Calling Software and Phone Services Agreement-CT


This agreement ("Agreement") is made by and between (1) Electronic Voice Services, Inc. ("EVS" or "our" or "we"), on the one side, and (2) you and any entity, agent, user, or independent contractor that you are purchasing the products and services for (collectively "you," "your", "buyer," or "user") on the other side.

THIS IS A LEGALLY BINDING CONTRACT AND YOU AGREE TO USE THE PRODUCTS AND SERVICES IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS. YOU INDICATE YOUR AGREEMENT WITH THESE TERMS BY ANY OF THESE WAYS:

(1) MAKING ANY USE OF EVS’ PRODUCTS DESCRIBED IN THIS AGREEMENT
(2) INDICATING YOUR ELECTRONIC CONSENT ONLINE (such as SignNow®, DocuSign®, or WPESign - ApproveMe)
(3) SIGNING A PRINTED WRITTEN VERSION OF THESE TERMS
(4) EMAILING YOUR CONSENT

EVS' PRODUCTS:

EVS designs and sells several inbound and outbound software calling products and services (“products”), including the following, all of which are covered under this Agreement:

  1. Dolphin Power Seller: Our desktop power dialer software allows human dialing by manually clicking a computer mouse to call the next number in a list of phone numbers.
  2. Dolphin Cloud Dialer: Our cloud power dialer software allows human dialing by manually clicking a computer mouse to call the next number in a list of phone numbers.
  3. Cricket: Our desktop software allows human dialing by manually clicking a computer mouse on an individual phone number found in a CRM or spreadsheet or clicking virtually any phone number on a computer screen.
  4. Octopus: Our cloud or desktop call center software can receive simultaneous inbound calls as well as place outbound calls.
  5. Fox TAS: Our cloud telephone answering service (virtual receptionist) software can receive simultaneous inbound calls as well as place outbound calls.

EVS' outbound dialing products, described in this Agreement, manually call one telephone number at a time and there is no delay before hearing the call answered. If a person answers a call, the caller hears them say "hello" and may speak to that person. If an answering machine or voice mail is reached, additional options will be presented to the caller.

Note: EVS has 2 other software products (Parrot Predictive Dialer and ZoomCalls Cloud Business IP Phone Service) that have their own separate Agreements and are therefore not covered by this Agreement.

All of EVS' software products include the use of EVS' ZoomCalls VoIP Phone Service ("ZoomCalls").

REQUIREMENTS: To use any of the above products, refer to EVS’ primary website: www.evs7.com, then choose the product you are using and see the requirements on that product’s web page. If using VPN (Virtual Private Network), you may experience "jitter", "latency" (delays), or dropped calls unless your VPN is configured properly. For internet and VPN details, visit our website: https://www.evs7.com/docs/internet-requirements-voip-dialers.pdf

PAYMENT: Payment for product use is required in advance either monthly, quarterly, or annually (depending upon your preference). You are responsible for making payments on time if paying by Bank ACH, Bank Wire, PayPal, Check, or Bitcoin. If paying by Credit or Debit Card, after your initial payment, EVS will set up subsequent automatic monthly charges (or quarterly charges if you prefer), unless you contact EVS in writing to do otherwise. For payments over $3,000 or from customers outside of North America, you must pay by Bank ACH or Bank Wire or Bitcoin. If payment is not received by a due date, EVS reserves the right to suspend service until payment is received in full. EVS also reserves the right to change pricing with a 30-day prior written notice to you. You have no obligation to continue using the services following an increase.

CANCELLATION: To cancel service and/or any future automated billing, customers must notify EVS at least 3 days prior to their next billing date. To cancel, call 800-713-8353 or 972-713-6622 or email sales@evs7.com. Ask for a confirmation E-mail for your records to provide proof of your request.

REFUND POLICY: Depending on which product you choose, you will have the opportunity to have either a free trial or a free demo before purchasing; therefore, there will be no refunds on monthly, quarterly, or annual payments made, whether the services have been used or not or for any other reason . There will be no refund in the event that any adverse law changes occur while this Agreement is in effect or if EVS suspends your service for violating this Agreement. There are NO REFUNDS for unused text messages if you suspend service with EVS.

ACCEPTABLE USE POLICY: This Acceptable Use Policy (“AUP”) describes actions that EVS prohibits when any party uses its products and services. By ordering or using EVS’s products and services, you, the Customer or product and service recipient, agree to the terms of this AUP. Each Customer must review and comply with this AUP and all applicable laws, but this AUP is not intended to be interpreted as, relied upon, or used as a substitute for legal advice.

Laws: By making any purchase and/or use of any of EVS’ products and services, you warrant that you will at all times fully comply with all applicable Federal, State, Province, and local laws, rules, regulations, and ordinances, including but not limited to, those concerning privacy, telephone solicitation, email solicitation, text messaging, fax broadcasts, calling cell phones, leaving pre-recorded voice messages, collections, and direct marketing. In the USA such laws include the Federal Fair Credit Reporting Act, the Gramm-Leach-Bliley Act of 1999, the Do-Not-Call Implementation Act of 2003, the CAN-SPAM Act, the Telemarketing Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission Telemarketing Sales Rule (TSR), the Telephone Consumer Protection Act of 1991 (TCPA), the Federal Communications Commission (FCC) regulations and orders implementing the Telephone Consumer Protection Act, the Children’s Online Privacy Protection Act, all federal and state Do Not Call and calling time restriction laws and regulations, and, as applicable for calls to Canadian numbers, the CRTC’s Unsolicited Telecommunications Rules, including the CRTC Telemarketing Rules, National DNCL Rules, and Automatic Dialing and Announcing Device Rules, Telecom Decision CRTC 2007-48, as amended. You agree to use the products in full compliance with all laws and regulations, including without limitation, the prohibition on the use of an automatic telephone dialing system (“ATDS”) to call wireless (also known as mobile or cell) phones without express written consent. It is your sole responsibility to determine which of our products, if any, fall under the definition of an ATDS, and then obtain sufficient consent where necessary. We have no ability to determine if you have sufficient consent for your calls; this is your sole responsibility. EVS does NOT allow robocalling (also known as robodialing or voice broadcasting or blasting) with any of its products. In addition, you agree to comply with other behavioral rules, including without limitation: (1) only calling during allowable calling times and days and not on official holidays; (2) making all mandatory disclosures; (3) honoring all internal Do Not Call (opt out) requests; 4) complying with state and federal consent regulations if you record calls; and (5) obtaining any required state telemarketing licenses and surety bonds. If you are subject to USA or Canadian telemarketing laws, you may need to register and if in the USA, obtain a SAN (Subscription Account Number) with the Federal Trade Commission (FTC) (and perhaps other government agencies): https://telemarketing.donotcall.gov/ Unless exempt, you will be required to register and scrub against the Federal and State DNC Lists of the areas you will call. If needed, there are companies that will scrub (for a fee) DNC land line phone numbers and Cell phone numbers from your lists. Examples: www.DoNotCallScrubber.com and www.dnc.com Note: Every day thousands of telephone numbers are disconnected, moved, changed, reassigned, and/or placed on the DNC list. Also, land line phone numbers can be “ported” to become cell phone numbers and vice versa.

Unlawful or Prohibited Uses:You agree not to use, and not to encourage or allow any other person to use, EVS’ products and services in unlawful or prohibited manners, including, but not limited to, the following:

  • Using the products and services to engage in any activities that are illegal, abusive, false, fraudulent, deceptive or misleading, or any activity that exploits, harms, or threatens to harm children.
  • Engaging in any unsolicited advertising, marketing, or other unlawful activities using the products and services, including without limitation, any activities that violate laws applicable to advertising, electronic communications, and telemarketing.
  • Using EVS’ products and services in any way that fails to conform to any applicable industry guidelines and standards, including, without limitation, the CTIA Messaging Principles and Best Practices, Short Code Registry Best Practices and Short Code Monitoring Handbook.
  • Attempting to bypass or disable any security mechanism on any of the products and services or using the products and services in any other manner that poses a security or service risk.
  • Reverse-engineering the products and services for any improper purpose.
  • Using the products and services in any manner that may subject EVS or any third party to liability, damages, or danger.
  • Launching or facilitating a denial-of-service attack on any of the services or any other conduct that adversely impacts the availability, reliability, or stability of the products and services.
  • Transmitting any material that contains viruses, trojan horses, worms or any other malicious or harmful programs.
  • Using the products or services to transmit any material that infringes the intellectual property rights or other rights of third parties.
  • Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call, including failing to comply with the Truth in Caller ID Act, 47 U.S.C. § 227, and implementing regulations, 47 C.F.R. § 64.1604.

The above list of prohibited uses is meant to be illustrative and should not be considered exhaustive. All determinations related to violations of this Acceptable Use Policy will be made by EVS in its sole, reasonable discretion. EVS reserves the right to change or modify the terms of the AUP at any time, effective immediately when posted to the EVS website. Customer’s use of the EVS Services after changes to the AUP are posted to the EVS website shall constitute acceptance of any changed or additional terms.

EMAILING-TEXTING-FAXING: It is NOT legal to send unsolicited commercial emails or to send text messages to wireless devices, including cell phones and pagers, unless the sender gets prior express written permission from the recipient. Exceptions to the law: 1) Transactional or relationship types of messages - If a company has a relationship with you, it can send you things like statements or warranty information; 2) Non-commercial messages - This includes political surveys, fundraising messages, and emergency notifications. If you send emails, faxes or text messages (SMS or MMS) using any of EVS’ products, you must comply with the Telephone Consumer Protection Act (TCPA) and CAN-SPAM Act and any other applicable laws. Laws, regulations, and rulings may change from time to time. EVS does NOT permit sending multiple emails, text messages, faxes, or calls at the same time any type of phone number using any of its products.

CALLER ID: You agree to transmit accurate Caller ID information (you are also responsible for complying with any state laws which allow you to use a Caller ID telephone number from that state only if you have a physical presence in that state). You agree that you will always use truthful Caller ID information when conducting your calling campaigns. EVS will act in good faith to accommodate your Caller ID preferences, but you realize that regarding porting and other Caller ID processes, EVS has little control and is normally subject to the procedures and timelines established by other telephone carriers and telco providers. Therefore, EVS assumes no obligation to complete any porting or similar Caller ID transfer process within any specific period of time.
Important Note: The FCC’s Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act includes their “STIR/SHAKEN” technology which requires “Caller ID authentication”. This is designed to combat the origination of illegal calls. EVS is required to verify (authenticate) ownership of all Caller ID phone numbers that its customers are using and register those phone numbers with its telephone service carrier. Once this Act is fully implemented, all calls will be blocked by the telephone service carrier if the Caller ID is not authenticated.

HIPAA Compliance: If you have access to “Protected Health Information” (as defined by the Health Insurance Portability and Accountability Act of 1996, as amended) in the USA, you will be required to become HIPAA compliant and you must sign a Business Associate Agreement with EVS (unless your use of EVS’ products and services fit within an exception for requiring a Business Associate Agreement.) EVS has earned the HIPAA Seal of Compliance; thus, upon your request, EVS can provide you with a BAA (Business Associate Agreement) which acknowledges our commitment to PHI security and overall HIPAA compliance. If you already have HIPAA compliant texting and emailing communication tools, EVS may be able to integrate those tools into our software for you. If you do not have HIPAA compliant communication tools, EVS can supply you with HIPAA compliant emailing, texting, and cloud call recording for a small additional monthly fee. EVS will not be responsible for any HIPAA violations by you, your entity, or your representatives.

CALL RECORDING: EVS offers optional Cloud Call Recording of all calls in which EVS stores your call recordings on its cloud servers and you will have 24/7 access to your recordings. There are 3 plans: 1) Basic Cloud Storage of 60 days. (To save your recordings longer, you must download them onto your own devices before they are erased by EVS) or 2) Lifetime Cloud Storage for as long as you have an active account with EVS or 3) HIPAA Compliant Lifetime Cloud Storage for as long as you have an active account with EVS. If you discontinue service with EVS, you will have 14 days to download your recordings onto your own devices before they are erased by EVS. Important Note: Some states only require one-party consent for a call to be recorded while certain other states require 2-party or all-party consent for a call to be recorded.

CALL DETAIL RECORDS: EVS stores your call detail records for 365 days (while you are an active customer). To keep call detail records longer or if you suspend service with EVS, you will need to download these records onto your own devices.

DO NOT CALL SCRUBBER: EVS has provided you with tools to assist in cleaning your dialing lists of DNC telephone numbers; however, EVS cannot guarantee 100% integrity or reliability of these tools.

OPERATOR ASSISTANCE: EVS’ ZoomCalls may NOT be used for operator or directory assistance.

E911, EMERGENCY SERVICES & 911 DIALING: EVS’ Services are not ordinarily provisioned as traditional interconnected VoIP Services.  As such, Enhanced 911, or E911, service is not provided by default and must be enabled by EVS based on a customer request for interconnected VoIP service, which includes E911 by default.  The EVS Network is able to deliver the address, name and phone number of your office to Emergency Services upon dialing 911. Customer agrees to provide thirty (30) days’ notice to EVS if it intends to add interconnected VoIP service to its service package and use the EVS Network for 911
Non-Availability of Traditional 911 or E911 Dialing Service. At EVS, 911 dialing service operates differently than traditional 911 service. You agree to inform any business invitees, guests, and other third persons who may be present at the physical location where you utilize the Services of the non-availability of traditional 911 or E911 dialing from your EVS Services and equipment. The physical location where you utilize the Service must be the actual physical street address where your calling equipment—and thus where you would expect emergency personnel to come if you called 911—not a P.O box, mail drop, or similar address.

Description of 911-Type Dialing Capabilities:
EVS offers 911-type dialing service in certain areas within the U.S. (but may not offer such service in certain areas of the U.S. or non-U.S. locations) that differs from traditional 911 services. When you dial 911 your call is routed from the EVS network to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the address that you listed at the time of activation. If you make changes to your 911 address by contacting EVS, your call may be routed to a different PSAP or local emergency service personnel, who may ask you to provide your location and other information.
Calls dialed by handset extensions included in your account with EVS will be routed from the EVS’ network to the PSAP or local emergency service personnel designated for the address that you listed at the time of activation. In the event that your equipment is used in multiple locations, or in the event that one or more items of equipment are used in multiple locations, end users designated as administrators on your account may, at your option, create additional service locations and associate your equipment to specific locations for the purposes of routing calls to the local PSAPs for such locations. Individual end users may assign and re-assign their current location on an as-needed basis, provided, however, that your system administrator has previously activated that functionality. It is your sole responsibility to make any necessary or appropriate changes and to ensure that all business invitees, household residents, guests and other third persons who may be present at the physical location(s) where you utilize the Services are aware of this option.  For any EVS extensions assigned to a non-US 911 location (subject to applicable local law), calls placed to 911 will be routed to a US-based call center that may not be able to offer local emergency assistance to the caller.
Service Outage. You acknowledge and agree that (a) 911 dialing does not function in the event of a power failure or disruption. If an interruption in the power supply occurs, the Services and 911 dialing will not function until power is restored and you may have to reset or reconfigure equipment prior to utilizing the Services or 911 dialing; (b) service outages or suspension or termination of service by your broadband provider and/or ISP will prevent all Services, including 911 dialing, from functioning; (c) service outages due to suspension of your account as a result of billing issues will prevent all Services, including 911 dialing, from functioning; (d) if there is a service outage for any reason, such outage will prevent all Service, including 911 dialing; and (e) EVS’ liability is limited for any Services outage and/or inability to dial 911 from your line or to access emergency service personnel.
Possibility of Network Congestion and/or Reduced Speed for Routing or Answering 911. You acknowledge and agree that (a) network congestion and/or reduced speed in the routing of a 911 communication made utilizing your equipment may be greater than that experienced when using traditional 911 dialing over traditional public telephone networks; (b) 911 dialing from your equipment will be routed to the general telephone number for the local emergency service provider (which may not be answered outside business hours), and may not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider’s facilities when such calls are routed using traditional 911 dialing; and (c) the general telephone number for the local emergency service provider may produce a busy signal or may take longer to answer, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.
Automated Number Identification. Technical limitations may make it impossible for the PSAP and the local emergency personnel to identify your phone number when you dial 911. The local emergency operators answering the call may not see your telephone number or your registered address. The emergency center may not be equipped to receive, capture or retain your telephone number and registered address, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is dropped or disconnected, or if you are unable to speak. EVS’ system is configured to send the automated number identification information; however, one or more telephone companies that route the traffic to the PSAP, and the PSAP itself, may not be able to receive the information and pass it along. You acknowledge and agree that PSAP and emergency personnel may or may not be able to identify your phone number in order to call you back if (a) the call is unable to be completed; (b) the call is dropped or disconnected; c) you are unable to speak to tell the dispatcher the location of your phone number and/or (d) the Service is not operational for any reason.
Limitation of Liability and Indemnification Related to 911 Services. EVS relies on third parties for the forwarding of information underlying such routing. EVS and its third party provider(s) disclaim any and all liability in the event such forwarded information or routing is incorrect. EVS and its officers, directors or employees may not be held liable for any claim, damage, loss or other cause of action, and you hereby waive any and all claims, damages, loss or causes of action, arising from or relating to EVS’ 911 dialing. You further agree to defend, indemnify and hold harmless EVS, its officers, directors, employees, affiliates, agents and its third party provider(s) from any and all third party claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of, or resulting from (a) your failure to correctly activate 911 calling; (b) your provision to EVS of incorrect information in connection with your 911 calling or service; (c) misrouted 911 or E911 calls; or (d) the absence, failure or outage of the Services, including 911 dialing and/or inability of any user of your Service to be able to dial 911 or to access emergency service personnel.

Responsibility & Liability; You are responsible for making frequent backups of your system(s) to protect against any loss of valuable data. By making any purchase and/or use of any of EVS’ products, you warrant that you will at all times fully comply with all applicable laws and regulations. EVS cannot provide legal advice and assumes no responsibility to advise you on these laws or to supervise or ensure your compliance. EVS is merely providing you with tools and you are expected to use those tools within the bounds of the laws. EVS’ representatives may from time to time train or assist you with various functions such as loading dialing lists, but you are completely responsible for ensuring that those lists are legally compliant as explained in this Agreement’s “Acceptable Use Policy” section. If you allow an EVS representative to access your computer remotely for assistance, EVS will in no way be responsible for loss of data or for malfunctions of your computer, modem, firewalls, or other hardware or software. More legal information is provided at EVS’ technical support web site: http://www.HelpMeDial.com/legal. You should be aware that laws and rulings may change from time to time, thus they may not be included in this Agreement or on EVS’ web sites. A violation of any such laws could result in significant penalties and other sanctions. EVS and its technicians and representatives are not attorneys; therefore, any interpretations of laws by EVS and its technicians and representatives regarding the legal use of these products should not be completely relied upon. Prior to buying or using any of these products, you should consult with an attorney regarding your anticipated uses of any of EVS’ products to ensure that your uses comply with laws and regulations. You are 100% responsible and liable for using these products legally. There are several national telemarketing attorneys available to help you. Example: Allen, Mitchell & Allen PLLC – Tel: 801-930-1117 – Web Site: http://www.allenlawyer.com

SERVICE CONDITIONS: EVS strives to provide the highest quality software; however, there are a number of factors that can cause system malfunctions including, but not limited to, operator error, software corruption, software bugs, internet problems, electrical surges, and computer or hardware failures. EVS cannot be responsible if you add other software or hardware that corrupt the system or for any other malfunctions. EVS also strives to keep its ZoomCalls VoIP Phone Service to its customers operational 100% of the time as ZoomCalls has multiple safeguards; however, various factors can cause outages, interruptions, and degradation of VoIP service from time to time. Those factors (many are beyond ZoomCalls’ control) can include, but are not limited to, acts of nature, equipment failure, power outages, carrier problems, human error, cybercrime, and internet failure or disruption. (Note: Land lines and cellular lines are also subject to acts of nature, human error, equipment failures, and power failures.) ZoomCalls does not warrant that its service will always function without failure, delay, interruption, error, or degradation of voice quality or loss of content, data, or information. You agree to accept the service “as is”. Regardless of the causes or damages or lost income or additional expenses incurred by any loss, interruption, or degradation of service, you are not entitled to any refund or credit in the event of loss, interruption, or degradation of service. Your sole remedy is cancellation of future service. In the event a court awards direct damages, despite the foregoing, such damages shall in no case exceed the amount of the last payment for the services. EVS may revoke your license and all access to the products and related support at any time for no reason or any reason, including without limitation, if EVS has any reason to believe, at its sole discretion that: (1) you may have violated the law or this Agreement; (2) you may have otherwise acted unethically or immorally when using the products; or (3) the law has changed and no longer allows your continued use of the products. In any such event, you will not be entitled to any refund except at the discretion of EVS.

Privacy Policy: You acknowledge that you have read, understand, and consent to our privacy policy: https://www.evs7.com/privacy-policy

WARRANTIES: EVS will repair or replace corrupted or malfunctioning product at no charge, except if there has been damage by nature or misuse or abuse by you. EVS and ZoomCalls make no warranty, express or implied, including but not limited to, any implied warranties of merchantability, fitness of the service for a particular purpose or any warranty that the service will meet your requirements. EVS makes no compliance warranties of any kind; it is solely your responsibility to ensure that your calling and other operations comply with the law. We are merely a technology service provider—a common carrier.

GOVERNING LAW & JURISDICTION: This Agreement shall be governed by and construed under the laws of the State of Texas, without regard to normal choice of law and conflict of law principles. Any litigation relating to or arising under the Agreement shall be brought in the Circuit Court of Dallas, Texas and the parties’ consent to the jurisdiction and venue of the same.

INDEMNIFICATION: You grant representatives of EVS permission to email and/or call you with technical, informational, and marketing matters regarding these calling products and EVS’ related products, such as telephone lists. You also agree to indemnify and hold harmless EVS, along with all of its owners, officers, directors, employees, contractors, vendors and affiliates, from and against any claims, demands, suits, losses, damages, expenses, fines, penalties, litigation, judgments, and fees, including attorney’s fees and court costs, arising out of or relating to your actual or alleged breach of this Agreement, your use of the products, or any third-party claim alleging any violation by you of the law.

(Executed in both individual and corporate capacity, to bind both the individual and the business)

Entire Agreement, Survival: This Agreement, along with any separate terms or fee schedules referenced herein, constitutes the entire Agreement between the parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other Agreements, whether oral or written, relating to the subject matter of this Agreement.

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Document name: Calling Software and Phone Services Agreement-CT
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December 8, 2020 4:41 pm CDTCalling Software and Phone Services Agreement-CT Uploaded by Service Agreement - agreements@evs7.com IP 104.6.207.94