Affiliated Communications Terms and Conditions for Services

These Terms and Conditions for Services (“Terms“) govern the provision of Services (as defined below) by Affiliated Communications, LLC d/b/a Alert Communications and its affiliates and subsidiaries (together, “Alert“, “Company”, “we”, “us”, or “our”) to you (“Client” or “you”) pursuant to one or more Service Plans (as defined below) entered into by and between Alert and Client from time to time. These Terms are a legal contract between you and Alert. By using our Services, you are agreeing to all the Terms.

1. Services.   The Service Plan which you and Alert agreed to (the “Service Plan“) and these Terms (together with the Service Plan, this “Agreement“) comprise the entire agreement between you and Alert, and supersede all prior terms and conditions and all other prior or contemporaneous understandings, agreements and communications. You understand and acknowledge that Alert shall only provide Services to you pursuant to a Service Plan entered into by and between you and Alert. The Service Plan is governed by these Terms and is hereby incorporated herein by reference.  In the event of any conflict between these Terms and the Service Plan, the Service Plan shall govern.  Alert shall provide to Client the services described in the Service Plan (the “Services“) in accordance with these Terms and the Service Plan.  If telephone answering services are included in the Services, (a) Alert is not responsible for the transfer of Client telephone lines to the Call Center (as defined below in Section 8) and (b) Client hereby authorizes Alert to record messages between Client’s callers and the Call Center. Alert offers several different rate plans and billing models to meet individual client needs and objectives. Alert bills either on a time-basis or on a per contract-basis, unless otherwise specified on the Service Plan. The time-based billing will be calculated based on worktime (“Worktime”), as set forth on the Service Plan which is described in further detail below. Client understands, acknowledges, and agrees that Alert does not and cannot control the types of inbound calls that ring into Client’s account and that all Worktime generated by any and all types of inbound calls, including but not limited to pre-recorded calls, robocalls, telemarketing calls, other unsolicited calls, and/or ‘dead-air’ calls, is billable to Client.

A. Worktime. Worktime is any time that Alert staff are working in or on your account on your behalf, including, but not limited to, time spent answering your calls, drafting and sending emails, drafting, recording, and/or implementing call scripts and/or pre-recorded messages, initiating, facilitating, or making outbound calls, dispatching, reviewing and responding to customer service inquiries, programming, conducting account maintenance and/or otherwise corresponding with you or your callers on your behalf.  Worktime is calculated on a minute usage-basis, which will be billed in increments specified on the Service Plan.  All billing increments are rounded up to the nearest increment. For example, if you are on a 30 second increment plan and receive a call that lasts 10 seconds, it will be billed as 30 seconds; and if you are on a 30 second increment plan and receive a call that lasts 31 seconds, it will be billed as 60 seconds. For Services billed as Worktime, we do not bill for time when callers are on hold waiting to speak with the Call Center or for inbound ringing time, but we do bill for time when callers are on hold waiting to be transferred from the Call Center to the Client (including outbound ringing time), and we do bill for time when callers are on hold while the Call Center interacts with the Client.

B. Talk Time. Talk Time is any time that Alert staff spends talking with you or your callers via your account, including, but not limited to, any time beginning when a call is answered and ending when the call is disconnected on a phone line dedicated to the Client. If multiple phone numbers (lines) are used for the Client’s account, then Talk Time for each number (line) is billable to the Client. Talk Time is calculated on a minute usage-basis, which will be billed in increments specified on the Service Plan. All billing increments are rounded up to the nearest increment. For example, if you are on a 30 second increment plan and receive a call that lasts 10 seconds, it will be billed as 30 seconds; and if you are on a 30 second increment plan and receive a call that lasts 31 seconds, it will be billed as 60 seconds. For Services billed as Talk Time, we do not bill for time when callers are on hold waiting to speak with the Call Center or for inbound ringing time, but we do bill for time when callers are on hold waiting to be transferred from the Call Center to the Client (including outbound ringing time), and we do bill for time when callers are on hold while the Call Center interacts with the Client.

C. System Time. System Time is any time associated with automated or semi-automated processes which occur on the Client’s behalf and is billed in arrears. Examples include front end greetings, text messages, emails, faxes and pages, as well as telephony services which include, but are not limited to, services related to our switch, custom routing, and source tracking. If your account is subject to System Time charges, it will be clearly stated on your Service Plan.

D. Non-Time Based Services. Alert may, as set forth on an applicable Service Plan, bill per call, per contract signed with your customers or constituents, or per lead generated by our Services. In such a case, the Service Plan will specify a Recurring Charge (as defined in Section 3 below) based on an allotted number of calls, contracts, or leads, as applicable, and a fee for any Overage Usage (as defined in Section 1(h) below) for calls, contracts, or leads, as applicable in excess of the allotted number of calls, contracts, or leads. The types of billable calls (whether inbound to or outbound from the Call Center), as well as the parameters for any contracts or leads, will be specified on the applicable Service Plan.

E. Other Services. From time to time Alert may offer other products and service options to you in connection with the Services. In the event that Client engages Alert to provide Services that are not covered by Section 1(a), 1(b), 1(c), or 1(d) herein, you and Alert will enter into a new or updated Service Plan setting forth the scope of such other services and the fees for such other services (including, without limitation, applicable Recurring Charges, Miscellaneous Fees, and fees for Overage Usage, as applicable).

F. Setup and Programming. As indicated on the Service Plan, there will be a setup fee to begin services. Should that Setup Fee be waived and the Client terminates services within the initial Term, Client agrees to pay the originally quoted Setup Fee.

G. Client Services and Support. Basic client and account management services will be provided at no additional charge during regular business hours from 9:00 AM PST – 4:30 PM PST. For after-hours and/or premium support services, Client may incur and agrees to pay additional fees at the Premium Support rate as stated on the Service Plan.

H. Fees. Our fees are calculated per cycle. Cycle periods are noted on the Service Plan and are either weekly or monthly, unless otherwise specified on the Service Plan. There are three types of fees charged in connection with our Services. First, we charge fixed Recurring Charges as outlined on the Service Plan, which include the fees for the base number of minutes (for Worktime, Talk Time, and System Time, as applicable) or the number of calls, contracts, and/or leads (for Non-Time Based Services) allotted in the Service Plan. Recurring Charges are due in advance, on or before the first day of the applicable billing period. Client will be responsible and agrees to pay the Recurring Charges (which is sometimes referred to as the Base Rate) for the duration of the Term regardless if Client chooses to terminate Services during the Term.  Next, we bill a variable overage fee if your usage of time, or number of calls, contracts, and/or leads, as applicable, exceeds what is allotted in your base rate (“Overage Usage”), and such variable overage fee is due in arrears on the first day of the subsequent billing period. Lastly, we may bill certain miscellaneous fees as more fully described in Section 2 (“Miscellaneous Fees”) of these Terms. You are responsible for paying all of these fees in addition to any applicable sales and use taxes based on the address you provide upon signing up for the Service Plan. You agree to pay all fees and applicable sales and use taxes on time. IF YOU HAVE ANY QUESTIONS ABOUT HOW YOU ARE BEING BILLED FOR SERVICES, PLEASE CONTACT OUR CLIENT SERVICES DEPARTMENT VIA PHONE OR EMAIL AT 800-788-3934 OR CLIENTSERVICES@ALERTCOMMUNICATIONS.COM IN ADDITION TO ANSWERING ANY QUESTIONS ABOUT HOW YOU ARE BEING BILLED, WE WILL BE HAPPY TO PROVIDE YOU WITH A FULL DETAILED DESCRIPTION OF ANY AND ALL FEES RELATED TO YOUR ACCOUNT.

2. Miscellaneous Fees.  Depending on the Service Plan features selected by the Client, Alert will charge certain Miscellaneous Fees which will be noted on the Service Plan or in our terms and conditions. These Miscellaneous Fees may include but are not limited to (a) a holiday related fee for the following holidays: New Years Day, Martin Luther King Jr. Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, and Christmas; (b) additional fees for maintenance, programming, coding, software development, general technology services, and telephony services and troubleshooting; and (c) additional fees, costs, and expenses relating to the additional training and coaching of Alert employees in connection with new, enhanced, upgraded, or revised Client products or services, and / or material changes to call handling process or scripts as well as additional features provided to Client upon Client’s request. Alert reserves the right, upon notice to Client, to increase or change any component of the Miscellaneous Fees. If certain features are selected which are not included in the Recurring Charge noted on the Service Plan or otherwise noted on the Service Plan, Alert may charge a fee for those features which may include, but are not limited to, voicemail boxes, call transfer fees, additional phone number rental fees, reporting fees, portal and mobile app access fees, and encrypted SMS messaging. Miscellaneous Fees which are known, predictable and recurring in nature, such as recurring phone number rental fees, will be billed in advance with the Recurring Charge and are due at the same time as the Recurring Charge. Miscellaneous Fees which are not recurring in nature and not predictable will be billed in arrears with any Overage Usage charges and are due at the same time as the Overage Usage charges. IF YOU HAVE ANY QUESTIONS ABOUT HOW YOU ARE BEING BILLED FOR SERVICES, PLEASE CONTACT OUR CLIENT SERVICES DEPARTMENT VIA PHONE OR EMAIL AT 800-788-3934 OR CLIENTSERVICES@ALERTCOMMUNICATIONS.COM. IN ADDITION TO ANSWERING ANY QUESTIONS ABOUT HOW YOU ARE BEING BILLED, WE WILL BE HAPPY TO PROVIDE YOU WITH A FULL DETAILED DESCRIPTION OF ANY AND ALL FEES RELATED TO YOUR ACCOUNT.

A. Monthly Service Charge. Alert may charge a Monthly Service charge. This charge can equal between 0%-5% of the client’s monthly invoice. The exact percentage charged is predicated on the service plan and features selected by the client. Alert reserves the right, upon notice to Client, to increase or change any component of the Monthly Service Fee.

3. Payment; Late Charges. As of the start date indicated in the Service Plan (“Start Date”), Alert provides regular Services to the Client. On or before the Start Date, and on or before the first day of each successive billing cycle following the Start Date, Client shall pay the base rate (or pro-rata portion thereof, as applicable) for the Services set by Alert in the Service Plan (“Recurring Charge”).  Alert reserves the right, upon notice to Client, to increase or change any component of the Recurring Charge, variable Overage Use charge, or Miscellaneous Fees after the first twelve (12) months of Services, unless Customer signs up for a promotion in which case the pricing and term of the promotion will be disclosed on the Service Plan.  Client shall, at all times, maintain a valid form of payment on file with Alert.  Alert reserves the right, and Client hereby authorizes Alert, to charge the valid form of payment on file at any time for Services rendered but not yet paid. Alert reserves the right upon notice to Client to immediately charge the payment on file for Overage Usage that materially exceeds the base rate allotment. All fees are quoted and to be paid in United States dollars. The foregoing authorization shall not affect your obligation to pay all sums due and payable to Alert if Alert fails to, is unable to, or refrains from charging any such payment on file. If a charge is not made by Alert for whatever reason, the payment to Alert may be late or past due. If you do not pay on time or if we cannot charge the payment method you have on file for any reason, Alert reserves the right to suspend or terminate your account. Additionally, if any payment is not made within 21 days after the due date, we may charge a late charge equal to the greater of $10 or 10% of the amount then due, per cycle period, subject to any restrictions imposed by local law.  IF YOU HAVE ANY QUESTIONS ABOUT HOW YOU ARE BEING BILLED FOR SERVICES, PLEASE CONTACT OUR CLIENT SERVICES DEPARTMENT VIA PHONE OR EMAIL AT 800-788-3934 OR CLIENTSERVICES@ALERTCOMMUNICATIONS.COM. IN ADDITION TO ANSWERING ANY QUESTIONS ABOUT HOW YOU ARE BEING BILLED, WE WILL BE HAPPY TO PROVIDE YOU WITH A FULL DETAILED DESCRIPTION OF ANY AND ALL FEES RELATED TO YOUR ACCOUNT.

4. Term; Termination. Alert shall provide the Services to Client for the time period described in the Service Plan (the “Term”), which Term shall automatically renew for successive periods unless Alert or Client gives sixty (60) days prior written notice of termination. Client may request changes to the Service Plan by calling or emailing Alert. Requested changes must be approved by an Alert authorized representative. Any changes to the Service Plan will be reflected in the next billing cycle, unless otherwise agreed to by Alert and Client.  A credit may be applied to your account at Alert’s sole discretion to reflect changes made and implemented during a billing cycle. Alert may immediately terminate the Services with or without notice in the event that Client is in Material Default, as determined by Alert. For purposes of this Agreement, a “Material Default” shall occur, or shall be deemed to have occurred, if (i) we suspect that providing Services to you aids in illegal activity, relates to fraudulent activity, or is party to potentially illicit activity including, for example, sexual encounters, (ii) you, your staff, or your callers are abusive, disrespectful or otherwise inappropriate to our personnel, (iii) you breach, violate, fail to perform under, or fail to comply with any of the terms set forth in the Agreement, (iv) Client fails to pay any other amount when due under this Agreement, or (v) Client becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.  Client may terminate this Agreement and any applicable Service Plan in the event of a material breach of this Agreement by Alert, provided that Client has given Alert notice and a detailed description of the circumstances of such material breach and Alert has failed to cure such breach within forty-five (45) days after receipt of notice from Client regarding such material breach. Upon termination of the Agreement for any reason, Alert shall maintain the right to collect any and all amounts then due, including any prorated amounts for Services rendered and not yet paid. Upon termination of the Agreement by Alert as a result of Client’s Material Default, or otherwise in the event of Client’s Material Default that does not result in termination of the Agreement, in addition to any other rights Alert may have at law or equity, (a) Alert shall maintain the right to collect any and all amounts then due, (b) Client shall pay all legal fees and collection costs incurred by Alert, and (c) Client shall pay all late fees that may accrue as a result of such Material Default.

5. Client’s Obligations, Acts and Omissions.  Client shall respond promptly to any Alert request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Alert to perform the Services in accordance with the requirements of this Agreement.  If Alert’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or any of its agents, subcontractors, consultants or employees, including communicating inaccurate or outdated information, Alert shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client in connection therewith.

6. Methods of Communication and Disclosure. In accordance with applicable law, you hereby expressly agree that we may contact you via email, phone call, text message, or any other method of communication, and that we may use any information that you provide to us, for the purposes of fulfilling our duties under this Agreement as well as for marketing and promotional purposes, customer service purposes, system maintenance purposes, billing and collections purposes, survey purposes, and/or returning messages from you or your staff. Any and all phone, data, and other communications rates by your communications vendors may apply. You agree that we may disclose any information to comply with applicable law or regulation or with valid legal process including subpoenas, court orders, or search warrants. Client agrees that Alert shall be entitled to identify Client as a customer in Alert marketing materials and on its website.

7. Taxes. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.

8. Scripted Readings.  To the extent Client has not already done so, Client will promptly provide Alert with scripted texts that enable the Call Center to answer questions about Client’s products and services.  The “Call Center” is defined as the facility and staff engaged to provide Services to the Client and includes, but is not limited to, telephone service representatives, customer support representatives, supervisory and quality assurance staff, and administrative support personnel. Alert will train the Call Center to answer questions about Client’s products or services based on the scripted texts provided by Client.  Alert will use reasonable efforts to ensure the Call Center follow Client’s scripts, directions, and account instructions. Client recognizes that, in any human encounter, it is not possible to anticipate and prepare for every conceivable question about Client’s products and services that the Call Center may be asked.  Therefore, in instances in which the Call Center cannot answer questions raised by Client’s customers or prospects, the Call Center will direct their questions to Client for a more detailed response. Client is solely responsible for providing more detailed answers to questions asked by Client’s callers that the Call Center cannot answer. Thus, to the extent Client has not already done so, Client shall promptly provide appropriate contact email addresses and telephone numbers, which the Call Center may utilize to forward calls and questions that the Call Center cannot answer.  Client will update the contact information provided to Alert on a regular basis.

9. Intellectual Property.  All intellectual property rights, including copyrights, trademarks, know-how and other confidential information, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights“) in and to any work product and other materials that are or were delivered to Client under this Agreement or prepared by or on behalf of Alert in the course of performing the Services shall be owned by Alert.

10. Confidential Information.  All non-public, confidential or proprietary information of Alert, including information pertaining to business operations, strategies, pricing and marketing (collectively, “Confidential Information“), which was or is disclosed to Client in connection with the Services or otherwise and whether or not identified as “confidential” is confidential, and shall not be disclosed or used by Client without the prior written consent of Alert.  Confidential Information does not include information that is: (a) in the public domain; (b) known to Client at the time of disclosure; or (c) rightfully obtained by Client on a non-confidential basis from a third party. Alert shall be entitled to injunctive relief for any violation of this Section 10 and Section 9.

11. Data Protection.  Alert will use commercially reasonable efforts to comply with all known applicable laws related to privacy and security of personal information that are standard in the industry.  Client also agrees to comply with all applicable privacy and data protection laws including but not limited to FTC and HIPPA regulations.  Client acknowledges the inherent risks, sensitivity and unknown consequences related to processing and storing personal information.  Client shall be cautious and vigilant in limiting the personal information that will be processed by Alert to only such personal information necessary to complete Services. Alert will use commercially reasonable efforts guided by industry standards to secure information related to the Services from Client or third parties.  Client acknowledges that Alert cannot guarantee the security of information provided to it and Alert is not responsible for a third party’s circumvention of any privacy safeguards or security measures.

12. Representation and Warranty.

A. Alert represents and warrants to Client that it shall perform the Services in a professional and workmanlike manner in accordance with the terms in the Service Plan.

B. Alert shall not be liable for a breach of the warranty set forth in Section 12(a) unless Client gives written notice of the defective Services, reasonably described, to Alert within ten (10) days of the time when Client discovers or should have discovered that the Services were defective.

C. Subject to Section 12(b) and Section 15, Alert shall, in its sole discretion, either: (i) re-perform such Services; or (ii) credit or refund the price of such Services at the pro-rata contract rate.

D. THE REMEDIES SET FORTH IN SECTION 12(c) SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND ALERT’S ENTIRE LIABILITY, FOR ANY BREACH OF THIS AGREEMENT BY ALERT.

13. Disclaimer of Warranties.  EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 12(a) ABOVE, ALERT MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

14. Indemnification. Except to the extent arising from Alert’s gross negligence or willful misconduct, Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless Alert for all costs, charges and losses sustained or incurred by Alert in connection with third party claims (including claims made by Client’s callers) arising in connection with the Client’s use of or Alert’s provision of the Services or otherwise.

15. Limitation of Liability.  IN NO EVENT SHALL ALERT BE LIABLE TO CLIENT OR TO ANY THIRD PARTY (INCLUDING ANY CLIENT CALLER) FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT ALERT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL ALERT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE AGGREGATE AMOUNTS PAID TO ALERT FOR THE BILLING CYLCE DURING WHICH THE ACTION(S) (OR INACTION(S)) ON WHICH THE CLIENT’S CLAIM IS BASED OCCURRED (OR FAILED TO OCCUR).

16. Waiver.  No waiver by Alert of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Alert. No failure by Alert to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof.  No single or partial exercise of any right, remedy, power or privilege by Alert hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

17. Force Majeure.  Alert shall not be liable or responsible to Client, or be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused or results from acts or circumstances beyond the reasonable control of Alert including, without limitation, acts of God, disease outbreaks, flood, fire, earthquake, explosion, governmental actions, war, civil unrest, national emergency, lock-outs, labor disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers, inability to obtain supplies, adequate materials, or a telecommunication breakdown, power outage, or other service issue or interruption.

18. Assignment.  Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Alert. Any purported assignment or delegation by Client in violation of this Section 18 is null and void. Notwithstanding the foregoing, the Agreement shall be binding on Client’s successors and assigns.

19. Relationship of the Parties.  The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

20. Governing Law.  All matters arising out of or relating to this Agreement or otherwise in connection with the Services are governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Delaware. Client and Alert both waive a trial by jury of any or all issues arising in any action or proceeding between the parties hereto or their successors and assigns, under or connected with the Services or this Agreement.  All disputes, controversies, or claims arising out of or relating to this Agreement or otherwise in connection with the Services shall be submitted to binding arbitration in the State of Arizona in accordance with the applicable rules of the American Arbitration Association then in effect.

21. Severability; Survival.  If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of this Agreement, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidential Information, Data Protection, Governing Law and Survival.

22. Agreement to Non-Hire / Non-Solicit.  Client, its affiliates, and/or its related individuals and corporate entities agree not to solicit nor to hire any Alert employee or former employee without either a) attaining Alert’s prior written consent, or b) by paying Alert a buy-out fee equal to the employee’s most recent three months of wages multiplied by four (4). The foregoing Non-hire / Non-solicitation restriction is in effect for the Term and for six (6) months after termination of Agreement for whatever reason.

23. Performance. Alert quality performance metrics used for marketing purposes reflect historical averages and are not guarantees of future performance for Client.

24. Money Back Guarantee. Money back guarantee is only valid for the first 21 days of Client service or 500 minutes of usage under a Service Plan, whichever occurs first. Money back guarantee does not apply to any renewal cycle under a Service Plan.

25. Amendment. Alert may change these Terms from time-to-time. If we make any changes to these Terms, we will notify you by revising the last updated date at the bottom of the Terms, and in some cases, we may provide you with additional notice (such as adding a statement to your invoices, sending you an email notification, or providing a banner notification on Alert’s website). Your continued use of the Services shall constitute your consent and agreement to, and acceptance of, the changes.

 

LIVE CHAT/TEXT TERMS & CONDITIONS

ClientChatLive, a wholly owned subsidiary of Nexa Holdings and Alert Communications, shall Provide Live Chat/Text Services to the Client as set forth below under the Terms and Conditions of this Agreement set forth herein.

Terms and Conditions

By accepting the terms of this Agreement, Client retains ClientChatLive to perform certain Services, as set forth and described herein.

  1. Services. ClientChatLive agrees to monitor and provide chat operator services on the Client’s website(s) listed in the Chat Services Agreement. ClientChatLive will install chat operating software on the client’s website and chat operators will be available to talk to visitors of the client’s website(s) and discuss the client’s products and services.  The chat operator shall attempt to obtain the visitor’s name, contact information and what they would like from the client.  At the end of the chat the chat operator shall then forward the chat transcript to the client’s email account(s) designated above.
  2. Compensation. Client shall pay the designated fee for the Flat Rate agreed upon and the initial setup fees as designated above. A Valid Chat shall be described as a visitor that chats with a chat operator whereby the chat operator obtains the visitor’s name, email address or phone number.  A valid chat shall NOT include current customers of the client, repeat visits that have already chatted with a chat operator, or chats that do not obtain the visitor’s name and either email or phone number. The Client will receive a list of Valid Chats each month to review.
  3. Effective Date. The Effective Date of this Agreement shall be the Effective Date set forth above.  (If no date is specified, the Effective Date shall be the date of execution by Client on the Service Order)
  4. The initial Term of this Agreement shall be the number of days following the Effective Date set forth in the Service Order and will co-terminate with the term set forth in the Service Order.
  5. Warranties by ClientChatLive. ClientChatLive represents and warrants that it has developed a system to monitor the Client’s website, engage in chat conversations with visitors who chose to do so, and pass along the information gathered to the Client. ClientChatLive cannot and does not warranty that the ability to relay such information to the Client will not be interrupted by circumstances out of the control of ClientChatLive.  ClientChatLive makes no warranty, and no representations have been made in this Agreement or otherwise, regarding the frequency, quality, or profitability of and Leads which may be relayed.
  6. Independent Contractor. The parties acknowledge that the services rendered under this Agreement shall be solely as an independent contractor.  ClientChatLive will not enter into any contract or commitment on behalf of Client.  It is expressly understood that this undertaking is not a partnership or joint venture of any kind.
  7. Invoicing. All invoices are due and payable within seven (7) days of the date of the invoice.  If any invoice is not paid within twenty-one (21) days of the date of said invoice, ClientChatLive may cease providing the Services under this Agreement and may elect to terminate this Agreement. Invoices paid via a credit card are paid upon the day billing is issued.
  8. Automatic Credit Card Payment. Client will pay all invoices by credit card, unless otherwise agreed to.  Client shall provide ClientChatLive with the appropriate credit card information.  If Client makes such an election, ClientChatLive will provide Client with an invoice at least once per month.  If Client does not contact ClientChatLive within five (5) business days of the date of such invoice with any concerns or disputes, ClientChatLive will automatically charge the amount of the invoice to Client’s credit card.
  9. Termination by Client. Client may terminate this Agreement at the end of the then-current Term or if the agreement continues month to month Client may terminate this agreement by sending notice in writing.
  10. Company Trademarks, Trade Names, etc.

A. The Client shall not use any ClientChatLive Proprietary Marks in any advertising or promotional materials without the prior written consent of ClientChatLive and such usage shall be in compliance with ClientChatLive directives. The Client shall not use any ClientChatLive Proprietary Mark or any confusingly similar words or symbols as part of its name or incorporate the same anywhere other than its website or approved marketing collateral, without prior written permission of ClientChatLive.

B. The Client agrees that all right, title and interest in and to ClientChatLive Proprietary Marks shall at all times be and remain in ClientChatLive and the Client acquires no interest therein and shall at all times recognize and protect ClientChatLive’s right of ownership of ClientChatLive Proprietary Marks and shall not in any way derogate ClientChatLive’s sole rights to such Marks.

C. Client shall promptly notify ClientChatLive of any infringement or illegal uses of ClientChatLive’s Proprietary Marks which may come to the Client’s attention.

D. Client shall only use ClientChatLive Proprietary Marks in connection with the marketing and sale of its services and shall not commingle its own or any other marks in connection therewith. The Client shall not publish or cause to be published any statement or encourage or approve any advertising practice which might mislead or deceive any parties or might be detrimental to the good name, ClientChatLive, good will or reputation of ClientChatLive and/or its Products or Services. The Client shall withdraw any statement made and discontinue any advertising or practice deemed by ClientChatLive to have a detrimental effect.

  1. Ownership of Data.

A. Client will be given unrestricted access to all appropriate Client, and Client Chat lead data. Under no circumstances may the data be used in any fashion that violates CAN-SPAM and other regulatory code, and without limitation: spamming, mail bombing, trolling, illegal use of the ClientChatLive System or any use inconsistent with conduction of ethical business practices. Client will have and retain ownership of any valid chat data input by Client Chat for Client, or Client’s Chat Users.

B. ClientChatLive shall not be granted use or ownership of any of Client’s or Client Chat Data for any purposes other than maintenance, internal operation of the System and provision of services. ClientChatLive shall maintain confidentiality with regard to Client’s and Client’s Chat Data and shall not disclose the same to any person, entity or Party other than Client, or as may be dictated or mandated by a court of law with authority and jurisdiction to compel production of the Data referenced herein.

  1. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware.
  2. General Terms and Conditions.

A. If any provision of this Agreement is held to be invalid or unenforceable, You agree that the invalid provision will be treated as being deleted or removed, and the remainder of this Agreement shall continue in full force and effect.

B. This Agreement constitutes the entire agreement between the parties.

C. The failure of ClientChatLive to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

D. Section headings are used solely for the convenience of the reader. They shall not be used to limit the scope of any section.

E. This Agreement may not be assigned by Client, unless ClientChatLive agrees to the assignment in writing.

  1. Terms of Service Provided by ClientChatLive.

A. In no event shall ClientChatLive be liable for any direct, indirect, incidental, special, consequential, or exemplary damages resulting from the use or the inability to use the services provided by ClientChatLive or for the cost of procurement of substitute services, or resulting from any data, information or services obtained or transactions entered into through or arising from or in connection with the services provided by ClientChatLive or resulting from unauthorized access to or alteration of transmissions or data, including, but not limited to, damages for loss of profits, damages arising from or in connection with, use of data or other intangibles, lost business opportunities, business interruption or lost business profits, even if ClientChatLive has been advised of the possibility of such damages.  In no event will ClientChatLive liability to buyer of the services or any third party in connection with or arising from this agreement exceed the transfer fees actually received hereunder.  ClientChatLive and its partners are in the business of creating leads.  Under no circumstances can ClientChatLive or any of its partners guarantee your success and or conversion of these leads into closed sales or transactions.