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Dialer Services Agreement
This dialer services 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 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’ DIALERS(2) INDICATING YOUR ELECTRONIC CONSENT ONLINE (such as SignNow®, or DocuSign®, or WPESign – ApproveMe)(3) SIGNING A PRINTED WRITTEN VERSION OF THESE TERMS(4) EMAILING YOUR CONSENT
PRODUCT SUMMARY: EVS designs and sells several separate software calling products (“products”) for your use, including: 1) the Dolphin Power Seller, a power dialer that allows human dialing by manually clicking a computer mouse to call the next number in a list of phone numbers; 2) the Cricket Click Dialer, which allows human dialing by manually clicking a computer mouse on an individual phone number found in a CRM or clicking virtually any phone number on a computer screen; and 3) the Parrot Predictive Dialer which allows human dialing on one or more lines simultaneously. All of these products make certain use of EVS’ ZoomCalls VoIP Phone Service (“ZoomCalls”).
REQUIREMENTS: To use EVS’ products, you will need
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: You may cancel future charges if you notify EVS no later than 3 days prior to any scheduled billing date. (You will need written cancellation confirmation from EVS as proof of your request.) There are no refunds for any unused service. You are welcome to reactivate your service at any time thereafter.
REFUND POLICY: You will have the opportunity to try one of our Dolphin or Cricket dialers for free or have a free online demo of Parrot before purchasing; therefore, there will be no refunds on monthly, quarterly, or annual payments made, whether the services have been used or not. There will be no refund in the event that any adverse law changes occur while this Agreement is in effect.
COMPLIANCE & RESTRICTIONS: EVS’ dialing products (except for the multiple line Parrot Predictive Dialer) 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. By making any purchase and/or use of any of EVS’ dialers, 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, fax broadcasts, calling cell phones, 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 FCC’s Telephone Consumer Protection Act of 1991 (TCPA), the FTC’s Telemarketing Sales Rule (TSR), and the Children’s Online Privacy Protection Act. 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 systems, 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. In addition, you agree to comply with other behavioral rules, including without limitation: (1) transmitting (“pushing out”) 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); (2) only calling during allowable calling times and not on official holidays; (3) making all mandatory disclosures; (4) honoring all internal Do Not Call (opt out) requests; (5) staying within dropped or abandoned call limitations if using Parrot; 6) complying with state and federal consent regulations if you record calls; and (7) 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): http://www.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 DNC land line phone numbers and Cell phone numbers from your lists. Example: www.evs7.com/dnc 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.
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 “Compliance & Restrictions” 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.
EMAILING & TEXTING: 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 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 or text messages at the same time (also known as “blasting”) from any of its products. Note: There are NO REFUNDS for unused text messages if you suspend service with EVS.
CALLER ID: 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 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.
CALL RECORDING: EVS’ Cricket Click Dialer and Dolphin Power Dialer allow users to record calls on their computers’ hard drives with no additional fees to EVS. EVS also offers optional Cloud Call Recording in which EVS stores your call recordings on its cloud servers and you will have 24/7 access to your recordings. There are 2 plans: 1) Basic Cloud Storage of 60 days for Cricket and Dolphin. 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. 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.
911 & DIRECTORY ASSISTANCE: EVS cannot be relied upon for calling 911 or other life-line services in an emergency. Operators will not automatically know your physical location to render assistance. ZoomCalls and EVS will in no way accept responsibility for failure of the service to contact help in cases of emergency. ZoomCalls may NOT be used for operator (or directory) assistance.
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.
WARRANTIES: EVS will repair or replace corrupted or malfunctioning software 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 dialers 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.
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: Dialer Services Agreement
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