ROBOKILLER ENTERPRISE TERMS OF SERVICE

5. Economic Terms

Fees. Customer agrees to pay Teltech in accordance with the payment schedule set forth within the applicable Order.  Unless otherwise expressly stated, Teltech shall invoice Customer on a monthly basis for the total number of Queries (as defined below) submitted by Customer during the billing period (or the required minimum fee plus any overages, if applicable).  Each Teltech invoice is due thirty (30) days from receipt of invoice. Any records kept by Teltech shall presumptively determine usage by Customer and fees due hereunder.  
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Increase of Fees. Teltech reserves the right to increase or modify the fees at any time, in its sole discretion. 
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Late Payment. Failure to pay any amount(s) owed when due may result in an interest charge of 1.0% per month on any amounts overdue and/or may also result in suspension of the Services and access to the Platform until the Customer's account is current. Customer is responsible for all third party costs incurred by Teltech in connection with the collection of unpaid amounts, including court costs, reasonable attorneys’ fees, and collection agency fees. Teltech retains Customer Query information for billing and customer services purposes and to facilitate the development of future improvements to the Platform and Services.

No Refunds. Customer acknowledges and agrees that there shall be no refunds or credits issued in any circumstances.  

Taxes. Customer is responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on Teltech’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to Teltech hereunder. If an applicable tax authority requires Teltech to pay any taxes that should have been payable by Customer, Teltech will advise Customer in writing, and Customer will promptly reimburse Teltech for the amounts paid.

Reporting. Teltech may request, in its sole discretion, that Customer provide monthly reports detailing usage of the Services.

‍Use of Services. Customer understands that it is obligated to pay for the access and use of the Services regardless of whether the Services are utilized, integrated or otherwise.

6. General Implementation and Use Restrictions

Customer shall only use the Platform and Services in accordance with these Terms and each applicable Order. Except as expressly provided herein or in an Order, Customer, and if applicable Customer Clients shall NOT:

• reproduce, modify, distribute, decompile, disassemble, retain, store, cache, or reverse engineer any portion of the Platform or Services;
• use the Services in violation of any applicable law, rule, or regulation (e.g., the Telephone Consumer Protection Act, the Fair Credit Reporting Act (the “FCRA”), etc.) or in violation of any third party right;
• store any content from the Services for purposes other than its own internal business purposes (storage of Services for resale is expressly prohibited);
• merge the Services with similar data and/or services obtained from third parties; 
• use the Services for file download online in a fixes page format;
• share or transfer the Services to any direct or indirect competitor to Teltech or use the Services for any purpose that would be deemed to be competitive with Teltech in Teltech’s sole discretion without prior written approval of Teltech; and
• provide access to the Platform or Services to any third party, except as otherwise expressly permitted  herein.

Customer shall obtain Customer Client’s agreement to terms substantially similar to the terms within this Section 6 via a click-wrap, browse-wrap or written agreement. Such agreement(s) shall include language that (i) the Teltech Services are provided to Customer Clients on an ‘as is’ bass without warranties of any kind; (ii) Customer does not make any representations about the Services; and (iii) Customer Clients shall not publish, offer, sell, license, transmit, distribute or reproduce the Services via any means except for its own internal spam defense and protection; 

In the event Customer becomes aware of any misuse of the Services by Customer Client, Customer shall promptly notify Teltech and take commercially reasonable actions to remedy such misuse. 

Additionally, Customer acknowledges, and will notify Customer Clients that the Services are not provided by a “consumer reporting agency” as that term is defined in the FCRA and the Services do not constitute “consumer reports” as defined in the FCRA. Accordingly, the Services may not be used as a factor in determining eligibility for credit, insurance, employment or another purpose in which a consumer report may be used under the FCRA

7. Modification

Teltech reserves the right to change, modify, alter, update the features and functionality of the Services and to discontinue offering any of the materials and features that are currently a part of the Services and Platform at any time in its sole discretion. Teltech shall notify Customer (email shall suffice) within a reasonable time following any material changes it makes to the Services or Platform and Customer shall be entitled (as a part of and limited to its existing Agreement) to any functionality that is (as determined by Teltech, acting reasonably) a direct replacement or succession of any functionality removed from or replaced in the Services without any payment of additional fees. For the avoidance of any doubt, Customer shall not be entitled to any functionality that is beyond the scope of an Order. Where Teltech has materially diminished, reduced or eliminated any core functionality in the Service and no equivalent functionality is otherwise made available to the Customer, then Customer may terminate the Agreement in accordance with these Terms. 

8. Availability, Support

Support is available Monday through Friday, 8:00 to 5:00 Eastern Time via (i) email at enterprise-support@robokiller.com (ii) at https://support.robokiller.com/hc/en-us. 

9. Term and Termination

The duration of your license and access to the Services shall be as set forth in an applicable Order (the “Term”).

You understand that Teltech, in its sole discretion, may modify, discontinue or suspend your right to access any of our Services at any time, upon five (5) business days’ notice.  Notwithstanding the foregoing, your rights under the Agreement may be terminated immediately and automatically without any notice from us if we, in our sole discretion, have reason to believe that you have failed to comply with any of the terms and conditions of this Agreement or with any applicable laws, rules, regulations or any if your use of the Services violates any third party’s rights.  You agree that Teltech shall not be liable to you or any third-party for any such suspension or termination of the Services.

Either party may terminate the Services including these Terms and any related Order if: (i) the other party materially breaches these Terms or an applicable Order (including failure to make timely payments) and fails to cure such breach within fourteen (14) days of receipt of notice from the non-breaching party; or (ii) the other party becomes insolvent, files a petition for bankruptcy, is adjudicated bankrupt or a receiver is appointed. For clarity a breach of Sections 6 by Customer or Customer Clients shall be a material breach. 
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Upon expiration or termination of this Agreement, you must cease all use of the Services and Platform and unless otherwise agreed to with Teltech, promptly return or destroy all documents and copies of Teltech data and Confidential Information in your possession or control.

10. Survival

Sections 2, 4, 6, 9 through 17 shall survive the expiration or termination of this Agreement.

11. Confidentiality

During the term of this Agreement and for (5) years thereafter, each party receiving Confidential Information (the “Receiving Party”) of the other Party (the “Disclosing Party”) shall: (i) treat such Confidential Information as the confidential property of the Disclosing Party and be responsible for any breach of the terms hereof by itself or any authorized person on its behalf (including, in the case of Customer, any breach by a User); (ii) not use the Confidential Information except in connection with its use of the Services as expressly permitted in this Agreement; (iii) not disclose or otherwise make available the Confidential Information of the Disclosing Party to any third party (except as authorized herein and other than to such party’s employees and independent contractors who have a need to know such Confidential Information, and have been advised of the confidential nature of such information and the obligations that apply to them in connection therewith); and (iv) maintain the confidentiality of the Confidential Information of the Disclosing Party as it would its own most highly confidential information, but in no event shall the Receiving Party use less than reasonable care. Furthermore, each party shall use commercially reasonable efforts to procure from each user written undertakings that: (x) they will not use, disclose or otherwise make available or allow to be used, disclosed or made available, the Confidential Information of the Disclosing Party, by or to any third party (except as authorized herein); and (y) they will maintain the confidentiality of such Confidential Information. “Confidential Information” means, with respect to a given party, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, business and marketing plans, customer names, prospective customer names, the terms and pricing under this Agreement, any data relating to any research project, work in process, engineering, manufacturing, marketing, servicing, financing or personnel matter, data relating to a Party’s present or future products, sales, suppliers, clients, customers, employees, investors or business partners (including any confidential information of such suppliers, clients, customers, employees, investors or business partners) and all information clearly identified in writing at the time of disclosure as confidential, and additionally, in the case of Teltech, Teltech technology, code, data and Services, which shall be deemed the Confidential Information of Teltech. Confidential Information does not include information that: (i) was or is in the public domain prior to the date of disclosure; (ii) was or is lawfully received by the Receiving Party from a third party who was not subject to an obligation of confidentiality with respect to such information; (iii) was or is already known by or in the possession of the Receiving Party; (iv) was independently developed without reference to the other Party’s Confidential Information; or (v) is required to be disclosed under applicable law or by a governmental or court order, decree, regulation or rule, provided that, to the extent permitted by applicable law, Receiving Party first notifies Disclosing Party and gives it the opportunity to seek a protective order or to contest such required disclosure. The Receiving Party acknowledges that the Disclosing Party shall incur irreparable damage if the Receiving Party should breach any of the provisions of this Section 11. Accordingly, if a Receiving Party or any of its respective agents or representatives breaches or threatens to breach any of the provisions of this Section 11, the Disclosing Party shall be entitled, without prejudice, to all the rights and remedies available to it, including an equitable relief restraining any potential breach of the provisions of this Section 11 by the Receiving Party, without having to prove damages or post a bond.

12. Representations and Warranties

• Customer represents and warrants that (i) its performance under this Agreement and use of the Services shall comply with all applicable laws, rules and regulations and shall not violate any third party rights; (ii) it is authorized to enter into this Agreement; (iii) entry into this Agreement shall not violate the rights of any third party; and (iv) Customer shall use the Service in accordance with the permissions and limitations set forth in this Agreement.  
• Teltech represents and warrants that (i) its performance under this Agreement shall comply with all applicable laws, rules and regulations and shall not violate any third party rights; (ii) it is authorized to enter into this Agreement; and (iii) entry into this Agreement shall not violate any rights of any third party.

13. Export Control

For the purposes of this Section 13 the following definitions shall apply:
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“Export Control Law” means all applicable export control laws, regulations, orders or decisions of any government agency or court, such as national, international, EU, and U.S. export control laws, embargoes, sanctions, or other restrictions, affecting any business or transaction such as export, import, supply, sale or purchase, provision or receiving of services or technical support, investments, or payments between adjust and the Customer or any third party.
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“Sanctioned Person” means any natural or legal person, entity or body with which the conduct of any business or transaction is restricted or prohibited by Export Control Law.
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Customer confirms that (i) the Services and any related technology will not be used directly or indirectly for any purpose or in any way which contravenes Export Control Law; and (ii) it is not a Sanctioned Person and will immediately inform Teltech if it becomes a Sanctioned Person. 

If the Customer breaches the above obligations, it shall – without prejudice to other provisions – bear all damages, expenses and other disadvantages incurred by Teltech as a result thereof. This does not apply if the Customer is not responsible for the breach of its obligations.

14. Disclaimer by Teltech

EXCEPT AS OTHERWISE EXPRESSLY AND SPECIFICALLY SET FORTH IN THIS AGREEMENT, TELTECH DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF IT IS ADVISED OF SUCH PURPOSE), NON-INFRINGEMENT, AND THE IMPLIED WARRANTIES ARISING FROM A PARTICULAR COURSE OF DEALING OR USAGE OR TRADE.  ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND CUSTOMER ACKNOWLEDGES AND AGREES THAT TELTECH MAKES NO GUARANTEES ABOUT AND CUSTOMER SHALL NOT RELY ON THE ACCURACY OR COMPLETENESS OF INFORMATION MADE AVAILABLE VIA THE SERVICES OR PLATFORM.

15. Limitation of Liability

TELTECH’S LIABILITY ARISING OUT THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT CUSTOMER PAID DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.  NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, PLATFORM, OR ANY DATA OR MATERIALS MADE AVAILABLE TO THE OTHER PARTY, IN ANY MANNER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

16. Indemnification

By Customer. Customer shall indemnify, defend and hold harmless Teltech and any of its officers, affiliates, directors, shareholders, employees and agents (each a “Teltech Indemnitee”) from and against any and all direct loss, costs, damage assessments, injuries, expenses (including, but not limited to, reasonable attorneys’ fees and costs), and liabilities (collectively, “Losses”) incurred by any of them  arising out of or related to third-party claims against a Teltech Indemnitee to the extent based on (i) Customer’s use of the Services, or Platform in breach or violation of this Agreement or based on Customer’s Customer Clients accessing Customer’s services and/or any third party receiving Services from or through Customer, (ii) any contractual relationship by and between Customer and Customer Clients with respect to the Services; provided that Teltech (a) gives prompt written notice to Customer of any such suit; (b) permits Customer to control the defense and settlement of any such suit; and (c) provides reasonable assistance to Customer in the conduct of such defense.

By Teltech. Teltech shall indemnify, defend and hold harmless Customer and any of its officers, affiliates, directors, shareholders, employees and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by any of them arising out of or related to third party claims against Customer that allege the Services and/or Platform infringes any valid United States intellectual property right of a third party, and will pay the amount of any final judgment that may be awarded against Customer Indemnitee in any such suit; provided that Customer (i) gives prompt written notice to Teltech of any such suit; (ii) permits Teltech to control the defense and settlement of any such suit; and (iii) provides reasonable assistance to Teltech in the conduct of such defense. 
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Neither party shall, without the prior written consent of the other party, settle, compromise or consent to the entry of any judgment that could impose any liability or obligation upon the other party.  The indemnified party shall have the right to participate in any defense of any indemnified claim, with counsel of its choice at its own expense. 

The foregoing indemnities states Teltech's entire liability, and Customer's sole and exclusive remedy, with respect to any infringement or misappropriation of any intellectual property rights of any other party.

17. Miscellaneous

Audit. Once per calendar year during the Term, and for one year following termination, Teltech (or its authorized representative) may, on at least five (5) business days’ prior written notice, enter Customer’s premises during regular business hours to audit its compliance with the terms of this Agreement. Customer agrees to cooperate with Teltech in such regard. Teltech will take reasonable measures to ensure that an audit does not unreasonably disrupt Customer’s business operations. Each party will bear its own costs with respect to any audit conducted hereunder. The conduct of such audit shall be limited to review of Customer documents directly relevant to Customer’s performance of its obligations under this Agreement.

‍Entire Agreement. The Terms and the Order(s) contain the entire understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understanding, express or implied or written, among the parties.  This Agreement cannot be modified or amended without the written consent of both parties.

‍Governing Law.  This Agreement will be governed by and interpreted in accordance with the laws of the State of New York without regard to choice of law provisions.  The most prevailing party in any legal action related to this Agreement shall be entitled to its reasonable attorneys’ fees.  

‍Relationship Created. Teltech and Customer are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture, franchise or agency relationship between them. Neither party has any authority to enter into an agreement of any kind on behalf of the other party.

‍Force Majeure.  Except with respect to payment obligations, neither party will be deemed to be in default of or to have breached this Agreement as a result of any delay, failure in performance or interruption of the Services, resulting directly or indirectly from acts of nature, acts of civil or military authorities, wars, strikes, fires, interruptions in telecommunications or Internet services, or any other occurrences which are beyond either party’s reasonable control.

‍Assignment.  Except as expressly provided herein, neither party may assign, delegate, or transfer its rights and obligations under this Agreement to any third party without the express prior written consent of the other party.  Notwithstanding the foregoing, Teltech may assign this Agreement without the other party’s consent (i) in connection with the assignment, sale or transfer of at least a majority of the assigning party’s assets or outstanding voting securities, and (ii) to a successor-in-interest pursuant to a merger or other corporate combination or reorganization. Should Teltech make an assignment in accordance with this Section 17, notification shall be made to the other party, in writing, within fifteen (15) days after the assignment has been made. All the terms, provisions, and conditions of this Agreement shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors and assigns. Any assignment not in accordance with this Section 17 shall be null and void.

‍Notices.  By using the Service, you agree that we may communicate with you electronically regarding your use of the Service and that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communications be in writing.    Unless otherwise stated herein, notices from Customer to Teltech shall be in writing and shall be sent postage prepaid by certified mail, return receipt requested; by hand delivery; or by overnight delivery service, to the other party at the address set forth above. Notices shall be deemed effective upon receipt.

‍Interpretation. The preamble recitals to this Agreement are incorporated into and made a part of this Agreement; titles of paragraphs are for convenience only and are not to be considered a part of this Agreement.