RoboPhone™ Master Services Agreement
This MSA is made and entered into by and between the individual or entity executing this MSA as the customer (“Customer”) and Robo Retail L.L.C. (“Company” or “Robo”). For purposes of this MSA, Customer and Company shall be referred to collectively as the “Parties” and each individually as a “Party.”
WHEREAS, Company supplies certain software, platforms, technology and communications services and/or consulting services of any kind, including, without limitation, the Software (as defined in the End User License Agreement (“EULA”) appended hereto, which is incorporated herein by reference), and consulting services, if any, (collectively, the “Services”), as further specified below, in the EULA and in the Order Form, (if any), respectively, and Customer desires to utilize said Services; and
WHEREAS, for purposes of this MSA, the term “Service Order” shall refer to the Order Form and Credit Card Authorization, (if any) each of which is incorporated herein by reference (this MSA, the EULA and the Order Form (if any) shall be referred to, collectively, as the “Agreement”). The “Service Order” shall also consist of any use of RoboPhone™.
NOW THEREFORE, in consideration of the respective representations, warranties, covenants and agreements set forth in the Agreement, and subject to Company having all necessary approvals, facilities and agreements to provide the Services, Customer and Company agree as follows:
1. Start Date
For purposes of the Agreement, the “Start Date” will be the date that Customer and Company agree to each of the Order Form, the EULA, and this MSA (as applicable) or otherwise begin use of any of the software or services. Beginning on the Start Date, Company will provide the Services to Customer, as described in the documentation of the Application Programming Interface (“API”) subject to both the EULA and the Order Form, or use. If a conflict exists between the general terms of this MSA and the specific terms of the Service Order, the specific terms of the Order Form will prevail. If a conflict exists between the general terms of this MSA and the specific terms of the EULA, the specific terms of the EULA will prevail with respect to the Software only.
2. Taxes & Fees
As applicable, Customer is responsible for, and must pay, any and all applicable sales, use, excise, public utility, or other taxes, regulatory fees and charges now in force or enacted in the future, by any federal, state, local or other governmental body, as well as any other additional costs that may arise as a result of Customer’s use of the Services, including credit card usage fees. Similarly, Company may pass through to Customer taxes and fees owed by Company associated with Customer’s access to and use of the Services to the extent permissible by law. Said amounts, if any, are in addition to set-up fees and/or charges associated with the consumption of the Services. If Customer is exempt from paying any taxes or fees, Customer must provide documentation, acceptable to Company, certifying that Customer is exempt. Tax exemption will only apply from and after the date that Company acknowledges Customer’s exemption request. Customer agrees to indemnify and hold Company, its third-party vendors, and their respective parent companies, subsidiaries, affiliated companies, as well as the employees, directors, officers and shareholders of same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses including, without limitation, attorneys’ fees and costs of litigation, incurred or suffered by such party relating to or arising out of any exemption claimed by Customer.
3. Billing Adjustments
Any request for a billing adjustment shall be made in good faith and by e-mail to Company at firstname.lastname@example.org. Any such request shall include detailed documentation to establish the basis for any requested adjustment. Company will determine, in its sole, good-faith discretion, whether any adjustment shall be made and any such adjustments will be credited to Customer’s account balance. If a request for a billing adjustment is not made to the e-mail address indicated above within seven (7) days, the charges shall be deemed final, valid and binding, and Customer waives its rights to any credits, offsets or adjustments with regard thereto.
4. Late Payment
Company may suspend the Provision of Services indefinitely and/or terminate this MSA, the EULA and any Service Order in Company’s sole and absolute discretion, if payment on any invoice is not received in the time period specified.
Company shall have the right to limit, suspend and/or terminate Services in the event that, in Company’s reasonable determination, Customer’s use of the Services is: (a) materially adversely affecting Company’s facilities or its ability to provide services to other customers; (b) unlawful, unauthorized or fraudulent; or (c) otherwise in breach of this MSA, the EULA and/or the Order Form. In the event of any termination of the Agreement, Customer shall pay to Company, immediately upon receipt of any applicable invoice, any and all amounts due to Company under the Agreement.
Company shall have the right, at its sole discretion, without notice to Customer, to delete any or all of the terminated customers data, including but not limited to, the account and all aspects of it, call or text records, commonly known as CDRs, and remove all phone numbers or DIDs associated with the account, related accounts or sub-accounts, after thirty (30) calendar days of such termination.
6. Responsibilities of the Parties
a. COMPLIANCE. As and if applicable, Customer represents and warrants that it is aware of, and it and its use of the Services will comply in all respects with: (i) the various state and federal Do Not Call (“DNC”) laws, and those governing the National Do Not Call Registry (“NDNCR”), the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (“TCPA”), the Amended Telemarketing Sales Rule (“ATSR”), 16 CFR 310 et seq., and Telephone Preference Service (“TPS”) laws and/or regulations; (ii) the various Canadian National Do Not Call List Rules (“DNCL”), Telemarketing Rules and Automatic Dialing-Announcing Device (“ADAD”) Rules; (iii) applicable telemarketing record keeping requirements; (iv) call hour/time of day restrictions (as required by applicable law or as directed by the called party during the course of the call); (v) disconnect and call abandonment requirements; (vi) prohibitions against contacting facilities and telephonic devices of certain classifications using autodialers (or any other automatic telephone dialing system), artificial voice calls and/or pre-recorded calls without “prior express written consent” (as defined under the TCPA) in each instance; (vii) caller identification and consent requirements; (viii) live operator requirements; and (ix) opt-out and internal do-not-call request requirements (collectively, “Applicable Law”). Some information regarding the DNC, TCPA, TSR, TPS and the Canadian Rules (DNCL, Telemarketing Rules, and ADAD) and CTIA (carrier compliance and guidelines for acceptable use) can be found at:
- http://www.donotcall.gov (DNC)
- http://www.fcc.gov (Federal Communications Commission and the TCPA)
- http://www.ftc.gov (Federal Trade Commission and the ATSR)
- http://www.tpsonline.org.uk/tps (TPS)
- https://www.lnnte-dncl.gc.ca/nrt-ntr-eng (DNCL, Telemarketing Rules, and ADAD Rules)
Without limiting the foregoing, Customer represents and warrants that: (A) at all times prior to and after the effective date of this MSA, any database of any consumers to be contacted utilizing the Services in any manner (“Customer Database”) was/shall be generated, collected, stored and used in compliance with Applicable Law; (B) the Customer Database consists of records of persons who have supplied express affirmative consent to receive commercial telephone calls from Customer; (C) Customer shall scrub the Customer Database against the NDNCR, any and all state DNC Registries and against its internal do-not-call list prior to calling any consumers in the Customer Database; and (D) the Customer Database shall consist of individuals that have provided “prior express written consent” to receive commercial telephone calls (including pre-recorded calls, artificial voice calls and/or auto-dialed calls) from Customer, within the meaning of the TCPA, to the telephone number(s) provided by such individuals. Customer shall retain the records of each individual’s “prior express written consent” (“Consent Records”) for a minimum of five (5) years following creation of same, and shall provide such Consent Records to Company within three (3) business days of receipt of a Company request for same, at any time. The Consent Records shall include, at a minimum, the language used to obtain “prior express written consent,” the IP address of the source of the consumer data (or telemarketing voice consent capture tapes, if applicable) and the date and time stamp indicating the time that the consumer data was collected. Customer specifically consents to Company providing account related information, whether or not formal legal process had been initiated, to any governmental or quasi-governmental agency investigation request. All services provided by Robo, including those for any Robo API applicable shall be in compliance with all local, state and federal law and regulations, in addition to carrier rules and regulations.
b. CONTENT/CAMPAIGN SERVICES/CAMPAIGN PRODUCTS. As applicable, depending on the Robo Services used, Customer is and shall be solely responsible and liable for: (i) the creation, editorial substance, control and all other aspects of its own data, and third party data utilized by it in connection with the Services, including, but not limited to, source code, phone numbers in the Customer Database, programs, telemarketing scripts, databases, voice files and/or any other computer code (“Content”); (ii) the acts and omissions of any and all employees, contractors and/or agents performing telemarketing and other services on its behalf (“Campaign Services”); and (iii) the products and/or services marketed in connection with the Services (“Campaign Products”).
Message Senders should ensure that links embedded within a message do not conceal/obscure sender identity, cause harm or deceive. Where a shortener is used, Message Senders should use a shortener with a domain and IP address(es) dedicated to exclusive use by the Message Sender.
URLs contained in messages, as well as any URLs to which they redirect, shall be of websites that unambiguously identify the website owner (i.e., a person or legally registered business entity) and include contact information, including a physical address.
Messages shall not contain phone numbers that are assigned to or forward to unpublished phone numbers, unless the owner (i.e., a person or legally registered business entity) of such phone numbers is unambiguously indicated in the text message
c. NO HARMFUL CODE. Customer represents and warrants to Company that no Content shall be knowingly transmitted by Customer in connection with the Services containing any program, routine or device which is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service including, without limitation, any ‘time bomb,’ virus, drop dead device, malicious logic, worm, Trojan horse or trap or back door.
d. INDEMNIFICATION. Customer agrees to indemnify, defend and hold harmless Company and its officers, directors and employees from and against any losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements and attorneys’ fees, including attorneys’ fees incurred by counsel selected by Company in its sole discretion) arising from or relating to any actual or threatened claim (regardless of any fault or truth to any allegation), suit, action, proceeding, governmental investigation or enforcement action based upon or arising out of: (i) any breach of the Agreement by Customer; (ii) the Customer Database, Content, Campaign Products and/or Campaign Services; and/or (iii) any other acts or omissions of Customer.
e. ROLLING DELETION OF DATA. Subject to Section 5 with regard to termination of the Customer as it relates to data retention, and for its current customers, Company has the right, at its sole discretion, to permanently delete all call or SMS data (commonly known as CDRs), call recordings, and/or other account data not sooner than thirteen (13) calendar months prior, on a rolling basis. For example, as of January 1, 2023, Company may permanently delete all CDR records, call recordings, and/or other account data up until and including the month of November 2021 and prior.
7. Intellectual Property
a. OWNERSHIP. All right, title and interest, including all intellectual property rights and any associated hardware and software of Company or its licensors, and any updates, upgrades or modifications thereof, in and to any ideas, know-how, and/or programs developed by Company or its licensors (including the Services and associated Software) during the course of performance of the Agreement shall remain the property of Company or its licensors. All right, title, and interest in and to any Content communicated via Company’s infrastructure through use of Company Services and any applications shall remain the sole property of Customer and/or its customers or third parties as applicable.
b. RESTRICTIONS. Customer shall not: (i) disassemble, reverse engineer, decompile, or otherwise attempt to derive source code from the software or documentation, modify, adapt, create derivative works based upon, or translate any Services (including the Software or associated documentation) owned and/or provided by Company; or (ii) copy, install or use Services (including the Software or associated documentation) on any of its computer systems, servers or networks without Company’s prior written consent.
8. Limitation of Liability
OTHER THAN FOR INDEMNIFICATION OBLIGATIONS ARISING HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, ANY OF ITS CUSTOMERS OR ANY OTHER PERSON, FIRM OR ENTITY FOR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, UNDER ANY LEGAL OR EQUITABLE THEORY, EVEN IF FORESEEABLE, ARISING OUT OF ANY MISTAKE, ACCIDENT, ERROR, OMISSION, INTERRUPTION, OR DEFECT IN TRANSMISSION, OR DELAY ARISING OUT OF OR RELATING TO THE SERVICES OR THE OBLIGATIONS OF EACH PARTY PURSUANT TO THE AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY FAILURE TO PROVIDE TIMELY, ACCURATE PROVISION, OR INSTALLATION OF ANY PORTION OF THE SERVICES, OR CONDITIONS WHICH MAY RESULT FROM ACTIONS OF REGULATORY OR JUDICIAL AUTHORITIES.
9. Disclaimed Warranties
EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, SECURE, ACCURATE, COMPLETE OR CURRENT. WITHOUT LIMITATION, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THIS DISCLAIMER EXTENDS TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW AND/OR FROM A COURSE OF DEALING OR USAGE OF TRADE. COMPANY’S SOLE AND EXCLUSIVE OBLIGATION, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY BUG, ERROR OR OTHER FAILURE OF THE SERVICES TO PERFORM AS SET FORTH IN THE AGREEMENT IS A CREDIT OR REFUND, AT COMPANY’S SOLE DISCRETION, BASED ON THE ORIGINAL CHARGE FOR THE APPLICABLE SERVICES.
The Agreement is made expressly subject to all present and future valid orders and regulations of any regulatory body having jurisdiction of the subject matter of the Agreement and to the laws of the United States of America, any of its states, or any foreign governmental agency having jurisdiction. If any terms of the Agreement are found in conflict with any law, the Agreement shall be deemed modified to the extent necessary to make it comply with the law in such a way as is consistent with the intent and purpose of the Agreement.
11. No Agency
Neither Party is authorized to act as an agent for, nor legal representative of, the other Party. Neither Party has the authority to assume nor create any obligation on behalf of or binding on the other Party.
12. Force Majeure
Other than for payment obligations arising hereunder, if either Party’s performance under the Agreement is restricted or interfered with, in whole or part, by causes beyond its reasonable control including, but not limited to, acts of God, fire, explosion, vandalism, cable cut, utility curtailments, power failures, storm or other similar occurrence, any law, order, regulation, tariffs or rates which make it impossible or impractical for it or its service providers to provide its services at the current rates, request of the United States government, or of any agency, court, or other instrumentality or civil or military authority, or by national emergency, insurrection, riot, war, strike, lockout or work stoppage or other labor difficulties, supplier failure or shortage or breach or delay (“Force Majeure Event”), then such Party shall be excused from its performance on a day-to-day basis to the extent of the subject Force Majeure Event. Company’s obligation to provide Services is subject to and contingent on the continuation of Company’s agreements with its underlying service providers to provide the applicable services to Company at the current rates and on the same conditions under which such service providers are currently providing or offering to provide the applicable services to Company. Any changes in or termination to those agreements will relieve Company of its obligations and all liability under the Agreement.
13. No Waiver
The failure of either Party to enforce or insist upon compliance with any of the terms of the Agreement or the waiver of any terms contained within the Agreement does not constitute a general waiver or relinquishment of any other terms of the Agreement.
14. Adjustment/Binding Effect
The Agreement is binding upon, and inures to the benefit of, the Parties and their respective successors and assigns. Customer will not assign, transfer, license or otherwise transfer all or any part of its rights, duties or other interests in or to the Agreement or the proceeds from the Agreement (“Assignment”) without Company’s prior written consent. Company may make an Assignment without Customer’s consent at any time during the term of the Agreement. Any attempt to make an Assignment in violation of this provision shall be null and void. Customer shall provide written notice to Company of any material change in its ownership (which is defined as a change in ownership affecting majority voting control of at least 50.1%). No Assignment will release either Party from its obligations arising under the Agreement.
This MSA, the EULA and/or the Order Form(s) may only be amended by an instrument in writing, signed by both Parties, except in the case of rate or fee change notifications which do not require Customer’s signature to be effective. The fees for Services may be modified WITH twenty-four (24) hour’s e-mail notice to Customer. In the event of any dispute about the rates set forth in the Order Form and any amendments thereto, the rates quoted on the most recently dated amendment shall prevail.
16. Entire Agreement
This MSA, together with the EULA, Order Form(s) (if any) and any amendments/attachments hereto/thereto, supersedes and merges all prior agreements, promises, understandings, statements, representations, warranties and covenants and all inducements to the making of the Agreement relied on by either Party to the Agreement, whether written or oral, and embodies the Parties’ complete and entire agreement with respect to the subject matter of the Agreement. No statement or agreement, oral or written, made before the assent to this Agreement will vary or modify the written terms of the Agreement.
17. No Third-Party Beneficiaries
The Agreement is made solely for the benefit of Company and Customer, and their respective successors and permitted assigns. Nothing in the Agreement should be interpreted to mean that Company and Customer are partners, joint venturers, co-owners or are otherwise participants in a common undertaking. Neither Party nor its employees are given authority, express or implied, to represent, act for or otherwise create or assume any obligation on behalf of, or binding on, the other Party. Nothing in the Agreement will confer any rights or remedies on any third party.
If any terms of the Agreement are determined to be illegal, unenforceable or invalid, in whole or in part, for any reason, the terms shall be stricken and will not affect the legality, enforceability or validity of the remainder of the Agreement. If any terms of the Agreement are stricken as a result of this Section 18, then the stricken provision(s) shall be deemed replaced, to the extent possible, with legal, enforceable, and valid terms that are as similar in tenor to the stricken provision(s) as is legally permissible. All headings and titles contained in the Agreement are used solely to organize the contents of the Agreement and will not be used to affect the interpretation of the contents of the Agreement.
The Services Software is deemed Confidential Information of Company. Customer will not disclose any use of, or information pertaining to, the Software to any third party without the prior written approval of Company. This prohibition shall include pricing or cost information. Customer shall maintain the confidentiality of the Software with at least the same degree of care that Customer uses to protect Customer’s own confidential and proprietary information, but not less than a reasonable degree of care under the circumstances. Customer will not be liable for the disclosure of any Confidential Information which is: (a) in the public domain other than by a breach of this EULA on Customer’s part; (b) rightfully received from a third-party without any obligation of confidentiality; (c) rightfully known to Customer without any limitation on use or disclosure prior to its receipt from Company; or (d) generally made available to third parties by Company without restriction on disclosure.
20. Representation of Authority and Intent
Each Party represents and warrants to the other that the assent to Agreement, and the performance of the Party’s obligations under the Agreement, has been duly authorized and that the Agreement is a valid and legal agreement that is binding on the Parties and enforceable in accordance with its terms. The Parties will, at their own costs and expense, execute and deliver any other documents and instruments and will take any other actions as may be reasonably required or appropriate to carry out the intent and purposes of the Agreement.
21. Escalation Procedures
In the event of any disruption of Services or any problems with regard to Services provided by Company, Customer should e-mail email@example.com immediately and ask that the applicable problem be escalated to the Company manager on duty.
22. Governing Law and Adjudication of Disputes
The Agreement is in all respects governed by the laws of the State of Michigan, without regard to choice of laws. The Parties specifically consent to the personal jurisdiction of the State of Michigan for all disputes related to the Agreement. Any disputes that may arise under the Agreement shall be resolved in accordance with the laws of the State of Michigan, and shall be adjudicated exclusively in the state or federal courts in the State of Michigan.
If assent to this Agreement is by signed documents, may be signed in several counterparts, each of which constitutes an original, but all of which will constitute one instrument.
Unless otherwise specifically provided for herein, any notice required by the Agreement is effective and deemed delivered: (a) three (3) business days after posting with the United States Postal Service when mailed by certified mail, return receipt requested, properly addressed and with the correct postage; (b) one (1) business day after pick up by the courier service when sent by overnight courier, properly addressed; and (c) immediately when sent via facsimile, via e-mail or by opening a support ticket by e-mailing firstname.lastname@example.org. The Company ticketing system will provide a ticket number to Customer for reference. Notices will be sent to the addresses specified at the beginning of this document (if included), unless either Party notifies the other of an address/number change in writing.
The headings in the Agreement are for convenience only and shall not affect the construction hereof.
Each Party executing the Agreement agrees that it has fully participated in the drafting of the Agreement and that no Party shall be deemed to be the drafting Party.
27. Assent to Be Bound
Customer agrees to be bound by the terms of this MSA, and acknowledges that Customer is entering into a legally binding contract, by one or more of the following methods: (a) executing this MSA; (b) clicking to accept or agree where this option is made available to Customer; or (c) by actually using the Services. Customer should print or save a copy of this MSA for Customer’s records. If Customer does not agree with any part of this MSA, Customer is not authorized to access or use the Services.
28. Electronic Signatures
Company’s authorization to provide and bill for the Services may be obtained by way of Customer’s electronic signature or, where applicable, via physical signature and/or voice affirmation, or by use of the services or by clicking on an applicable acceptance link on the website. All shall constitute and electronic signature. Once an electronic signature is submitted, if applicable, including the clicking of any box on the website indicating acceptance of these terms, : (a) this electronic order constitutes an electronic letter of agency; and (b) Customer hereby agrees to: (i) the use of electronic communication in order to enter into this MSA, place orders and create other records hereunder; and (ii) the electronic delivery of notices, policies and records of transactions initiated or completed through use of the Services. Customer hereby waives any rights or requirements under any laws of electronic records, to the extent permitted under applicable law. Company’s reliance upon Customer’s electronic signature was specifically sanctioned and written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively. Both laws specifically preempt all state laws that recognize only paper and handwritten signatures.
Robo Retail L.L.C.
Copyright 2016-2023 © Robo Retail L.L.C.| All Rights Reserved
Version 1 | Updated: May 1, 2023