DYL Terms of Service
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Effective, August 1, 2017 (“Effective Date”), the terms of this Agreement shall amend and restate, supersede and thereby replace, in their entirety, any and all prior versions of DYL's Customer agreement for Subscription Services, whether same was previously entitled, commonly referred to, and/or known as, “Terms of Service,” “Terms & Conditions,” and/or any and all other titles reasonably understood to apply to each respective DYL Customer agreement, for Subscription Services.
1. Acceptance & Application Of Terms
PLEASE CAREFULLY READ THE TERMS OF THIS AGREEMENT. THE TERMS OF THIS AGREEMENT AFFECT THE LEGAL RIGHTS BY AND BETWEEN YOU AND DYL. AMONG OTHER THINGS, THIS AGREEMENT (1) LIMITS DYL'S LIABILITY TO YOU; (2) REQUIRES ARBITRATION OF CERTAIN DISPUTES AND; (3) MAY INCLUDE DISCONNECT, EARLY TERMINATION AND/OR OTHER SUBSCRIPTION FEES.
THIS AGREEMENT ALSO INCLUDES IMPORTANT INFORMATION REGARDING YOUR ACCESS TO AND USE OF EMERGENCY SERVICES, INCLUDING LIMITATIONS RELATIVE TO TRADITIONAL, WIRELINE EMERGENCY SERVICES.
MINORS ARE NOT ELIGIBLE TO USE DYL'S SERVICES. YOU MUST BE AT LEAST 18 YEARS OLD TO BE ELIGIBLE FOR A SERVICES SUBSCRIPTION. PLEASE DO NOT SUBMIT PERSONALLY IDENTIFIABLE INFORMATION TO DYL IF YOU ARE UNDER 18.
These DYL terms and conditions which, together with all Addendums, attachments, annexes, Supplements and/or exhibits herein and/or attached hereto, along with any and all other documentation and/or information expressly incorporated by reference (collectively, the "Agreement"), forms a legally binding contract between the individual or legal entity in whose name DYL agrees to provide Subscription Services ("Customer", "I", "you" or "your") and, DYL, LLC, a California limited liability company ("DYL," "we," or, "us"), for DYL's Subscription Services as herein provided for.
If the individual who accepts the terms of this Agreement is acting on behalf of a legally recognized entity including, without limitation, a corporation, limited liability company, partnership, or other legal organization, trust and/or association, then that individual hereby represents and warrants that he or she has the authority to bind such entity. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT ACCEPT THIS AGREEMENT NOR SHOULD YOU ACCESS OR USE, OR AUTHORIZE ANY OTHER PERSON OR ENTITY TO ACCESS OR USE DYL'S SERVICES.
Customer may accept this Agreement in one or more ways as described herein; however, Customer shall be deemed to have accepted this Agreement in its entirety upon the first occurrence ("Renewal Date") of any such ACCEPTANCE methods, same of which include, without limitation, (1) Customer's use of any Services associated to Customer's Subscription; (2) by clicking one or more boxes adjacent to an acknowledgement of your acceptance of the terms of this Agreement; and/or (3) by signing a 'wet,' digital or electronic copy of this Services Subscription Agreement and/or Subscription Services order form and/or via a similar DYL document referencing this Agreement and thereby incorporating same by reference. You hereby further understand and acknowledge that DYL would NOT otherwise agree to provide Subscription Services to you without such consent.
2. Subscription Rights & Equipment
DYL shall, itself, or through one or more affiliates, partners, vendors, subcontractors and/or other third-party service-providers (respectively, individually and/or collectively, "Affiliate(s)"), provide the Services ordered via the Customer's Subscription, in accordance with the terms and subject to the conditions of this Agreement.
Except as otherwise provided within the terms of Agreement, DYL's services shall refer to all services and products provided by DYL ("Services"). DYL reserves the right to amend its Services from time to time, in its sole and absolute discretion. Equipment (described in Section 2.3 below) is hereby expressly excluded from Services.
2.2. Customer Subscription
Upon Customer's acceptance of the terms of this Agreement as provided hereinabove and hereunder, Customer's Services subscription ("Subscription" "Subscription Services" or "Services Subscription") shall only include the respective DYL Services offered to, and accepted by, Customer, unless and until so modified pursuant to the terms of this Agreement. Customer's Subscription shall thereafter grant Customer a Customer-exclusive, nontransferable (except as otherwise provided in this Agreement), worldwide-right to access and use said Subscription, as amended from time to time (pursuant to the terms of this Agreement), together with all related components of the DYL Platform, during each and every applicable Subscription Term, respectively, solely for Customer's internal business purposes, and subject to the terms and conditions of this Agreement. Any and all rights not expressly granted to you are hereby expressly reserved by DYL and/or any and all applicable Affiliates, or Representatives, as determined by DYL in its sole and absolute discretion.
Except as otherwise expressly provided within these terms of Agreement, your Subscription cannot be shared or utilized by more than one individual.
2.3. Equipment; Customer Responsibilities
2.3(a). Equipment Not Part of Services
Upon Customer request, DYL may, but is not obligated to, facilitate the provision of Customer's purchase and/or order of one or more new and/or used business VoIP phones ("Equipment") via DYL and/or Affiliate and/or other third-party supplier; however, no Equipment shall be considered a DYL "product" under the aforementioned Services' veil of Section 2.1. Any and all Equipment related referrals and/or sales made to Customer by DYL is strictly intended to be a professional courtesy and accommodation to Customer. Whether acquired via DYL (including any Affiliates) or by other means, the procurement and all related maintenance required of any and all such Equipment is Customer's sole responsibility. Any and all issues and/or defects with Equipment Customer purchases and/or orders via DYL subsequent to Customer's Services Subscription, and this Agreement, should be directed to the attention of the respective Equipment manufacturer, and not to DYL, whether the subject Equipment is new and/or used.
2.3(b). Equipment Shipping & Taxes
Customer shall pay all shipping charges and Equipment related Taxes. All Equipment shipments are F.C.A. (free carrier) and title and risk of loss or damage shall pass to Customer upon delivery to the carrier. Customer shall be deemed the importer of Equipment for all Agreement purposes, and shall be liable for any applicable Taxes.
2.3(c). Equipment Sales, Warranty & Returns
Equipment sales made via DYL (including Affiliates) are final.
DYL shall pass through to Customer any available warranty on Equipment, if and as permitted by the manufacturer.
Defective Equipment covered by warranty should be addressed by Customer with the respective manufacturer directly.
For eligible Equipment returns, Customer must comply with manufacturer's Return Materials Authorization ("RMA") policy. Customer must contact DYL so DYL may determine whether the subject Equipment is eligible for return and, if so, to receive the respective manufacturer's RMA number. Customer must ship the subject Equipment to the manufacturer at the address provided by DYL and in accordance with RMA procedures. Customer has ten (10) consecutive calendar days after receipt of an RMA to ship the Equipment to the manufacturer. Customer shall be responsible for all shipping fees.
2.3(d). Lost, Stolen, Altered, Damaged or Broken Equipment
Customer shall not modify or alter any Equipment and shall only use the Equipment in connection with Customer's Subscription. Customer shall be responsible for all lost, stolen and/or damaged and/or broken Equipment (except to the extent covered by warranty) and shall promptly notify DYL of any such loss, theft or damage and cooperate with DYL as reasonably requested to, among other things, prevent unauthorized use of lost or stolen Equipment and/or any Services.
2.3(e). Unsupported Devices
Customer shall be responsible for ensuring that Equipment acquired from a third-party vendor is in reasonable working condition and configured in accordance with DYL's technical requirements in relation to its Services. Without DYL's consent, Customer shall not access or use any of the Services, including those related to Customer's Subscription, with any equipment or devices other than supported Equipment. Even if Customer obtains DYL's aforementioned consent, DYL shall nevertheless have no liability whatsoever for any and all damages incurred by Customer, of any and every kind and nature, subsequent to Customer's access to and/or use of any of the Services, whether wholly or severally apart from Customer's Subscription Services, with any and all equipment and/or device(s) not supported by DYL ("Unsupported Device").
For a list of supported devices, Customer may contact DYL Customer Care at any time at, (888) 310-4474.
3. Subscription Administrators & Agents
3.1. Lead Administrator
As described herein and, upon commencement of your Subscription, one (1) individual shall be assigned as your Lead Administrator. The individual assigned as lead administrator ("Lead Administrator") will be the individual who entered into this Agreement, whether on their own behalf or on behalf of a legally recognized entity as stated above or; if this Agreement was not entered into via the Internet, then the individual whose name is identified on your DYL quote sheet or comparable Subscription enrollment document shall be assigned the role of Lead Administrator.
Except as otherwise expressly prohibited herein, your Subscription's Lead Administrator is the only person having the authority to: (i) make changes to your Subscription including, without limitation, adding Services, deleting Services, assigning/reassigning Administrator(s), adding one or more additional Administrators, authorizing Subscription cancellation, and/or updating your credit card information; (ii) porting your phone numbers to any carrier(s) other than DYL and; (3) obligate and authorize you to pay any and all Subscription Fee(s), as amended and agreed to from time to time, by your Lead Administrator.
3.2. Basic Administrator(s).
The Lead Administrator may also assign one or more individuals to serve as basic Subscription administrators ("Administrator(s)") by designating each as an Administrator and recording same, in writing, within the applicable content of your Services Subscription to which DYL has unfettered access. Except as otherwise expressly provided herein, each such Administrator shall have the limited right to access and view Subscription permissions via the DYL Platform.
The Lead Administrator may additionally reassign Administrator roles as needed. In the event that you wish to reassign one or more Administrator designations in your Subscription and one or more of the subject Administrators are unable and/or unavailable to complete the respective reassignment for any reason, you hereby agree to either (1) submit an email to DYL, return receipt requested, at, service@DYL.com, from the respective Administrator's email address requesting said reassignment be made to your Subscription, or; (2) provide us with a written request via facsimile, on your letterhead, and executed by an officer or owner of Customer.
Information requests related to Customer Subscription records and/or actual call log details (other than through the DYL Platform) may be made by any Administrator; however, DYL will only send the requested information to your Lead Administrator, at the email address listed for same in your Subscription at the time of any and all related information requests.
3.3. Prohibited Actions
3.3(a) An Administrator cannot authorize any or all Subscription cancellations.
3.3(b) No individual may designate himself or herself as an Administrator.
You are responsible and will be held liable for any and all access to and/or use of any of the Services, including those specifically related to your Subscription, whether said access and/or use is by any Administrator(s), Lead Administrator, employee(s), officer(s), director(s), shareholder(s), vendor(s), agent(s) and/or any and all other third-party(ies) to whom you provide access to and/or use of any and all Services, including any and all of those which are a part of your Services Subscription (collectively, "Agents"), other than unauthorized activities and/or charges resulting from the gross negligence or willful misconduct of DYL or a DYL Affiliate. You understand and hereby acknowledge that the right you provide your Agents to access and/or use any or all of your Subscription Services is subject to each Agent's prior acceptance of this Agreement, as amended from time to time, and that said access to and/or use of any or all of said Subscription Services by any or all such Agents shall demonstrate their acceptance of this Agreement, respectively.
4. DYL Platform
4.1. What is the DYL Platform?
The DYL platform ("DYL Platform") is a cloud-based, TCPA Compliant-Capable, software as a service sales platform that comprises a Voice over Internet Protocol ("VOiP") Voice system, integrated email system, and SMS text messaging, along with multiple other industry-leading features and proprietary functionalities, including DYL's exclusive, "LeadConnect™".
Upon accepting this Agreement pursuant to its terms and subsequently activating your Services Subscription, the DYL Platform will allow you to send, receive, and backup recorded phone calls (if, as and where legally permissible), voicemails, emails, text messages and your contact list(s) ("Content"), some or all of which will be stored by DYL pursuant to the terms of this Agreement or, as is otherwise expressly agreed to, in writing, and signed by Customer and DYL.
As described more fully in Section 10 and, in alignment with Section 12.1(b) and, Addendum B (attached hereto and incorporated by reference), Customer acknowledges that DYL's role with respect to any Content of communications transmitted, received and/or stored is that of a passive conduit. As such, Customer hereby acknowledges and expressly agrees that neither DYL nor any Affiliate(s) or Representative(s) shall be responsible nor held liable for any and all such Content and shall further have no involvement in determining, drafting, editing, and/or otherwise creating Customer's Content, nor in determining the recipient(s) or legal permissibility of transmitting any and all such Content communication(s) related thereto, nor the numbers to which any Content is sent or transmitted.
5. Billing & Payment
5.1. Automatic Monthly Billing
Except as otherwise expressly provided for herein, your Subscription Services shall be provided (1) on a month-to-month basis (each a "Term"); (2) each and every relative Term Subscription Fee shall be paid by Customer in advance of Customer's subsequent Services Subscription Term via an automatic monthly Subscription renewal payment tendered pursuant to the terms of this Agreement, and; (3) said automatic Subscription renewal payments shall recur on each and every Subscription Term Renewal Date or, on any date thereafter chosen by DYL within five (5) calendar days of the then applicable Term Renewal Date. Customer shall receive and shall only continue receiving Subscription Services if Customer's Subscription is in good standing with a valid, authorized method of payment on file with DYL.
Pursuant to this Agreement, you hereby agree to pay DYL any and all recurring monthly Services Subscription fees, charges, applicable Taxes (as set forth in Section 5.7), costs including, without limitation, the Regulatory Recovery Fee pursuant to Section 5.9, any and all Services Subscription and/or Equipment setup costs, Equipment costs, ancillary and/or upgraded Services costs, and/or usage costs, if and as applicable, along with any and all other fees and/or costs specifically related to your Services Subscription, including reasonable price increases, from time to time, of any and all Services associated to your Subscription (collectively, "Subscription Fee"). You will be notified of any and all price increase(s) relative to said Services Subscription Fee at least thirty (30) calendar days prior to the effective date(s) of any such increase(s), via postal mail, by email, and/or via publication on DYL's website at, www.dyl.com.
5.2. Prepaid Subscription.
Except as otherwise provided for within the terms of this Agreement, should you elect to prepay for one or more Subscription Term, if and as said option is made available to you by DYL, you hereby acknowledge and agree that any and all Subscription Fees already tendered are non-refundable, irrespective of Subscription use.
5.3. Billing & Payment Processing
DYL or a designated Affiliate shall bill Customer monthly for the Subscription Fee associated to your Services Subscription and Customer agrees to pay for same pursuant to the terms of this Agreement.
5.3(a). Possible Subscription Suspension
You agree to provide a valid email address for your Lead Administrator and a valid method of payment for your Subscription.
If your Lead Administrator's email address changes and/or your payment method changes or expires, you agree to advise us within five (5) calendar days of same, respectively.
You acknowledge and agree that you are responsible and shall be liable for any and all fees and/or costs, including attorney(s) and/or collection fees, incurred by DYL consequent to its efforts to collect any Subscription Fee balance(s) owed by you.
Failure to comply with any or all of Section 5.3 may result in the immediate suspension of your Subscription and may further include a minimum $50 (USD) re-activation fee, if and as applicable, same of which shall become a part of your then due Subscription Fee and, all of which shall be determined in DYL's sole and absolute discretion.
The failure of DYL to restrict, suspend or terminate your Subscription Services pursuant to the terms herein provided for the non-payment of one or more Subscription Fees shall not operate as a waiver or estoppel to exercise its rights and restrict, suspend and/or terminate your Subscription Services for non-payment of current or any and all applicable future Subscription Fee(s).
5.3(b). Customer Liability for Loss of Content
In the event that DYL provides any Subscription Services to you for which DYL collects, stores and/or provides Content as a part of your Services Subscription, you will be unable to backup Content, record new respective Content, and/or access Content including, without limitation, Content stored by DYL prior to the suspension of your Subscription. Pursuant to the Content storage terms in Section 8 and 10 of this Agreement and, the indemnification terms in Section 16, you hereby acknowledge and agree to indemnify and hold DYL harmless for any and all unfavorable results and/or damages of any and every kind and/or nature that are consequent to any and all Services Subscription suspension(s).
5.4. Credit Card Preauthorization.
In alignment with the above, you hereby acknowledge, understand and agree that your Subscription Fee shall be billed in advance of each month's subsequent Services Subscription and you therefore authorize, and knowingly and intentionally preauthorize, DYL to automatically charge any credit card you provide on or before each and every Subscription Term Renewal Date, unless and until you cancel your Services Subscription in accordance with the requirements of Section 6 below, or as is otherwise provided for herein. You further authorize DYL to request, from time to time, then current information about your credit card account from the financial institution having issued your credit card. Unpaid Subscription Fees' balances are subject to a late payment charge equivalent to 1.5% per month of the total unpaid Subscription Fee balance.
5.5. Payment by Check
When preauthorized by DYL, a Customer may make one or more Subscription Fee payments by check. Customer will be charged an additional $10 (USD) monthly processing fee for any and all such preauthorized Subscription Fee payments made by check and will be required to present and maintain a refundable, non-interest bearing security deposit or bank guarantee, in the sum total amount of that which is equivalent to Customer's then monthly Subscription Fee (as may be adjusted from time to time), same of which to be held by DYL as a part of Customer's Services Subscription.
Except as otherwise expressly provided herein and, upon cancellation of the Subscription to which this Agreement relates and/or the termination of this Agreement, any security deposit or bank guarantee previously tendered and held by DYL shall be refunded, less any past due Subscription Fee balance.
You shall pay DYL an additional $50 (USD) processing fee for any and all checks issued to satisfy one or more Subscription Fee but returned for nonsufficient funds.
5.6. Payment by Wire Transfer
To make one or more Subscription Fee payment(s) by wire transfer, you must notify DYL of same in writing at least ten (10) calendar days before your Subscription's Term Renewal Date at, email@example.com, and you hereby acknowledge and agree to an additional $10 (USD) charge applied to each and every respective Subscription Fee that Customer pays by this method of payment.
Except as otherwise provided herein, Customer is responsible for paying any and all taxes, levies, imports, duties, charges, fees and/or similar governmental assessments including, without limitation, value-added tax ("VAT"), sales, use, customs, excise, federal, state, local, public utility, universal service, and/or withholding taxes and/or fees, and emergency services surcharges (i.e., 911, E911, 999, etc.) assessed or assessable by any governmental, fiscal or other authority relating to the sale and provision of Subscription Services to Customer and Customer's use of Subscription Services (collectively, "Taxes"), other than those expressly not assessable pursuant to a Customer provided exemption certificate, if any, this Agreement, any and all respective Laws, and those which are otherwise against DYL based solely on its income.
5.7(a) Taxes Billed to Customer.
During each Term of this Agreement, as jurisdictionally permissible pursuant to Section 5.7(d) below, and, to the extent known by DYL at the time of any and all applicable automatic monthly Subscription Renewal Date(s), DYL or a designated Affiliate shall bill and include as a part of your Subscription Fee, all such Taxes that DYL and/or a designated Affiliate reasonably believe that DYL has a legal obligation to collect and remit same under applicable Laws. Customer agrees to pay all such Taxes, whether same are invoiced as a part of each relative and respective monthly Subscription Fee or, separately, and within a reasonable time after DYL has gained knowledge of any relative change(s) to Taxes owed by Customer.
5.7(b) DYL Estimated Taxes.
For any and all Taxes set forth to Customer via a DYL quote, Customer hereby acknowledges same to have been calculated by DYL in good faith, but understands and agrees that they were and are non-binding estimates only.
5.7(c) Tax Exemption(s).
(i) If Customer asserts an exemption from any Taxes, Customer shall deliver to DYL a valid tax exemption certificate authorized by the appropriate Taxes authority. Customer shall be liable for any and all Taxes assessed prior to the delivery of such certificate.
(ii) In no event shall Customer make any deduction whatsoever to any and all Subscription Fee amount(s) which are otherwise payable under this Agreement for, or on account of, any Taxes and/or withholdings of any kind or nature imposed by any governmental, fiscal or other authority, except as otherwise required by applicable Laws.
(iii) If Customer is required by applicable Laws to make any such deduction, Customer will (a) first notify DYL of such obligation, (b) furnish DYL with receipts evidencing remittance of the relative funds, and (c) pay such additional amounts as are necessary to ensure receipt by DYL of the full amount that DYL would have received but for the deduction.
5.7(d) Jurisdictional Laws
Customer acknowledges that DYL may not be permitted to invoice and/or charge VAT, goods and services and/or similar taxes in certain jurisdictions that permit reverse charge of such taxes. Customer shall account for and remit any such taxes on Subscription Services and, if applicable, Equipment, in any and all relative jurisdictions.
5.8. Invoice/Billing Discrepancies
You agree to notify DYL about any billing issues including, without limitation, any and all respective Subscription Fee discrepancies, within TEN (10) calendar days of the statement date of each respective Services Subscription Fee invoice received. You hereby acknowledge and agree that your failure to notify DYL of any or all such discrepancies within the aforesaid TEN (10) calendar day period following the respective Subscription Fee statement date(s) shall forever waive any and all Customer rights otherwise associated to any and all such Subscription Fee billing disputes and/or discrepancies. All transactions by and between DYL and Customer shall be processed in U.S. currency ("USD").
5.9. Regulatory Recovery Fee
A monthly regulatory recovery fee ("Regulatory Recovery Fee") will be added to your Subscription Fee subsequent to the compliance costs incurred by DYL when satisfying inquiries and/or obligations imposed by federal, state and municipal regulatory bodies and/or governments, respectively, and their related expenses. The Regulatory Recovery Fee is not a part of Taxes nor is it a charge required or assessed by any governmental body or agency. The Regulatory Recovery Fee will apply to every phone number assigned to your Subscription, including toll free numbers and virtual numbers.
5.10. Internet Requirement
Pursuant to Section 10.5 hereinbelow, you understand and acknowledge that you must obtain a high-quality, high-speed Internet connection to use the Services associated to your Subscription. We do not control your Internet access or the quality of your Internet connection. WE ARE NOT RESPONSIBLE FOR ANY THIRD-PARTY PRODUCTS OR SERVICES, OR FOR ISSUES WITH SUBSCRIPTION SERVICES CAUSED BY YOUR INTERNET CONNECTION AND/OR THIRD-PARTY PRODUCTS OR SERVICES, NOR WILL WE CONTACT ANY SUCH THIRD-PARTY PROVIDER(S) ON YOUR BEHALF.
6. Subscription Numbers & Related Services
6.1. Release of Numbers & Customer Data/Content Deletion
6.1(a) Except as otherwise expressly provided within the terms of this Agreement, in the event of the cancellation of your Subscription, you hereby acknowledge and agree that (1) ANY AND ALL telephone numbers associated to your Subscription may be released after the expiration of twenty-one (21) calendar days from the cancellation date and may not thereafter be available to you even upon Subscription reactivation and/or initiation of a new subscription for Services, if any, and; (2) subject to any Content and/or Customer Data related retention requirements under applicable Laws, ANY AND ALL Customer Data and/or Content shall be deleted from the DYL Platform (including its servers) at any time after the expiration of twenty-one (21) calendar days from the date of cancellation.
6.1(b) Should DYL terminate this Agreement and thereby consequently also cancel your Subscription due to your breach of Agreement, the numbers associated to your Subscription Services shall remain available to you for porting purposes only, for (21) calendar days after the date of termination.
6.1(c) You hereby acknowledge and agree that it is your sole responsibility to work with a third-party provider to port-out any and all numbers associated to your Subscription Services that you do not otherwise want released (1) prior to cancelling your Subscription (or any Services associated to your Subscription); (2) prior to you terminating this Agreement, or; (3) in the event of DYL's termination of your Subscription Services due to your breach of Agreement, prior to the aforementioned twenty-one (21) calendar day grace period.
6.2. Unlimited Voice Services
If unlimited voice services are a part of your Subscription Services, same shall be provided solely for live dialogue between two (2) individuals. Except as otherwise expressly provided for below, unlimited voice services which are a part of your Subscription Services may not be used for conference calls, call forwarding, monitoring services, data transmissions, transmission of broadcasts, transmission of recorded material, and/or other connections which do not consist of uninterrupted live dialogue between two (2) individuals.
If DYL discovers that you are using unlimited voice services in violation of this Section 6.2, DYL may, in its sole and absolute discretion, modify or terminate your Subscription. DYL will provide you with prior notice if and when it intends to take any of the above actions at which time you may cancel your Subscription and terminate this Agreement, should you wish to.
Notwithstanding the foregoing, you may use DYL conference calling services, such as three-way calling and DYL-provided conference calling bridges, if and when same are a part of your Subscription Services.
6.3. Metered Usage
Certain calls associated to your Subscription will incur additional usage charges, such as calls to Alaska, Hawaii and international calls. In addition, certain Services features may incur additional charges at the then current rate(s) established by DYL such as, (1) call forwarding from auto attendants to an outside number; (2) calls to a queue and; (3) each line on a conference bridge. Metered usage is billed in full minute increments and actual usage is rounded-up to the next full increment at the end of each call for Services Subscription billing purposes.
Customer is solely responsible to secure any and all credentials used to access Customer's Subscription Services, including the DYL Platform, including credentials used by telephones or softphones, credentials used by end users, those used by one or more of your Administrators and/or Lead Administrator, as well as the credentials for any and all media access control (MAC) addresses of telephones used by Customer.
Customer acknowledges that placing telephones on a publicly accessible Internet protocol address and/or on a publicly accessible network will subject the Customer to a higher level of risk for fraudulent activity, as will use of the Services using a network that has not been secured using industry best practice measures. Customer acknowledges and agrees that Customer bears the risk of loss arising from any unauthorized and/or fraudulent usage of their Subscription Services. DYL may, but shall not be required, to take action intended to prevent or terminate any such fraud or abuse in connection with the Services.
Customer acknowledges and understands that any and all prices, fees, costs and/or other Subscription Services rate(s) quotes provided by DYL, via any medium and/or by any method, and prior to the initiation of Customer's Subscription and this Agreement, are non-binding estimates only.
6.4. Ancillary or Upgraded Services
Pursuant to the terms of this Agreement, "ancillary services" which become a part of your Subscription Services may include, without limitation, any one or more of the following telecom industry common ancillary services: inbound phone services; caller ID; voicemail, and; call recording. Moreover, and further pursuant to the terms of this Agreement, "upgraded services" which become a part of your Subscription Services are expressly intended to regard more substantial enhancements than that of telecom industry common "ancillary services" and may include, without limitation, sales dashboards, and, DYL's exclusive and proprietary, "Pipelines".
6.4(a) Caller ID.
List and publish, and caller name identification (i.e., caller ID with name) services provided by DYL are based on availability of such services from DYL's underlying Affiliates. We cannot and do not guarantee that such services are or will be available for all numbers in all serving areas nor that same can or will become a part of your Subscription Services.
6.4(b) Maximum Voicemail & Call Recording Storage
Pursuant to Section 10 of this Agreement and, with exception to additional storage terms expressly stating otherwise in this Agreement, each voicemail message and/or call recorded as a part of your Subscription Services shall only be retained by DYL until the sooner of the following first occurs: (1) Until a time when Customer's total voicemails and/or calls recorded equal or exceed 10 GB's or; (2) for a MAXIMUM of twelve (12) consecutive calendar months from the date each respective voicemail message and/or call was recorded. Upon said first occurrence and, at any time thereafter, and without further notice to you, DYL may purge, erase, eliminate and delete said voicemails and/or recorded calls.
You hereby acknowledge and agree that DYL shall have the right to purge any and all voicemail messages which are and/or were a part of your Subscription Services UPON OR after REACHING the aforementioned maximum storage TERMS.
6.4(c) End-User License Agreements
Certain Subscription Services may be subject to one or more separate end-user license agreements ("EULA"), same of which is/are herein incorporated into this Agreement by reference, if and as applicable. Any and all such EULA's shall be furnished to the Customer prior to or immediately before the initiation of any service(s) requiring such EULA's and shall be binding upon the parties to this Agreement, if and when agreed to.
If you do not agree to any of the terms of any EULA presented to you by DYL, and you and DYL are unable to reach a meeting of the minds in relation to one or more of the then subject EULA(s) within fourteen (14) consecutive calendar days after said presentment, respectively, you should NOT accept the relative EULA(s) and thereby incorporate its/their related services into your Subscription Services.
If any such EULA(s) or any provision(s) of any such EULA(s) are the subject of legal scrutiny and found to be in conflict with the terms of this Agreement and/or are held as unenforceable for any reason in any court of competent jurisdiction, the terms of this Agreement shall apply to the greatest extent possible with respect to providing the subject EULA(s)-related service or services.
6.4(d) Introduction of New Ancillary or Upgraded Services
DYL may introduce new ancillary and/or upgraded services which may or may not become a part of DYL's total offered Services to you. Such ancillary and/or upgraded services may be offered on a trial basis for a specified period of time during which no fees shall apply to Customer. In some cases, the terms of the free trial may involve an automatic enrollment or re-enrollment at the end of the trial unless Customer opts out of the trial, its enrollment and/or re-enrollment and/or cancels the service during the term of the free trial or as otherwise specified. In no event shall DYL impose additional service fees on Customer intended to become a part of your subsequent Subscription Fee for ancillary and/or upgraded services without providing Customer the opportunity to opt-out of the trial and/or to cancel the relative ancillary and/or upgraded service during a no-cost trial period or as is otherwise specified.
Except as otherwise expressly stated herein, any notice to be given under the terms of this Agreement may be provided by e-mail, and each party hereby consents to receiving notice by e-mail. Either party may change its designated notice address by giving notice to the other party. DYL recommends that Customer's designated email address for notice be a group address (such as firstname.lastname@example.org) to include Customer's Administrator(s) and Lead Administrator so that notices are reviewed promptly and not missed due to the absence or departure of any one individual. Notices shall be deemed effective (a) upon personal delivery, (b) on the fifth (5th) business day after it is sent by regular mail, or (c) on the day it is sent by e-mail, if delivered on a business day before 5:00 pm Pacific Time, and otherwise on the next business day.
Customer's physical and email addresses for notice shall be the respective addresses specified by Customer during Customer's initial order of Subscription Services, which Customer may amend from time to time, by sending DYL notice as provided immediately below.
DYL's e-mail addresses for notices are: (1) email@example.com for billing dispute, and; (2) firstname.lastname@example.org for all other notices relative to the terms of this Agreement, including administrative related notices such as changing your email address for notice.
DYL's physical address for notice is: DYL, LLC, Attn: Customer Care, 4551 Glencoe Ave., Suite 155, Marina del Rey, CA 90292.
8. Cancellation Of Subscription Or Services
Except as otherwise provided herein and, contingent upon you fully satisfying any and all Subscription Fee balances due, if any, you may cancel your Subscription by completing and submitting DYL's cancellation of Subscription Services form ("Cancellation Form") within fourteen (14) calendar days of the relative subsequent automatic recurring Subscription Fee Renewal Date. Customer may request said Cancellation Form by emailing, email@example.com. Upon receipt of your fully completed Cancellation Form, DYL will call or email you to verify cancellation and thereafter send you a final confirmation of Subscription cancellation by email.
YOU HEREBY ACKNOWLEDGE AND UNDERSTAND THAT (1) YOU MAY ONLY CANCEL YOUR SERVICES SUBSCRIPTION BY THE METHOD PROVIDED HEREINABOVE; (2) THAT AN OFFICER OR OWNER OF CUSTOMER MUST EXECUTE THE AFOREMENTIONED CANCELLATION FORM AND; (2) THAT YOU MUST FURTHER RECEIVE AN EMAIL FROM DYL FORMALLY AND FINALLY CONFIRMING THE CANCELLATION OF YOUR SUBSCRIPTION. FAILURE TO CANCEL YOUR SERVICES SUBSCRIPTION IN ACCORDANCE WITH THE EXPRESS TERMS OF THIS SECTION MAY RESULT IN ONGOING SUBSCRIPTION FEES.
The cancellation of your Subscription will be effective within twenty-four (24) hours of your receiving DYL's email confirming the cancellation of your Subscription. The date on which DYL sends Customer said confirmation of Subscription cancellation email shall be deemed Customer's Subscription cancellation date ("Cancellation Date").
Except as otherwise provided herein, and as previously stated in this Agreement, you will not receive any refund(s), partial refund(s) and/or any credit(s) for any one or more Subscription Fee, same of which naturally including any and all automatic recurring payments made relative to same and/or any and all Subscription prepayment(s) already tendered for your Subscription.
In the event that you subscribe to any ancillary and/or upgraded Services provided by DYL which become a part of the Services associated to your Subscription, your election to cancel your Subscription will also cancel any and all such related ancillary and/or upgraded Subscription Services, same of which are subsequently vulnerable to that provided for in Sections 5.3(a) and 5.3(b).
9. DYL's Right To Terminate Or Modify Services
Upon providing you with notice pursuant to this Agreement, DYL may modify the terms of the Agreement and/or the Services associated to your Subscription, same of which may include, without limitation, any and all terms relative to Subscription Fees, content and/or terms relative to the nature of the Services, one or more modifications to the actual Services, and/or of the DYL Platform, along with any and all terms relative to any and all legally permissible Content, and/or any Confidential Information. Amongst other methods expressly provided in this Agreement, your continued access to and/or use of your Subscription Services shall constitute your acceptance of, and agreement to, any and all such modified terms.
Except as otherwise expressly provided for herein, DYL may terminate this Agreement at any time and thereby further terminate your Services Subscription.
In the event that you are not in violation of any of the terms of this Agreement at the time of DYL's termination, you shall be entitled to a prorated refund of any advanced/prepaid Subscription Fees intended for future Subscription Services.
10. Customer Content
DYL shall maintain commercially reasonable administrative, physical and technical safeguards designed to protect the confidentiality and integrity of Customer Content (See, Section 4.2). To the extent that any Customer Content includes Personally Identifiable Information, DYL shall comply with any applicable data protection or US privacy Laws, and any other specific requirements set forth in this Agreement.
10.1. Limited License
10.2. Permitted Uses
10.3. Customer Responsibilities
Customer hereby agrees to use all reasonable efforts to prevent the unauthorized access to and/or use of Customer's Subscription Services and further agrees to promptly notify DYL of any such unauthorized access and/or use and/or other breach of security relating to Customer's Subscription and/or the Services associated to same. Among other safeguards, DYL recommends that Customer instruct its Lead Administrator and any and all Administrators to (1) choose robust password combinations, (2) change those passwords regularly and, (3) to not disclose their passwords except to DYL and/or any of its authorized Representatives.
10.4. Data Storage
Customer acknowledges that Subscription Services are not intended to be nor should they be used for long-term Content storage. We emphatically encourage you to frequently back-up any Content that you wish to retain. Except as otherwise provided in this Agreement, DYL shall NOT be responsible for the storage of any Customer Content whatsoever, whether exported from any of the Services including, without limitation, your Subscription Services, and/or via any third-party integrated or Affiliate services, and/or from any storage on any devices, external media or accounts.
Pursuant to the terms of this Agreement, DYL reserves the right to periodically purge Content and/or Customer Data from the DYL Platform to include its servers, subject to Customer Data and/or Content related retention requirements under applicable Laws, if any, and except as otherwise expressly provided in the terms of this Agreement.
Customer acknowledges that Customer's access to and use of Subscription Services requires the transmission of electronic data over the Internet and various other networks that are not owned or operated by, or otherwise under the control of, DYL, and that DYL cannot and does not ensure that such transmissions will not be accessed by unauthorized third-parties.
If the Services which are a part of Customer's Subscription are to include VoIP phone services, Customer is solely responsible for determining whether Customer's office setup is compatible with and equipped for VoIP phones, including, without limitation, whether Customer's network is or needs to be configured for same, PRIOR to Customer initiating Customer's Subscription. Failure to do so shall not result in any refund and/or credit in any amount, including, without limitation, any partial or whole Subscription Fee refund and/or credit relative to any and all respective Subscription Term(s).
Except as otherwise expressly provided in this Agreement, DYL shall not be responsible or liable whatsoever for any and all delays, losses to include Losses, alterations and/or interceptions of any and all Customer Content/Data in the course of any transmission(s) through and between networks not owned and/or operated by DYL.
The Recipient agrees: (a) to keep the Discloser's Confidential Information confidential and disclose it only (i) to its respective Representatives to whom such disclosure is reasonably necessary to accomplish the purpose(s) relative to this Agreement for which the Confidential Information was disclosed to the Recipient and who are bound to reasonable confidentiality obligations with respect to such Confidential Information, (ii) in response to a judicial order or other lawful process, as and to the extent required by such order or process or applicable Laws or, (iii) as approved in writing by the Discloser; (b) not to use Discloser's Confidential Information except for the purpose(s) relative to this Agreement for which the Confidential Information was disclosed or as approved in writing by the Discloser; and (c) to protect the confidentiality of the Discloser's Confidential Information with the same degree of care as Recipient uses to protect its own Confidential Information of like kind, but in no event less than reasonable care. Each party shall use reasonable efforts to ensure that its Representatives observe these obligations as if they were parties to the Agreement and Customer's Subscription related thereto.
12. Compliance, Subscription Use & Restrictions
12.1. Compliance with Laws
In addition to the terms included in Addendum B attached hereto, Customer agrees to comply with all applicable United States and any and all other applicable international, national, state, provincial and/or local laws, regulations, codes, ordinances, treaties, conventions, and/or court and/or administrative orders and/or rulings ("Laws") in relation to Customer's access to and/or use of the Services, Customer's related Services Subscription thereto, and the DYL Platform, generally. You shall be solely responsible for familiarizing yourself with such Laws and shall not treat or rely on any statements, communications and/or materials provided by DYL or any of its Affiliates as legal advice. Without limiting the foregoing:
(a) Import and Export. If and as applicable, Customer shall comply with all export and import laws of the United States and other jurisdictions applicable to its access to and/or use of the Subscription Services, including the DYL Platform, and/or to its related use and/or transport of Equipment. Customer shall not access or use any of the Services in a United States embargoed country. Customer represents and warrants that neither Customer nor any Customer Agent nor any Representatives are named on any United States government denied-party list.
(b) Solicitations/Telemarketing. Many jurisdictions have Laws that significantly restrict telephone solicitations (i.e., telemarketing) and the use of automatic telephone dialing systems ("ATDS"), artificial or pre-recorded voice messages, SMS text messages and facsimile communications.
Customer hereby acknowledges that DYL is a service provider which provides Services as described herein and therefore agrees that DYL cannot regulate, control and/or govern the actions and/or decisions of third-parties over whom and/or to which DYL otherwise has no authority or control, nor can DYL regulate, control and/or govern Customer's behavior to include Customer's actual use of Customer's otherwise lawful Subscription Services, beyond requiring Customer's consent to the express, relative Agreement terms provided for herein. By way of example and, hereby now made a part of this Agreement, Customer acknowledges and agrees that DYL shall not be responsible if Customer is 'blocked' consequent to Customer violating any Laws, including, without limitation, those related to 'spamming' during any or all respective Term of Customer's Services Subscription.
Customer hereby agrees that Customer is solely responsible for (i) ensuring Customer's use of any and all of Customer's Subscription Services comply with any and all such Laws, including, without limitation, Customer adding "opt out" options to text messages, if and where applicable, (ii) obtaining any required consent(s) from the parties to be contacted by Customer and, (iii) maintaining an internal "do not call" list to prevent contacting parties that do not wish to receive further communications from Customer.
CUSTOMER IS URGED TO SEEK THE ADVICE OF COUNSEL PRIOR TO PURCHASING, SUBSCRIBING TO AND/OR USING ANY OF THE SERVICES AND/OR EQUIPMENT FOR MARKETING OR SOLICITATION PURPOSES.
(c) Voice Recording and Call Monitoring. Many jurisdictions also require advance notice or consent to permit electronic voice recording and/or third-party call monitoring. While Subscription Services are intended to comply with the requirements of applicable United States state laws, Customer remains solely responsible for also ensuring compliance with any and all other applicable Laws.
12.2. Other Compliance & Use Restrictions
Customer agrees to comply with and to cause its Agents, Representatives and any and all other third-parties having access to and/or whom or which use Customer's Services Subscription, to comply with the provisions of Addendum B (Use Restrictions) attached hereto.
(a) Without DYL's prior written consent (where applicable), you may not access or use any of the Services in violation of any Laws, including those for any unfair business purposes and/or practices pursuant to the California Business & Professions Code §§17200 et seq., same of which is intended to include, without limitation, if you are a competitor of DYL, for purposes of monitoring the availability of any Services, performance and/or functionality, nor for any other benchmarking, bad faith, malicious, fraudulent, infringing, and/or illegally competitive or unfair purpose(s).
(b) In addition to the aforementioned and the terms of Addendum B attached hereto, you may only access and/or use the Services associated to your Subscription for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable Laws; (ii) send and/or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material(s), including material(s) reasonably understood as harmful to children or in violation of third-party rights; (iii) send and/or store material(s) containing software viruses, worms, Trojan horses or other harmful computer code(s), files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or any related data, Content, and/or any Confidential Information contained therein or related thereto; or (v) attempt to gain unauthorized access to any of the Services and/or its related systems or networks including, without limitation, the DYL Platform.
(c) You hereby agree that you shall not, (i) license, sell, resell, transfer, assign, distribute or otherwise commercially exploit or jeopardize, in any way whatsoever, any of the Services, the DYL Platform, any other DYL Confidential Information, your Subscription, and/or any impermissible Content and/or data related thereto; (ii) modify, amend and/or make any derivative work(s) wholly or partially based upon any or all of the Services, including those of your Subscription, any DYL Confidential Information, and/or the DYL Platform; (iii) create Internet "links" to the Services, including to your Subscription Services, or "frame" or "mirror" any Content or DYL Confidential Information on any other server, wireless, and/or Internet‐based device; or (iv) reverse engineer and/or access and/or use any or all of the Services, the DYL Platform, any Content which would otherwise reveal any DYL Confidential Information, and/or any other DYL Confidential Information, to directly or indirectly (a) build one or more competitive products and/or services; (b) to build one or more products and/or services which use similar features, functionalities, graphics, or any other DYL Confidential Information related to any or all of the Services, the DYL Platform, and/or your Subscription, inclusive of the Content, or; (c) to replicate, duplicate and/or copy any of the features, functions, graphics and/or other DYL Confidential Information related to any or all of the Services, DYL Platform, your Subscription and/or its Content, by any method and/or through any medium, whether now known or hereinafter devised.
12.3. Unlimited Plans
DYL reserves the right to review the usage of any unlimited minute usage plan(s) associated to your Subscription Services to ensure that you are not abusing same. You agree to use any and all unlimited minute plans associated to your Subscription Services for a reasonable amount of voice or fax calls, as further described in this Section 12.3 below, and will not employ methods and/or devices to take advantage of unlimited plans associated to your Subscription Services by excessively using the voice or fax Subscription Services and/or for means reasonably understood as not intended for your Subscription Services, including, without limitation, use that is in violation of the terms of Addendum B. Amongst any and all other recourse, right and/or remedy available to DYL and hereby expressly reserved, DYL may terminate your Services Subscription immediately if it determines, in its sole discretion, that you are abusing any such unlimited minute plan associated to your Subscription and/or the Services.
For purposes of this Agreement, "unlimited usage" relates to the combined number of inbound and outbound voice minutes and fax pages, but otherwise excludes advertising and informational messages sent to you by DYL, as determined by DYL in its sole discretion.
12.3(a). Statistically Abusive Use. You agree that your level/amount of usage of the unlimited service plan(s) associated to your Services Subscription shall not be Statistically Abusive in comparison to that of the average, similar DYL customer utilizing similar plans in relation to their or its use of similar Services. DYL deems usage that exceeds the average volume of its other total combined unlimited usage plan customers by more than FIFTEEN-PERCENT (15%) as statistically abusive ("Statistically Abusive"). You agree that DYL has the right to terminate your Services Subscription or charge you additional Subscription Fees if your usage is Statistically Abusive, as solely but reasonably determined by DYL.
Customer agrees to use unlimited voice plans for normal voice and/or text message related communications with aggregate usage that is not Statistically Abusive. Use of unlimited "paperless facsimile" service must also fall within the average range of similarly situated DYL customers and shall be considered Statistically Abusive if usage exceeds 500 transmitted pages sent or received per month.
In addition, Customer agrees that Customer will not employ methods or use devices to take advantage of unlimited plans by using Subscription Services excessively or for means not intended by DYL. DYL may terminate your Subscription Services immediately if it determines, in its sole discretion, Customer is Statistically Abusing an unlimited minute plan.
Customer agrees that DYL has the right to terminate this Agreement and thereby consequently cancel Customer's Services Subscription and/or charge Customer additional fees as outlined below if Customer's usage is determined to be Statistically Abusive in the sole discretion of DYL.
12.3(b). Excessive Usage. If it is determined that Customer's usage is Statistically Abusive, Customer hereby agrees to pay a per minute, per text message, and/or per page fee, as respectively applicable, for use in excess of typical levels at the then current rate established by DYL, of at least $.05 per minute for voice calls, $.05 per text message, and/or $.05 per facsimile page.
THIS OVERAGE FEE APPLIES TO ALL PLANS INCLUDING THE UNLIMITED PLANS. A Customer's aggregate usage may be considered Statistically Abusive if involves excessive:
- Number of calls made to a conference calling service during a Term;
- Number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive or Statistically Abusive call lengths during a specific time frame;
- Number of text messages;
- Number of inbound domestic toll free calling patterns during a Term; and/or
- Other abnormal calling patterns indicative of an attempt to evade enforcement of the terms of this Agreement including, without limitation, those related to Subscription Services Use Restrictions.
12.4. Non-Voice Systems | Non-Accessibility of 911 or E911 Emergency Services
You hereby acknowledge that the Services, including those specifically related to the DYL Platform and your Subscription Services, are NOT setup to function without dialing systems and same subsequently include any and all Equipment thereto related (said Equipment incorporated herein Section 12.4 for the limited purpose of clarification). You therefore further acknowledge, understand and agree that your Subscription Services, and any and all Equipment subsequently thereto related, are NOT E911 Capable and that same subsequently do NOT support traditional 911 or E911 access to emergency services. The use of emergency numbers via the DYL Platform, Services, and/or any and all related Equipment, including that associated to your Services Subscription, is subject to limitations when compared to traditional wireline services.
PLEASE SEE "ADDENDUM A," INCORPORATED BY REFERENCE, FOR IMPORTANT INFORMATION CONCERNING EMERGENCY SERVICES PROVIDED AND/OR LACKING IN YOUR SERVICES SUBSCRIPTION AND ANY RELATIVE EQUIPMENT, AS WELL AS PROVISIONS THAT LIMIT DYL'S LIABILITY IN CONNECTION WITH THESE SERVICES AND YOUR SERVICES SUBSCRIPTION. DYL RECOMMENDS THAT CUSTOMER ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESS TO EMERGENCY SERVICES OTHER THAN THROUGH DYL'S SERVICES, SAME OF WHICH INCLUDE CUSTOMER'S SUBSCRIPTION SERVICES.
12.5. Content Delivery
Customer Content shall be deemed to have been delivered when DYL, its designated Affiliate and/or applicable, respective third-party carrier delivers each of same via your Subscription Services, to the intended and immediate destination, including mobile telephone networks, or any other intermediary server/API designated as the point of delivery for such Content. DYL does not guarantee delivery on behalf of third-party mobile carriers. Moreover, although DYL provides extensive text messaging coverage as a part of its Services, including all major U.S. mobile carriers, we make no guarantee as to network coverage. Your use of the relative Subscription Services is at your sole risk. Said Services associated to your Subscription are provided on an "as is" and "as available" basis.
13. Security & Privacy
13.1. Personally Identifiable Information & Customer Data
Personally identifiable information is any information that can be used on its own or in combination with other readily available information to identify, contact or locate a single person, or to identify an individual in context, same of which includes you ("Personally Identifiable Information"). DYL does not own any of the Content related to your Services Subscription nor does it own any of the Personally Identifiable Information that you submit in the course of your Services Subscription (collectively, "Customer Data").
13.2. Availability of Content/Data
In the event this Agreement is terminated, and your Subscription consequently canceled, without cause, and you submit a written request to DYL within twenty-one (21) calendar days of such termination at, firstname.lastname@example.org, DYL will make available a file containing any Customer Content, including any Personally Identifiable Information therein, which was collected, stored and/or provided by DYL as a part of your Subscription Services.
14. Required DYL Emails
Subsequent to your Subscription and the terms of this Agreement, you acknowledge and agree that DYL may send instructional, informational, and/or educational emails to any or all of the email address(es) you provide us from time to time, during any and all Term(s) of your Subscription. A portion of such emails will be necessary for you to receive Subscription Services. You shall subsequently receive said emails even if you opt-out of receiving other types of email from DYL. If you also do not want to receive the aforementioned requisite emails, you may cancel your Subscription at any time, as provided herein.
15. Number Portability & New Number Activation
15.1. Single-line Subscription
Pursuant to the terms of this Agreement, you may be able to take (also known as, "port" or "porting") the telephone number associated to your single-line Subscription to another service provider.
15.2. Multiple-line Subscription
If Customer has a multiple-line Subscription by which two (2) or more telephone numbers are associated to Customer's Subscription Services and Customer elects to engage the services of a third-party service provider to port one or more numbers from your DYL Services Subscription, you hereby agree to provide us at least three (3) business days' advanced notice of your intent to eliminate the specifically affected Services and/or Equipment. You may provide said notice to, email@example.com, and/or by calling DYL Customer Care at, (888) 310-4474. Your failure to follow these terms may consequently result in DYL continuing to bill you for such affected Subscription Services and/or Equipment, as a part of your then Subscription Fee. If and after such affected Subscription Services and/or related Equipment has been properly and formally eliminated from your DYL Subscription Services, as determined in DYL's sole and absolute discretion, you shall thereafter remain responsible for your Subscription Fee, if and as adjusted, along with each and every other term of this Agreement. Except as otherwise expressly provided in the terms of this Agreement and, pursuant to same, you will not receive any refund, partial refund or any credit(s) for any and all Subscription Fees already billed.
15.3. Requesting DYL Ports Numbers
If and when Customer requests that DYL ports one or more telephone numbers from a preexisting Customer service provider to DYL, DYL will use commercially reasonable efforts to assist in the porting of the subject number(s). Customer acknowledges that it is industry standard for service providers which provide services similar to DYL's Services to require identification verification along with authorization and other reasonable information when porting phone numbers to DYL. As such, Customer must (1) properly complete a letter of authorization; (2) provide us with a copy of your most recent bill from the service provider from which we are to port one or more numbers from, and; (3) provide us with any other information required by such service provider to port your number(s). Customer's failure to provide any information requested by DYL and/or the third-party service provider will likely delay the porting of the subject number(s) to DYL. DYL shall not be responsible nor held liable for any and all delays related to the porting of your number(s) nor will we provide any whole or partial Subscription Fee credit(s) for any and all such delays.
15.4. Porting Information via the Internet
In DYL's sole and absolute discretion, DYL may offer Customer the option to submit the requisite information described in Section 15.3 above, to port one or more of Customer's numbers via a web-enabled interface. Should DYL make this option available to Customer and should Customer accept same, Customer may obtain a gratuitous copy of all relative porting information from the aforementioned interface or, by contacting DYL Customer Care via email or by phone at, firstname.lastname@example.org, or, (888) 310-4474. DYL shall provide Customer's Lead Administrator with a copy of the subject information by facsimile or email. No additional software or hardware will be required. Customer may also withdraw Customer's consent to submitting web-enabled/electronic porting requests by contacting DYL Customer Care as provided above; HOWEVER, to do so, Customer MUST rescind Customer's consent PRIOR to DYL submitting and/or transmitting the porting request to its respective Affiliate or other relative Representative. Your consent to any and all such electronic porting submissions shall only apply to each respective porting request you submit via the aforementioned web-enabled/electronic interface.
15.5. New Phone Numbers
Contingent upon the following along with any and all other relative terms in this Agreement, you may select one or more new phone numbers to use with your Subscription. You acknowledge that certain numbers may not be available for various reasons including, without limitation, a delay in one or more pertinent database update(s). Therefore, when you seek to reserve one or more numbers from DYL's inventory, you must test each number by calling it from a line outside the DYL network (e.g., landline, cellphone, or from a non-DYL number) within 48 hours of your relative reservation to confirm each number has successfully been assigned to your Subscription. DYL's liability for any and all numbers associated to DYL's inventory of numbers that Customer requests for reservation but Customer fails to test any or all such respective number(s) as prescribed for hereinabove and said number(s) is/are ultimately determined to be unavailable, whether due to a database lag or otherwise, is limited to the cost the Customer paid for each such number. DYL shall not be responsible nor held liable for any and all actual and/or consequential damages of any kind or nature including, without limitation, marketing, advertising and/or promotional costs related to any or all such DYL numbers requested by Customer for reservation but ultimately found unavailable. By utilizing and/or choosing from DYL's inventory of numbers, you hereby agree to abide by this condition.
16. Warranties, Disclaimers & Limited Liability
16.1. DYL Warranties
DYL represents and warrants to Customer that (a) DYL has the power and authority to enter into and perform its obligations under this Agreement; (b) that DYL shall provide Customer's Services Subscription in a professional and workmanlike manner and with reasonable skill and care and; (c) that your Subscription shall substantially conform to the terms of this Agreement. For avoidance of doubt, the foregoing representations and warranties do NOT apply to any free trial ancillary and/or upgraded services and/or beta services.
16.2. Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 16.1 HEREINABOVE AND, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, DYL MAKES NO WARRANTIES AND HEREBY FURTHER DISCLAIMS ANY AND ALL WARRANTIES IN RELATION TO SERVICES, SUBSCRIPTION SERVICES AND/OR EQUIPMENT, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DYL DOES NOT WARRANT THAT ITS SERVICES, INCLUDING THOSE SERVICES ASSOCIATED TO CUSTOMER'S SUBSCRIPTION, WILL BE UNINTERRUPTED, ERROR-FREE OR AVAILABLE ALL OF THE TIME, OR THAT ALL ATTEMPTED VOICE, FAX, TEXT AND/OR OTHER COMMUNICATION(S) OF ANY AND EVERY KIND AND NATURE, WHETHER NOW KNOWN OR HEREINAFTER DEVISED, AND A PART OF DYL'S SERVICES, WILL BE DELIVERED.
16.3. Limited Liability
PURSUANT TO THE TERMS OF THIS AGREEMENT AND, TO THE GREATEST EXTENT PERMISSIBLE BY APPLICABLE LAWS, IN NO EVENT SHALL DYL NOR ANY OF ITS AFFILIATES AND/OR REPRESENTATIVES BE RESPONSIBLE NOR HELD LIABLE FOR ANY AND ALL CLAIMS AND/OR DAMAGES WHATSOEVER, OF EVERY KIND AND NATURE, INCLUDING, WITHOUT LIMITATION, DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY AND/OR COVER DAMAGES, LOSS OF PROFITS, REVENUES AND/OR GOODWILL, LOSS AND/OR CORRUPTION OF CONTENT, DATA AND/OR CUSTOMER DATA, COMPUTER FAILURE AND/OR LOSS OF INFORMATION AND/OR OTHER PECUNIARY LOSS, BUSINESS INTERRUPTION AND/OR DELAY IN PERFORMANCE, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY AND/OR OTHERWISE, FROM AND/OR IN CONNECTION WITH CUSTOMER'S SUBSCRIPTION AGREEMENT AND/OR THE SUBSEQUENT USE OF AND/OR INABILITY TO USE ANY OF THE SUBSCRIPTION SERVICES AND/OR EQUIPMENT PROVIDED THEREUNDER, AND WHETHER OR NOT THE RESPECTIVE PARTY OR PARTIES HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS AND/OR DAMAGES.
16.4. Reliance on Limitations
Customer acknowledges and agrees that the essential purpose of Section 16 is to allocate the risks under this Agreement between the parties and to limit DYL's potential liability in light of the agreed-upon pricing for Subscription Services, which would have otherwise likely been substantially higher if DYL were to assume the risk of Customer's incidental and/or other damages, Claims or other types of Losses, or the risk of liability in excess of the limits described above. DYL relied on these limitations when offering to provide the relative Subscription Services to Customer.
16.5. Customer Representations and Warranties
Without limiting any term or provision of this Agreement, Customer hereby represents and warrants that (a) Customer has the power and authority to enter into and perform its obligations under this Agreement; (b) Customer is not relying upon any statements, commitments, representations and/or warranties other than those expressly set forth in this Agreement; (c) Customer is procuring Subscription Services for Customer's own internal business use only and not as an agent and/or on behalf of any third-party; (d) Customer has obtained any and all third-party consents, licenses, authorizations and/or permits required in connection with Customer's use of Subscription Services; (e) Customer has not received or been offered any bribe, kickback or illegal or other improper payment, consideration, gift or thing of value from any of DYL's employees, agents, Affiliates or other Representatives in connection with this Agreement and/or the Services and; (f) Customer's purchases and/or similar transactions are not contingent on the delivery of any future functionality or features of the Services, except otherwise expressly provided for in this Agreement.
16.6. Exclusive Remedy
(a). Breach of Warranty
Except as otherwise expressly provided for in this Agreement, Customer's sole and exclusive remedy for breach of any and all of the warranties provided in Section 16.1 of this Agreement shall be (1) repair, replacement, credit, and/or refund as applicable and as same directly relates to Customer's subject Subscription Services then at issue, and/or (2) cancellation of Customer's Subscription, all of which shall be determined by DYL, in its sole and absolute discretion.
(b). Other Disputes
WITH EXCEPTION TO THE APPLICABLE TERMS OF SECTION 18, THE EXPRESS INFRINGEMENT TERMS OF SECTION 17.2, ALONG WITH ALL OTHER AGREEMENT TERMS EXPRESSLY PROVIDING OTHERWISE, IF ANY, AND TO THE GREATEST EXTENT PERMISSIBLE BY APPLICABLE LAWS, CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES WITH DYL AS SAME RELATE TO THIS AGREEMENT SHALL BE CANCELLATION OF CUSTOMER'S ASSOCIATED SUBSCRIPTION.
IN THE EVENT CUSTOMER IS IRRESPECTIVELY AWARDED DAMAGES AND, TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAWS, DYL AND CUSTOMER HEREBY FURTHER ACKNOWLEDGE AND EXPRESSLY AGREE THAT, ANY AND ALL SUCH DAMAGES AWARDED CUSTOMER SHALL NOT EXCEED THE LESSER OF $250 USD (TWO-HUNDRED FIFTY DOLLARS) OR THE SUM CUMULATIVE TOTAL SUBSCRIPTION FEE CUSTOMER PAID DYL DURING THE SIX (6) CONSECUTIVE TERM MONTHS IMMEDIATELY PRECEDING THE SUBJECT DISPUTE.
17.1. By Customer
Customer agrees to defend and hold harmless DYL and any and all of its Affiliates and Representatives, from and against any and all actions, claims, demands, suits, investigations, inquiries and/or proceedings of any and every kind or nature, and whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), and/or any other legal or equitable theory (collectively, "Claims") threatened or brought against DYL and/or any of its Affiliates and/or Representatives by any and all third-parties that arise out of, or result from, (A) Content or Customer Data transmitted on the DYL Platform, or ;(B) any actual or alleged (i) Customer Subscription use violation pursuant to Customer's Subscription Services use restrictions provided for within the terms of this Agreement, and/or other applicable Laws, or breach of any one or more third-party contract terms to which Customer is subject or, (ii) any and all actions and/or omissions that would constitute Customer's breach of this Agreement (including any breach of any of the terms of Section 10.3/Customer Responsibilities), without regard to any notice and/or cure right hereunder, if any. Customer hereby further agrees to indemnify and hold harmless DYL and any and all of its Affiliates and/or Representatives against any and all damages, fines, attorneys' fees, defense costs and/or other losses (collectively, "Losses") otherwise payable by DYL pursuant to the adjudication or settlement of, or which are otherwise incurred by DYL, in any manner and/or by any method, and in connection with any such Claims.
17.2. By DYL
DYL agrees to defend Customer and Customer's Agents, respectively, from and against any Claims threatened or brought against Customer, or any Agents, by any third-party alleging that any of the Services associated to Customer's Subscription, when used pursuant to the terms of this Agreement, infringe or misappropriate any intellectual property right(s) enforceable under applicable Laws. DYL agrees to indemnify and hold harmless Customer and/or such Agent(s) against any Losses payable by Customer and/or such Agent(s) pursuant to the adjudication or settlement of, or as otherwise reasonably incurred by Customer, in connection with any such Claims.
Notwithstanding the foregoing, DYL's obligations and subsequent liabilities shall NOT apply to any and all infringement Claims that are based upon: (a) the combination, operation and/or use of any Subscription Services with any third-party product, device, service and/or software not sold or provided to Customer by DYL; (b) the alteration or modification of any Subscription Services by any party other than DYL or any of its respective Affiliates and/or Representatives; or (c) DYL's alteration or modification of any Subscription Services at Customer's request. If such a Claim of infringement is brought or threatened against Customer, DYL shall, in its sole and absolute discretion, either: (i) procure a license that will protect Customer against such Claim; (ii) modify or replace the portions of the applicable Subscription Services to avoid the possibility of infringement without impairing the functionality of any of the Services, Subscription Services or DYL Platform; or (iii) if neither is commercially feasible, terminate this Agreement pursuant to its terms and, if applicable, refund Customer's most recent prepaid Subscription Fee. The rights and remedies granted Customer under this Section 17.2 state DYL's entire liability in relation to the subject matter hereof, and Customer's exclusive remedy, with respect to any such infringement Claim(s).
18. Dispute Resolution
18.2. Pre-filing Notice; Cure Period
Prior to either party initiating an arbitration, court and/or other formal action, suit or proceeding (collectively, "Proceeding") against the other party in respect of any and all applicable Claims and/or Covered Claims, respectively, such party agrees to send a written notice to the other party describing in reasonably sufficient detail the specific issues in dispute (and referencing the specific portions of this Agreement which are allegedly being breached, if applicable) and to work with the other party diligently and in good faith to attempt to resolve the dispute. Any such notice directed to DYL shall be sent to, email@example.com. Any such notice directed to Customer shall be sent to the email address of Customer's Lead Administrator as listed in Customer's Subscription at the time of such notice. Within thirty (30) calendar days of such notice ("Cure Period"), the parties shall cooperate to ensure that one or more knowledgeable executives and/or owner(s) of each party hold at least one meeting (in-person, by video-conference, or tele-conference) for the express purpose of attempting to resolve the subject dispute. If the parties fail to resolve the dispute prior to the expiration of the Cure Period, either party may thereafter initiate a Proceeding in accordance with the terms of this Agreement.
NEITHER PARTY SHALL COMMENCE ANY PROCEEDING UNLESS AND UNTIL IT HAS COMPLIED WITH THIS SECTION 18.2, AND THIS SECTION 18.2 MAY BE PLEADED AS A FULL AND COMPLETE BAR AND DEFENSE TO, AND MAY BE USED AS A BASIS FOR AN INJUNCTION AGAINST, ANY PROCEEDING INSTITUTED IN BREACH OF THIS SECTION OF THE AGREEMENT.
18.3. Time Limitation
Customer agrees that regardless of any statute or law to the contrary, any Proceeding arising out of or related to the use of Customer's Subscription Services, or this Agreement, must be initiated by filing a complaint with the proper authority to govern such Proceeding no later than ONE (1) year after the earlier of, (a) the date such Claim or cause of action arose, or; (b) the termination of this Agreement or Cancellation Date of Customer's Subscription, or be forever barred.
18.4. Mandatory Arbitration
(a) Administration; Venue
CLAIMS SUBJECT TO THIS SECTION 18.4 SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") IN LOS ANGELES, CALIFORNIA, USA.
Arbitration will be conducted under the AAA's published commercial arbitration rules. Customer and DYL agree to bear their own arbitration fees, costs, and expenses, including those for any attorneys, experts, and witnesses (collectively, "Arbitration Costs"). The place of arbitration shall be Los Angeles County, California. The language of the arbitration shall be English. Judgment on the award rendered may be entered in any court having competent jurisdiction thereof.
This agreement to arbitrate also requires Customer to arbitrate any Claims against other parties related to Subscription Services provided and/or billed to Customer if Claims are asserted against DYL in the same Proceeding.
(b). Class Action Waiver
ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS OR BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, AND/OR OTHER PERSONS OR ENTITIES SIMILARLY SITUATED, UNLESS THE STATUTE UNDER WHICH YOU ARE SUING PROVIDES OTHERWISE.
If any one or more provisions of this Section 18 is found to be illegal or unenforceable, the unenforceable and/or illegal terms of the relative clause(s) will be severed; however, and as then grammatically correct, the remainder of each and every relative clause will remain in full force and effect.
(d). Prevailing Party
The prevailing party shall be entitled to recover all Arbitration Costs incurred as a part of damages awarded.
(e). Waiver of Trial by Jury
In the unlikely event that all of Section 18 is found to be illegal or unenforceable or, if a Claim is brought in a Proceeding that is determined to be excluded from the scope of Section 18, Customer and DYL each hereby agree to waive any relative right(s) to a jury trial.
19.1. Complete Agreement
This Agreement constitutes the complete and exclusive agreement between you and DYL with respect to your Subscription and the Services related therewith and those further incorporated herein and hereunder and, as previously stated, expressly supersedes and replaces any and all prior or contemporaneous agreements, whether written or oral, and relating to any and all of the subject matter hereto related. The terms of this Agreement may only be modified or amended by DYL, pursuant to its terms.
Sections 4, 6.4(b), 10, 11, 17, 18 and 19 shall survive the expiration and/or termination of the Agreement, along with any and all applicable Agreement terms and/or provisions governing Customer's payment obligations (i.e., Sec. 5), and any other provision(s) that, by its or their very nature would reasonably be expected to survive.
If any provision or any of the terms of any provision(s) of this Agreement is/are held to be unenforceable for any reason, it is hereby agreed that the then subject provision(s) and/or terms relative thereto shall, at DYL's sole and absolute determination, either be: (1) reformed to the extent necessary to make same enforceable, or; (2) entirely severed from the Agreement. If reformed, any and all such modifications shall not otherwise affect the subsequent enforceability of the subject provision(s), nor shall any such reformation or, in the case of severability, severed provision(s) affect any and all other Agreement provisions and/or terms thereto related, and under any and all joint or several circumstances. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
19.4. Order of Precedence
Except as otherwise expressly provided for within the terms of this Agreement, in the event of any conflict between the terms of this Agreement and the terms of any and all other DYL Services document and/or purchase order or similar DYL document provided to Customer, the terms of this Agreement shall govern.
19.5. Objection to Customer Terms
The terms of this Agreement shall not be modified or superseded by the terms of any purchase order(s) and/or similar document(s) delivered to DYL by Customer in connection with any and all such Customer orders relating to any Services, including those Services related to Customer's Subscription, and/or Equipment, unless otherwise expressly stated in the terms of this Agreement. DYL HEREBY EXPRESSLY OBJECTS TO ANY AND ALL ADDITIONAL, DIFFERING AND/OR CONFLICTING TERMS AND/OR CONDITIONS ISSUED BY CUSTOMER AT ANY TIME ON ANY AND ALL PURCHASE ORDERS AND/OR SIMILAR DOCUMENT(S) RELATING TO DYL SERVICES, INCLUDING CUSTOMER'S SUBSCRIPTION SERVICES.
The failure of either party to exercise or enforce any right or remedy under this Agreement shall not constitute a waiver of such right or remedy nor shall it constitute a continuing waiver of either or both, except as otherwise expressly provided for herein and hereunder.
19.7. Assignment; Binding Effect
This Agreement shall be binding upon the heirs, successors, and permitted assigns of DYL and Customer. Except as expressly provided for within the Agreement, Customer shall not assign the Agreement or any of its rights and/or terms, nor delegate any of Customer's obligations herein and thereunder, without DYL's prior written consent. No such consent shall be required in connection with a bona fide sale of Customer of all or substantially all of Customer's assets to a third-party, so long as DYL receives notice of same at least ten (10) consecutive calendar days prior to any such an assignment. If Customer proposes to assign Customer's rights and/or delegate Customer's obligations under the Agreement to any Agent(s) beyond those terms already provided thereunder, Customer shall provide such information and documentation concerning the respective Agent(s) as DYL may reasonably request, and Customer shall remain jointly liable for the obligations of any such Agent(s). For the avoidance of doubt, DYL may however assign any and all of its rights and/or delegate any and all of its obligations under this Agreement to one or more Affiliates, Representatives, and/or subcontractors of such Affiliates or Representatives, for the performance and/or delivery of Services, including Subscription Services.
19.8. Force Majeure
Except as otherwise expressly provided in this Agreement, neither party shall be considered in breach of same as the result of any and all failures and/or delays in the performance of such party's obligations hereunder that is or are caused by, and/or which result from, events beyond such party's reasonable control (events of "Force Majeure") including, for example, acts of God (including fire, flood, hurricane, earthquake and tsunami), riot, war, terrorism, government actions and intervention, embargoes, labor strikes, lockouts, destruction of facilities, late or failed delivery by suppliers, Affiliates, or Representatives, unavailability of power and/or Internet services, network and/or carrier issues, cable outages, failure of third-party products which otherwise interface and/or interact with any Subscription Services, any criminal acts (e.g., computer hacking that circumvents reasonable security measures), bankruptcy of merchants, Affiliates, Representative, and/or licensees; provided, however, the foregoing shall not apply to Customer's Subscription Fee payment obligations hereunder.
19.9. Consent to Electronic Signatures and Records
As a convenience and courtesy to you, DYL provides access to its Services online which may require you to electronically receive notices and/or to electronically enter into agreements, including, without limitation, this Agreement. Accordingly, along with any and all other methods included in this Agreement as methods intended to demonstrate your acceptance of the terms of this Agreement, you further acknowledge and agree that, by clicking, "I Agree" or, "I Accept" or, similar acknowledgement language and/or by providing a digital/electronic or similar acknowledgement via the Internet including, without limitation, via email and/or a DYL website:
19.9(a). You agree to electronically conduct the particular transaction into which you thereby enter including, without limitation, entering into this Agreement.
19.9(b). You read and understand the electronic copy of any and all electronic contracts, notices and/or records, including, without limitation, this Agreement, and any and all policies and/or amendments hereto or thereto related.
19.9(c). You agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter.
19.9(d). You are capable of printing or storing a copy of electronic records of transactions into which you enter including, without limitation, this Agreement and any amendments thereto.
19.9(e). You agree to electronically receive information about the Services, including your Subscription Services, and other electronic records into which you thereby enter including, without limitation, this Agreement.
19.10. Venue/Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflicts of laws principles. By demonstrating your acceptance of this Agreements by any one or more method of acceptance as included herein and hereunder, including without limitation by use of your Subscription Services, you hereby agree that the exclusive jurisdiction for any and all disputes regarding this Agreement shall be Los Angeles, California.
ADDENDUM A - 911 | E911 |EMERGENCY SERVICES
This addendum ("Addendum A") is an attachment to, and part of, the Agreement. The provisions in Addendum A apply to Subscription Services provided to Customer locations in the United States of America.
1. E911 SERVICE
The Federal Communications Commission ("FCC") maintains varying carrier requirements in the United States with relation to VoIP 911 service, E911 service, Basic or Enhanced 9-1-1 service, or, where available, NG9-1-1 service (collectively, "E911 Capability" or, "E911 Capable"). Generally speaking, E911 Capability is a mandatory component of all inbound/outbound traditional fax and voice service plans (each, an "E911 Capable Line"). E911 Capability is not however offered on virtual numbers, toll-free numbers nor, IMPORTANTLY, on the Services offered via the DYL Platform, same of which include Customer's Subscription Services, Equipment related thereto, and/or any and all similar Services accessories or add-on Services plans.
The DYL Platform strictly uses VoIP technology to provide its communication Services. VoIP is a communications technology that uses "Internet protocol" instead of traditional analog systems.
1.2 How VoIP Works
VoIP converts the voice signal from your telephone or Equipment into a digital signal that can travel over the Internet. Depending on the VoIP Services and Equipment you purchase, you may need a computer, a special VoIP telephone, or a regular telephone with an adapter.
1.3 Special Acknowledgements for Customer's Services Subscription
Customer hereby acknowledges and agrees to the following:
DYL'S SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING NOR OTHER EMERGENCY FUNCTIONS IN THE SAME MANNER THAT TRADITIONAL WIRELINE 911 SERVICES WORK.
ANY AND ALL EQUIPMENT WHICH OTHERWISE OPERATES SUBSEQUENT TO SERVICES, INCLUDING CUSTOMER'S SUBSCRIPTION SERVICES, ALSO DOES NOT AND WILL NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME MANNER THAT TRADITIONAL WIRELINE 911 SERVICES WORK.
CUSTOMER ACKNOWLEDGES THAT THE LIMITATIONS AND DIFFERENCES DETAILED IN THE AGREEMENT AND IN THIS ADDENDUM WITH RELATION TO E911 CAPABLE SERVICES ARE PROVIDED AS A PROFESSIONAL COURTESY BUT ARE OTHERWISE NON-EXHAUSTIVE.
CUSTOMER AGREES TO NOTIFY ITS ADMINISTRATOR(S), AGENTS, REPRESENTATIVES, AND EMPLOYEES, ALONG WITH ANY AND EVERYONE ELSE WHO MAY PLACE CALLS USING CUSTOMER'S SERVICES SUBSCRIPTION AND/OR RELATIVE EQUIPMENT, OF THE E911 CAPABLE LIMITATIONS DESCRIBED HEREIN AND HEREUNDER.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER WAS ADVISED OF THE IMPORTANCE OF MAINTAINING AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL EMERGENCY 911 SERVICES.
1.4 Services Location
Services Subscriptions which include one or more E911 Capable Lines are only available in select areas. If Customer subscribes to an E911 Capable Line, Customer will be required and hereby agrees to register the physical location of Customer's Services Subscription Equipment with DYL by contacting DYL at firstname.lastname@example.org, or by calling, (888) 310-4474.
CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT IT IS CUSTOMER'S RESPONSIBILITY TO REVIEW AND CONFIRM THE ACCURACY OF SUCH INFORMATION AND TO URGENTLY MODIFY IT IF AND AS NECESSARY.
Moreover, Customer agrees to contact DYL to update the relevant location information whenever the physical location of Customer's Services Subscription and/or Equipment changes. If Customer subscribes to DYL mobile applications as a part of Customer's Services Subscription, the physical location registered for Customer's Services Subscription Equipment shall be the physical location registered for the mobile application associated with said Equipment. Customer acknowledges and understands that any enhanced location information forwarded to any emergency operator by DYL will be based upon the physical location provided to DYL by Customer. In the event that the physical location has not been updated or is incomplete, DYL may attempt to route an ermergency 911 call based upon the bill-to or ship-to addresses associated with Customer's Subscription.
1.5 E911 Characteristics & Limitations
CUSTOMER ACKNOWLEDGES THAT E911 CAPABLE SERVICES AND SERVICES ASSOCIATED TO AN E911 CAPABLE LINE HAVE CHARACTERISTICS THAT DISTINGUISH THEM FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE LINES. THESE CHARACTERISTICS MAY MAKE THE DYL SERVICES ASSOCIATED TO ANY AND ALL E911 CAPABLE LINES UNSUITABLE FOR CUSTOMER. CUSTOMER ACKNOWLEDGES THAT IT IS CUSTOMER'S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET CUSTOMER'S EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS).
IN ADDITION TO THE LIMITATIONS SET FORTH ABOVE, THE FOLLOWING ARE SOME OF THE PRIMARY CHARACTERISTICS AND FURTHER CONFINES THAT DISTINGUISH E911 CAPABLE SERVICES AND E911 CAPABLE LINES FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE: ELECTRICAL POWER. THE SERVICES, INCLUDING SUBSCRIPTION SERVICES AND THOSE ASSOCIATED TO E911 CAPABLE LINES, WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER. IF THERE IS A POWER OUTAGE, CUSTOMER MAY BE REQUIRED TO RESET AND/OR RECONFIGURE EQUIPMENT BEFORE BEING ABLE TO USE SOME OR ALL OF CUSTOMER'S SUBSCRIPTION SERVICES, INCLUDING ANY SERVICES ASSOCIATED TO E911 CAPABLE LINE(S).
INTERNET ACCESS. THE SERVICES, INCLUDING CUSTOMER'S SUBSCRIPTION SERVICES AND THOSE ASSOCIATED TO E911 CAPABLE LINES, WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OR SIGNIFICANT DEGRADATION OF CUSTOMER'S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE. NON-VOICE SYSTEMS. THE SERVICES, INCLUDING CUSTOMER'S SUBSCRIPTION SERVICES AND THOSE ASSOCIATED TO E911 CAPABLE LINES, ARE NOT SETUP TO FUNCTION WITH TEXT MESSAGES OR OUT-DIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND/OR ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS.
EQUIPMENT FAILURE. THE SERVICES, INCLUDING CUSTOMER'S SUBSCRIPTION SERVICES AND THOSE ASSOCIATED TO E911 CAPABLE LINES WILL NOT FUNCTION IF CUSTOMER'S EQUIPMENT FAILS OR IS NOT CONFIGURED CORRECTLY.
SERVICE FAILURE OR SHUT-OFF. IF CUSTOMER'S SUBSCRIPTION SERVICES, INCLUDING THOSE ASSOCIATED TO ONE OR MORE E911 CAPABLE LINES, IF ANY, ARE NOT AVAILABLE FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, SUSPENSION OR CANCELLATION OF SUBSCRIPTION SERVICES AND/OR TERMINATION OF THIS AGREEMENT, BE IT FOR NON-PAYMENT OR ANY OTHER REASON(S) SET FORTH IN THE AGREEMENT.
INCORRECT LOCATION DATA. IF CUSTOMER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION OF THE RESPECTIVE EQUIPMENT AT THE TIME OF ACTIVATION OF CUSTOMER'S SERVICES SUBSCRIPTION AND WHENEVER UPDATING SAME WITH DYL, E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
LOCATION UPDATING DELAY. FOLLOWING ANY CHANGE(S) INTENDED TO UPDATE THE PHYSICAL LOCATION OF CUSTOMER AND/OR EQUIPMENT, THERE MAY BE SOME AMOUNT OF DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS FORWARDED TO THE LOCAL EMERGENCY CAPABLE LINE OR SERVICE OPERATOR. SUCH INFORMATION IS TYPICALLY FIRST POPULATED INTO DYL's E911 DATABASES PRIOR TO CUSTOMER'S SERVICES SUBSCRIPTION ACTIVATION, BUT DYL CANNOT GUARANTEE THIS OR ANY OTHER TIMING.
INCOMPATIBILITY WITH SYSTEMS OF OPERATOR. THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING DYL E911 EMERGENCY CAPABLE LINE SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 CAPABLE LINE SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBERS OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE CUSTOMER, ADMINISTRATOR, AGENT OR ANY OTHER INDIVIDUAL ACTING ON THE CUSTOMER'S BEHALF WHO IS MAKING THE DYL E911 CAPABLE LINE CALL. DUE IN SIGNIFICANT PART TO TECHNICAL FACTORS IN NETWORK CONFIGURATION AND/OR DESIGN AND, IN THE EVENT OF NETWORK CONGESTION ON THE DYL NETWORK USED FOR E911 CAPABLE LINES, THERE IS A POSSIBILITY THAT A DYL E911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR MAY TAKE LONGER TO ANSWER THAN E911 CALLS PLACED VIA TRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
1.6 E911 LIMITATION OF LIABILITY
WITHOUT LIMITING SECTION 16 OF THE AGREEMENT INASMUCH AS IT RELATES TO THE GLOBAL TERMS OF SAID AGREEMENT AND, IN THE EVENT THAT THE CUSTOMER (INCLUDING ANY ADMINISTRATOR(S), OFFICER(S), EMPLOYEE(S), REPRESENTATIVE(S), AND/OR AGENT(S), OR ANY OTHER CALLER WHO IS MAKING THE RESPECTIVE E911 CAPABLE LINE CALL(S) FROM ANY SERVICES SUBSCRIPTION EQUIPMENT OR; WHO, WHILE USING THE CUSTOMER'S SUBSCRIPTION SERVICES IS UNABLE TO PLACE AND/OR COMPLETE A CALL TO 911 AND/OR VIA ONE OR MORE E911 CAPABLE LINES, OR; IN THE EVENT THAT EMERGENCY RESPONDERS DO NOT RESPOND OR DO NOT RESPOND TO THE LOCATION AT WHICH THE EQUIPMENT, CUSTOMER, OR CALLER IS PHYSICALLY PRESENT AND REQUIRES SUCH EMERGENCY ASSISTANCE, INCLUDING UNDER ANY OF THE CIRCUMSTANCES ALREADY DESCRIBED IN SECTION 1.5 HEREIN OF ADDENDUM A, CUSTOMER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT DYL SHALL HAVE NO LIABILITY WHATSOEVER TO ANY AND ALL OF THE AFOREMENTIONED POSSIBILITIES, NOR TO ANY AND ALL CONSEQUENT RESULTS.
CUSTOMER FURTHER ACKNOWLEDGES AND EXPRESSLY AGREES THAT CUSTOMER HAS BEEN FULLY INFORMED AND THEREBY SUBSEQUENTLY WARNED OF IMPORTANT LIMITATIONS AND POTENTIAL CONSEQUENCES RELATED TO DYL's E911 CAPABLE LINE SERVICES AND THAT, (1) THE FOREGOING LIMITATION OF DYL'S LIABILITY IS REASONABLE, (2) IS A MATERIAL TERM TO THIS AGREEMENT, AND (3) THAT DYL WOULD NOT PROVIDE CUSTOMER WITH SERVICES, INCLUDING SUBSCRIPTION SERVICES WHICH MAY OTHERWISE INCORPORATE E911 CAPABILITIES AND/OR ONE OR MORE E911 CAPABLE LINES, WITHOUT THIS LIMITATION OF LIABILITY AND CUSTOMER'S EXPRESS CONSENT.
1.7 E911 INDEMNITY
In addition to the indemnification terms provided in the Agreement, Customer further expressly agrees to indemnify and hold harmless DYL from any and all third-party claims, losses, damages, fines, or penalties arising out of (a) Customer's failure to provide DYL current and complete information concerning Customer's Services Subscription address(es), or to update Customer's registered address(es) for any Services E911 Capable, or (b) Customer's failure to properly notify any person who may place calls using Customer's Services Subscription and/or Equipment of the E911 Capable limitations set forth herein and hereunder.
ADDENDUM B - USE RESTRICTIONS
This addendum ("Addendum B") is part of the Agreement
Without limiting any Agreement provision(s) nor term(s) therein related and, with respect to your access and/or use of any of the Services associated to your Subscription, including those encompassing the DYL Platform, you represent, warrant and covenant as follows:
(a) You shall use your Subscription Services solely for your own internal business use and not on behalf of any third-party;
(b) You shall promptly install all upgrades, bug fixes, patches and other corrections relating to any and all of the Services associated to your Subscription, that DYL makes available from time to time;
(c) You shall comply with all mobile marketing and/or solicitation Laws and any and all applicable network/wireless carrier requirements, conditions and/or codes of practice in connection with your use of text messaging and/or SMS Subscription Services;
(d) You shall not take any action or omission that would reasonably be expected to (i) disrupt or compromise the integrity or security of the DYL Platform, including any DYL network(s) and/or the network(s) of any DYL Affiliate(s), or the privacy of any other DYL customer(s) and/or (ii) cause imminent and material damage to DYL and/or any DYL Affiliate(s), Representative(s), or other customers;
(e) You shall not access and/or use any of the Services, including any portion of the relative DYL Platform under your control:
(i) for any fraudulent, criminal, defamatory, abusive, harassing or tortious purpose, or to participate in or promote any illegal activity, including the invasion of another's right to privacy;
(ii) to breach, violate or infringe upon the intellectual property, privacy and/or other rights of any third-party;
(iii) to transmit and/or store any material and/or Content that contains viruses, time bombs, Trojan horses, worms, malware, spyware or similar programs or damaging materials;
(iv) to transmit misleading or inaccurate caller ID information to defraud, misrepresent, deceive, cause harm, or wrongfully obtain anything of value;
(v) to transmit or broadcast unsolicited and/or, as applicable, unapproved, "junk" or "spam," marketing, solicitation and/or promotional materials and/or messages through pre-recorded voice messages, SMS, text messaging, facsimile and/or any other means, in breach of any applicable Laws;
(vi) to disrupt the network integrity of any of the DYL Services and/or DYL Platform, nor any DYL Affiliate or Representative, whether directly or indirectly. Examples of such prohibited use of any of the Services and/or the DYL Platform include, without limitation, any autodialing, continuous or extensive call forwarding and/or conferencing, continuous connectivity, constant dialing, iterative dialing, fax broadcasting, fax blasting, telemarketing, for inbound/outbound centralized or distributed call center activities, for continuous or excessive chat line access or use of an open telephone line as a monitor, intercom or transcription service, or any other activity that would be inconsistent with your reasonable business usage, pursuant to the terms of this Agreement, and as otherwise determined by DYL in its sole and absolute discretion; or
(vii) to misappropriate the property of any third-party;
(f) You shall not inspect, possess, use, copy, reverse engineer, and/or attempt to discover the source code of or that used to create any program or other component of the DYL Platform and/or any of its Services, except as otherwise expressly permitted by any pplicable Laws;
(g) You shall not attempt to hack and/or gain unauthorized access to any network, environment, or system of DYL nor any DYL Affiliate(s), Representative(s), or other customer(s);
(h) You shall not sell, resell, license, sublicense, distribute, offer, encumber, interfere with, rent and/or lease any of the Services or otherwise make any of the Services available to any third-party, except and unless otherwise expressly permitted within the terms of the Agreement;
(i) You shall not access and/or use any of the Services to build a competitive product and/or for the primary purpose of monitoring its availability, performance and/or functionality, or for benchmarking or other competitive or unfair business practices and/or purposes;
(j) You shall not trunk or forward extensions or numbers associated with any of the Services to a private branch exchange or key system or to other numbers that can process multiple calls simultaneously and/or would otherwise be in violation of any applicable Laws; and
(k) You shall not use any of the Services and/or Equipment to impersonate another person; send bulk unsolicited messages; use robots, data mining techniques and/or other automated devices or programs to catalog, download, store or otherwise reproduce or distribute information from our Services or the DYL Platform, including Confidential Information, or use any automated means to manipulate any and all said Services, your Subscription, and/or the DYL Platform associated thereto.
Once you provide DYL with Confidential Information to include, Personally Identifiable Information, it will only be used in the context of our relationship with you. Except as previously noted in the terms of this Agreement and noted again below, DYL will not sell, rent, or lease your Personally Identifiable Information. DYL will only share Personally Identifiable Information and/or other permissible Confidential Information internally and/or with any DYL Affiliates and/or Representatives who are acting on DYL's behalf to provide your Subscription Services.
II. Our Contact Information.
III. Providing Notice to Customer
IV. Information We Collect and How We Collect It
DYL may have already begun collecting information from you (described more fully below), including Personally Identifiable Information, when you were a prospective customer. All such customer/Customer acquisition information collected by DYL shall hereinafter be collectively referred to as, "Information".
Subject to applicable Laws, we gather Information from prospective customers through one or more online and/or offline communications including, without limitation, in-person meetings, web forms, emails, text messages and phone calls. We often collect contact Information from Representatives and/or Agents of our prospective customers, which may therefore include Customer, such as name, company name, address, email address, and telephone number. As we communicate with the prospective customer, which may therefore include Customer, and/or their respective Representatives and/or Agents, we may gather additional Information, such as the prospective customer's (which may therefore include Customer's) industry and/or revenues. We may also use data-appending methods to gather additional Information, such as by reviewing biographical information posted by the prospective customer, you, Representatives and/or Agents, via the Internet.
We sometimes additionally gather Information about Representatives' and/or Agents' communications preferences. In addition, we gather Information based on prospective customers' systems and behavior in viewing our website pages and files, including what pages and/or files are viewed, when viewed, the time spent on each page, browser and operating system Information, Internet Protocol address, the domain associated with that address, and location Information, and may have and/or may continue to subsequently gather all or some of same from you. We may also collect Information based on prospective customers' behavior in opening and viewing emails, such as whether an email is opened and how long it is viewed, and may therefore have performed and/or will perform similar with regard to Customer.
Once prospective customers enter into this Services Agreement with DYL and, pursuant to its terms, we collect and maintain further information, in addition to the aforesaid Information, about Customer's Agreement including, without limitation, payment information, information about each Customer transaction, Subscription Services configurations and settings, recorded calls, messages, meetings, voicemails, incoming and outgoing faxes, Customer-saved or stored Content (as permissible), email and text message communications, and call center Customer information you provide to us. Our systems, inclusive of the DYL Platform, also generate reports and information which are stored in Customer's Subscription. We may further collect information needed to deliver online Services, support, and/or training to customers, including Customer. For example, we gather information to register Customer's Subscription Services, such as a user name and password.
Subject to applicable Laws, Calls with DYL Sales, Customer Care and/or other DYL Representative and/or Affiliate group(s) may be recorded to gather information to improve Services.
Children are not eligible to use DYL's website or its associated Services. We ask that minors (under age 18) not submit Personally Identifiable Information to DYL.
VI. Customer Choice
Once a Customer, you have the option of setting certain communications preferences. For example, you have the option of telling us that you do not want us to use Information previously provided and/or information you subsequently provide as a Customer, for further marketing purposes and/or contact. Moreover, all electronic communications shall offer an opt-out option.
VII. Sharing and Transfer of Information (Onward Transfer)
Without limiting relative Agreement terms, DYL reserves the right to share or transfer your information and/or Information, which may subsequently include, without limitation, Customer Data and/or Content and/or permissible Confidential Information, in connection with a potential or actual sale, merger, reorganization, or other transfer of all or substantially all of DYL's assets (including under bankruptcy proceedings). Moreover, and in further alignment with Agreement terms, we may also share or disclose any or all of same (hereinafter collectively, "Agreement Material") if we receive a request or demand for such in the form of:
A court order to disclose such Agreement Material;
What we reasonably believe and understand to be part of the lawful process of a criminal investigation or proceeding, such as a search warrant, subpoena, or court order;
Judicial or administrative service of process in civil proceedings, such as subpoenas or discovery requests; or
A national security letter or similar request from any state or federal law enforcement agency.
We have no obligation to notify you of the receipt of any such request or demand.
We also reserve the right to share or transfer Agreement Material if and when same is required under any applicable Laws.
Finally, we reserve the right to share anything not considered Personally Identifiable Information, such as aggregated information without personally identifiable elements and any de-identified or anonymized information.
VIII. Legal Terms
Telephone Consumer Protection Action Compliance
("TCPA Compliant-Capable" or "Supplement 1")
DYL cares about its Customers and upholding its principled and respected business reputation. As a result, DYL implements significant and ongoing efforts to ensure DYL Services are compliant with applicable United States laws, including the Telephone Consumer Protection Act ("TCPA")
Upon seeking routine advice from DYL's national telemarketing law and compliance expert April 2017, it was determined once again that DYL Services remain TCPA Compliant-Capable. Without limiting the foregoing, same includes DYL Services such as, CampaignConnect™, and, LeadConnect™.
Federal law generally makes it illegal to call any wireless phone (business or consumer) using an automatic telephone dialing system ("ATDS") for telemarketing purposes without prior express, written consent. The Federal Communications Commission ("FCC") defines an ATDS as, "equipment that has the capacity to (a) store or produce telephone numbers to be called, using a random or sequential number generator and; (b) to dial such numbers."1 The key term in this definition is "capacity." The FCC has held that this definition covers any equipment or software which has the capacity to generate numbers and dial them without human intervention, regardless of whether the numbers called are randomly or sequentially generated or come from calling lists."
In a recent Declaratory Ruling, the FCC expanded upon their prior interpretation of the term "capacity" to include future/potential capacity.3 As such, the FCC sought to include systems that can (or could be quickly and inexpensively altered to) "dial numbers without human intervention" and "dial thousands of numbers in a short period of time."4 DYL's Services do not fall within these parameters. DYL's Services can neither be quickly nor inexpensively altered to incorporate the requisite "capacity" feature and; while other third-parties which provide services similar to DYL may characteristically include said "capacity" capability, DYL's subject Services require human intervention to operate and subsequently further lack the "capacity" to function as an ATDS. Moreover, as of the Effective Date, DYL has no plans to modify any of its Services in a manner that would result in same having the "capacity" to function as an ATDS. DYL simply remains committed to complying with applicable U.S. laws, including the TCPA, and passing those benefits down to the Customer.
The FCC further construed the definition of an ATDS to capture all systems that "retain the capacity to dial thousands of numbers in a short period of time."5 Predictive dialers, for example, have the requisite capacity. DYL's Services have no such predictive dialing capacity.
Citing, Ung v. Universal Acceptance Corporation6, which serves as but one good example case amongst others, it was concluded that, "[w]ithout the capacity to dial on its own, telephone [E]quipment simply cannot be an ATDS."
DYL Services lack the aforementioned capacity. It was subsequently determined and opinioned via DYL's telemarketing law and compliance expert that, DYL Services are not considered an ATDS and are subsequently TCPA Compliant-Capable.
For questions or to add additional Services to your Subscription, please contact DYL Customer Care at (888) 310-4474, or, email@example.com.
1 47 USC § 277(1)(1) (emphasis added).
2 FCC Declaratory ruling and Order at ¶6, CG Docket No. 02-278, WC Docket No. 07-125 (rel. July 10, 2015).
3 Id. At ¶ 17.
4 Id. At ¶ 14.
5 See Id. At ¶ 10, 14.
6 Ung v. Universal Acceptance Corporation, No. 15-127 (D. Minn. April 6, 2017).
Privacy Laws & Notice Requirements for Electronic Recording of Telephone Conversations
The information herein provided is primarily public domain general information concerning electronic recording of telephone conversations. Nevertheless, and for purposes of the Agreement, the following information relative to applicable Laws shall be referred to and incorporated into the Agreement as, "Supplement 2".
DYL is not dispensing any legal advice nor does it profess the accuracy of the information provided in Supplement 2. If you have questions concerning legal implications of the following information, you should contact a qualified attorney for advice.
In addition to Agreement terms incorporating DYL's limited liability relative to Customer's use of Subscription Services, DYL is not legally responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings, including your proper or improper use of Subscription Services. It is your responsibility to acquaint yourself with the proper knowledge for legal use of any and all relative Subscription Services.
There are both federal and state laws governing the use of electronic, mechanical or other device recordings. The unlawful use of such equipment, including any Equipment, can give rise not only to a civil suit by the "injured" party, but also criminal prosecution. Accordingly, it is critical that you know the applicable Laws that apply and what the rights and responsibilities are when recording and disclosing communications.
Call recording laws vary from state to state. These state laws pertain to obtaining either single-party (only you, the caller need to provide consent) or multi-party consent (all parties on the call need to provide consent) before a call can be recorded. If you are calling from or to a multi-party consent state, then the consent of all parties on the phone is required to record the call. If you are calling from and to a single-party consent state, then additional consent is not required.
US Federal laws only require a single-party to consent to recording a telephone conversation. However, individual states have laws that require multiple-parties to a call to provide consent. Federal and many state laws do not protect recording of calls for criminal or tortuous purposes.
2. Federal and State Laws
Federal Statute: Electronic Communications Privacy Act of 1986 ("ECPA"), 18 U.S.C.§§ 2510-2522.
There are two exceptions to the prohibition against call monitoring:
- Consent of at least one party to the call
- Ordinary course of business exception
The ordinary course of business exception applies where the call recording concerns the legitimate operation of and is during the "ordinary course of business".
3. State Statutes
While the U.S. federal law only requires one-party consent, many states have drafted different statutes. In some states, all parties must give their consent or at least be notified that the call is about to be recorded (with necessary opt-out option). You understand that many states have call-recording/monitoring restrictions. You will ensure that you and your Agents and/or Representatives promptly inform all call recipients at the outset of any call, that the call may be monitored or recorded, if you choose to monitor or record any calls whatsoever. You and your Agents and/or Representatives, respectively, will politely end the call if the recipient objects to the recording/monitoring. DYL assumes no liability if you, or any of your Agents and/or Representatives fail to make such disclosures and you will indemnify DYL for any such errors.
Even when call-recording is disabled: If you and/or any of your Agents and/or Representatives elect to enable call-monitoring even when calling to or from states that have local call recording restrictions ("two party" or "all party" monitoring states), or fielding calls from such states, you agree that you will always disclose at the outset that the call may be monitored.
|States Requiring Single-Party Notification|
|Arkansas||Colorado||District Of Columbia|
|New Mexico||New York||North Carolina|
|Ohio||Rhode Island||South Carolina|
|States Requiring Two (or Multi-) Party Notification|
Individual State laws can be found at http://www.rcfp.org/taping/taping.html
The 5 states that have more restrictive local cell-phone telemarketing rules are below. These are states where, even when calling manually, you need consent to make a marketing call to a cell phone. Note that EBR's are exempt in Wyoming (need EBR instead of consent):
Arizona: Arizona Revised Stat. § 44-1278(B)(3) - "It is an unlawful practice pursuant to section 44-1522 for any seller or solicitor or anyone acting on their behalf who conducts a telephone solicitation in this state to do any of the following: (3) Intentionally make or cause to be made any unsolicited telephone sales call to any mobile or telephone paging device."
Louisiana: Louisiana Public Service Commission's Do Not Call Program General Order (V)(A)(12)(b) - "No call will be placed to: (b) To any telephone number assigned to a paging service, cellular or mobile telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless the call is made pursuant to the recipient's prior express consent."
New Jersey: NJ Rev Stat § 56:8-130(a) - "A telemarketer shall not make or cause to be made any unsolicited telemarketing sales call to a commercial mobile service device of any customer…"
Texas: Texas Stat. Title 10 § 305.001 - "A person may not make a telephone call or use an automatic dial announcing device to make a telephone call for the purpose of making a sale if: (1) the person making the call or using the device knows or should have known that the called number is a mobile telephone for which the called person will be charged for that specific call; and (2) the called person has not consented to the making of such a call to the person calling or using the device or to the business enterprise for which the person is calling or using the device."
Wyoming: WY Stat § 40-12-302(e) - "No telephone solicitor or merchant shall willfully make or cause to be made any unsolicited telephonic sales call to any unpublished cellular telephone number."
4. "Business telephone" exception
The "business telephone" exception, which generally allows monitoring of calls and taping over an extension phone which is both provided to a subscriber in the ordinary course of a telephone company's business and is being used by that subscriber in the ordinary course of its business. This provision generally permits businesses to monitor the conversations of their employees, including personal conversations.
Penalties: The federal statutes provide criminal penalties for unlawful interception of telephone conversations, including up to five (5) years' imprisonment or a maximum of $10,000 in fines. They also allow for civil remedies by which private parties are entitled to recover actual and punitive damages, together with fees and costs.
5. Evidentiary Issues
Individuals and businesses that make surreptitious recordings often do so with the expectation that the recordings will be useful as evidence. Such recordings are subject to significant barriers to use as evidence including, without limitation, if recordings are made in violation of either federal or state law, the recording(s) will almost certainly be inadmissible and, even if lawfully recorded, the tapes will be exempt from the hearsay rule and will not be usable for impeachment, in most jurisdictions. Anyone contemplating an evidentiary use of surreptitious recordings should consult with a qualified attorney prior to making the recording(s).
6. Recording Telephone Calls with Parties in Different Jurisdictions
Federal law may apply when the conversation is between parties who are in different states, although it is unsettled whether a court will hold in a given case that federal law "pre-empts" state law, but either state may choose to enforce its own laws. Therefore it is better to err on the side of caution when recording an interstate telephone call.
7. The Role of FCC
The FCC's role in assisting consumers who believe their telephone conversations were unlawfully recorded is generally limited to ensuring that telephone companies enforce their tariff provisions regarding recording of telephone conversations. The only penalty that can be enforced by the local carrier is revocation of telephone service which may then include relative Subscription Services (in the matter of use of electronic recordings in connection with telephone service/relative Subscription Services.)
The FCC protects the privacy of telephone conversations by requiring notification before a electronic recording is used to record interstate or foreign telephone conversations. These types of conversations may not be recorded unless the use of a electronic recording is:
Preceded by verbal or written consent of all parties to the telephone conversation; or
Preceded by verbal notification which is recorded at the beginning, and as part of the call, by the recording party; or
Accompanied by an automatic tone warning device, sometimes called a beep tone, which automatically produces a distinct signal that is repeated at regular intervals during the course of the telephone conversation when the electronic recording is in use.
Also, no electronic recording may be used unless it can be physically connected to and disconnected from the telephone line or switched on and off.
The above FCC rule requirements apply to telephone common carriers. Similar requirements are imposed on consumers through the carriers' tariffs.
Electronic Communications Privacy Act of 1986 ("ECPA"), 18 U.S.C. §§ 2510-2522 http://uscode.house.gov/download/pls/18C119.txt
The Reporters Committee for Freedom of the Press: A Practical Guide to Taping Phone Calls and In-Person Conversations in the 50 States and D.C. http://www.rcfp.org/taping/
FCC Consumer Information Bureau http://www.fcc.gov/cib/
"Recording Telephone Conversations" http://www.fcc.gov/cgb/consumerfacts/recordcalls.pdf
"Interception And Divulgence Of Radio Communications" http://www.fcc.gov/cgb/consumerfacts/interception.pdf
U.S. Department of Justice http://www.usdoj.gov/
USA Bulletin, September 1997 Vol. 45, No. 5, 6. Electronic Investigative Techniques I, II: http://www.usdoj.gov/usao/eousa/foia_reading_room/usab4505.pdf http://www.usdoj.gov/usao/eousa/foia_reading_room/usab4506.pdf
Telephone Tape Recording Law. Ralph Thomas. National Association of Investigative Specialists http://www.pimall.com/nais/n.tel.tape.law.html