INTELLIGENT CONTACTS
MASTER SERVICES AGREEMENT

(Last Updated 01/01/2016)

This Master Services Agreement (“Agreement”) is an agreement between you and/or your company (“Client”) and Intelligent Contacts Inc (“IC”). It describes the Services provided by Intelligent Contacts and explains all of the terms that govern your use of the Services. PLEASE READ THIS AGREEMENT CAREFULLY.

INTRODUCTION

This Agreement provides the Client with a license to access the Intelligent Contacts Communication Solutions.  These services include technology solutions commonly referred to as:
Intelligent Contacts Hosted Contact Center
Intelligent Contacts Virtual Contact Center
Intelligent Contacts Predictive Dialer
Intelligent Contacts PBX
Intelligent Contacts PBX+
Intelligent IVR
Intelligent Payments IVR
Intelligent Contacts Payment IVR
Intelligent Analytics
Intelligent Messaging
Intelligent SMS
Stealth Messaging
Intelligent Chat

These services are subject to the terms and limitations set forth in the Agreement. The Agreement encompasses and refers to the following Schedules:

Schedule A – Service Order Form – this is an individual client-specific document which lists requested services and detailed pricing of ordered services

Schedule B – Application Services Technical Requirements and Client Required Equipment
(This document is provided at setup and may be amended from time to time as technology changes)

Schedule C – Usage Rate Terms (included here) – these rate terms outline prepaid usage deposits, determination of interstate and intrastate calls, special types of non-standard calls, along with taxes, fees, tariffs, and related items.

Schedule D – Intelligent Contacts Services Agreement – individual, client-specific document customized to match client support needs and requested service levels

Client agrees that the Schedules, and any other product specific agreements or related documents executed by Intelligent Contacts and the Client in connection with this Agreement, whether in original form or as may be amended in writing from time to time, are hereby made an integral part of this Agreement.

AGREEMENT

  1. DEFINITIONS

“Application Services” means all services or products provided through the Intelligent Contacts Communication Solutions including hosted, web-based inbound and/or outbound call center software, SMS/Text messaging, voice messaging, “Stealth” messaging, offline components, a fixed number of seat licenses, any specially requested premium services, local and long distance telecommunication services, application development, modification, and implementation services.

“Client Information” means Client’s contact and other business information, as set forth in the “IC Client Portal”.

Client Bill Date” shall mean the date each month that the Client is billed for the Application Services. The Bill Date is determined by the Service Activation Date as described in Section 3(c).

“IC Client Portal” means the Intelligent Contacts client administration web site accessible via login at IntelligentContacts.com and http://manage.intelligentcontacts.com.

Seats” or “Seat Licenses” means the maximum number of concurrent Client users that may simultaneously access the Intelligent Contacts Communication Solutions. The number of Seat Licenses is as set forth on the Service Order Form(s).

“Service Activation” has the meaning set forth in Section 3(a)

“Service Activation Date” is the date on which your account is activated and provisioned and has the meaning set forth in Section 3(a).

“Service Order” means any written service order, including the initial service order, in the form set forth in Schedule A, signed by each party specifying the particular Application Services being ordered by Client.

“Term” has the meaning set forth in Section 4(a).

“Usage” means the actual cumulative number of minute the Application Services used by the Client during any billing period or partial billing period. Usage is calculated using a minimum unit of six (6) second increments, or one-tenth of one minute. (e.g. .1 minute increments)

Intelligent Contacts Communication Solutions means Intelligent Contacts’ proprietary hosted virtual call center software and system, hosted on servers owned and operated by Intelligent Contacts, that enables the user to process data and to deliver text, recorded messages and/or voice conversations by telephone to a list of recipients that have been created and input by the user.

  1. USE OF APPLICATION SERVICES
    1. Service Orders. The form of Service Order attached hereto as Schedule A provides a description of the Application Services products ordered from Intelligent Contacts. Client shall complete an initial Service Order prior to being provided access to any Application Services. Thereafter, Client shall complete a Service Order each time Client wishes to order additional Application Services. Each Service Order shall indicate: (i) the Application Services selected by Client, including any premium services; (ii) the implementation services to be provided by Intelligent Contacts for such Application Services; (iii) the term of such Application Services; (iv) the applicable Application Services seat license fee, implementation and activation fees; and (v) any other special terms or fees that may apply to the selected Application Services. Service Orders are only valid once signed by Client and Intelligent Contacts.
    2. Client Information. Client shall provide and maintain accurate, current and complete registration Client Information in the IC Client Portal accessible at manage.intelligentcontacts.com, including, without limitation, Client’s legal name, address, email address, telephone number and, where applicable, payment information. Client agrees to promptly notify Intelligent Contacts of any changes in Client Information and to verify such information as Intelligent Contacts may reasonably request. Client acknowledges and agrees that Client’s failure to provide Intelligent Contacts with accurate Client Information may lead to Intelligent Contacts’ suspension or termination of Client’s account and/or access to the Application Services, which suspension or termination shall be at the sole discretion of Intelligent Contacts.
    3. License. Subject to the terms and limitations of this Agreement, Intelligent Contacts agrees to provide Client access to the Application Services set forth on a Service Order, up to the number of Seats specified on such Service Order, during the Term on a non-exclusive, non-transferable, revocable basis, solely for Client’s internal business purposes.
    4. Use Restrictions. Client agrees not to (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Application Services available to any third party in any way; (ii) modify or make derivative works based upon the Application Services; (iii) create unauthorized Internet “links” to the Application Services or “frame” or “mirror” any content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Application Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Application Services, or (c) copy any ideas, features, functions or graphics of the Application Services.
    5. Technical Requirements for Use of the Intelligent Contacts Communication Solutions. In order to utilize the Application Services, Client must adhere to certain technical specifications and acquire and maintain certain minimum hardware, software and Internet connectivity, as specified on Schedule B (“Required Equipment”). During the sales process and prior to Application Services activation, Intelligent Contacts, with Client’s cooperation, will conduct an assessment of Client’s current Required Equipment. Based on this assessment, Intelligent Contacts may recommend adjustments to the Required Equipment in order to meet the minimum technical requirements to utilize the Application Services. Client is ultimately responsible for implementing any recommendations made by Intelligent Contacts with respect to Required Equipment and also for the ownership and ongoing maintenance of Required Equipment. Intelligent Contacts’ recommendations with respect to Required Equipment do not constitute a guarantee or warranty as to the future suitability of the Required Equipment for operating the Application Services. CLIENT ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR OBTAINING AND SUPPORTING REQUIRED EQUIPMENT AS NECESSARY TO UTILIZE THE APPLICATION SERVICES, AND CLIENT MAY NOT TERMINATE THIS AGREEMENT OR REQUEST A REFUND BASED ON A FAILURE OF ITS HARDWARE, SOFTWARE OR INTERNET CONNECTIVITY TO PROPERLY FUNCTION WITH THE APPLICATION SERVICES.
  2. ACTIVATION, FEES AND BILLING
    1. Initial Service Activation and Provisioning. Prior to the activation of the Application Services set forth in Client’s initial Service Order, Client shall pay Intelligent Contacts the fees specified in the Service Order, including implementation and activation fees, as well as the Seat License fees and pre-paid per minute usage fees (collectively, the “Activation Fee”). Upon receipt of the Activation Fee, Intelligent Contacts will activate Client’s account and commence the provisioning process for the Application Services (the date of the initial Service Activation represents the (“Service Activation or Provisioning Date”). The initial provisioning process creates the Client’s unique domain within the Intelligent Contacts Communication Solutions, and enables the Client to login and access the Intelligent Contacts Communication Solutions, to upload and access data, and make and receive calls.
    2. Subsequent Service Orders. For subsequent Service Orders, Intelligent Contacts shall commence the provisioning process for the additional Application Services as required by such Service Orders upon receipt of the applicable Activation Fee.
    3. Fees, Client Bill Date and Billing Cycle. Client shall pay Intelligent Contacts the recurring fees for the Application Services as set forth on an applicable Service Order (“Service Fee”). Unless otherwise indicated in a Service Order or in this Agreement, Client shall pay all monthly Seat License Fees in advance and per minute usage as it is used. The Client’s billing cycle begins on the Service Activation Date and the first day of the month shall become the day each month that the Client shall be invoiced (the “Client Bill Date”). The Client Bill Date will be the bill date for all Application Services ordered by Client pursuant to this Agreement, and partial months shall be pro-rated to the Client Bill Date. Each invoice will include all recurring monthly Service Fees for the applicable Application Services in use by Client and any additional recurring premium services for the next billing month, all usage charges incurred during the prior billing month, as detailed on Schedule C, and, if applicable, any professional services or other one-time charges for services delivered during the billing period.
    4. Monthly Minimum Commitment. Customer is obligated for Usage fees of at least the Monthly Minimum Commitment selected on Schedule A, regardless of actual Usage, for the Initial Term and subsequent Renewal Terms as defined in 4(a). Customer is obligated for all Monthly Minimum Commitment payments notwithstanding whether Customer uses the Application Services. If Customer terminates the Intelligent Contacts Master Services Agreement, other than for material breach by Intelligent Contacts, before the end of the Term, Customer will immediately pay to Intelligent Contacts the Monthly Minimum Level multiplied by the number of months remaining in the current Term. Monthly Minimum Commitment may be changed to a higher tier at any time, but may not be reduced below the current tier selected on Schedule A.
    5. Ramp Period. Customer will have a Ramp Period beginning on the effective date of this Agreement for 30 days, where the pricing that applies will be based solely on actual Usage. During the Ramp Period, the parties will jointly procure, test, and release to production the Application Services. After the Ramp Period, the Monthly Minimum Commitment shall be in effect, with per minute pricing based on actual Usage.
    6. Default Rate. If Customer does not indicate a Monthly Minimum Level by initialing next to its selection on Schedule A, the default Monthly Minimum Commitment will default to the minimum commitment tier listed on Schedule A.
    7. DID and Toll Free Numbers. At any time Client may request standard DID or Toll Free phone number be added to their service or ported from another carrier. Ported or provisioned phone numbers will be billed via the Intelligent Contacts Client Portal at the current listed rates.
    8. Prepaid Usage Minimum Balance. Intelligent Contacts requires that, prior to activation, Client deposit a certain amount of prepaid usage service fees (“Prepaid Usage”) as stated in the Service Order. As calls are made, the cost of each call is debited from the Prepaid Usage balance. The running balance of Prepaid Usage is viewable to the My Account section of the IC Client Portal. When the account balance reaches the minimum threshold Intelligent Contacts will attempt to auto charge the credit card on file to replenish the account balance. Client is ultimately responsible for reviewing and maintaining a sufficient Prepaid Usage balance to ensure continued use of the Application Services. In the event that Client’s Prepaid Usage balance runs out, Intelligent Contacts will suspend access to the Application Services and Client will be unable to make or receive calls. However, prior to taking such action, Intelligent Contacts shall provide Client with reasonable notice of the level of the Prepaid Usage balance at regular intervals to allow Client to replenish the account balance. Intelligent Contacts may from time to time upon notice to Client increase the Client’s required minimum Prepaid Usage balance to reflect Client’s actual usage patterns or other changes.
    9. Payment Terms. Payment terms for Service Fees and other fees due on a given invoice are “Due upon Receipt”, unless otherwise stated on the invoice. Payment of all fees (including any Service Fees and Activation Fees), whether in advance of service or for services incurred, may be made by cash, check or wire transfer of immediately available funds to Intelligent Contacts or by credit card, if expressly authorized by Intelligent Contacts in advance. Clients electing to use a credit card to pay for Intelligent Contacts services shall complete a Credit Card Authorization Form, which expressly authorizes Intelligent Contacts to charge directly the credit card account number provided by Client to pay for any and all charges legitimately incurred and invoiced under this Agreement. Client shall be responsible for all sales, value-added or similar taxes due under this Agreement. Past due balances, including past due balances resulting from returned checks or charge-backs, are subject to an interest charge of 1.5% per month or the maximum amount permitted by applicable law, whichever is less.
    10. Refund Policy. All prepaid fees under this Agreement are non-refundable, except if Client’s account is closed in good standing, under the terms of this Agreement, with all balances paid in full, the unused balance of Prepaid Usage shall be refunded to Client.
    11. Disputed Charges and Resolution of Disputes. Client agrees to pay all undisputed charges under this Agreement without counter-claim, set-off or deduction. In the event, Client legitimately and reasonably disputes an invoiced amount, Client will provide Intelligent Contacts with written notice (via e-mail at billing@IntelligentContacts.com) of the amount in dispute and the basis for the dispute within seven (7) business days of receipt of the invoice. Intelligent Contacts agrees that it will work with Client to reasonably and expeditiously resolve the dispute. Client agrees that any undisputed amounts shall remain due and payable in accordance with the normal seven (7) day payment terms.
    12. No Waiver. Failure of Intelligent Contacts to charge Client’s credit card or to invoice Client in a timely manner for any amounts due under this Agreement shall not be deemed a waiver by Intelligent Contacts of its rights to payment for such amounts, and all outstanding amounts shall remain due and payable by Client.
  3. TERM AND TERMINATION
    1. Initial Term and Automatic Renewals. Unless earlier terminated as provided in this Agreement, this Agreement commences on the Service Activation Date and shall continue for the agreement term specified in Schedule A – Service Order (“Initial Term”) and shall automatically renew for consecutive equal terms (each a “Renewal Period” and all Renewal Periods together with the Initial Term, the “Term”) thereafter, unless either party has provided notice of its intent not to renew this Agreement in accordance with Section 4(c). If no term is specified in the Service Order, the Initial Term and Renewal Period shall be one (1) month.
    2. Changes to Service Fees During Renewal Terms. Intelligent Contacts reserves the right to modify its Service Fees and charges for premium services for future Renewal Periods but must provide Client with at least thirty (30) days prior written notice in the case of month to month Agreements and at least sixty (60) days in the case of annual or extended Terms to allow Client sufficient time to exercise its right to cancel service at the expiration of the then current term.
    3. Cancellation Notice Requirement. Client may completely cancel this Agreement or partially reduce its usage of the Intelligent Contacts Intelligent Contacts Communication Solutions, however usage may not be reduced below the contracted monthly minimum, if any, during any initial or renewal term of this agreement.
      (i) If the Term extends beyond the initial term (whether annual, monthly, or otherwise extended), notice of cancellation of the Agreement or of reduction of certain Application Services must be provided at least thirty (30) days prior to the expiration of the then current Term of such Application Services, as applicable.
      (ii) If the Term is month to month, any notice of cancellation of the Agreement or of reduction of certain Application Services shall be deemed to be a thirty (30) day notice regardless of the time remaining in the then current Term.
      (iii) Suspension or Termination by Intelligent Contacts. Intelligent Contacts may suspend or cancel Client’s access to a Application Services or terminate this Agreement as follows:

      1. For Cessation of Application Services. Intelligent Contacts may suspend access to any portion or feature of the Application Services by providing Client with written notice at least thirty (30) days prior to the date it intends to cease providing such Application Services; except, however, in the case of annual or extended Terms, cancellation without cause may not occur prior to the start of the next Renewal Period.
      2. For Delinquent Accounts. Intelligent Contacts may suspend or disable Client’s access to the Application Services for any accounts for which payment is delinquent, provided however that Intelligent Contacts shall have provided Client with adequate notice and sufficient time to cure the delinquency.
      3. For Actual or Potential Harm to Intelligent Contacts or a Third Party. Intelligent Contacts may immediately suspend or terminate Client’s account if Intelligent Contacts has reason to believe that Client (a) is using the Application Services in a manner that may cause immediate and ongoing harm to Intelligent Contacts or to a third party, including but not limited to, actions that violate federal, state or local laws, rules or regulations, such as compliance with “Do Not Call Lists”, FDCPA violations, TCPA violations; (b) is compromising the security of the Application Services and the privacy of Intelligent Contacts’ other Clients; (c) exceeding an acceptable threshold of dropped or short duration calls (i.e. calls less than 6 seconds)
    4. No Client Initiated Suspensions of Service. Client understands that it has entered into an Agreement with a specific term and that nothing contained in the Agreement conveys the right to the Client to suspend service in whole or in part during the Initial Term or during subsequent Renewal Periods, nor is the Client entitled to a refund of any prepaid Intelligent Contacts Communication Solutions fees on the basis of requesting a suspension of service.
    5. Effect of Termination. Upon termination of this Agreement, (i) all licenses and rights granted hereunder shall immediately terminate and Client shall have no right to continue to access or use the Application Services, (ii) each party shall return or, at the option of the other party, destroy all Confidential Information of the other party in its possession or control and (iii) Client shall promptly pay all outstanding fees and charges associated with Client’s account up through the date of termination, (including charges for services delivered by Intelligent Contacts that have not yet been invoiced such as local and long-distance charges and any Termination Fee, if applicable), provided that Intelligent Contacts reserves the right to apply any security deposit or prepaid charges or other amounts delivered by Client to Intelligent Contacts to satisfy any amounts owed to Intelligent Contacts under the terms of this Agreement. In the event that Intelligent Contacts takes any action to collect payment or to enforce any provision of this Agreement, Client agrees to pay all reasonable costs of such action or suit incurred by Intelligent Contacts (including fees for bad checks or similar fees), including reasonable attorney’s fees and any interest on any unpaid amount. All outstanding payment obligations and Sections 1, 2, 4, 7, 8, 9, 10, 11, 12, and 13 shall survive any termination or expiration of this Agreement.
  4. CLIENT ACCOUNTS AND SECURITY

Client is responsible for all authorized and unauthorized access, activities and charges associated with the Client’s account and/or password(s) with Intelligent Contacts, except for unauthorized charges that can reasonably be determined to be the result of Intelligent Contacts’ negligence in providing sufficient safeguards against unauthorized third party access to Client’s account. Client is solely responsible for the strength, confidentiality, and use of its password(s), for all charges incurred from the use of the Application Services with its password(s) and for any and all charges made through the Client’s account by Client’s employees, agents, principals, consultants, or other entities or individuals in the employ of or engaged by Client regardless of the reason for such charges. If Client, or someone to whom Client has given access to the Application Services, violates this Agreement, Client’s account may be terminated pursuant to Section 4, and Client will be liable for all fees, charges, and damages of any kind related thereto.

  1. DATA USE
    1. Data Use. During the normal operation of the Application Services, Intelligent Contacts will collect and store on its systems certain information and data provided or collected by the Client (“Client Data”). During the Term, Client authorizes Intelligent Contacts to store Client Data on its internal systems and to use and copy Client Data for the purpose of providing the Application Services to Client in accordance with this Agreement. Additionally, Client agrees that Intelligent Contacts may use non-individually identifiable, aggregated Client Data for internal business purposes to test, analyze and improve the Application Services both during and after the Term.
    2. Data Retention. Due to the storage demands on the Application Services, Intelligent Contacts retains the right to periodically purge Client data from Intelligent Contacts owned servers, to maximize system performance for all Clients. If this data is important to Client, Client should take action to download and maintain this information on its premises. Depending on the data type, additional storage by Intelligent Contacts may be available for an additional fee. Client should contact an Intelligent Contacts sales representative for more information about data storage. Please refer to the following table for Intelligent Contacts’ data retention policy:
Data TypeRetention PeriodHow to Archive
Call Logs60 days, may be extended in the Service OrderSave report to local machine; sFTP access may be provided upon request
(additional charge may apply)
Call Recordings30 days, may be extended in the Service OrderDownload through interface; sFTP access may be provided upon request
Campaign Call Results60 days, may be extended in the Service OrderVia interface export function; sFTP download access may be provided upon request (additional charge may apply)
Call ListsUntil deleted by user or by processExport function or via sFTP upon request (additional charge may apply)
User Access Logs60 days, may be extended in the Service OrderVia interface or export function; sFTP download access may be provided upon request (additional charge may apply)
Domain/URL Access30 days after account closure or suspension

 

  1. EMERGENCY SERVICE (911 CALLING) NOT PROVIDED

No Requirement to Offer Emergency Services. Client understands and acknowledges that Intelligent Contacts does not and is not required to provide Emergency Service, where “Emergency Service” is defined as services that connect a user to emergency services personnel or a public safety answering point (“PSAP”), pursuant to applicable regulatory requirements. In the United States, Emergency Service is provided by dialing the digits “911” on a wired or a wireless telephone. Services provided by Intelligent Contacts do not permit the dialing of “911” or any other emergency telephone numbers. Intelligent Contacts Services are not telephone or telecommunications services that can provide a connection to emergency services personnel or a PSAP under any circumstances. Client recognizes and agrees that Intelligent Contacts is not required to offer Emergency Service, pursuant to any applicable laws, rules or regulations. Client further recognizes and agrees that Intelligent Contacts is not a replacement for Client’s primary telephone service. CLIENT ACKNOWLEDGES AND ACCEPTS THAT INTELLIGENT CONTACTS’ SERVICES DO NOT INCLUDE EMERGENCY SERVICE. CLIENT UNDERSTANDS AND AGREES THAT ADDITIONAL ARRANGEMENTS WITH A THIRD PARTY MUST BE MADE BY CLIENT TO ACCESS EMERGENCY SERVICE.

Specific Disclaimer of Liability for Emergency Service. Intelligent Contacts does not provide Emergency Service in conjunction with the Application Services or any other services that may be used by Client in connection with Intelligent Contacts’ services. Intelligent Contacts, its officers, directors, employees, shareholders, affiliates nor agents will be liable for any claim, damage, or loss arising from, or relating to, Client’s use of Intelligent Contacts’ services or any other service provided hereunder to contact a PSAP or Emergency Services personnel. Client specifically waives, to the maximum extent permitted by applicable law, any and all such claims or causes of action, arising from or relating to Intelligent Contacts’ services or any other service provided hereunder to contact a PSAP or other Emergency Services personnel. Client agrees to defend, indemnify, and hold harmless Intelligent Contacts, its officers, directors, employees, shareholders, affiliates and agents from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, court costs and attorneys fees) arising out of the fact that Intelligent Contacts does not offer Emergency Service.

  1. COMPLIANCE WITH LAWS
    1. Client agrees to comply with all federal, state and/or local law related to or connected with providing, selling, licensing and delivering information services and telecommunications services and products. Client assumes all liability and responsibility for use of the Application Services in compliance with any federal, state or local laws, rules or regulations pertaining to the use of telephones, email, fax, automated telephonic equipment (e.g. “Autodialer”, “Predictive Dialer”, “Robodialer”, “Prerecorded message”) and other telephony and telecommunications products and services. A violation of any such laws may result in substantial penalties and other sanctions. Any person intending to use the Application Services for purpose regulated by federal, state or local laws should consult with his or her own legal counsel, prior to entering into this Agreement to determine the extent of permissible activities. Client agrees that Intelligent Contacts will not be responsible for Client’s illegal or fraudulent use of the Application Services, and Client indemnifies Intelligent Contacts for any claims, liabilities or expenses (including attorneys’ fees) incurred by Intelligent Contacts based upon Client’s illegal or fraudulent use of the Application Services.
    2. Client is solely responsible for obtaining the consent of or a release from those persons or entities, to whom or to which Client intends to send communications using the Application Services. Client agrees to periodically review the list of recipients to be contacted, to contact only those persons who the Client is legally permitted to contact from Client’s Client data, and only in the manner permitted, under federal, state and local law, and to delete those recipients that no longer wish to receive communications from Client.
    3. “Do Not Call” Compliance. If Client is advised by any party that they do not wish to receive communications from Client via the Application Services, then Client agrees to promptly add those parties to its internal company-specific Do Not Call List in the Application Services account, and thereafter refrain from calling such parties. If Intelligent Contacts determines, in its sole discretion, that the receipt of communications via the Application Services is not consensual, or violates any federal, state and/or local rule and regulation, or is harassing to consumers or businesses, Intelligent Contacts may add specific telephone numbers to Client’s internal company-specific Do Not Call List to prevent further calling of those numbers, or suspend service as per Section 4 above.
    4. CLIENT SHOULD SEEK THE ADVICE OF AN ATTORNEY REGARDING USE OF AUTOMATED TELEPHONIC EQUIPMENT, TEXT/SMS MESSAGING AND MARKETING LAWS, PRIOR TO USE OF THE APPLICATION SERVICES.
  1. WARRANTY; DISCLAIMER OF WARRANTY
    1. Representations and Warranties. Each party represents and warrants to the other party that (i) it has the power and authority to enter into and perform all obligations under this Agreement and its various Schedules and (ii) it will comply with all applicable laws in its performance under this Agreement.
    2. Warranty Disclaimer. INTELLIGENT CONTACTS IS PROVIDING THE INTELLIGENT CONTACTS COMMUNICATION SOLUTIONS AS A HOSTED SERVICE AND THE INTELLIGENT CONTACTS COMMUNICATION SOLUTIONS IS DELIVERED ON AN “AS IS” AND “AS AVAILABLE” BASIS. INTELLIGENT CONTACTS DOES NOT WARRANT THAT THE APPLICATION SERVICES WILL BE UNINTERRUPTED OR THAT ALL COMMUNICATIONS WILL BE DELIVERED, NOR DOES INTELLIGENT CONTACTS MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE APPLICATION SERVICES. INTELLIGENT CONTACTS MAKES NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE INTELLIGENT CONTACTS COMMUNICATION SOLUTIONS. Client understands that the Application Services may be inaccessible or inoperable due to scheduled periodic maintenance and upgrades or for reasons beyond Intelligent Contacts’ reasonable control including but not limited to (i) Client or Intelligent Contacts equipment malfunctions; or (ii) service interruptions caused by independent telecommunications providers that provide voice and data connectivity to Intelligent Contacts’ or the Client’s data centers.
  2. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL INTELLIGENT CONTACTS BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY LOSS, DAMAGE OR LIABILITY RELATING TO: (A) LOSS OR CORRUPTION OF DATA; (B) INABILITY TO ACCESS THE APPLICATION SERVICES; (C) PERFORMANCE RELATED DELAYS; (D) COMPUTER VIRUSES; (E) LOSS OF BUSINESS DUE TO INOPERABILITY OR PERFORMANCE OF APPLICATION SERVICES; (F) NON-DELIVERY OR MISDELIVERY OF COMMUNICATIONS; (G) THE NEGLIGENT ACTS OF OTHER INTELLIGENT CONTACTS SUBSCRIBERS; (H) ANY DEFECTS, FAILURES, ERRORS, OMISSIONS OR MISSTATEMENTS IN ANY AND ALL INFORMATION DELIVERED BY OR PROVIDED FOR DELIVERY BY THE APPLICATION SERVICES; AND (I) LOSS OR LIABILITY RESULTING FROM ACTS BEYOND INTELLIGENT CONTACTS’ CONTROL. IN NO EVENT SHALL INTELLIGENT CONTACTS’ LIABILITY UNDER THIS AGREEMENT EXCEED ALL LICENSE FEES PAID BY CLIENT TO INTELLIGENT CONTACTS IN THE ONE (1) YEAR PERIOD PRIOR TO THE DATE OF THE EVENT THAT GAVE RISE TO THE LIABILITY.

  1. INDEMNIFICATION
    1. By Client. Client agrees to indemnify, hold harmless and defend Intelligent Contacts, its shareholders, directors, officers, employees and agents from and against any action, claim, or damage, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to: (i) personal injury or property damage to the extent such claims or liabilities arise out of negligent or willful acts or omissions of Client and/or its employees or agents in connection with their duties and responsibilities under this Agreement; (ii) Client’s breach of this Agreement; (iii) Client’s unauthorized use of the Application Services, including any information, communication, data or work that Client provides in connection with Client’s use of the Application Services; (iv) libelous, slanderous, indecent or other statement concerning any person made or republished by Client; or (v) any violation of federal, state and/or local law related to, arising out of or connected with Client’s authorized use of the Application Services.
    2. By Intelligent Contacts. Intelligent Contacts agrees to indemnify, hold harmless and defend Client, its shareholders, directors, officers employees and agents from and against any action, claim, or damage relating to: (i) personal injury or property damage to the extent such claims or liabilities arise out of negligent or willful acts or omissions of Intelligent Contacts and/or its employees or agents in connection with their duties and responsibilities under this Agreement, (ii) Intelligent Contacts’ breach of this Agreement, or (iii) any alleged or actual infringement by the Application Services of any patent, trademark, or copyright, or alleged or actual misappropriation of any trade secret, provided Client is using the Application Services as authorized under this Agreement.
    3. Procedure. An indemnified party shall (i) permit the indemnifying party to defend or settle any such claim, provided, however that (a) the indemnifying party shall not enter into any settlement agreement that would result in any admission by the indemnified party or payment by the indemnified party without the indemnified party’s prior written consent, and (b) the indemnified party may at its election participate in the defense of such claim, suit or the like through separate counsel at its own expense, and (ii) provide the indemnifying party all reasonable assistance (at the expense of the indemnifying party ) in connection with the defense or settlement of any such claim, suit or the like. Notwithstanding the foregoing, Intelligent Contacts has the right, but not the obligation, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to Client’s indemnification pursuant to Section 11(a).
  2. OWNERSHIP OF MATERIALS AND RIGHTS

The Application Services is proprietary to Intelligent Contacts and is protected by intellectual property laws and international intellectual property treaties. Except for the revocable term license and right to use the Application Services granted by Intelligent Contacts to Client in this Agreement, nothing in this Agreement shall convey, transfer or assign any right, title or interest in any party’s Proprietary Materials to the other party. As such, each party retains exclusive ownership of its Proprietary Materials (as defined below) in existence as of the Effective Date or developed by it during the Term. For purposes of this Agreement, “Proprietary Materials” means all patents, copyrights, design rights, trademarks, service marks, trade secrets and other worldwide intellectual property or proprietary rights owned by a party during the Term, and the software, schematics, diagrams, information, and other tangible embodiments, if any, relating thereto. All rights not granted by Intelligent Contacts herein are expressly reserved.

  1. MISCELLANEOUS
    1. Applicable Law. This Agreement shall be governed by the laws of the State of Texas and the United States without reference to conflicts of laws. Venue for any and all actions arising out of this Agreement shall be Collin County Texas.
    2. Amendments. Other than pursuant to Sections 4(b) and 4(d)(i), no amendment of this Agreement will be binding unless it has been agreed to in writing by both parties.
    3. Emails. Intelligent Contacts reserves the right to distribute informative emails regarding the Application Services to Client on an ad hoc basis.
    4. Force Majeure. Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement (other than payment of fees) when such failure or delay is caused by or results from causes beyond the reasonable control of the affected party, including but not limited to fire, floods, embargoes, war, acts of war, insurrections, riots, civil commotion, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority; provided, however, that the party so affected shall promptly notify the other party of the force majeure event and use reasonable commercial efforts to avoid or remove such causes of nonperformance, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed.
    5. Waiver and Severability. No failure, delay in exercising or enforcing any right or remedy hereunder by Intelligent Contacts shall constitute a waiver of any other right or remedy, or future exercise thereof. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is only to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
    6. Assignment. Client may not assign this Agreement or any of its rights and obligations hereunder without the prior written consent of Intelligent Contacts. Any attempted assignment without such prior written consent shall be void.
    7. Attorneys’ Fees. In the event of a dispute arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees.
    8. Notices. All notices, authorizations, and requests in connection with this Agreement shall be deemed given (i) three (3) days after they are deposited with the United States Postal Service, first-class postage prepaid; or (ii) one (1) business day after they are sent by air express courier, or (iii) upon receipt if sent by facsimile or electronic mail (with receipt-confirmation of successful delivery). All notices shall be delivered to Intelligent Contacts via mail, facsimile, or email (currently billing@IntelligentContacts.com) at its then current corporate headquarters as listed on the Intelligent Contacts website, and to Client at its most current street, facsimile and email address(es) as provided by Client to Intelligent Contacts in connection with Client’s registration process or updated information in the IC Client Portal.
    9. Entire Agreement. Client agrees that this Agreement, including Schedules, comprise the entire understanding between Intelligent Contacts and Client, and supersede any prior agreements or correspondence between Client and Intelligent Contacts and/or any postings or other notices from Intelligent Contacts with respect to the subject matter of this Agreement.
    10. Effective Date. The effective date of this agreement is the earlier of the acknowledgement signature on the Service Order or commencement of usage of the services.


SCHEDULE C

USAGE RATE TERMS

Communication Charges (“Usage”): Local, long distance, and any related surcharges, taxes or fees shall be billed monthly and shall cover all call activity incurred by the Client since the previous Client Bill Date. Local and long-distance charges accrue on a call-by-call basis. Client is responsible for any call activity incurred through its account. Local and long distance charges are computed and billed based upon the automatic number identification (ANI) as the calling number and the Dialed Number Identification Service (DNIS) as the called number and Central Standard Time as the originating time for each call. Client’s billed usage includes any and all connected calls, whether outbound or inbound, as determined by Intelligent Contacts’ billing system. All connections to the Intelligent Contacts server via “PSTN” (analog telephone line) rather than VoIP (internet) are billed as an outbound call for the entire connection time, and can substantially increase the bill. All calls are billed based on carrier connection made, regardless of agent connection to the call. Reporting of detailed call records is available from several reports, in the Administrator or Supervisor portion of the Intelligent Contacts system.

Prior to activation, Client must deposit a certain amount of Prepaid Usage as shown in the applicable Service Order. The running balance of Prepaid Usage is viewable to Client and to authorized personnel in the IC Client Portal under My Account at www.IntelligentContacts.com and http://manage.intelligentcontacts.com As calls are made, the cost of each call is deducted from the available funds amount. As the available funds reach the minimum balance level, Intelligent Contacts will make reasonable efforts to notify Client and automatically charge the Replenishment amount to the credit/debit card on file, debit the bank account on file via ACH, or request a wire transfer to replenish the amount available. However, Client should periodically review the Snapshot, or contact Intelligent Contacts Billing to ensure that adequate Usage balance is maintained. If the account balance reaches zero or becomes negative the dialer will stop placing calls until the balance becomes positive again.

Notes: All rates quoted in US $ per minute. Interstate calls are calls where the call originates and terminates in different states based upon the ANI and DNIS. Intrastate calls are calls where the call originates and terminates in the same state based upon the ANI and DNIS. Rates quoted are for interstate calls. Different rates may apply to interstate and intrastate calls, and intrastate calls may be subject to a surcharge in some areas. Rates subject to change on 30 day notice; reduction in rates may occur without notice. Calls less than 6 seconds in duration may incur a one-minute Surcharge, in addition to the rates in Schedule A. International Calls are subject to Market Rates and 30/6 billing increment. Directory Assistance: Any call (xxx)-555-xxxx is billed as Directory Assistance. Payphone: $0.80 connection fee per call, plus prevailing call charges. All inbound calls, whether to 8XX ‘toll free‘ numbers or area code specific DID’s are subject to the rates shown. Detailed call reporting is available in Intelligent Contacts Call Log reports. Rate lookup feature is available in the IC Client Portal. All rates shown above are for comparison to “pre-tax” rates quoted by telephone providers. Actual billing rates in Call Log data and invoicing include a surcharge relating to the cost of applicable taxes, tariffs, and other carrier fees.

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