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These terms and conditions (“Terms and Conditions”) and the order form you signed and Exhibit A thereto (the “Order Form”) constitute an agreement between Voicecom Telecommunications, LLC d/b/a Intelliverse (“Intelliverse”) and the client (“Client” or “you”) for the IntelliConnection appointment setting, outbound calling services, or automated calling application (the “Services”) both as reflected in the Order Form. These Terms and Conditions supersede all prior or contemporaneous communications and proposals, other than the Order Form, which is incorporated herein by reference, whether oral or written, between Intelliverse and you with respect to the Services.
By signing an Order Form or accepting the Services, you agree to these Terms and Conditions:
1. RESPONSIBILITIES AND OBLIGATIONS. Intelliverse agrees to provide Client the Services specified in the Order Form for the term specified herein subject to these Terms and Conditions and Client’s performance of its obligations hereunder including, without limitation, Client’s payment of all required fees.
Client agrees to provide campaign information and details (“Campaign Information”) as may be reasonably required for Intelliverse to carry out the Services described in the Order Form. Such Campaign Information may include call scripts, rebuttal scripts, call lists, call logs, lead lists, prospect information, emails, call recordings, campaign reports, and any other information reasonably required in connection with the Services. For campaigns involving outbound call services, if Client provides a call list, Client represents, warrants, covenants and agrees that before providing such call list to Intelliverse that the call list will be “scrubbed” against: (i) the DoNotCall.gov registry; (ii) any “do not call” or opt out list maintained by Client; and (iii) client or public records to identify cell phone numbers which will be excluded unless Client has such lead’s express written permission to contact such lead at that number for marketing purposes.
Client further represents and warrants that any Campaign Information submitted to Intelliverse for its use in the campaign is in full compliance with all federal, state, city, and local laws and regulations, related to Client’s products and/or services as well as the marketing thereof including, without limitation, any applicable telemarketing laws.
2. BILLING AND PAYMENT. Client shall be invoiced monthly in advance for all amounts due in respect of the Services provided pursuant to these Terms and Conditions. All fees specified herein or the Order Form shall exclude applicable taxes and government charges and fees (collectively “Taxes”). To the extent that Intelliverse is required to collect any Taxes, Intelliverse shall add such amounts to Client’s invoice and Client shall be obligated to pay such Taxes in addition to the Fees. All amounts due hereunder shall be paid by Client in U.S. funds within thirty (30) days of Client’s receipt of Intelliverse’s invoice via credit card, check or wire transfer to an account designated by Intelliverse. By electing automatic payment of amounts due hereunder by credit card or debit to Client’s bank account or by providing credit card or bank account information to Intelliverse, as applicable, Client hereby authorizes Intelliverse to charge to Client’s credit card (on file with Intelliverse) or debit from Client’s bank account (on file with Intelliverse) all amounts due hereunder on the date indicated on the applicable invoice. Amounts due hereunder for the Services are non-cancelable, non-refundable and not subject to set-off claims of Client. In the event of non-payment, Intelliverse may suspend performance of Services and Client’s access to Intelliverse’s Client portal. In the event that Client disputes any invoiced fees, Customer shall provide written notice of such dispute not later than ten (10) days after receiving the invoice which is the subject of the dispute and timely pay any undisputed amounts. The parties agree to cooperate in good faith to resolve any disputed invoice or fee within ten (10) days of Intelliverse’s receipt of a notice of dispute.
3. MODIFICATION OF SERVICES. Intelliverse may modify the Services at any time, and Client shall not have the right to cancel or terminate the Services in the event of such modification of Services unless the modification substantially and materially lessens the Services to be received by Client pursuant to an applicable Order Form. In such an event, Intelliverse shall use commercially reasonable efforts to provide Client with at least thirty (30) days’ prior written notice of such change and Client shall have thirty (30) days from the date of such notice to terminate the Services without penalty by providing written notice to Intelliverse. Failure to provide Intelliverse with written notice of termination within such thirty (30) day period or use of the Services thereafter shall constitute your acceptance of such changes. Client’s right to terminate the Services without penalty as provided in the preceding sentence shall be Client’s sole and complete remedy for any such change and Intelliverse shall not be liable nor shall it be obligated to refund any fees previously paid for the Services as a result of making any such change.
4. TERM. This term of the Services shall begin on the effective date specified on the Order Form and shall continue for a period of one (1) year, unless terminated in accordance with this Section 4 (the “Initial Term”); provided, however, Client may terminate the Services without cause or penalty upon thirty (30) days’ written notice to Intelliverse at any time during the first sixty (60) days following the Effective Date. UPON EXPIRATION OF THE INITIAL TERM OR ANY RENEWAL TERMS (AS DEFINED BELOW), THE TERM OF THE ORDER FORM AND THESE TERMS AND CONDITIONS SHALL RENEW AUTOMATICALLY FOR CONSECUTIVE ONE (1) YEAR PERIODS AT INTELLIVERSE’S THEN CURRENT PRICING FOR THE SERVICES (EACH, A “RENEWAL TERM”) UNLESS EITHER PARTY PROVIDES TO THE OTHER PARTY WRITTEN NOTICE OF NON-RENEWAL AT LEAST SIXTY (60) DAYS PRIOR TO THE END OF THE THEN-CURRENT INITIAL TERM OR RENEWAL TERM.
5. TERMINATION OF SERVICES. Intelliverse may suspend or terminate the Services if Client fails to pay any amounts due under the Order Form or these Terms and Conditions within ten (10) days of the due date. Except a payment default as described in the preceding sentence, either party may terminate the Services for a material breach of these Terms and Conditions and/or Order Form upon thirty (30) days’ prior written notice. The party receiving such notice shall have thirty (30) days from receipt of such notice to remedy the breach described in the notice, unless it is not possible to remedy such breach within thirty (30) days. If it is not possible to remedy the breach within (30) days, the breaching party shall remedy the breach within a reasonable time as agreed upon in writing by the non-breaching party.
No expiration or termination of the Services shall relieve Client from liability for any breach of these Terms and Conditions. Client shall pay within thirty (30) days of any expiration or termination any amounts owed to Intelliverse which have accrued under the Order Form or these Terms and Conditions before such expiration or termination. Unless the Services were terminated by Client either (i) as a result of Intelliverse’s material breach and failure to cure such breach within thirty (30) days of Client’s notice or (ii) as provided in Section 3 in response to a proposed material modification of the Services by Intelliverse, as the Client shall also pay Intelliverse within such thirty (30) day periods all the fees for the Services that would have been provided by Intelliverse for the remainder of the Initial Term or then-current Renewal Term. Client’s right to receive Services from Intelliverse and access the Portal shall cease immediately upon termination or expiration.
6. CLIENT PORTAL. Intelliverse hereby grants to Client a non-exclusive, non-transferable and revocable license to access and use the Intelliverse client portal (the “Portal”) in connection with the Services. Such use of the Portal shall be solely for the use of: (i) Client; (ii) a third party authorized by Client and approved in writing by Intelliverse; or (iii) on behalf of Client’s affiliate, where Client has been authorized to use the Portal on behalf of such company. Client is responsible for all usage or activity on the Portal when accessed using credential assigned to Client, including use of the portal by any third party authorized by Client. Client shall use the Portal as it is designed and only for the purposes set forth in these Terms and Conditions or Order Form. At its sole discretion, Intelliverse may change, suspend or discontinue any access or use of the Portal at any time without notice or liability including, but not limited to, when Client (i) fails to make payment as described in Section 2 herein; (ii) materially breaches these Terms and Conditions or Order Form subject to the cure obligations set forth in Section 5; or (ii) engages in any misuse, fraudulent, abusive or otherwise illegal activity. As between Client and Intelliverse, the Portal and the data (excluding the Campaign Information), functionality, images, and all other tangible and intangible components thereof, as well as any and all associated intellectual property rights with respect to such items are the property of Intelliverse. Client and its authorized users may not copy, reproduce, republish, upload, post, transmit, distribute, sell, publish, broadcast, circulate, data mine, or use any robot, spider, or other automatic device, or manual process, to monitor or copy the contents of the Portal or exploit the Portal for any commercial purpose except for the Client’s use of the Services for their internal business purposes. The Services shall include Client’s right to access and use the Portal for the purpose of any reference in the Terms and Conditions to Intelliverse’s rights to change, suspend, or terminate the Services regardless of whether expressly stated in such section or not.
7. MARKETING. Intelliverse builds its reputation by, among other things, working with its Clients and continually improving our service to each of our Clients. To further improve Intelliverse’s service offering, Client consents to allowing Intelliverse to create, post and distribute information regarding Client’s campaigns, such as recordings, scripts or prospect information obtained from the campaign. Unless prior written authorization is obtained from the Client, Intelliverse will not reveal specific Client information such as Client’s individual names, company name, address, city, state, phone number, or email addresses.
8. CONFIDENTIALITY. Intelliverse acknowledges that all information provided by Client will or may be confidential, proprietary, or affected by competitive sensitivity and will treat all of the information as confidential and may be disclosed to employees, consultants, parent company, and/or affiliates on a need-to-know basis only. At Client’s written request, Intelliverse will return all copies of any written information when it no longer needs the information, excluding billing data, Campaign Information and documentation which may be maintained by Intelliverse in accordance with its record retention practices and policies.
9. NON-SOLICITATION. During the term of the parties’ relationship in connection with the Services and for a period of one (1) year after termination of the Services, the Client may not solicit any existing Intelliverse employee or contractor for the purpose of conducting sales or marketing for any entity or person other than Intelliverse. The Client further agrees not to disrupt or interfere with the business relationship between Intelliverse and its existing employees, vendors, and/or subcontractors.
10. INDEMNIFICATION. Client shall indemnify, defend and hold Intelliverse and its affiliates and their respective employees, subcontractors, officers, directors, members, managers, shareholders, agents and affiliates (each an “Indemnified Party”) harmless from and against any and all claims, proceedings, actions, damages, costs, expenses and other liabilities and losses of whatsoever kind or nature (“Claims”) incurred by, or threatened, imposed or filed against, any Indemnified Party by a third party and arising from or related to (i) Client’s breach of any representations or warranties under these Terms and Conditions (including without limitation those contained in Section 1 regarding any call list); (ii) Client’s breach of these Terms and Conditions; (iii) the marketing of Client’s products or services including, but not limited to, any claims in the Campaign Information approved or provided by Client; or, (iv) the manufacture, delivery, sale, or use of Client’s products or services. In no event shall Client settle, compromise or consent to the entry of any judgment, or otherwise seek to terminate any pending or threatened Claim, in respect of which the Indemnified Party is entitled to indemnification hereunder (whether or not the Indemnified Party is a party thereto), without the prior written consent of the Indemnified Party; provided, however, that the Client shall be entitled to settle any claim without the written consent of the Indemnified Party so long as such settlement (i) only involves the payment of money by Client; (ii) provides for an unconditional release in favor of the Indemnified Party; and (iii) in no way adversely affects any rights of the Indemnified Party.
11. WARRANTY DISCLAIMER. EXCEPT FOR THE OBLIGATIONS SET FORTH UNDER THESE TERMS AND CONDITIONS, THE SPECIFICATIONS AGREED UPON BY CLIENT AND INTELLIVERSE AS DESCRIBED IN THE ORDER FORM, AND/OR IN ACCORDANCE WITH APPLICABLE LAW, INTELIVERSE’S SERVICES (INCLUDING THE PORTAL) ARE PROVIDED ON AN “AS IS” BASIS. INTELLIVERSE MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED OF ANY KIND AND HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES, REPRESENTATIONS OR GUARANTIES OF ANY KIND REGARDING THE SERVICES OR PORTAL, INCLUDING, BUT NOT LIMITED TO, THE AMOUNT OF ANY SALES THAT CLIENT WILL BE ABLE TO GENERATE FROM ANY APPOINTMENTS SET OR LEADS GENERATED BY THE SERVICES, THAT THE SERVICES OR ACCESS TO THE PORTAL SHALL BE UNINTERRUPTED OR ERROR FREE, OR THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES OR PORTAL.
12. LIMITATION OF LIABILITY. CLIENT AGREES THAT INTELLIVERSE’S LIABILITY FOR ANY DAMAGES ARISING FROM INTELLIVERSE’S PERFORMANCE OF THE SERVICES (INCLUDING THE PORTAL) SHALL BE LIMITED TO THE ACTUAL FEES PAID BY CLIENT FOR THE SERVICES WITHIN THE THREE (3) MONTHS PRECEDING THE ACT OR OMISSION GIVING RISE TO INTELLIVERSE’S LIABILITY. INTELLIVERSE SHALL NOT BE LIABLE TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER ARISING FROM ANY CLAIM RELATING DIRECTLY OR INDIRECTLY TO THE SERVICES OR THE PORTAL, THESE TERMS AND CONDITIONS, AND/OR ORDER FORM (WHETHER SUCH CLAIM IS BASED ON CONTRACT, DEFECT, WARANTY OR TORT, EVEN IF INTELLIVERSE HAS BEEN ADVISED OF THE LIKELIHOOD OR POSSIBILITY OF SAME.
13. FORCE MAJEURE. Except for the payment of fees by Client, if the performance of any part of the Services under these Terms and Conditions and/or Order Form by either party is prevented, hindered, delayed, or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, acts of terrorism, or any other causes beyond the control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered, or delayed by such causes.
14. GOVERNING LAW. The laws of the State of Georgia, excluding its conflicts-of-law rules, govern these Terms and Conditions and your use of the Services.
15. ARBITRATION. Except for disputes regarding non-payment by Client of amounts due hereunder, the parties agree that any dispute arising out of or relating to this Agreement shall be submitted to binding arbitration in Atlanta, Georgia, pursuant to the Commercial Arbitration Rules of the American Arbitration Association, and judgment on any arbitration award may be entered in a court of competent jurisdiction. ALL PARTIES TO ANY SUCH ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER CUSTOMERS OF INTELLIVERSE OR OTHER PERSONS SIMILARLY SITUATED. CUSTOMER HEREBY AGREES NOT TO PARTICPATE AS A CLASS MEMBER IN ANY SUCH PROCEEDING. The arbitrator of any dispute or claim arising out of or relating to this Agreement shall not have the power to award injunctive relief. No claim subject to arbitration under this Agreement may be combined with a claim subject to resolution before a court of law. The arbitrability of disputes shall be determined by the arbitrator.
16. JURISDICTION/VENUE. The parties agree that the Superior Court or the State Court of Fulton County, Georgia shall be the sole and exclusive jurisdiction and venue for all actions to enforce an arbitrator’s decision, award, order or judgment or any claim arising out of or relating to the Services which is beyond the scope of the arbitration provisions set forth in Section 15. The parties hereby waive any objections or defenses to jurisdiction or venue in any such proceeding before such courts. If any legal action or other proceeding is brought for the enforcement of these Terms and Conditions, including, without limitation, enforcement by Intelliverse of the payment terms set forth herein, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.