have previously executed or want to enter into contractual arrangements by which the Business Associate uses and/or discloses Protected Health Information (“PHI”) in performing Services on behalf of the Customer (“Underlying Agreement”). When used in this Agreement, the term Underlying Agreement means all current or future agreements between the Parties in which Business Associate uses and/or discloses PHI in performing Services on behalf of the Customer. The Parties are committed to complying with the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”) and the Standards for Security of Electronic Protected Health Information (the “Security Rule) under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). This Agreement, in conjunction with the Privacy and Security Rules, sets forth the terms and conditions pursuant to which PHI (electronic and non-electronic) that is created, received, maintained, or transmitted by, the Business Associate from or on behalf of Customer, will be handled between the Business Associate and Customer and with third parties during the term of their Underlying Agreement and after its termination. The Parties agrees as follows:

1. PERMITTED USES AND DISCLOSURES OF PHI

1.1 Services. Pursuant to the Underlying Agreement, Business Associate provides services (“Services”) for Customer that involve the use and disclosure of PHI. Except as otherwise specified herein, the Business Associate may make any and all uses of PHI necessary to perform its obligations under the Underlying Agreement. All other uses not authorized by this Agreement are prohibited. Moreover, Business Associate may disclose PHI for the purposes authorized by this Agreement only: (i) to its employees, subcontractors and agents, in accordance with Section 2.1(d), or (ii) as otherwise permitted by or as required by the Privacy or Security Rule.

1.2 Business Activities of the Business Associate. Unless otherwise limited herein and if such use or disclosure of PHI would not violate the Privacy or Security Rules if done by the Customer, the Business Associate may:

a. Use the PHI in its possession for its proper management and administration and to fulfill any present or future legal responsibilities of the Business Associate provided that such uses are permitted under state and federal confidentiality laws.

b. Disclose the PHI in its possession to third parties for the purpose of its proper management and administration or to fulfill any present or future legal responsibilities of the Business Associate, provided that the Business Associate represents to Customer, in writing, that (i) the disclosures are required by law, or (ii) the Business Associate has received from the third party written assurances regarding its confidential handling of such PHI as required under 45 C.F.R. § 164.504(e)(4) and § 164.314, and the third party notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

2. RESPONSIBILITIES OF THE PARTIES WITH RESPECT TO PHI

2.1 Responsibilities of the Business Associate. With regard to its use and/or disclosure of PHI, the Business Associate hereby agrees to do the following:

a. Not use or disclose PHI other than as permitted or required by the Agreement or as required by law.

b. Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic PHI, to prevent use or disclosure of PHI other than as provided for by the Agreement.

c. Report, in writing, to Customer within five (5) business days any use or disclosure of PHI not provided for by the Agreement of which it becomes aware, including breaches of unsecured PHI as required at 45 CFR 164.410, and any security incident of which it becomes aware, and cooperate with the Customer in any mitigation or breach reporting efforts.

d. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, to ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information.

e. Ensure that any agent or subcontractor to whom the Business Associate provides PHI, as well as Business Associate, not export PHI for storage beyond the borders of the United States of America.

f. With respect to any agent or subcontractor who has access to PHI from beyond the borders of the United States of America:

i. Ensure that any such individuals are bound by the terms and conditions of this Agreement or a subcontractor Agreement containing substantially similar terms and conditions; and

ii. Ensure that any such individuals with access to PHI beyond the borders of the United States of America are subject to the jurisdiction of the courts in the United States of America; and

iii. Ensure that any such persons with access to PHI have received current HIPAA Privacy & Security training.

g. Within ten (10) business days request of Customer, make available PHI in a designated record set, if applicable, to Customer, as necessary to satisfy Customer’s obligations under 45 CFR 164.524.

h. Within ten (10) business days, make any amendment(s) to PHI, if applicable, in a designated record set as directed or agreed to by the Customer pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Customer’s obligations under 45 CFR 164.526.

i. As applicable, maintain and make available the information required to provide an accounting of disclosures as necessary to satisfy Customer’s obligations under 45 CFR 164.528.

j. To the extent the Business Associate is to carry out one or more of Customer’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Customer in the performance of such obligations.

k. Make its internal practices, books, and records available to the Secretary and to the Customer for purposes of determining compliance with the HIPAA Rules.

l. Comply with minimum necessary requirements under the HIPAA Rules.

2.2 Responsibilities of Customer. With regard to the use and/or disclosure of PHI by the Business Associate, Customer hereby agrees:

a. To inform the Business Associate of any limitations in the form of notice of privacy practices that Customer provides to individuals pursuant to 45 C.F.R. §164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.

b. To inform the Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose PHI, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.

c. To notify the Business Associate, in writing and in a timely manner, of any restriction on the use or disclosure of PHI that Customer has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may impact in any manner the use and/or disclosure of PHI by the Business Associate under this Agreement.

d. Except if the Business Associate will use or disclose PHI for (and the Underlying Agreement includes provisions for) data aggregation, or management/administrative/legal responsibilities of the Business Associate, Customer will not request Business Associate to use or disclose PHI in any manner that would not be permissible under the Privacy and Security Rule if done by the Customer.

3. TERMS AND TERMINATION

3.1 Term. The Term of this Agreement shall commence on the Effective Date, and shall terminate on the termination date of the relevant Underlying Agreement or on the date Customer terminates this Agreement for cause as authorized in paragraph 3.2 of this Section, whichever is sooner.

3.2 Termination for Cause. Business Associate authorizes termination of this Agreement by Customer, if Customer determines Business Associate has violated a material term of the Agreement and Business Associate has not cured the breach or ended the violation within the time specified by Customer.

3.3 Obligations of Business Associate upon Termination. Business Associate agrees to return or destroy all PHI pursuant to 45 C.F.R. § 164.504(e) (2) (ii)(J), if it is feasible to do so. If it is not feasible for the Business Associate to return or destroy said PHI, the Business Associate will notify Customer in writing. Said notification shall include: (i) a statement that the Business Associate has determined that it is not feasible to return or destroy the PHI in its possession, and (ii) the specific reasons for such determination. Business Associate further agrees to extend any and all protections, limitations and restrictions contained in this Agreement to the Business Associate’s use and/or disclosure of any PHI retained after the termination of this Agreement, and to limit any further uses and/or disclosures to the purposes that make the return or destruction of the PHI infeasible. If it is infeasible for the Business Associate to obtain, from a subcontractor or agent any PHI in the possession of the subcontractor or agent, the Business Associate

must provide a written explanation to Customer of the reasons therefore, and require the subcontractors and agents to agree to extend any and all protections, limitations and restrictions contained in this Agreement to the subcontractors’ and/or agents’ use and/or disclosure of any PHI retained after the termination of this Agreement, and to limit any further uses and/or disclosures to the purposes that make the return or destruction of the PHI infeasible.

3.4 Automatic Termination. This Agreement will automatically terminate without any further action of the Parties upon the termination or expiration of the Underlying Agreement.

4. INDEMNIFICATION

4.1. Mutual Indemnification. The Parties agree to indemnify and defend the other Party for any costs, fees, fines, settlements, judgments, including attorney’s fees and court costs incurred as a result of the breach of this Agreement by the other Party or its agents or subcontractors, or as a result of any act or omission by a Party or its agents or subcontractors.

5. MISCELLANEOUS

5.1 Business Associate. For purposes of this Agreement, Business Associate shall include the named Business Associate herein. However, in the event that the Business Associate is otherwise a Customer under the Privacy or Security Rule, that entity may appropriately designate a health care component of the entity, pursuant to 45 C.F.R. § 164.504(a), as the Business Associate for purposes of this Agreement.

5.2 Survival. The respective rights and obligations of Business Associate and Customer under this Agreement shall survive termination of this Agreement indefinitely.

5.3 Amendments; Waiver. This Agreement may not be modified, nor shall any provision hereof be waived or amended, except in a writing duly signed by authorized representatives of the Parties. A waiver with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.

5.4 Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.

5.5 No Third Party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the respective successors or assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever.

5.6 Notices. Any notices to be given hereunder to a Party shall be made via electronic mail, via fax, or via U.S. Mail or express courier to such Party’s address given below, and/or (other than for the delivery of fees) via facsimile to the facsimile telephone numbers listed below.

Notices to Business Associate:

Callpop, Inc
285 East Main Street
American Fork, Utah 84003
1-800-773-6898
support@callpop.com

6. DEFINITIONS.

The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information (“PHI”), Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use. Specific definitions include:

a. Business Associate. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103, and in reference to the party to this Agreement, shall mean CallPop

b. Covered Entity. “Covered Entity” shall generally have the same meaning as the term “Customer” at 45 CFR 160.103

c. HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.

d. Electronic Protected Health Information or Electronic PHI. Electronic PHI which is transmitted by Electronic Media (as defined in the HIPAA Security and Privacy Rule) or maintained in Electronic Media.

e. Privacy Officer. Privacy Officer shall have the meaning as set out in its definition at 45 C.F.R. § 164.530(a) (1) as such provision is currently drafted and as it is subsequently updated, amended or revised.

f. Privacy Rule. Privacy Rule shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 C.F.R. part 160 and part 164.

g. Security Rule. Security Rule shall mean the Standards for Security of Electronic Protected Health Information at 45 CFR Parts 160, 162, and 164.