Terms and Conditions
This Agreement, between Dial Them Up (“DTU”) and Client, sets forth the general terms and conditions under which Client may purchase from DTU the following automated telephone message transmittal service (the “Service”): (a) appointment reminder calls, (b) prescription renewal reminder calls, and (c) group calls of the Client’s recorded message, in each case to such United States domestic telephone numbers as Client may enter on its account page on DTU’s web site, www.DialThemUp.com (the “Agreement”). DTU shall use commercially reasonable efforts to provide said Service, subject to the Client’s timely payment of Service Fees (hereinafter defined) and compliance with the provisions of this Agreement. This Agreement shall become effective upon Client’s ordering and/or use of the Service and shall continue until the date of termination identified below (the “Term”).
Client’s Entry of Call Data.
Client shall either (a) enter all data required for DTU’s provision of the Service on-line on the Client account page on DTU’s web site or (b) provide such data to DTU to be uploaded by DTU on the Client’s behalf (the “Client Data”). DTU grants to Client a non-exclusive, non-transferable, revocable right to use DTU’s application software (the “DTU Program”) during the Term for purposes of entering such data and enabling DTU to provide the Service.
By using the DTU Service, Client is undertaking to call the telephone numbers entered or provided by Client. Where a call is made by the DTU Service to a number entered or provided by Client, Client acknowledges and agrees that Client, and not DTU, is the party initiating such call and is therefore deemed to be the calling party under any federal, state or other law that restricts or otherwise regulates the content and delivery of telephone calls or electronic messages, including, without limitation, all do-not-call laws and all restrictions on (a) the use of automatic telephone dialing systems, or autodialers (b) telephone calls and other electronic messages using an artificial or prerecorded voice, and/or (c) telephone solicitations or other marketing calls or electronic messages. By entering or providing a telephone number to be called using the DTU Service, Client represents and warrants that it has obtained any and all permissions and consents required by law to call or message such number. Further, in the event that any such required permission or consent to call or message a particular telephone number is later revoked, rescinded or otherwise retracted, Client shall immediately remove the telephone number from the Client Data and notify DTU to ensure that no further calls or messages are sent using the DTU Service without the required permission or consent.
In the event of any interruption or failure of or delay in Service (an “Interruption”), DTU shall, subject to Client’s timely advising DTU, by e-mail or telephone call, of the Interruption on the day of the Interruption, (a) credit Client for all incomplete calls caused by such Interruption (an “Interruption Credit”) and (b) use commercially reasonable efforts to advise Client, by e-mail or telephone call, of all such Interruptions not corrected by 8:00 P.M., local time, of said day. SUCH INTERRUPTION CREDITS SHALL BE CLIENT’S ONLY REMEDY FOR OR IN CONNECTION WITH INTERRUPTIONS, whether arising from or in connection with delays or difficulties with telephone or electric service or other untoward circumstances, software or hardware malfunction or downtime, fire, natural disaster, act of government, labor dispute, or any other act or condition other than those directly, intentionally and wrongfully caused by DTU.
Non-Disclosure and Limits on Use of Client’s Confidential Information.
DTU shall not use Client Data other than in connection with its Service, and shall not disclose such Client Data other than as requested by a governmental agency or body or as is, in the opinion of legal counsel satisfactory to DTU, required by law.
Payment of Service Fees.
Client shall pay to DTU all fees for the Service pursuant to the rates, terms and conditions elected by Client upon ordering the Service (the “Service Fees”). All webpages, webforms, and any other documents or communications submitted to DTU by Client setting forth or relating to the Service Fees are expressly incorporated within this Agreement, and all references to the Agreement herein expressly include such webpages, webforms, and other documents or communications. Unless otherwise specified in this Agreement, all package fees are payable before Service begins. Client’s failure to timely pay any Service Fees hereunder constitutes a material breach of this Agreement.
Credit or Debit Card Account Automatic Payment Authorization.
By registering for Service with a credit card or debit card information, Client authorizes DTU to charge said account and to instruct payment there from, when due, to DTU of all fees payable for the Service.
Client’s Representations and Warranties.
a. HIPAA Privacy Compliance Client represents and warrants to DTU that all Service to be provided by DTU pursuant to Client’s request will not, subject only to DTU’s compliance with the provisions of paragraph 5 of this Agreement, violate any HIPAA law or regulation protecting the privacy of health information.
b. Compliance with Laws Governing the Content and Delivery of Telephone Calls and Electronic Messages Client represents and warrants to DTU that the Service will not violate any Federal or State law or regulation governing the content and delivery of telephone calls and electronic messages, including, without limitation, all do-not-call laws and all restrictions on (1) the use of automatic telephone dialing systems, or autodialers, (2) telephone calls and other electronic messages using an artificial or prerecorded voice, and/or (3) telephone solicitations or other marketing calls or electronic messages. Client takes full responsibility for compliance with all such laws and understands that DTU’s Service is merely a tool to help Client communicate with its clients or potential clients and that advice from DTU’s employees should not be taken as legal advice. To the extent Client requires legal advice requiring compliance with such laws, Client should contact a third party legal team.
c. No Defamatory Statement, etc. Client represents and warrants to DTU that no statement it requests to be transmitted by the Service will be defamatory, unlawful, harassing, or intended in connection with any unlawful purpose. Client’s use of the Service in violation of any of the representations and warranties under this section or otherwise in violation of applicable law shall constitute a material breach of the Agreement.
Except as otherwise provided in this Agreement, either Party may terminate this Agreement upon ten (10) days’ notice. However, in the event of a material breach of this Agreement by Client, DTU may immediately terminate this Agreement without notice and/or may immediately suspend provision of the Service.
Client shall be responsible for and pay the amount of all sales and use taxes applicable to the Service.
The parties to this Agreement are independent contractors, and no principal-agent, partnership, joint venture or employer-employee relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.
Indemnities; Warranty; Limitation on Liabilities.
(a) For Breach of Agreement Each party shall indemnify and hold the other party (and its employees, officers, directors and stockholders) harmless from, and shall pay to the indemnified party (and its employees, officers, directors and stockholders) the amount of their losses, liabilities, damages and expenses (including collection agency fees and charges, costs of witnesses and investigation, and reasonable attorneys’ fees) arising, directly or indirectly, from or in connection with any breach by the indemnifying party of this Agreement, provided that DTU’S INDEMNITY OBLIGATIONS SHALL NOT EXCEED THE SUM OF ALL SERVICE FEES RECEIVED FROM CLIENT DURING THE PRIOR THREE MONTHS, AND DTU SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES OR LOSSES. (b) For Third Party Claims In addition, Client shall Indemnify DTU (and its employees, officers, directors and stockholders), and shall pay to the indemnified party (and its employees, officers, directors and stockholders) the amount of their losses, liabilities, damages and expenses (including collection agency fees and charges, costs of witnesses and investigation, and reasonable attorneys’ fees) arising, directly or indirectly, from any and all claims related to the Service or arising, directly or indirectly, from or in connection with this Agreement, by or on behalf of any entity or person not a party to this agreement. (c) As Exclusive Remedy THE INDEMNITIES HEREUNDER PROVIDE THE PARTIES’ EXCLUSIVE REMEDIES UNDER OR IN CONNECTION WITH THIS AGREEMENT. (d) Limitation on DTU’s Liabilities DTU’s total liabilities under or in connection with this agreement shall not exceed the sum of all Service Fees received from Client during the prior three months. (e) DTU’s Warranty DTU warrants that it has no reason to believe that the its provision of Service infringes a patent, copyright, trade secret or other intellectual property right of any third party. THIS WARRANTY IS THE ONLY WARRANTY MADE BY DTU. CLIENT DISCLAIMS RELIANCE ON, AND WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
a. Right to Decline to Provide Service. DTU may, with or without cause, decline to provide any Service to a Client, in DTU’s sole and absolute discretion, and shall refund all fees received in connection with any Service not provided pursuant to this provision.
b. Applicable Law. This Agreement shall be governed under the laws of the State of New Jersey as they apply to a contract entered into and performed wholly within that State, without giving effect to principles of conflicts of laws.
c. Jurisdiction. The Supreme and Civil Courts of the State of New Jersey shall have jurisdiction over the parties with respect to any dispute between them arising under or in connection with this Agreement. THE PARTIES CONSENT TO SUCH JURISDICTION AND VENUE, AND WAIVE TRIAL BY JURY.
d. Notices. Notices under this agreement may be given by e-mail or in a writing delivered to the other party.
e. No Third Party Rights. No third party shall have any right or remedy under or in connection with this Agreement or the provision or failure to provide any Service.
f. Entire Agreement. This Agreement constitutes the entire and only agreement of the parties. It cannot be amended, waived, or discharged except by writing signed by the party to be charged therewith.
g. No Representations Other Than as Set Forth Herein. Each party acknowledges that no promise, representation, inducement, agreement, or warranty, other than those set forth or referred to herein, has been made to induce the execution of this Agreement or in connection with its performance.
h. Electronic Signature. By registering for, ordering or otherwise requesting Service on DTU’s web site or by purchasing a package on DTU’s website, Client agrees to the terms and conditions of this Agreement, with the same effect as if its signature on this Agreement had been executed and delivered by Client to DTU.