Outboundify Direct: Terms of Service
The following Terms (the "Terms") shall govern your ability to use the Outboundify Direct Services (the "Services"). These Terms are hereby incorporated into the Agreement, and any and all terms and conditions contained therein shall apply to these Terms.
Please review these Terms, and the Agreement, carefully, prior to utilizing the Services. If you do not agree to the Terms, and the Agreement, in their respective entirety, you are not authorized to utilize the Services.
Leads. As a Client or Third Party Service Provider, as applicable, you may receive Lead data from Outboundify and/or receive telephone calls from the applicable Leads, where: (i) businesses express an interest in your products or services, business type and/or your Third Party Offerings; and/or (ii) Outboundify's third party marketing partners generate Leads from businesses that express interest in your products or services, business type and/or your Third Party Offerings. You may only use the Lead and associated data to contact the subject Lead regarding that Lead’s specific request with respect to your products or services, business type and/or Third Party Offerings, as applicable ("Lead Request"). You may not market, solicit, transfer, share, sell rent or otherwise utilize any Lead other than to respond directly to the subject Lead regarding the applicable Lead Request. You understand and agree that Outboundify may generate Leads via any direct marketing methods including Outboundify-operated and/or third party online, offline, and/or phone-based channels.
TCPA Compliance. Where you intend to contact any Leads collected by and through the Ouboundify Offerings, via telephone, you: (a) acknowledge and agree that Outboundify has not obtained the "prior express written consent" (as defined below) for you to contact the Leads via artificial voice calls, pre-recorded calls or calls placed with the assistance of autodialer technology (unless Outboundify has specifically noted otherwise as part of the Lead Request); and (b) represent and warrant that you will comply with all record keeping requirements, call hour restrictions, disconnect requirements, prohibitions against contacting facilities and telephonic devices of certain classifications (e.g. mobile and telefax numbers), caller identification, live operator requirements and any and all other provisions of the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (the "TCPA"), and other applicable state and federal laws. For purposes of these Terms, "prior express written consent" shall have the meaning as set forth in the TCPA.
Representations and Warranties. You represent and warrant that: (a) your use of Leads and associated data collected by and through the Outboundify Offerings, Third Party Offerings, and/or other interactions with any and all Leads will not violate any law, statute or other governmental regulation including, but not limited to, the Gramm-Leach Bliley Act, the CAN-SPAM Act of 2003, as amended, the Fair Credit Reporting Act, the Federal Trade Commission Act, the TCPA, the Fair Debt Collection Practices Act, the Federal Communications Act, the Amended Telemarketing Sale Rule ("ATSR"), 16 CFR 310 et seq., and those governing the NDNCR, any and all state and federal laws regarding deceptive trade practices and all rules and regulations promulgated under any of the foregoing; (b) you will not advertise to perform, or in fact perform, any service for which you do not maintain the appropriate licensing, insurance or any other requirements mandated by federal, state, or local regulatory authorities.
Payment for Outboundify Direct Services. Please carefully review the payment and billing terms associated with the Outboundify Direct Services set forth in the Terms and Conditions in their entirety. Below are certain payment and billing provisions from the Terms and Conditions that are repeated here for your convenience. While the amount that you are charged may vary depending on the applicable Outboundify Direct Services requested, we offer two types of billing formats: (a) a "Subscription Fee" plan; and (b) a "Pay for Performance" plan. OUTBOUNDIFY MUST BE NOTIFIED IN WRITING TO CANCEL YOUR OUTBOUNDIFY DIRECT SERVICES. YOUR ADVERTISING WILL BE CANCELLED EFFECTIVE AS OF THE NEXT BILLING DATE SUBSEQUENT TO OUTBOUNDIFY RECEIVING YOUR WRITTEN CANCELLATION REQUEST. You are responsible for paying any sales, use or other taxes related to your use of the Outboundify Direct Services.
Subscription Fee: Upon registering as a Client, selecting the Subscription Fee plan and providing the requisite Client Registration Data, the credit or debit card that you provided during registration or updated at a later date ("Active Credit Card") will be charged an advance amount for either one (1) month, three (3) months, one (1) year or such other period ("Subscription Period") applicable to the Outboundify Direct Services plan selected ("Advance"). Upon the conclusion of the Subscription Period covered by the Advance, your Active Credit Card will be charged the amount for the applicable Outboundify Direct Services requested on a recurring basis, for each subsequent Subscription Period, for as long as your Client account remains active, and such fees will be charged in advance. You acknowledge and agree that Outboundify will not obtain any additional authorization from you for this recurring payment. Every time that you use the Outboundify Direct Services, you re-affirm that Outboundify is authorized to charge your Active Credit Card and to have the fees applied to same. ALL CHARGES ARE FINAL AND NON-REFUNDABLE.
Pay for Performance Plan: Upon registering as a Client, selecting the Pay for Performance plan and providing the requisite Client Registration Data, your Active Credit Card will be charged the amount that you designated as your initial reserve ("Reserve Deposit"). Outboundify will deduct from your Reserve Deposit the applicable amount for each telephone call, Lead submission or other applicable action designated by you in connection with your request for Outboundify Direct Services. Once your Reserve Deposit is depleted, your Active Credit Card will automatically be charged the amount of your initial Reserve Deposit, or then current Reserve Deposit amount, for as long as your Client account remains active. You acknowledge and agree that Outboundify will not obtain any additional authorization from you for this recurring payment. Every time that you use the Outboundify Direct Services, you re-affirm that Outboundify is authorized to charge your Active Credit Card and to have the fees applied to same. At times, Outboundify may offer incentives in conjunction with marketing or other offers ("Incentives"). These Incentives serve to increase the then current Reserve Deposit. Outboundify Incentives are utilized only after all Client provided Reserve Deposit amounts have been depleted. Outboundify Incentives cannot be converted to cash, used to pay for other Outboundify services, or requested as a refund under any circumstances. ALL CHARGES ARE FINAL AND NON-REFUNDABLE EXCEPT YOU MAY REQUEST A REFUND OF ANY UNSPENT RESERVE DEPOSIT, EXCLUSIVE OF ANY OUTBOUNDIFY INCENTIVES, IF OUTBOUNDIFY IS UNABLE TO DEPLETE YOUR RESERVE DEPOSIT AFTER A PERIOD OF SIX (6) MONTHS FOLLOWING RECEIPT OF THE RESERVE DEPOSIT.
The fees will appear on your Active Credit Card statement through the identifier "OUTBOUNDIFY LLC." You shall be responsible for paying any and all applicable sales tax (if any) due to all taxing authorities arising from, or in connection with, your use of the Outboundify Direct Services. All fees are payable in United States currency. Failure to use the Outboundify Direct Services does not constitute a basis for refusing to pay any of the associated fees. You agree to be bound by the pricing and billing practices of Outboundify in effect at any given time. Upon prior written notice to you (with e-mail sufficing), Outboundify reserves the right to change its pricing and/or billing practices whenever necessary, in its sole discretion; provided, however, that such changes shall not affect the pricing and/or amount owed in connection with any Outboundify Direct Services packages that you have pre-paid. Subject to the foregoing, continued use of the Outboundify Direct Services after receipt of such notice shall constitute consent to any and all such changes. If you do not agree with these changes, or for any other reason, you may cancel your Client account at any time as set forth below. Where you fail to make any scheduled payment for accrued fees, such overdue amounts will be subject to interest charges in the amount of the lesser of one percent (1%) per month, or the maximum rate permitted by law. Your Client account may be deactivated, and access to the Outboundify Direct Services denied, for non-payment. Outboundify's authorization to provide and bill for access to its Outboundify Direct Services is usually obtained by way of voice affirmation via a telephone call with an Outboundify representative and, where applicable, your acknowledgement of these Terms by checking the appropriate box on the signup form.
Cancellation of Client Account. (a) You may cancel your Client account at any time by: (i) calling us at 480-418-0882; or (ii) e-mailing us at firstname.lastname@example.org; provided, however, that: (A) you will remain responsible for timely payment of any and all fees that you have already incurred (including any applicable late fees); (B) you shall not receive any pro-rata refund for partial months; (C) we will not refund any amounts previously paid up to the date of cancellation or termination; and (D) we will not refund any Outboundify Incentives. Please have your Client Registration Data available for efficient processing of your cancellation order. You understand and agree that cancellation of your Client account is your sole right and remedy with respect to any dispute with you and Outboundify concerning the Outboundify Direct Services. Outboundify may terminate your Client account at any time upon notice via e-mail. Outboundify reserves the right to discontinue the completion of your Outboundify Direct Services package, where no breach has occurred, by providing a prorated refund of amounts paid. Where you breach the Agreement, Outboundify may terminate your Client account immediately, with or without notice, with no refund or proration.
Call Recording and the Assignment of Call Tracking Numbers ("CTN"). You understand and agree that Outboundify may require you to obtain CTNs prior to beginning your Outboundify Direct Services. The CTNs will enable Outboundify to better track calls received by you through our marketing efforts. It is possible that Outboundify will receive a commission or referral fee from the CTN providers. You also acknowledge, agree and consent to the fact that, calls received from those businesses by and through the CTNs may be recorded by Outboundify. You also represent that you have informed, and obtained any necessary consent, to record telephone conversations, from all of your employees or agents that answer incoming calls from Outboundify. When Outboundify records and subsequently reviews calls, for quality assurance purposes, from individuals seeking an attorney, such calls may not be considered privileged.
Valid Calls and Valid Leads/Unaccepted Calls and Leads. Where you have selected the Pay for Performance plan, you will only have to pay for valid actions in the form of Valid Calls and Valid Leads based on the specifics of your Pay for Performance Plan. For purposes of these Terms: (a) a "Valid Lead" means an individual person that: (i) has submitted a Lead Request; (ii) does not have a disconnected telephone number; and (iii) is not a Duplicate Lead. For purposes of these Terms, a "Duplicate Lead" means a Lead that was already delivered to you by Outboundify and previously paid for by you, within the past thirty (30) days.(b) a "Valid Call" means an individual person that: (i) has made a phone call ("Call") to the CTN assigned to your campaign; (ii) is not a Duplicate Call; and (iii) has been approved by Outboundify or meets the time threshold or other criteria specifically agreed, as outlined in your confirmation email from Outboundify. For purposes of these Terms, a "Duplicate Call" means a Call that was already delivered to you by Outboundify and previously paid for by you, within the past thirty (30) days. For Calls that are approved by Outboundify, the definition of a "Valid Call" includes any Call that: (A) is not a solicitation or wrong number; and/or (B) is from a local phone number that is answered by some means other than a live person, regardless of the duration of the call. If your Pay for Performance Plan measures Valid Calls using a time threshold, messages left on an answering machine or other answering service constitute Valid Calls even if they do not otherwise meet the time threshold;(c) Where you suspect that a Lead or Call submitted by Outboundify is not a Valid Lead or Valid Call, you must notify Outboundify thereof within four (4) days of receiving such a Lead or Call from Outboundify. If Outboundify receives such notice from you within such time period, the parties shall investigate the subject Lead or Call and seek to resolve the matter in good faith within ten (10) business days of Outboundify's receipt of notice thereof. If the parties acting together in good faith determine that such Lead or Call was a Valid Lead or Valid Call then no further action shall be taken. If the investigation reveals that the Lead or Call was not a Valid Lead or Valid Call, Outboundify shall credit your account for the amount of the subject Lead or Call where you have already paid for it or, in the alternative, your payment obligations shall be excused with respect to such Lead or Call where you have not yet made payment. Where the parties cannot agree, Outboundify's good faith determination shall control in all respects. It is important to note that simply because an action constitutes a Valid Lead or a Valid Call, such action may not result in a job, appointment, conversation, retention of your services, purchase or any other subsequent action. Any and all Leads and Calls that are not both accepted and paid for by you ("Unaccepted Leads and Calls") shall be deemed the Confidential Information (as defined below) of Outboundify, subject to any and all restrictions set forth herein. Without limiting the generality of the confidentiality obligations set forth herein, you agree that you will: (i) not transfer, export, display, forward or otherwise share information contained in the Unaccepted Leads and Calls to/with any third party; (ii) not use the information contained in the Unaccepted Leads and Calls on its own behalf in any manner not expressly authorized by Outboundify; (iii) will not use the information contained in the Unaccepted Leads and Calls to create any interactive on-line, CD-ROM or other derivative product; (iv) will not publicly display the information contained in the Unaccepted Leads and Calls on the Internet; and (v) will notify Ouboundify as soon as you learn of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Leads and Calls and provide reasonable assistance to Outboundify in the investigation and prosecution of any such unauthorized use or disclosure.
Confidential Information. As used herein, "Confidential Information" shall mean: (a) either party’s proprietary information; (b) information marked or designated by either party as confidential; (c) information otherwise disclosed by either party in a manner consistent with its confidential nature; and (d) both party’s information that is conveyed to the other party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential. The parties acknowledge that, as a result of the provision of services pursuant to the Agreement, one party may disclose Confidential Information ("Disclosing Party") to the other party ("Receiving Party"). Therefore, the Receiving Party agrees that it will make no disclosure of the Disclosing Party’s Confidential Information without obtaining the Disclosing Party’s prior written consent. Nothing contained in the Agreement shall be construed as granting or conferring rights by license or otherwise in any Confidential Information disclosed under the Agreement. Notwithstanding anything contained herein to the contrary, confidentiality provisions shall not apply where the Receiving Party can demonstrate with clear evidence that the information: (i) was previously known to the Receiving Party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the Receiving Party; (iii) was rightfully and lawfully received by the Receiving Party from a third party who was not bound under any confidentiality provisions; or (iv) was disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law, provided however that the Disclosing Party takes all reasonable and legal steps to minimize the scope and impact of such disclosures. This Section shall survive any termination of the Agreement until the subject Confidential Information is no longer protectable under Arizona State law. Each party agrees that monetary damages for its breach, or threatened breach, of this Section will not be adequate and that the non-breaching party shall be entitled to: (A) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; and/or (B) any and all other remedies available to the non-breaching party at law or in equity. VOICEMAIL SCRIPTS USED IN ANY CAMPAIGN, WHETHER DEVELOPED BY OUTBOUNDIFY OR THE CLIENT, SHALL NOT BE CONSIDERED CONFIDENTIAL INFORMATION. OUTBOUNDIFY RETAINS THE RIGHT TO USE THE SAME OR SIMILAR VOICEMAIL SCRIPTS ON A NON-EXCLUSIVE BASIS IN THE SERVICE OF ANY CLIENT AND IN ANY MARKETING MATERIAL, INCLUDING IN THE PUBLICATION OF CASE STUDIES, TESTIMONIALS, AND/OR ONLINE WEBINAR PRESENTATIONS. THE CLIENT RELINQUISHES ALL RIGHTS OF EXCLUSIVITY AND/OR CONFIDENTIALITY AND/OR OWNERSHIP WHATSOEVER TO ANY VOICEMAIL SCRIPT USED ON ANY CAMPAIGN, EVEN IN CASES WHERE THE VOICEMAIL SCRIPT WAS DEVELOPED SOLELY BY THE CLIENT.
Indemnification. Without limiting the indemnification obligations set forth in the Terms and Conditions, you agree to indemnify, defend and hold harmless Outboundify, its parents and subsidiaries, and each of their respective members, owners, officers, directors, employees and authorized agents, from and against any and all liability, claim, loss, damage, demand and/or expense (including reasonable attorneys’ fees) asserted by any third party due to, arising from, or in connection with any claim related to your: (a) Third Party Offerings; (b) breach of these Terms; and (c) use of the Leads.
Audit. This Section is only applicable to Pay for Performance accounts and the unauthorized use of Unaccepted Leads and Calls. You agree that Outboundify, or any designee of Outboundify that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the term of this the Agreement, and for three (3) months thereafter, to reasonably examine, inspect, audit and review your books, records and any source documents used in the preparation thereof, as same relate to unauthorized use of the Unaccepted Leads and Calls generated hereunder. Such audit shall be conducted during normal business hours and upon written notice to you at least seven (7) business days prior to its commencement. Such audit shall be at Outboundify's sole cost and expense and shall be strictly limited to those books and records that specifically relate to use of the Unaccepted Leads and Calls. Where you have used Unaccepted Leads and Calls, you shall immediately remit payment for such Unaccepted Leads and Calls as if they were Valid Leads and Valid Calls, plus applicable interest, in accordance with the payment terms set forth herein, and the audit shall be at your sole cost and expense.
Force Majeure. Other than for payment obligations, neither you nor Outboundify will be liable, or be considered to be in breach of the Agreement, on account of such party’s delay or failure to perform as required under the terms of the Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
Relationship of the Parties. The relationship of you and Outboundify established by the Agreement is solely that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall make any representations, warranties or covenants, or assume or create any obligations, on the other party’s behalf. Each party shall be solely responsible for the actions of its respective employees, agents, affiliates and representatives.
Public Statements. You agree that Outboundify may disclose your business name and/or logo in announcements, press releases, client lists, or other onsite or offsite marketing materials without the need to obtain prior written consent.
Assignment. You may not assign, sublicense or otherwise transfer your rights and/or obligations under the Agreement, or any portion thereof, to any person or entity by operation of law, by merger or otherwise, without the prior written authorization of Outboundify. Outboundify may assign, sublicense or otherwise transfer its rights and/or obligations under the Agreement, or any portion thereof, without your authorization in Outboundify's sole discretion. The provisions of the Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
Disclaimer of Warranties. THE OUTBOUNDIFY DIRECT SERVICES ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, OUTBOUNDIFY MAKES NO WARRANTY THAT: (A) THE OUTBOUNDIFY DIRECT SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE OUTBOUNDIFY DIRECT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE OUTBOUNDIFY DIRECT SERVICES WILL BE ACCURATE OR RELIABLE. THE OUTBOUNDIFY DIRECT SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OUTBOUNDIFY, ANY SITE USER OR OTHERWISE THROUGH OR FROM THE OUTBOUNDIFY DIRECT SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT OUTBOUNDIFY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF OUTBOUNDIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR THE INABILITY TO USE THE OUTBOUNDIFY DIRECT SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION AND/OR SERVICES PURCHASED OR OBTAINED FROM, OR TRANSACTIONS ENTERED INTO THROUGH, THE OUTBOUNDIFY OFFERINGS; AND (C) ANY OTHER MATTER RELATING TO THE OUTBOUNDIFY DIRECT SERVICES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND ANY AND ALL OTHER TORTS. YOU HEREBY RELEASE OUTBOUNDIFY FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF OUTBOUNDIFY TO YOU UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00). THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND OUTBOUNDIFY. THE OUTBOUNDIFY DIRECT SERVICES WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
Dispute Resolution Provisions. The Agreement shall be treated as though it were executed and performed in Phoenix, Arizona and shall be governed by and construed in accordance with the laws of the State of Arizona (without regard to conflict of law principles). Should a dispute arise concerning the Outboundify Direct Services, terms and conditions of the Agreement or the breach of same by any party hereto, the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in Arizona or the county of your residence, in accordance with the then current Commercial Arbitration rules of the American Arbitration Association.