These Recorded Call Services Terms and Conditions supplement the CyberMark Agreement Terms and Conditions (the “Terms” or such successor URL(s) implemented by CyberMark from time to time), and apply to any Customer using Recorded Call Services. Any capitalized terms used herein but not defined shall have the meaning ascribed to them in the Terms.
In connection with its use of the Recorded Call Services, Customer acknowledges and agrees as follows:
- Definition. Call recording, transcribing, monitoring, analyzing and archiving under the Services is part of an optional, add-on product feature made available by CyberMark, which may include, without limitation, the reporting and archiving of personal and non-personal data related to such Calls (collectively, the “Recorded Call Services”).
- Optional Service. Customer shall determine in advance, in its sole discretion without reliance on CyberMark, whether the use of the Recorded Call Services is appropriate and legal in the context of Customer’s use and implementation thereof. Customer may always elect not to use or to cease use of the Recorded Call Services at anytime. These additional Recorded Call Services Terms and Conditions shall apply automatically in the event that Customer elects at any time during the Term to use any or all Recorded Call Services made available by CyberMark or otherwise activates any such Recorded Call Services, whether directly or indirectly.
- Recorded Call Notice. In connection with the Recorded Call Services, Customer acknowledges and agrees that: (a) calls placed using the CyberMark Numbers and related Services (collectively, “Calls”) may be recorded, transcribed, monitored, analyzed and archived; (b) Customer has the sole responsibility to advise all callers to CyberMark Numbers as well as, if applicable, all Call Receivers (as defined in Section 5 below) prior to any commencement of a Call with Customer or others that each Call is subject to recording, transcription, monitoring, archiving and any other relevant details and required notices (the “Recorded Call Notice”); (c) Customer has the sole responsibility to implement or effect such Recorded Call Notice, whether using available product functionality or other means to ensure that the each Call receives a Recorded Call Notice in an appropriate and legally compliant manner; and (d) Customer has the sole responsibility for any Recorded Call Notice used in connection with any Calls and its compliance with applicable law and regulation; (e) any sample or default pre-recorded notices or messages made available by CyberMark within the Recorded Call Services, whether at request of Customer or not, are for illustration purposes only; and (f) CyberMark makes no representations or warranties with respect to any use of any Recorded Call Notice by Customer or any other party (and no separate communication shall be deemed to supersede this acknowledgement and agreement). In the event the Recorded Call Notice requires a revision in order to comply with applicable law, then Customer shall promptly notify CyberMark in writing of that fact, proposing the exact language that Customer requires to comply with the applicable laws.
- Data. Call content, information and related data obtained through the Recorded Call Services shall be deemed “Client Content” under the CyberMark Service Terms and Conditions.
- Legal Compliance. Customer represents and warrants that it shall use the Recorded Call Services (and any Customer Data acquired in connection therewith) in full compliance with all applicable laws and regulations and that it has established proper procedures to protect the privacy of all callers and call recipients in connection with the Recorded Call Services, and otherwise fully comply with all applicable laws, regulations and governmental or commonly accepted self-regulatory guidelines. To the extent that applicable laws and regulations may require that Customer provide notice to and/or receive express consent and permission from, in writing or otherwise, all agents (including employees), independent contractors, and/or other persons who receive telephone calls recorded by the Recorded Call Service (the “Call Receivers”), Customer agrees, acknowledges, represents and warrants that it will provide and/or obtain all requisite notices, consents, and permissions relating to Call Receivers, as required by applicable laws and regulations.
- Financial Institutions Not Eligible. Customer represents and warrants that it is not a “Financial institution” as defined in the Gramm-Leach-Bliley Act (“GLB”) also known as the Financial Services Modernization Act of 1999. Customer further represents and warrants that it will fully comply with all state and federal regulations applicable to any financial or other confidential information that may be captured and stored by Customer.
- Purpose of Use. Customer further represents, and warrants that its use of the Recorded Call Services is for “quality assurance” and “customer service” purposes only. The Recorded Call Services are an optional part of advertising and marketing services provided for the purposes of assisting advertisers and marketers to measure return on investment (ROI) in connection with acquiring new customers under advertising campaigns and media placement. Such Services are not intended to be used by Customer for the purposes of using, collecting, accessing or disclosing personally identifiable health information, including without limitation Protected Health Information (“PHI”), as defined in 45 C.F. R. §160.103 under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA Rules”). Without limiting the foregoing, to the extent that Customer is a “covered entity” as defined in the Health Insurance Portability and Accountability Act of 1996, Customer will only be eligible to use Recorded Call Services in connection with an Order for Call Marketplace Advertising Services and represents and warrants that it will not attempt to use Recorded Call Services to communicate with existing customers or otherwise obtain or maintain PHI with respect to existing customers or patients. Any exposure to PHI hereunder will be random, infrequent and incidental to CyberMark’s provision of Recorded Call Services and is not meant for the purpose of accessing, managing the PHI or creating or manipulating PHI. As such, CyberMark shall not be deemed to be a “Business Associate” or “Covered Entity” under the HIPAA Rules for the purposes of this Agreement.
- Legality and Privilege. Customer is solely responsible for, and CyberMark shall have no liability with respect to, without limitation: (a) the legality of recording, transcribing, monitoring, analyzing, archiving and/or disclosing the contents of telephone calls or caller/ call recipient identification; (b) the legality of the language used in any Recorded Call Notice; and (c) the legality of any use, handling, retention and disclosure of Customer Data acquired as a result of the use of any Recorded Call Services hereunder. In addition, certain businesses that may collect information from callers that would be subject to a privilege (i.e. accountants or attorneys) ACKNOWLEDGE AND AGREE that they may use Recorded Call Services ONLY IF THEY FULLY ASSUME THE RISK that using a call recording service provided by a 3rd party may jeopardize or preclude the application of the applicable professional privilege with respect to information exchanged during telephone conversations that are recorded.
- Customer Clients. If Customer intends to offer use of the Recorded Call Services to its Clients, in addition to the requirements of Section 1(c) of the Terms, Customer shall include in the Client Terms, in the same form or substance, those additional representations and warranties and other obligations included in Sections 3 through 8 hereof with respect to the Recorded Call Services.
- Status as Service Provider. CyberMark operates as the primary service provider to Customer with respect to Recorded Call Services, provided that CyberMark may also engage third-party vendors, subcontractors or agents in connection with the delivery of any of its Services;