Provision of HubDialer® Services. HBD will make available to Customer the use of HubDialer Predictive and HubDialer Preview (the “HubDialer Services”) through the HBD dedicated website (the “Site”) or through a HBD dedicated telephone number. In order to access and use the HubDialer Services, Customer must provide at its own expense telephone, computer equipment and Internet service.
HubDialer® Predictive is a predictive dialer that is autonomous. The Predictive dialer uses heuristics to determine when to make calls and how many calls to place for a campaign. Agents indicate when they are ready to receive their next call, and dialing is automatic. Fees for HubDialer Predictive Service are priced per agent minute. An agent minute is a 60-second period, or any portion thereof, during which the call agent is connected to HubDialer Predictive, whether or not such agent is connected to a recipient of a call. The patch-through feature also uses agent minutes for the duration of the patched-through portion of the call. Prepaid minutes are non-refundable, non-transferable and expire one year after the date of purchase.
HubDialer® Preview is a service that is agent-controlled. Agents indicate when to place the next call to a target on the campaign’s list. When indicated, the Preview dialer will place a single call. Dialers for Preview and Predictive run as separate system processes, and campaigns created in the Preview service cannot be moved to the Predictive service, and vice-versa. Fees for HubDialer Preview Service are priced per agent minute. An agent minute is a 60-second period, or any portion thereof, during which the call agent is connected to HubDialer Predictive, whether or not such agent is connected to a recipient of a call. The patch-through feature also uses agent minutes for the duration of the patched-through portion of the call. Prepaid minutes are non-refundable, non-transferable and expire one year after the date of purchase.
Authorized Users. Customer may designate one or more employees, volunteers or other representatives (each, an “Authorized User”) authorized to access and use the HubDialer Services through the Site. HBD will provide access to each Authorized User through a user ID and password. Customer shall be responsible for ensuring that its Authorized Users comply with these Terms. If an Authorized user is no longer an authorized representative of Customer, Customer must notify HBD immediately, in writing which may include email.
Administrator. Customer shall designate one or more administrators (each an “Administrator”) who will act on Customer’s behalf in authorizing Authorized Users and in controlling additions and replacement of Authorized Users. HBD will assign to each Administrator unique credentials to access the Site. Customer and each Administrator and Authorized User are solely responsible for the activity that occurs on the Customer's account. Each of HBD and Customer will (a) take reasonable steps to prevent the unauthorized use of any credentials, password or user ID and (b) immediately notify the other party of any breach of security or unauthorized use of any credentials, password or user ID, and (c) take any steps within its reasonable control to prevent any further unauthorized use.
Limited License. HBD hereby grants to Customer and to its Authorized User a nonexclusive, non transferable license to access and use HubDialer Predictive and HubDialer Preview in accordance with the Terms of this Agreement, during the period for which Customer has paid the applicable fee.
Restrictions on Access and Use. Customer agrees that it will not, and will not permit any Authorized User, to:
- Decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats, architecture or programming or interoperability interfaces of the HubDialer Services;
- Hide or mask from HBD the identity of any application or service Customer provides, using the HubDialer Services;
- Generate traffic to Customer’s own service or application using an active token, or using an account that appears to be scraping any database provided through the HubDialer Services;
- Distribute, publish, facilitate, enable or allow access or linking to the HubDialer Services from any location or source other than the Site;
- Attempt to resell, distribute or transfer the HubDialer Services to any other person or entity;
- Create user accounts for the HubDialer Services or the Site by automated means or under false or fraudulent pretenses;
- Transmit any virus, worm, defect, Trojan horse or any other item intended to destroy, surreptitiously interfere with, expropriate or exert unauthorized control over any system or data or to defraud any person or entity;
- Interfere with or disrupt the HubDialer Services or servers or networks used for or related to the HubDialer Services or disobey any requirements, procedures, policies or regulations of networks related to the HubDialer Services;
- Impersonate any person or entity or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity; or
- Use the HubDialer Services to promote, facilitate and/or encourage illegal or unlawful activity.
HBD shall have the right, but not the obligation, to monitor Customer’s use of the Site to determine compliance with the Terms and to satisfy any law, regulation or authorized government request. HBD has the right, without prior notice, to discontinue Customer’s access to the HubDialer Services and/or to terminate or delete Customer’s account or the account of any Authorized User, for use of the HubDialer Services, if Customer uses the HubDialer Services, or permits anyone else to use the HubDialer Services, in violation of these restrictions. HBD shall not have any liability to Customer or to any third party in respect of any limitation or suspension of Customer or an Authorized User’s access to the HubDialer Services.
Responsibility for Content; Disclaimers.
- Customer shall be solely responsible for the content of any script or message relayed or communicated by callers using the HubDialer Services to recipients of telephone calls made through the HubDialer Services (“Customer Content”). Customer represents and warrants to HBD that any Customer Content shall not infringe the copyright or other intellectual property rights of any third party, and is not and will not be defamatory, threatening, abusive, obscene, vulgar, hateful or obscene; will not include any racial or ethnic epithet; will not be fraudulent; will not misrepresent Customer or Customer’s affiliation with any other person or entity; and will not violate any other applicable law or regulation.
- Customer represents and warrants to HBD that any Customer Content communicated by any caller using the HubDialer Services will include all necessary disclaimers in compliance with the requirements of the federal Telephone Consumer Protection Act, 47 U.S.C. §227 (the “TCPA”) or the implementing regulation of the Federal Communications Commission, 47 C.F.R. §64.1200 (the “FCC Rule”), the requirements of the Federal Election Campaign Act of 1971 as amended and the regulations of the Federal Election Commission, and/or any applicable state or local law including without limitation any state laws applicable to telephone calls made with an automatic telephone dialing system.
Restrictions on Calling for HubDialer Predictive—No Use of Voice Mail Feature. The Hub Dialer Predictive service does not have the capacity to use a random or sequential number generator to either store or produce phone numbers to be called and therefore does not constitute an “automatic telephone dialing system” within the meaning of the federal Telephone Consumer Protection Act, 47 U.S.C. §227 (the “TCPA”) or the implementing regulation of the Federal Communications Commission, 47 C.F.R. §64.1200 (the “FCC Rule”) unless Customer uses the system to call a list that has not been developed or curated by Customer. To ensure compliance with the TCPA and other applicable federal and state laws:
- Customer represents and warrants that the lists of telephone numbers to be called using the HubDialer Predictive service that are uploaded for use in the service (the “Customer Predictive Phone Number File”) represent records that have been selected by Customer from a larger list, based on one or more criteria determined and applied by Customer or by a vendor or agent on Customer’s behalf.
- Customer represents and warrants that the Customer Content shall not include or introduce any advertisement or constitute telemarketing or a telephone solicitation within the meaning of the TCPA or the FCC Rule.
- Customer represents and warrants that the Customer Content will include any disclaimers or other provisions required by applicable federal or state law based on the nature of the Customer Content.
- Customer represents and warrants that Customer will not select or utilize the feature of the HubDialer Predictive Service that allows the end user to leave a recorded voice mail message to the recipient of any call.
- Customer represents and warrants that the Customer Predictive Phone Number File does not include any telephone number assigned to a residence or household located in New Hampshire that is listed on the national do not call registry
Restrictions on Calling for HubDialer Predictive—Use of Voice Mail Feature. In order for Customer to use the automated voice mail feature of HubDialer Predictive, Customer must elect to have their list scrubbed of cell phone numbers when loading the calling universe into HubDialer. Furthermore in such case, in addition to the representations and warranties set forth in section 8:
- Unless Customer is a tax-exempt nonprofit organization or political organization or committee, Customer represents and warrants to HBD that, as to any residential telephone line included in the Customer Predictive Phone Number File, Customer has obtained the prior express written consent of the called party, to receive telephone calls from or on behalf of Customer.
- Customer represents and warrants to HBD that the Customer Predictive Phone Number File shall not contain any telephone number assigned to any emergency telephone line, including any 911 line, or to any emergency line of a hospital, medical physician or medical service office, health care facility, poison control center or fire protection or law enforcement agency; or to the telephone line of any guest or patient room of a hospital, health care facility, elderly home or similar establishment.
- Customer understands and acknowledges that the laws of certain states ban the making of any pre recorded call or call using an artificial voice, for any purpose, without the prior consent of the party called or, in certain cases, an established business relationship. Customer represents and warrants to HBD that the Customer Predictive Phone Number File does not include any telephone number assigned to a residence or household located in a state in which calls cannot be made using a prerecorded message or artificial voice without the prior consent of the party to be called or an established business relationship or prior consent, unless Customer has obtained such prior consent io the form required by applicable state laws or has established such relationship.
- Customer represents and warrants to HBD that the Customer Predictive Phone Number File does not include any telephone number assigned to a residence or household located in Oregon or New Hampshire that is listed on the national do not call registry. Customer understands and agrees that the laws of certain states impose other or additional requirements on the making of automated or prerecorded calls, including additional disclaimers, the registration with or obtaining a license from the State.
- Customer agrees that it will not include in the Customer Predictive Phone Number File any number assigned to a residence or household located in any State in which the law imposes conditions or requirements on the making of such calls unless Customer has fully complied with all such conditions and requirements.
Cellular and Mobile Telephone Number Removal. If Customer elects to use the voicemail feature of HubDialer Predictive Service, HBD will search and remove all cellular and mobile telephone numbers from the Customer Predictive Phone Number File. HBD’s service of such removal has no impact whatsoever on Customer’s representations, warranties and obligations under Paragraphs 8 or 9 of this Agreement. HBD shall have no obligation to provide or to disclose to Customer the list of Wireless Ported Numbers removed from the Customer Predictive Phone Number File.
Rights in Lists and Data. HBD agrees and acknowledges that all rights in and to the lists of telephone numbers to be called using the HubDialer Services, that are uploaded for use in the HubDialer Services, and all records maintained by callers relating to these records, results of calls attempted and made (“Customer User Data”), shall belong exclusively to Customer and shall become and remain the sole and exclusive property of Customer. Upon termination of use of the HubDialer Services, HBD agrees to provide all Customer User Data to Customer promptly and to destroy all copies of any Customer User Data remaining in HBD’s possession.
- Customer acknowledges and agrees that all registered and unregistered trademarks, service marks, copyright and other rights of HBD, including without limitation such rights in and to “HubDialer”, the computer programs, computer applications, web applications, database programs, web content files and all written, graphic, audio and audiovisual works constituting, incorporated into and/or utilized on HubDialer and the Site or as may be provided by HBD (other than content created and/or provided by Customer to HBD, Customer content and Customer User Data) and all databases of any kind, database elements and data fields included in such databases (except for Customer User Data and except to the extent that the foregoing have been created by and licensed to HBD by third parties), and any and all Customer feedback, evaluation results, reports of errors, problems or defects and suggestions related to the HubDialer Services, shall be and remain the sole and exclusive property of HBD (“HBD Intellectual Property”). Customer agrees not to contest HBD’s ownership of any and all such rights.
- All copyright and other rights in and to applications, programs and tools created by third parties and utilized in, accessed by or incorporated into HubDialer are the exclusive property of such third parties. To the extent that applications, programs and tools created by third parties are utilized in, accessed by or incorporated into HubDialer, HBD warrants and represents that Customer has a license to use such third party intellectual property to the extent needed for Customer to make use of HubDialer in accordance with these Terms.
- Customer agrees that it will not copy, modify, publish, transmit, distribute, perform, display, or sell any of the HBD Intellectual Property. Customer agrees not to remove, obscure, or alter any copyright notice or trademark notice whether of HBD or third parties, appearing in or on HubDialer or in any results or content generated by Customer’s use of HubDialer. Customer agrees that Customer will not, will not attempt to, and will not permit any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble, or reverse engineer any software program or application used in the functioning of HubDialer. Nothing in this Agreement will transfer or grant to Customer any right, title or interest in the HubDialer Services, any component thereof or any proprietary rights pertaining to the HubDialer Services.
Confidential Information. Customer agrees that the HubDialer Services including the Site, the content on the Site, and the terms and conditions of, and any documentation related to, the HubDialer Services, including any pricing information, are the confidential and proprietary information of HBD (“HBD Confidential Information”). Customer agrees, for itself and its Authorized Users, to protect the confidentiality of any HBD Confidential Information. Customer agrees that it will only use the HBD Confidential Information as permitted by the Terms and that it will not disclose to any third party any HBD Confidential Information. The parties agree that any breach or threatened breach of the foregoing confidentiality obligations by Customer or its Authorized Users may cause not only financial harm, but irreparable harm to HBD and that money damages may not provide an adequate remedy. Customer shall use the information and reports generated by HBD only in connection with the execution of the matters contemplated by this Agreement.
Limitation of Liability.
- Customer agrees that HBD will not be liable for any interruption, delay or failure to perform the HubDialer Services due to any factor beyond HBD’s control. Without limiting the generality of the preceding sentence, HBD assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission arising from or caused by scheduled downtime, which HBD may periodically schedule for the Site for maintenance or other purposes. Unplanned system outages also may occur. HBD shall have no liability whatsoever for unplanned system outages arising from our caused by fires, floods, natural disasters, riots, strikes, labor disputes, war (declared or undeclared), terrorist acts, actions of governmental authorities, inability to secure equipment, transmission bandwidth, telephone system or communications lines failures, failures of Internet service providers, denial of service attacks or service failures cause by malware or viruses, theft or destruction or unauthorized access to, or alteration of, user communications. HBD is not responsible for any interruptions caused by, or problems or technical malfunction of, any telephone network or lines, computer systems, servers or providers, computer equipment, software, failure of email or third party applications or tools on account of technical problems or traffic congestion on the Internet or at any site or combination thereof, including injury or damage to persons receiving telephone messages or to any other person's phone or computer related to or resulting from participating or downloading materials in connection with Customer’s use of the HubDialer Services.
- Under no circumstances will HBD be responsible for any loss or damage, resulting from anyone's use of the HubDialer Services or any interactions between persons making and/or receiving calls.
- The HubDialer Services and related services are provided by HBD “AS IS” without any condition or warranty whatsoever. All warranties with respect to the services, and the use thereof, whether express or implied, are disclaimed by HBD including without limitation the implied warranties of merchantability and fitness for a particular purpose, title and noninfringement. HBD makes no warranties as to the Internet, the telephone network through which any service is utilized, or other technology utilized to present, access or utilize HubDialer Services or the Site, nor does it warrant that the HubDialer Services or the Site shall be free of computer viruses or other malicious content. HBD cannot guarantee and does not promise any specific results from use of the HubDialer Services.
- Except where restricted or prohibited, in no event will HBD be liable to Customer or any third person for any indirect, consequential, exemplary, incidental, special or punitive damages, including lost profits arising from Customer use of the HubDialer Services, or of HBD’s termination of Customer account, even if HBD has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, HBD's liability to Customer for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the amount paid, if any, by Customer to HBD for the use of the HubDialer Services during engagement out of which the claim arises. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to Customer.
- Customer hereby agrees to release HBD and its respective officers, directors, agents and employees from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with Customer use of the HubDialer Services. If Customer is a California resident, Customer waives California Civil Code § 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Indemnity. Customer agrees to indemnify and hold HBD, its members, owners, directors, officers, employees and agents (the “HBD Indemnitees”) harmless from and against any damages or losses incurred by reason of or resulting from any claim, action, suit, proceeding or investigation asserted or initiated by a third party against any of the HBD Indemnitees, based upon or arising out of Customer’s use of HubDialer Services or from the breach by Customer or any Authorized User of any warranty, representation or covenant of Customer set forth in these Terms.
Termination. HBD may modify or discontinue the HubDialer Service, or any portion thereof, upon 30 days’ notice to Customer, and without liability to Customer or any third party. Either party may terminate these Terms at any time for any reason, on not less than 30 days prior written or electronic (facsimile or email) notice to the other party. HBD may also, at its sole discretion, immediately terminate the Terms and Customer’s access to the Site should Customer's conduct fail to conform to any provision of the Terms. HBD shall not be liable to Customer or any third party for any such termination. Upon termination of these Terms or the Agreement, Customer's right to use the HubDialer Services shall immediately cease. Termination shall not affect the duty to make payment for Services performed. Paragraphs 5-15 shall survive any termination or expiration of the Terms.
Miscellaneous. Neither party to this Agreement may delegate its obligations or assign its rights under this Agreement to any other person or entity without the prior written consent of the other, except that HBD may assign its rights or delegate its obligations, in whole or in part, to any of its affiliated entities. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado, without regard to Colorado’s choice of law rules. Any action whatsoever to enforce any right under this Agreement shall be brought only in the courts of the State of Colorado. This Agreement constitutes the entire agreement of the parties relating to the subject matter contained in this Agreement, supersedes all prior written and oral agreements and understandings relating to such subject matter and cannot be modified or amended except by a written instrument executed by both parties to this Agreement.