Affiliated Communications Terms and Conditions for Services
These Terms and Conditions for Services (“Terms“) govern the provision of Services (as defined below) by GEM Marketing Group, LLC, dba, ULTIM Marketing, and its affiliates and subsidiaries (together, “ULTIM“, “Company”, “we”, “us”, or “our”) to you (“Client” or “you”) pursuant to one or more Call Center Packages (as defined below) entered into by and between ULTIM and Client from time to time. These Terms are a legal contract between you and ULTIM. By using our Services, you are agreeing to all the Terms.
1. Services. The Call Center Package which you and ULTIM agreed to (the “Call Center Package“) and these Terms (together with the Call Center Package, this “Agreement“) comprise the entire agreement between you and ULTIM and supersede all prior terms and conditions and all other prior or contemporaneous understandings, agreements and communications. You understand and acknowledge that ULTIM shall only provide Services to you pursuant to a Call Center Package entered into by and between you and ULTIM. The Call Center Package is governed by these Terms and is hereby incorporated herein by reference. In the event of any conflict between these Terms and the Call Center Package, the Call Center Package shall govern. ULTIM shall provide to Client the services described in the Call Center Package (the “Services“) in accordance with these Terms and the Call Center Package. Client hereby authorizes ULTIM to record messages between Client’s callers and the Call Center. ULTIM offers several different rate plans and billing models to meet individual client needs and objectives. ULTIM bills either on a per call-basis, per hour-basis or on a per agent-basis, unless otherwise specified on the Call Center Package. The hour-based billing will be calculated based on worktime (“Worktime”), as set forth on the Call Center Package which is described in further detail below. Client understands, acknowledges, and agrees that ULTIM does not and cannot control the types of inbound calls that ring into Client’s account and that all Worktime generated by any and all types of inbound calls, including but not limited to pre-recorded calls, robocalls, telemarketing calls, other unsolicited calls, and/or ‘dead-air’ calls, is billable to Client.
- Worktime. Worktime is any time that ULTIM staff are working in or on your account on your behalf, including, but not limited to, time spent answering your calls, drafting and sending emails, drafting, recording, and/or implementing call scripts and/or pre-recorded messages, initiating, facilitating, or making outbound calls, dispatching, reviewing and responding to customer service inquiries, programming, conducting account maintenance and/or otherwise corresponding with you or your callers on your behalf. Worktime is calculated on a hour usage-basis, which will be billed in increments specified on the Call Center Package. All billing increments are rounded up to the nearest increment.
- Other Services. From time to time ULTIM may offer other products and service options to you in connection with the Services. In the event that Client engages ULTIM to provide Services, you and ULTIM will enter into a new or updated Call Center Package setting forth the scope of such other services and the fees for such other services (including, without limitation, applicable Recurring Charges, Miscellaneous Fees, and fees for Overage Usage, as applicable).
- Setup and Programming. As indicated on the Call Center Package, there will be a setup fee to begin services. Should that Setup Fee be waived and the Client terminates services within the initial Term, Client agrees to pay the originally quoted Setup Fee. Setup takes one month after agreeing to the Call Center Package.
- Client Services and Support. Basic client and account management services will be provided at no additional charge during regular business hours.
- Fees. Our fees are calculated per cycle. Cycle periods are noted on the Call Center Package and are either weekly or monthly, unless otherwise specified on the Call Center Package. There are three types of fees charged in connection with our Services. First, we charge fixed Recurring Charges as outlined on the Call Center Package, which include the fees for the base number of minutes (for Worktime, Talk Time, and System Time, as applicable) or the number of calls, contracts, and/or leads (for Non-Time Based Services) allotted in the Call Center Package. Recurring Charges are due in advance, on or before the first day of the applicable billing period. Client will be responsible and agrees to pay the Recurring Charges (which is sometimes referred to as the Base Rate) for the duration of the Term regardless if Client chooses to terminate Services during the Term.
3. Term; Termination. ULTIM shall provide the Services to Client for the time period described in the Call Center Package (the “Term”), which Term shall automatically renew for successive periods unless ULTIM or Client gives sixty (60) days prior written notice of termination. Client may request changes to the Call Center Package by calling or emailing ULTIM. An ULTIM authorized representative must approve the requested changes. Any changes to the Call Center Package will be reflected in the next billing cycle, unless otherwise agreed to by ULTIM and Client. ULTIM may immediately terminate the Services with or without notice in the event that Client is in Material Default, as determined by ULTIM. For purposes of this Agreement, a “Material Default” shall occur, or shall be deemed to have occurred, if (i) we suspect that providing Services to you aids in illegal activity, relates to fraudulent activity, or is party to potentially illicit activity including, for example, sexual encounters, (ii) you, your staff, or your callers are abusive, disrespectful or otherwise inappropriate to our personnel, (iii) you breach, violate, fail to perform under, or fail to comply with any of the terms set forth in the Agreement, (iv) Client fails to pay any other amount when due under this Agreement, or (v) Client 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. Client may terminate this Agreement and any applicable Call Center Package in the event of a material breach of this Agreement by ULTIM, provided that Client has given ULTIM notice and a detailed description of the circumstances of such material breach and ULTIM has failed to cure such breach within forty-five (45) days after receipt of notice from Client regarding such material breach. Upon termination of the Agreement for any reason, ULTIM shall maintain the right to collect any and all amounts then due, including any prorated amounts for Services rendered and not yet paid. Upon termination of the Agreement by ULTIM as a result of Client’s Material Default, or otherwise in the event of Client’s Material Default that does not result in termination of the Agreement, in addition to any other rights ULTIM may have at law or equity, (a) ULTIM shall maintain the right to collect any and all amounts then due, (b) Client shall pay all legal fees and collection costs incurred by ULTIM, and (c) Client shall pay all late fees that may accrue as a result of such Material Default.
5. Client’s Obligations, Acts and Omissions. Client shall respond promptly to any ULTIM request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for ULTIM to perform the Services in accordance with the requirements of this Agreement. If ULTIM’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, including communicating inaccurate or outdated information, ULTIM 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.
6. Methods of Communication and Disclosure. In accordance with applicable law, you hereby expressly agree that we may contact you via email, phone call, text message, or any other method of communication, and that we may use any information that you provide to us, for the purposes of fulfilling our duties under this Agreement as well as for marketing and promotional purposes, customer service purposes, system maintenance purposes, billing and collections purposes, survey purposes, and/or returning messages from you or your staff. Any and all phone, data, and other communications rates by your communications vendors may apply. You agree that we may disclose any information to comply with applicable law or regulation or with valid legal process including subpoenas, court orders, or search warrants. Client agrees that ULTIM shall be entitled to identify Client as a customer in ULTIM marketing materials and on its website.
7. Taxes. 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. ULTIM will promptly provide Client with scripted texts that enable the Call Center to answer questions about Client’s products and services, Client must approve this Script before executing the services. The “Call Center” is defined as the facility and staff engaged to provide Services to the Client and includes, but is not limited to, telephone service representatives, customer support representatives, supervisory and quality assurance staff, and administrative support personnel. ULTIM will train the Call Center to answer questions about Client’s products or services based on the scripted texts approved by Client. ULTIM will use reasonable efforts to ensure the Call Center follow Client’s scripts, directions, and account instructions. 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, if 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 ULTIM 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 ULTIM in the course of performing the Services shall be owned by ULTIM.
10. Confidential Information. All non-public, confidential or proprietary information of ULTIM, including information pertaining to business operations, strategies, pricing and marketing (collectively, “Confidential Information“), which was or is disclosed to Client in connection with the Services or otherwise and whether or not identified as “confidential” is confidential, and shall not be disclosed or used by Client without the prior written consent of ULTIM. 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. ULTIM shall be entitled to injunctive relief for any violation of this Section 10 and Section 9.
11. Data Protection. ULTIM 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 HIPPA 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 ULTIM to only such personal information necessary to complete Services. ULTIM will use commercially reasonable efforts guided by industry standards to secure information related to the Services from Client or third parties. Client acknowledges that ULTIM cannot guarantee the security of information provided to it and ULTIM is not responsible for a third party’s circumvention of any privacy safeguards or security measures.
12. Representation and Warranty.
- ULTIM represents and warrants to Client that it shall perform the Services in a professional and workmanlike manner in accordance with the terms in the Call Center Package.
- ULTIM 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 ULTIM within ten (10) days of the time when Client discovers or should have discovered that the Services were defective.
- Subject to Section 12(b) and Section 15, ULTIM 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.
- THE REMEDIES SET FORTH IN SECTION 12(c) SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND ULTIM’S ENTIRE LIABILITY, FOR ANY BREACH OF THIS AGREEMENT BY ULTIM.
13. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 12(a) ABOVE, ULTIM MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, 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.
14. Indemnification. Except to the extent arising from ULTIM’s gross negligence or willful misconduct, Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless ULTIM for all costs, charges and losses sustained or incurred by ULTIM in connection with third party claims (including claims made by Client’s callers) arising in connection with the Client’s use of or ULTIM’s provision of the Services or otherwise.
15. Limitation of Liability. IN NO EVENT SHALL ULTIM BE LIABLE TO CLIENT OR TO ANY THIRD PARTY (INCLUDING ANY CLIENT CALLER) 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 ULTIM 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 ULTIM’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE AGGREGATE AMOUNTS PAID TO ULTIM FOR THE BILLING CYLCE DURING WHICH THE ACTION(S) (OR INACTION(S)) ON WHICH THE CLIENT’S CLAIM IS BASED OCCURRED (OR FAILED TO OCCUR).
16. Waiver. No waiver by ULTIM of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by ULTIM. No failure by ULTIM 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 ULTIM hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
17. Force Majeure. ULTIM 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 ULTIM including, without limitation, acts of God, disease outbreaks, 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, power outage, or other service issue or interruption.
18. Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of ULTIM. Any purported assignment or delegation by Client in violation of this Section 18 is null and void. Notwithstanding the foregoing, the Agreement shall be binding on Client’s successors and assigns.
19. 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.
20. 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 Georgia 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 Georgia. Client and ULTIM 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 Georgia in accordance with the applicable rules of the American Arbitration Association then in effect.
21. 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.
22. 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 ULTIM employee or former employee without either a) attaining ULTIM’s prior written consent, or b) by paying ULTIM a buy-out fee equal to the employee’s most recent three months of wages multiplied by four (4). The foregoing Non-hire / Non-solicitation restriction is in effect for the Term and for six (6) months after termination of Agreement for whatever reason.
23. Performance. ULTIM quality performance metrics used for marketing purposes reflect historical averages and are not guarantees of future performance for Client.
24. Amendment. ULTIM may change these Terms from time-to-time. If we make any changes to these Terms, we will notify you by revising the last updated date at the bottom of the Terms, and in some cases, we may provide you with additional notice (such as adding a statement to your invoices, sending you an email notification, or providing a banner notification on ULTIM’s website). Your continued use of the Services shall constitute your consent and agreement to, and acceptance of, the changes.