- 1. Nature of Agreement. This Agreement specifies the terms and conditions under which Blue Check Communication will provide live telephone answering service, live chat, voice mail and other answering services to the Client.
- 2. Services to be Rendered. Blue Check Communication agrees to provide to Client live telephone answering, live chat or voice mail, and other answering services as set forth in the Plans and Pricing posted on Blue Check Communication’s website and selected by Client by clicking on the button or any modifications in Plans and Pricing subsequently selected by the Client (“Services”). In the event that there is any defect in the Services provided by Blue Check Communication, Client shall, within a period of five (5) days from the date Service is being provided, notify Blue Check Communication in writing of such defect. If Client fails to notify Blue Check Communication of any defect in the Services within the period provided herein, the Services shall be deemed to have been accepted by Client in full compliance with the terms of this Agreement and Client is deemed to have waived its right to dispute such Services.
- 3. Term of Agreement; Effective Date; Termination. This Agreement shall commence on the date Client completes Blue Check Communication’s online enrolment process and clicks “I Agree” to this Agreement (“Effective Date”) and shall continue in full force and effect thereafter until it is terminated in writing by either party upon thirty (30) day prior written notice to the other Party. This Agreement will continue to bind the Parties despite any modification of the selected Plans and Pricing.
Upon termination of this Agreement, all rights and obligations of each Party under this Agreement will immediately cease, except that: (a) any rights arising out of a breach of any terms of this Agreement will survive any termination of this Agreement; (b) the provisions of this paragraph and Paragraphs 6, 7, 8, 9, 10 and 15 will survive any termination of this Agreement; and (c) the payment obligations under Paragraph 4 will survive any termination of this Agreement if, and to the extent, any fees have accrued or are otherwise due and owing from Client to Blue Check Communication.
- 4. Fees and Payment Terms. Client agrees to pay Blue Check Communication the monthly fee with the first such payment due and payable upon Effective Date and each successive payment due and payable on or prior to the first day of each calendar month thereafter.
Client further agrees to pay Blue Check Communication for overages at the end of the month as per Client’s selected Plans and Pricing, including any subsequent modification in pricing of Client’s selected plan as noticed by Blue Check Communication to Client. Blue Check Communication will invoice the Client for overages at the end of the month.
Blue Check Communication expressly reserves the right to change the pricing for Client’s selected plan at any time, upon notice to Client.
Payment for monthly fee and overages, plus taxes and other charges, as per monthly invoice shall immediately be collected and charged to Client’s credit card account provided by Client during the enrolment process. If, for any reason whatsoever, Client’s credit card cannot be used to process or charge payment, Client agrees to promptly resolve the issue with its credit card company or provide Blue Check Communication an alternate form of payment within twenty-four (24) hours from being notified by Blue Check Communication of the credit card issue, otherwise services may immediately be interrupted, suspended and/or terminated by Blue Check Communication. It is Client’s responsibility to maintain sufficient balance on credit card account to allow settlement of charges. If Client fails to make timely payment, a five percent (5%) late fee will be charged on the total outstanding amount of the invoice, plus any outstanding balance will accrue interest at the legal rate of 10% per annum. Messages on delinquent accounts may be withheld, or voice mail boxes busied by Blue Check Communication until payment is received. Blue Check Communication shall have the right to immediately terminate this Agreement if any monthly fee and/or overages invoice is not timely paid. In the event of any dispute regarding payment, the prevailing Party shall be entitled to recover all collection costs, costs, and attorney’s fees incurred in prosecuting or defending such a dispute.
All calls are assessed in one minute increments with a minimum of one minute per call.
- 5. Client's Responsibility. The Client shall pay Blue Check Communication the fees as per Client’s selected Plans and Pricing, including any noticed changes in pricing for Client’s selected plan.
Blue Check Communication will use commercially reasonable care in processing the messages of the Client, but will be responsible only to the extent of reasonably attempting to deliver messages per the Client’s written instructions, however, it is the Client’s sole responsibility to phone in for messages being held by the answering service.
Client shall provide Blue Check Communication all the training, instructions, script, appropriate call recording disclosures, caller notification, materials, and other information necessary for Blue Check Communication to perform the Services.
- 6. Confidentiality and Limitations. In the performance of the Services, Blue Check Communication and Client may have access to or be exposed to information of the other Party not generally known to the public, including, but not limited to software, customer information, promotional and pricing materials, product plans, marketing and sales information, customer lists, know-how, or trade secrets which may be designated as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, “Confidential Information”). Each Party shall only use such Confidential Information disclosed hereunder in connection with its performance of this Agreement. Each Party agrees to take the necessary precautions to maintain the confidentiality of Confidential Information by using at least the same degree of reasonable care as such Party employs with respect to its own Confidential Information of similar nature, but in no case less than commercially reasonable standard of care to maintain confidentiality, and shall only make such information available to its employees on a “need-to-know” basis. Confidential Information shall not include information that (a) was known by one party prior to its receipt from the other or is or becomes public knowledge without the fault of the recipient, (b) is received by the recipient from a source other than a party to this Agreement, or (c) a party is required to disclose in response to an order by a court or government agency, provided that advance notice of the disclosure is provided to the other party. The obligation with respect to Confidential Information shall continue for three (3) years from the date of termination of this Agreement.
Despite the provisions in the preceding paragraph, Client shall be solely responsible for the security, confidentiality and integrity of all messages and contents that Client receives or transmits through or stores on the Service. Client shall be solely responsible for any unauthorized access to Client’s account by any person. Both Parties understand that there is no expectation of privacy with respect to the internet generally.
- 7. Intellectual Property. Pre-Existing and Independently Developed Works. Blue Check Communication will retain rights, title, and interest in any software, ideas, concepts, know-how, processes, development tools, techniques, or any other proprietary material or information that it owned or developed prior to the date of this Agreement, or acquired or developed after the date of this Agreement without use or incorporation of the intellectual property of the other Party.
Blue Check Communication’s Ownership Rights. Blue Check Communication will retain all right, title, and interest in and will be free to use all ideas, concepts, know-how, software, software development tools, know-how, methodologies, processes, technologies, and/or algorithms used in performing the Services, which are based on trade secrets or proprietary information of Blue Check Communication, or are otherwise owned or licensed by Blue Check Communication. Blue Check Communication will retain ownership of any Blue Check Communication-owned intellectual property rights as incorporated into software or tools that are used in producing any deliverables, even if such ideas, concepts, know-how or other intellectual property is used or embedded in such deliverables.
Client Ownership Rights. Client understands and agrees that it is engaging Blue Check Communication to provide the Services using materials furnished by the Client (such material collectively “Client-Provided Materials”) and all such Client-Provided Materials used by Blue Check Communication in performing the Services (the “Work”) shall be works for hire and Blue Check Communication hereby transfers and assigns to Client any right, title or interest Blue Check Communication may have to the Work.
- 8. Indemnity. Client shall defend, indemnify and hold Blue Check Communication, its affiliates, and each of their respective directors, officers, employees, agents, or representatives, harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities, including without limitation reasonable attorneys’ fees (collectively, “Claims”), which arise out of or relate to Client’s breach of this Agreement or Client’s use of the Services, or those which arise out of Blue Check Communication’s performance of the Service in accordance with Client’s instructions, including those arising from improper call recording, failure to provide call recording disclosure, all other claims or contentions involving wiretapping, eavesdropping, violation of privacy, injury to reputation, infliction of emotional or mental distress, trespass, invasion or conspiracy to engage in improper call recording or similarly based charges or causes of action, whether under statutory law, case law, administrative law, or otherwise.
The Party claiming indemnification shall (i) promptly notify the indemnifying Party of any Claim in respect of which the indemnity may apply; (ii) relinquish control of the defense of the claim to the indemnifying Party; and (iii) provide the indemnifying Party with all assistance reasonably requested in defense of the Claim. The indemnifying Party shall be entitled to settle any Claim without the written consent of the indemnified Party so long as such settlement only involves the payment of money by the indemnifying Party and in no way affects any rights of the indemnified Party.
- 9. Disclaimer of Warranties. SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. BLUE CHECK COMMUNICATION MAKES NO WARRANTIES EXPRESSED OR IMPLIED AS TO THE SERVICES TO BE SUPPLIED HEREUNDER AND DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT, NOR DOES BLUE CHECK COMMUNICATION MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. BLUE CHECK COMMUNICATION DOES NOT WARRANT THAT SERVICES WILL BE ERROR FREE OR UNINTERRUPTED. IN THE EVENT THAT CLIENT DISPUTES THE PERFORMANCE OF SERVICES BY BLUE CHECK COMMUNICATION, BLUE CHECK COMMUNICATION RESERVES THE RIGHT TO RE-PERFORM THE WORK WITHIN A REASONABLE TIME. THE RE-PERFORMANCE OF THE SERVICE SHALL BE THE SOLE REMEDY OF CLIENT IN CONNECTION WITH SUCH DISPUTE.
- 10. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES PROVIDED BY BLUE CHECK COMMUNICATION. NEITHER PARTY SHALL HAVE LIABILITY FOR LOSS OF DATA OR CORRUPTED DATA OR SOFTWARE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, LACK OF SERVICES, LOSS OF USE OF SYSTEM(S) OR NETWORK, OR THE RECOVERY OF SUCH, OR LOSS OF REVENUE OR PROFITS, INCOME OR SAVINGS, WHETHER DIRECT OR INDIRECT, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION OR DOWNTIME, OR SERVICES NOT BEING AVAILABLE FOR USE BY CUSTOMER, EVEN IF A PARTY HAS BEEN ADVISED, KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF THE FOREGOING. BLUE CHECK COMMUNICATION’S MAXIMUM LIABILITY TO CLIENT ARISING UNDER OR IN RELATION TO THIS AGREEMENT FOR ANY AND ALL CLAIMS AND REGARDLESS OF THE FORM OF ACTION (I) WILL BE LIMITED TO PROVEN AND ACTUAL OUT-OF-POCKET EXPENSES, WHICH ARE REASONABLY INCURRED BY CLIENT AND (II) IN THE AGGREGATE SHALL NOT EXCEED THE FEES PAID BY THE CLIENT TO BLUE CHECK COMMUNICATION DURING THE TWO (2) MONTH PERIOD PRECEDING THE INTIAL ACT OR FAILURE GIVING RISE TO THE FIRST CLAIM. THIS LIMITATION OF LIABILITY IS NOT APPLICABLE TO CLIENT’S OBLIGATION FOR SUMS PAYABLE TO BLUE CHECK COMMUNICATION IN CONNECTION WITH SERVICES UNDER THIS AGREEMENT.
For purposes of this Agreement, “Claims” refer to reasonable, proven and actual losses, liabilities, claims, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to this Agreement.
- 11. Choice of Law/Venue. The Parties agree this Agreement shall be governed by the State and Federal laws applicable in the State of California and the exclusive venue for any dispute shall be the applicable State or Federal Court located within Orange County, California.
- 12. Arbitration. Any and all disputes arising out of or from the Agreement shall be subject to binding arbitration in accordance with the rules of the Judicial Arbitration and Mediation Service (JAMS) in the State of California. The party that loses the arbitration shall pay to the prevailing party any fees and costs incurred by the prevailing party, including, but not limited to, reasonable attorneys’ fees.
- 13. Remedies on Default. Should Client default in the payment of any sum to be paid hereunder, or fail to perform at the time and in the manner specified herein any term or covenant, and such default continues for 10 days, or should Client be the subject of any proceeding under the Bankruptcy Act or become insolvent, Blue Check Communication shall have the right to terminate service. Client shall remain and be liable for the payment of all unpaid charges hereunder. No remedy herein conferred upon Blue Check Communication is intended to be exclusive of any other remedy provided herein or by law, but shall be cumulative. In the event of such default, Client will pay to Blue Check Communication a reasonable sum as for attorney’s fees, collection fees, and similar expenses as have been expended or incurred by Blue Check Communication in the enforcement of any right or privilege hereunder (including but not limited to telephone, telegraph, courier expense and postal charges, expenses of paid investigators and reasonable compensation for time of Blue Check Communication’s representatives.
- 14. Credit Card Account Preauthorization. Blue Check Communication hereby reserves the right and has the preauthorization of the Client to (a) bill monthly service charges and monthly overages, including taxes and other charges pursuant to this Agreement to the Client’s credit card, and (b) bill any outstanding balance which may be due to the Client’s credit card account, at or after cancellation or discontinuation of service by either the Client or Blue Check Communication. This account information and preauthorization is a guarantee of payment in full to Blue Check Communication for the services for which the Client is contracting.
- 15. Client Representations and Warranties. Client represents and warrants to Blue Check Communication that: (a) Client is over the age of eighteen, if a natural person, or if a juridical person, it has the power and authority to enter into and perform Client’s obligations under this Agreement and that the person who clicked the “I Agree” button to signify consent to this Agreement has the authority to contractually bind the Client; (b) all the information, including Client’s legal name, email address, postal address, telephone number and credit card account details, provided by Client to Blue Check Communication are truthful, accurate and complete; (c) Client is the authorized signatory of the credit card provided to Blue Check Communication to pay the fees; (d) Client shall comply with all the terms and conditions of this Agreement; and (e) Client possesses all rights, title and interest in and to the Client-Provided Materials and, to the extent that the right, title or interest in the Client-Provided Materials under this Agreement belong to a Party other than the Client, Client hereby represents and warrants that it has secured the necessary consent to allow Blue Check Communication to provide the Services using these Client-Provided Materials.
- 16. Force Majeure. Blue Check Communication shall not be liable in any manner for failure or delay in the fulfillment of all or part of this Agreement because of acts of God, governmental orders or restriction, war, threat of war, warlike conditions, terrorism, hostilities, sanctions, mobilization, blockade, embargo, revolution, riot, civil unrest, acts of aggression or violence, strike, lockout, plague or other epidemics, fire, flood, earthquake, hurricane, typhoon, or any other similar causes or circumstances beyond the reasonable control of the Parties. Any such failure or delay shall not be deemed a breach of this Agreement; provided, however, that (i) Blue Check Communication shall continue to take all actions within its power to comply as fully as possible and shall in every instance, to the extent it is capable of doing so, use its commercially reasonable efforts to remove or remedy such cause with all reasonable dispatch, and (ii) if any such event or delay shall prevent the performance by Blue Check Communication of its obligations under this Agreement for a period of three (3) months or more, then Client shall then be entitled to terminate this Agreement, effective upon delivery of written notice to Blue Check Communication.
- 17. Independent Contractor. With respect to all matters relating to this Agreement, Blue Check Communication shall be deemed to be an independent contractor. Neither Party to this Agreement makes the other Party a legal representative or agent of the Party. The Parties do not intend to create any partnership, joint venture or other relationship other than that expressly provided in this Agreement. Neither Party has any fiduciary duty to the other Party.
- 18. Entire Agreement; Amendment; Severability. This Agreement is the entire agreement between Blue Check Communication and Client with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements. Blue Check Communication shall have the right, at any time, to add or modify the terms of this Agreement, simply by delivering such amended terms to Client by email at the address provided to Blue Check Communication by Client. Client’s continued use of the Service after the date such amended terms are delivered to Client shall be deemed to constitute acceptance of such amended terms. If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and will not be terminated.
- 19. Interpretation. In construing this Agreement, none of the Parties hereto shall have any term or provision construed against such Party solely by reason of such Party having drafted the same.
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