In consideration of the premises and mutual promises hereinafter set forth, and other good and valuable consideration, the Parties agree as follows:
Article 1 Definitions
- 1.1
Dialer MEANS PIMS AUTOMATED DIALER. THE DIALER INCLUDES THE NUMBER OF PHONE LINES AS INDICATED ON THE SERVICE ORDER.
- 1.2
DIRECT INBOUND DIAL PHONE NUMBER OR DID PHONE NUMBER MEANS A PRIVATE, UNLISTED PHONE NUMBER INDEPENDENT OF THE MAIN PHONE NUMBER OF CUSTOMER.
- 1.3
INTERNATIONAL CALLS MEANS CALLS MADE TO RECIPIENTS OUTSIDE OF THE FIFTY UNITED STATES.
- 1.4
LEAD GENERATION MEANS A PROACTIVE EFFORT TO SCREEN POTENTIAL CUSTOMERS AND CONVERT THEM TO ELIGIBLE PROSPECTS/LEADS.
- 1.5
LICENSE KEYS MEANS THE SERIES OF LETTERS AND DIGITS THAT MUST BE ENTERED DURING SOFTWARE INSTALLATION TO AUTHORIZE CUSTOMER’S EMPLOYEES TO ACCESS THE PHONE SYSTEM.
- 1.6
MANUFACTURER MEANS THE MANUFACTURER OF THE PHONE SYSTEM AND THE SOFTWARE.
- 1.7
PARTIES MEANS THE SELLER AND CUSTOMER.
- 1.8
PHONE SERVICE MEANS OUTGOING AND/OR INCOMING CURRENT RATES AS INDICATED ON THE SERVICE ORDER, WHICH ARE SUBJECT TO CHANGE WITH A 30 (THIRTY) DAY NOTICE BY SELLER.
- 1.9
PHONE TYPE MEANS TYPE OF PHONE OR DIAL PRODUCT AS INDICATED ON THE SERVICE ORDER.
- 1.10
SERVICE ORDER MEANS THE DESCRIPTION OF THE SPECIFIC PRODUCTS AND SERVICES, FEES, AND TERMS ATTACHED TO THIS AGREEMENT AND INCORPORATED HEREIN BY THIS REFERENCE. ONLY THE SPECIFIC SERVICES, FEES AND TERMS WHICH CUSTOMER SELECTS UNDER A SERVICE ORDER DULY EXECUTED BY SELLER AND CUSTOMER SHALL BE INCORPORATED INTO THIS AGREEMENT.
- 1.11
SKIP TRACING MEANS THE PROCESS OF LOCATING PERSON’S WHEREABOUTS AND GATHERING CURRENT CONTACT INFORMATION.
- 1.12
SOFTWARE MEANS THE SOFTWARE THAT THE MANUFACTURER DEVELOPS TO ENABLE OPERATION OF THE PHONE SYSTEM.
- 1.13
DOMESTIC CALLING MEANS CALLS MADE WITHIN THE FIFTY UNITED STATES, EXCLUDING U.S. TERRITORIES OUTSIDE OF THE FIFTY UNITED STATES.
- 1.14
INTERNATIONAL CALLING MEANS CALLS MADE OUTSIDE OF THE FIFTY UNITED STATES, INCLUDING U.S. TERRITORIES OUTSIDE OF THE FIFTY UNITED STATES.
- 1.15
UPGRADE INSURANCE MEANS INSURANCE PROVIDING UPDATED LICENSE KEYS THAT WILL RUN THE MOST RECENTLY ROLLED-OUT VERSION OF THE SOFTWARE THAT ENABLES PHONE SYSTEM OPERATION.
Article 2 Purchases of Products and Add-Ons
CUSTOMER AGREES TO PURCHASE PRODUCTS FROM SELLER IN THE DOLLAR AMOUNT SPECIFIED IN THE SERVICE ORDER. CUSTOMER SHALL PAY SUCH AMOUNT TO SELLER FOR THE PRODUCTS, ALONG WITH THE ADDITIONAL FEES LISTED ON THE SERVICE ORDER FOR SERVICES SELECTED IN CONNECTION WITH THE PURCHASES, WHICH MAY INCLUDE, WITHOUT LIMITATION, CALL CENTER SERVICES, THE DIALER, PHONE SERVICE, USE OF ONE-EIGHT HUNDRED (1-800) PHONE NUMBERS, DIRECT INBOUND DIAL AND/OR UPGRADE INSURANCE.
Article 3 Technical Assistance and Support
- 3.1
Description of support provided SELLER WILL PROVIDE CUSTOMER THE FOLLOWING SERVICES WITH RESPECT TO THE PIMSWARE: (I) ANSWER TECHNICAL QUESTIONS CONCERNING FUNCTIONS AND FEATURES OF THE SOFTWARE; AND (II) PROVIDE ERROR VERIFICATION, ANALYSIS AND CORRECTIVE EFFORTS.
- 3.2
Support Availablity MAINTENANCE SERVICES FOR ALL SUPPORT REQUESTS WILL BE AVAILABLE BY TELEPHONE OR EMAIL DURING THE HOURS OF 8:00 A.M. (EST) AND 6:00 P.M. (EST), MONDAY THROUGH FRIDAY, EXCLUDING STANDARD HOLIDAYS, AND ON-CALL SUPPORT FROM 6:00 P.M. (EST) UNTIL 9:00 P.M. (EST).
Article 4 License Keys
- 4.1
License Keys CUSTOMER ACKNOWLEDGES THAT LICENSE KEYS ARE NECESSARY TO RUN THE PHONE SYSTEM AND SOFTWARE.
- 4.2
Updates CUSTOMER ALSO ACKNOWLEDGES THAT, AS THE MANUFACTURER DEVELOPS UPDATES TO THE SOFTWARE, IT MAY PRODUCE NEW LICENSE KEYS THAT ARE NECESSARY TO RUN THE PHONE SYSTEM AND SOFTWARE. SELLER DOES NOT WARRANT THAT LICENSE KEY THAT CUSTOMER INITIALLY PURCHASES UNDER THE SERVICE ORDER WILL ENABLE ONGOING SUCCESSFUL PHONE SYSTEM AND SOFTWARE OPERATION IF MANUFACTURER DEVELOPS NEW LICENSE KEYS AFTER THE EFFECTIVE DATE OF THIS AGREEMENT AND THE SERVICE ORDER.
- 4.3
Upgrade Insurance CUSTOMER MAY PURCHASE UPGRADE INSURANCE, AS PROVIDED IN THE SERVICE ORDER, TO BE ASSURED THAT IT RECEIVES NEW LICENSE KEYS DEVELOPED BY MANUFACTURER AS NECESSARY TO ENABLE ONGOING SUCCESSFUL PHONE SYSTEM AND SOFTWARE OPERATION. UPGRADE INSURANCE MAY ONLY BE PURCHASED WITHIN ONE (1) YEAR OF LICENSE ACTIVATION. CUSTOMER ACKNOWLEDGES THAT SELLER WILL ONLY PROVIDE UPDATED LICENSE KEYS TO CUSTOMER AT NO ADDITIONAL CHARGE IF CUSTOMER PREVIOUSLY PURCHASED UPGRADE INSURANCE UNDER THE SERVICE ORDER, AND THAT IN ALL OTHER CIRCUMSTANCES, CUSTOMER MAY NEED TO PURCHASE NEW LICENSE KEYS TO CONTINUE OPERATING THE PHONE SYSTEM AND SOFTWARE AFTER MANUFACTURER UPDATES THE SOFTWARE.
Article 5 Invoicing and Payment Procedures
- 5.1
Itemization SELLER WILL SUBMIT TO CUSTOMER, AT ITS ADDRESS LISTED AT THE BEGINNING OF THIS AGREEMENT, AN INVOICE WHICH INCLUDES AN ITEMIZATION OF THE FEES INCURRED HEREUNDER BY CUSTOMER, ANY APPLICABLE SERVICE, SALES, VALUE-ADDED OR SIMILAR TAXES, AND ANY ASSOCIATED EXPENSES REASONABLY OR ACTUALLY INCURRED BY SELLER IN CONNECTION WITH THE RENDITION OF ANY SERVICES SPECIFIED IN THIS AGREEMENT.
- 5.2
Timing THE INVOICES WILL BE SUBMITTED BY SELLER ON THE 15TH OF EACH MONTH WITHOUT PRORATION.
- 5.3
Payment CUSTOMER WILL PAY ALL INVOICES UPON RECEIPT. PAYMENTS WILL BE MADE ELECTRONICALLY TO SELLER BY CREDIT CARD. ALL FEES ARE FULLY EARNED WHEN DUE AND NON-REFUNDABLE WHEN PAID. ANY INVOICE WHICH REMAINS OUTSTANDING FOR MORE THAN THIRTY (30) DAYS FROM THE DATE OF INVOICE WILL ACCRUE INTEREST AT THE ANNUAL RATE OF EIGHTEEN PERCENT (18%), COMPOUNDING MONTHLY, BUT IN NO EVENT AT A RATE HIGHER THAN ALLOWED BY APPLICABLE LAW. ITEMS APPEARING ON INVOICES WHICH ARE NOT QUESTIONED WITHIN THIRTY (30) DAYS OF RECEIPT OF THE FIRST INVOICE CONTAINING THE ITEM WILL BE CONSIDERED FINAL AND UNDISPUTED.
Article 6 Term and Termination
- 6.1
Term THIS AGREEMENT SHALL COMMENCE ON THE EFFECTIVE DATE AND SHALL CONTINUE FOR ONE MONTH FROM THE EFFECTIVE DATE (THE “INITIAL TERM”). THEREAFTER, THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR SUCCESSIVE ONE (1) MONTH PERIODS (EACH, A “SUCCESSIVE TERM”) UNLESS ONE PARTY TO THIS AGREEMENT PROVIDES WRITTEN NOTICE TO THE OTHER PARTY OF THE INTENT TO TERMINATE THIS AGREEMENT EFFECTIVE UPON THE LAST DAY OF THE INITIAL TERM OR ANY SUCCESSIVE TERM, AS THE CASE MAY BE.
- 6.2
Termination By Seller SELLER MAY TERMINATE THIS AGREEMENT UPON THE OCCURRENCE OF ANY ONE OR MORE OF THE FOLLOWING EVENTS: (A) CUSTOMER FAILS TO TIMELY PAY WHEN DUE ANY AMOUNTS REQUIRED TO BE PAID UNDER THIS AGREEMENT, AND ANY OR ALL OF SUCH AMOUNTS REMAIN UNPAID THIRTY (30) DAYS AFTER THE ISSUANCE OF THE FIRST INVOICE ITEMIZING SUCH AMOUNTS; (B) CUSTOMER’S BREACH OF ANY TERM, CONDITION OR PROVISION HEREOF (OTHER THAN A BREACH DESCRIBED ABOVE), AND IF CAPABLE OF CURE, SUCH BREACH REMAINS UNCURED THIRTY (30) DAYS AFTER THE SELLER GIVES CUSTOMER WRITTEN NOTICE THEREOF; (C) CUSTOMER BECOMES INSOLVENT, MAKES AN ASSIGNMENT FOR THE BENEFIT OF ITS CREDITORS, INSTITUTES OR BECOMES SUBJECT TO ANY PROCEEDING UNDER ANY BANKRUPTCY OR SIMILAR LAWS FOR THE RELIEF OF DEBTORS, OR SEEKS THE APPOINTMENT OF, OR BECOMES SUBJECT TO THE APPOINT OF, ANY TRUSTEE OR RECEIVER FOR ALL OR ANY PORTION OF ITS ASSETS; OR (D) ANY SERVICE REQUIRED TO BE PERFORMED BY SELLER HEREUNDER IS PROHIBITED BY APPLICABLE LAW, OR BECOMES IMPRACTICAL OR UNFEASIBLE FOR ANY TECHNICAL, LEGAL OR REGULATORY REASON.
- 6.3
Survival NOTWITHSTANDING TERMINATION OF THIS AGREEMENT FOR ANY REASON BY EITHER PARTY, CUSTOMER’S OBLIGATIONS ANY AND ALL AMOUNTS REMAINING UNPAID SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
Article 7 Limited Warranty
- In no event will Seller’s liability in connection with any services or software provided hereunder, whether caused by failure to deliver, non-performance, defects, breach of warranty or otherwise, exceed the aggregate fees paid to Seller by Customer during the three (3)-month period immediately giving rise to such liability. Seller cannot guarantee continuous service, service at any particular time, integrity of data, information, or content transmitted via the Internet. Seller will not be liable for any unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content transmitted or received through the Phone System and Software. Seller shall not be held liable or responsible or exposed to loss of revenue due to the Phone Service failure. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE FOREGOING FURTHER STATES SELLER’S ENTIRE LIABILITY FOR COPYRIGHT, TRADE SECRET, OR CONFIDENTIAL INFORMATION INFRINGEMENT. IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR A THIRD PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS, LOST DATA AND THE LIKE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Article 8 Miscellaneous Provisions
- 8.1
Independent Contractor THE PARTIES ARE INDEPENDENT CONTRACTORS AND NOTHING CONTAINED IN THIS AGREEMENT PLACES SELLER AND CUSTOMER IN THE RELATIONSHIP OF PRINCIPAL AND AGENT, EMPLOYER AND EMPLOYEE, PARTNERS OR JOINT VENTURERS. NEITHER PARTY HAS, EXPRESSLY OR BY IMPLICATION, OR MAY REPRESENT ITSELF AS HAVING, ANY AUTHORITY TO MAKE CONTRACTS OR ENTER INTO ANY AGREEMENTS IN THE NAME OF THE OTHER PARTY, OR TO OBLIGATE OR BIND THE OTHER PARTY IN ANY MANNER WHATSOEVER.
- 8.2
Remedies THE PARTIES ACKNOWLEDGE THAT A BREACH OR THREATENED BREACH OF THIS AGREEMENT BY CUSTOMER WOULD RESULT IN IRREPARABLE INJURY TO SELLER, AND THAT IT WOULD BE DIFFICULT OR IMPOSSIBLE TO ESTABLISH THE FULL MONETARY VALUE OF SUCH DAMAGE. ACCORDINGLY, ANY SUCH VIOLATION SHALL GIVE SELLER THE RIGHT TO A COURT-ORDERED INJUNCTION, INCLUDING A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION, OR OTHER APPROPRIATE ORDER TO SPECIFICALLY ENFORCE THIS AGREEMENT. SELLER’S RIGHTS HEREUNDER SHALL NOT IN ANY WAY BE CONSTRUED TO LIMIT OR RESTRICT ITS RIGHT TO SEEK OR OBTAIN OTHER DAMAGES OR RELIEF UNDER THIS AGREEMENT OR UNDER APPLICABLE LAW.
- 8.3
Agreement Binding THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES AND EACH OF THEIR OWNERS, OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AND ATTORNEYS. THIS AGREEMENT IS A FULLY NEGOTIATED DOCUMENT AND SHALL BE DEEMED TO HAVE BEEN JOINTLY DRAFTED BY THE PARTIES, AND THEREFORE SHALL NOT BE MORE STRICTLY CONSTRUED AGAINST ANY PARTY AS THE DRAFTSMAN.
- 8.4
Entire Agreement THIS AGREEMENT, ALONG WITH THE ATTACHED SERVICE ORDER, CONTAINS THE ENTIRE UNDERSTANDING AND COMPLETE AGREEMENT OF THE PARTIES WITH RESPECT TO THE CIRCUMSTANCES, MATTERS, EVENTS AND TRANSACTIONS THAT ARE THE SUBJECT MATTER OF THIS AGREEMENT, AND OTHER UNDERSTANDINGS OR AGREEMENTS, IF ANY, PREVIOUSLY REACHED BETWEEN THE PARTIES ARE SUPERSEDED BY THIS AGREEMENT. NO AMENDMENT OR MODIFICATION OF THIS AGREEMENT OR SERVICE ORDER SHALL BE VALID OR BINDING UPON THE PARTIES UNLESS MADE IN WRITING AND EXECUTED BY THE PARTIES.
- 8.5
NON Waiver EITHER PARTY’S FAILURE TO INSIST UPON STRICT PERFORMANCE OF ANY TERM OF THIS AGREEMENT OR TO EXERCISE ANY RIGHT PROVIDED IN THIS AGREEMENT SHALL NOT BE CONSTRUED AS A WAIVER OR A RELINQUISHMENT FOR THE FUTURE OF SUCH TERM OR RIGHT, WHICH SHALL CONTINUE IN FULL FORCE AND EFFECT.
- 8.6
Severability IF ANY PROVISION OF THIS AGREEMENT IS HELD TO BE UNENFORCEABLE OR ILLEGAL UNDER CERTAIN CIRCUMSTANCES FOR ANY REASON, SUCH DECISION SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF SUCH PROVISIONS UNDER OTHER CIRCUMSTANCES OR THE REMAINING PROVISIONS HEREOF AND SUCH PROVISIONS SHALL BE REFORMED ONLY TO THE EXTENT NECESSARY TO MAKE THEM ENFORCEABLE UNDER SUCH CIRCUMSTANCES.
- 8.7
Choice of Law Jurisdiction and Venue THIS AGREEMENT SHALL BE INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAW OF GEORGIA APPLICABLE TO AGREEMENTS MADE AND PERFORMED ENTIRELY IN GEORGIA BY PERSONS DOMICILED THEREIN, AND THE PARTIES CONSENT TO THE JURISDICTION AND VENUE OF THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA (ATLANTA DIVISION) FOR THE RESOLUTION OF ANY CIVIL ACTION RELATING TO THIS AGREEMENT.
Appendix A Technical Assistance and Support
- A
Description of Support Provided Licensor will provide Licensee the following services with respect to the Pimsware: (i) answer technical questions concerning functions and features of the Software; and (ii) provide error verification, analysis and corrective efforts. (iii) Assistance and/or collaboration with Licensee hardware and network vendors or devices.
- B
Support Availability Maintenance Services for all support requests will be available by telephone or email during the hours of 9:00 A.M. (EST) and 6:00 P.M. (EST), Monday through Friday, excluding standard holidays, and on-call support from 6:00 P.M. (EST) until 11:00 P.M. (EST). In the event that Licensor wishes to adjust Support Availability hours, such new Support Availability hours will be determined mutually by the Parties in good faith.
- C
Service Level Classification Licensor may elect a supplemental Support Service Level Plan as follows:
| Service Level Plan |
Definition |
| Plan A |
Five (5) Hours of support per month |
| Plan B |
Ten (10) Hours of support per month |
| Plan C |
Twenty (20) Hours of support per month |
Support usage in excess of Licensees elected Service Level Plan will be charged the Excessive Support Fees rate as described in the Service Description in hourly increments. In the even that Licensor requires support beyond Plan C; a separate support agreement may be established between Licensee and Licensor.
- D
Priority Level Classification To ensure that all support requests are addressed on the basis of urgency, Licensor will assign priority levels to each support request as follows:
| Priority Level |
Definition |
| Priority 1 |
System crashes, or continued use of the software is rendered substantially impossible |
| Priority 2 |
Software is usable with major restrictions on functionality. |
| Priority 3 |
Software is usable with minor restriction in functionality. |
| Priority 4 |
Software clarification request. |
- E
Response Time Licensor will acknowledge receipt of a support request according to the following table:
| Error Classification |
Definition |
| Priority 1 |
30 minutes |
| Priority 2 |
2 hours |
| Priority 3 |
4 hours |
| Priority 4 |
1 day |
Priority Level 1 requests not resolved within two (2) hours from acknowledgment, and Priority Level 2 and Priority Level 3 requests not resolved within one (1) business day from acknowledgment, will be escalated to a upper-level support engineer and a customer support supervisor. For Priority Level 4 requests, if the support request is not solved during the initial call, a support supervisor will follow-up within one (1) business day with the current status.
