TERMS AND CONDITIONS
These terms and conditions for services (“Terms“) govern the provision of services by Answer 1, LLC d.b.a NexaSupport and its affiliates (together, “Answer 1“) to you (“Client” or “you”) effective as of the Start Date (defined herein), or January 1, 2016, whichever is later.
The service terms, which you and Answer 1 agreed to (the “Service Plan“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between you and Answer 1, and supersede all prior terms and conditions and all other prior or contemporaneous understandings, agreements and communications. In the event of any conflict between these Terms and the Service Plan, the Service Plan shall govern. Answer 1 shall provide to Client the services described in the Service Plan (the “Services“) in accordance with these Terms. If telephone answering services are included in the Services, (a) Answer 1 is not responsible for the transfer of Client telephone lines to the center and (b) Client has authorized Answer 1 to record messages between Client’s callers and the Answer 1 agents.
Answer 1 shall provide the Services to Client for the time period described in the Service Plan (the “Term”), which Term shall automatically renew unless Answer 1 or Client gives the other thirty (30) days prior written notice.
Answer 1 began providing regular service to Client on the date indicated in the Service Plan (“Start Date”). On or before the first day of each twenty-eight (28) day period following the Start Date, Client paid, or shall pay, as applicable the rate (or pro-rata portion thereof, as applicable) for the Services set by Answer 1 in the Service Plan (“Reoccurring Charge”). Answer 1 reserves the right to increase any component of the Reoccurring Charge after the first twelve (12) months of Services. Client shall, at all times, maintain a valid form of payment on file with Answer 1, which Answer 1 is granted authorization to charge. If Client minute usage exceeds 5,000 minutes within a twenty-eight (28) day period, Answer 1 reserves the right to charge the valid form of payment on file at that time. Minute usage will be billed in 30 second increments.
4. LATE CHARGES AND MATERIAL DEFAULTS
The Reoccurring Charge is due on the twenty-first (21st) day of the period for which the Services are to be provided (“Due Date”). Any payment(s) not received within seven (7) days after the Due Date are subject to a late charge equal to the greater of $10 or 10% of the amount then due, per twenty-eight (28) day period, subject to any restrictions imposed by local law. In the event Answer 1 does not receive full payment within ten (10) days after Due Date, Client will be considered in material default of this Agreement (“Material Default”). After such Material Default: (a) Answer 1 shall have the right to immediately terminate service, (b) Answer 1 shall maintain the right to collect any and all amounts then due, (c) Client shall pay all legal fees and collection costs incurred by Answer 1, and (d) Client shall pay all late fees that may accrue thereafter.
5. MISCELLANEOUS FEES
(a) Answer 1 charges a holiday related fee for the United States Federal holidays. (b) Answer 1 reserves the right to charge $2.50 per minute for maintenance, programming, coding, software development, general technology services, and telephony services and troubleshooting. (c) Additional fees may apply, including but not limited to fees & costs relating to the additional training and coaching of Answer 1 employees in connection to new, enhanced, upgraded, or revised Client products or services, and / or material changes to call handling process or scripts. (d) All fees are subject to change.
6. CLIENT’S OBLIGATIONS, ACTS AND OMISSIONS
Client shall respond promptly to any Answer 1 request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Answer 1 to perform the Services in accordance with the requirements of this Agreement. If Answer 1’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or any of its agents, subcontractors, consultants or employees, Answer 1 shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client in connection therewith.
Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.
8. SCRIPTED READINGS
To the extent Client has not already done so, Client will promptly provide Answer 1 with scripted texts that enable Answer 1’s employees and call center personnel (the “Call Center”) to answer questions about Client’s products and services. Answer 1 will train the Call Center to answer questions about Client’s products or services based on the scripted texts provided by Client. Answer 1 will use reasonable efforts to ensure the Call Center does not deviate from Client’s scripts. However, Client recognizes that, in any human encounter, it is not possible to anticipate and prepare for every conceivable question about Client’s products and services that the Call Center may be asked. Therefore, in instances in which the Call Center cannot answer questions raised by Client’s customers or prospects, the Call Center will direct their questions to Client for a more detailed response. Client is solely responsible for providing more detailed answers to questions asked by Client’s callers that the Call Center cannot answer. Thus, to the extent Client has not already done so, Client shall promptly provide appropriate contact email addresses and telephone numbers, which the Call Center may utilize to forward calls and questions that the Call Center cannot answer. Client will update the contact information provided to Answer 1 on a regular basis.
9. INTELLECTUAL PROPERTY
All intellectual property rights, including copyrights, trademarks, know-how and other confidential information, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights“) in and to any work product and other materials that are or were delivered to Client under this Agreement or prepared by or on behalf of Answer 1 in the course of performing the Services shall be owned by Answer 1.
10. CONFIDENTIAL INFORMATION
All non-public, confidential or proprietary information of Answer 1, including information pertaining to business operations, strategies, pricing and marketing (collectively, “Confidential Information“), which was or is disclosed to Client and whether or not identified as “confidential” is confidential, and shall not be disclosed or used by Client without the prior written consent of Answer 1. Confidential Information does not include information that is: (a) in the public domain; (b) known to Client at the time of disclosure; or (c) rightfully obtained by Client on a non-confidential basis from a third party. Answer 1 shall be entitled to injunctive relief for any violation of this Section 10. Client agrees to allow Answer 1 to identify Client as a customer in Answer 1’s marketing materials.
11. DATA PROTECTION
Answer 1 will use commercially reasonable efforts to comply with all known applicable laws related to privacy and security of personal information that are standard in the industry. Client also agrees to comply with all applicable privacy and data protection laws including but not limited to FTC and HIPAA regulations. Client acknowledges the inherent risks, sensitivity and unknown consequences related to processing and storing personal information. Client shall be cautious and vigilant in limiting the personal information that will be processed by Answer 1 to only such personal information necessary to complete Services. Answer 1 will use commercially reasonable efforts guided by industry standards to secure information related to the Services from Client or third parties. Client acknowledges that Answer 1 cannot guarantee the security of information provided to it and Answer 1 is not responsible for a third party’s circumvention of any privacy safeguards or security measures.
12. REPRESENTATION AND WARRANTY
(a) Answer 1 represents and warrants to Client that it shall perform the Services in a professional and workmanlike manner in accordance with the terms in the Service Plan and with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. (b) Answer 1 shall not be liable for a breach of the warranty set forth in Section 12(a) unless Client gives written notice of the defective Services, reasonably described, to Answer 1 within ten (10) days of the time when Client discovers or ought to have discovered that the Services were defective. (c) Subject to Section 12(b) and Section 15, Answer 1 shall, in its sole discretion, either: (i) re-perform such Services; or (ii) credit or refund the price of such Services at the pro-rata contract rate. (d) THE REMEDIES SET FORTH IN SECTION 12(c) SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND ANSWER 1’S ENTIRE LIABILITY FOR ANY BREACH OF THIS AGREEMENT.
13. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 12(a) ABOVE, ANSWER 1 MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Except to the extent arising from Answer 1’s gross negligence or breach of this Agreement, Client agrees to indemnify and hold harmless Answer 1 for all costs, charges and losses sustained or incurred by Answer 1 in connection with third party claims arising in connection with the Services.
15. LIMITATION OF LIABILITY
IN NO EVENT SHALL ANSWER 1 BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT ANSWER 1 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL ANSWER 1’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE AGGREGATE AMOUNTS PAID TO ANSWER 1 IN THE PERIOD IN WHICH THE ACTION(S) (OR INACTION(S)) THE CLIENT’S CLAIM IS BASED OCCURRED (OR FAILED TO OCCUR).
In addition to any remedies that may be provided under this Agreement, Answer 1 may terminate this Agreement with immediate effect upon written notice to Client (which may be given to Client via email), if Client: (a) fails to pay any amount when due under this Agreement; (b) has not performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. If Answer 1 does not resolve a Client service issue within 14 days, Client may terminate the Services immediately.
No waiver by Answer 1 of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Answer 1. No failure by Answer 1 to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege by Answer 1 hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. FORCE MAJEURE
Answer 1 shall not be liable or responsible to Client, or be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused or results from acts or circumstances beyond the reasonable control of Answer 1s including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, civil unrest, national emergency, lock-outs, labor disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers, inability to obtain supplies, adequate materials, or a telecommunication breakdown or power outage.
Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Answer 1. Any purported assignment or delegation in violation of this Section 19 is null and void.
20. RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. GOVERNING LAW
All matters arising out of or relating to this Agreement or otherwise in connection with the Services are governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Delaware. Client and Answer 1 both waive a trial by jury of any or all issues arising in any action or proceeding between the parties hereto or their successors and assigns, under or connected with the Services or this Agreement. All disputes, controversies, or claims arising out of or relating to this Agreement or otherwise in connection with the Services shall be submitted to binding arbitration in the State of Arizona in accordance with the applicable rules of the American Arbitration Association then in effect.
22. SEVERABILITY; SURVIVAL
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of this Agreement, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidential Information, Data Protection, Governing Law and Survival.
23. AGREEMENT TO NON-HIRE/ NON-SOLICIT
Client, its affiliates, and/or its related individuals and corporate entities agree not to solicit nor to hire any Answer 1 employee or former employee without either a) attaining Answer 1’s prior written consent, or b) by paying Answer 1 a buy-out fee equal to the employee’s most recent three months of wages multiplied by four (4). Non-hire / Non-solicitation in effect for six (6) months after termination of Agreement.
Answer 1 quality performance and historical metrics are used for marketing purposes, and reflect historical performance and management estimates, and are not guarantees of future performance for Client.
25. MONEY BACK GUARANTEE
Money back guarantee only valid for the first 21 days of Client service or 500 minutes of usage, whichever occurs first. Money back guarantee only available on non-enhanced accounts.