Biz King Terms of Service Agreement - Part I
As the developer of the software and services comprising the "Services" (defined below), Biz King ("Company" or "we") wants to ensure that all Users of the Biz King Services are aware of, and abide by, all pertinent laws. Among numerous features, portions of the Services are capable of sending prerecorded messages. Please review the following and if you have any questions contact your reseller or attorney before continuing.
Awareness of Certain Laws
Prior to using this site or the services accessible through this site (collectively, "Services"), "You or the User" (i.e., each end user, sales agent, reseller, or other party accessing the site) shall have made yourself aware of the legalities of all intended uses of the Biz King Services. Without, in any way, limiting the general nature of the Representations and Warranties set forth below, or the covenant in the preceding sentence. You agree that you are aware of the laws and regulations contained on the following websites:
http://www.donotcall.gov (Do Not Call Registry)
http://www.ftc.gov (Federal Trade Commission and the Telemarketing Sales Rule)
http://www.fcc.gov (Federal Communications Commission and the Telephone Consumer Protection Act)
Use of the Biz King Service
You, the User, will not use, or attempt to use, the Biz King Service to convey any information that is unlawful, harassing, libelous, abusive, tortuous, or invasive or another person’s privacy or proprietary rights. The User agrees to follow the letter and spirit of the Biz King Terms of Service “TOS” Agreement as set forth and all applicable laws. The User will not send, or attempt to send messages to emergency lines, to any health care facility or similar establishment, to any government agency, to numbers assigned to radio common carrier services or to any service for which the called party is charged for the call. The User will not transmit, or attempt to transmit, any material that may infringe the contractual, fiduciary, intellectual property rights, or other rights of third parties, including trademark, copyright or the right of publicity. The User will not impersonate, or attempt to impersonate, any other person, falsify contact information, misrepresent a relationship with any person or entity, including misrepresenting a relationship with Biz King , or otherwise attempt to mislead others as to the identity of the sender or the origin of a message. The User will not resell, or attempt to resell, the use of the Biz King Service without express, prior written consent/permission from Biz King The User will not attempt to gain unauthorized access to the Biz King Service, other accounts, computer systems or networks connected to the Biz King Service, network, other accounts, web interface, computer systems or networks connected to the Biz King Service, through password/PIN, mining or any other means. User agrees that Biz King retains the right, at its sole discretion, to determine whether or not the User’s conduct is consistent with the letter and spirit of the Service Agreement. Biz King may immediately terminate the User’s Biz King account if the User’s conduct is found to be inconsistent with the User Service Agreement.
Representations and Warranties
You, the User, represent and warrants that (i) You have all rights, power and authority to be bound hereby and to perform the obligations required hereunder; (ii) nothing contained herein places You in breach with any other contract or obligation; and (iii) You are, and at all times shall remain, in full compliance with all applicable laws and regulations concerning privacy, telemarketing and internet marketing, and otherwise relating to your use of the Services (including, without limitation, the Telemarketing Sales Rule ("TSR"), the Telephone Consumer Protection Act ("TCPA").
You agree to indemnify and hold harmless Company and Company's affiliated entities, officers, directors, employees, and agents, and shall defend, at your expense, and pay the cost of any damages, settlement or award (including reasonable attorneys' fees and all related costs) arising out of, or in connection with, any actual or threatened claim, suit, action or proceeding by any person or authority arising out of Your violation of any representation, warranty or covenant contained herein, or any use by You, any account of Yours, or anyone else using your login information, to access the site or utilize the Services. If You fail to promptly investigate and defend or settle any claim of which You are notified, then Company has the right to take sole control over defense of the claim and all negotiations for its settlement or compromise, and You shall pay, as they become due, all of the reasonable costs and expenses (including reasonable attorneys' fees and related costs) reasonably incurred by Company in defending or negotiating settlement of the claim, and You shall satisfy any related settlement, award, or judgment.
Governing Law and Venue
Biz King Caller ID Master Services Agreement - Part II
This Master Services Caller ID Agreement is being served as Notice to the User(s) of the Biz King in conjunction with the Biz King Terms of Service Agreement. For and Consideration of the premises and mutual agreements herein, Biz King and the Customer/User agree as follows:
Terms and Termination of Master Caller ID Agreement
The initial term of this Agreement shall commence immediately upon the Customer/User of the Biz King Service. The User/Customer can use their own Caller ID’s and said Customer/User is not required to use Caller ID’s given to the User/Customer for their legal outbound dialing. In the event that Biz King cannot continue to provide the services referenced in this Agreement, for any reason, Biz King may terminate this agreement immediately, upon written notice to the Customer and forfeit any future usage of the Caller ID’s to said Customer/User.
Company intends to make available its Caller ID Management Services to Customer/User solely for business use and to be used accordingly and to the spirit of this agreement.
Biz King Responsibilities
Biz King provides its services through various network and database facilities. Biz King will provision Customer with its Caller ID Services. As part of its service, Biz King will manage the "calling name" and/or calling number that will be passed to terminating carriers for calls originated via telephone numbers that Biz King has assigned. Biz King will also manage any transactions wherein the CNAM information is passed between carriers or CNAM database organizations. Customer understands and agrees that Biz King will receive revenues, as a result of paid queries related to the Customer's use of Biz King Caller ID Management Services from its underlying providers. Biz King stipulates that it does not have access to Customer's calling data. Should Customer send Biz King calling data for analysis, Biz King will not share that data with any 3'" party other than its underlying providing CNAM companies per agreement with the Customer/User.
Customer acknowledges that Biz King Caller ID Management Service does not provide and excludes local dial tone and usage, emergency (e.g. 911), intra LATA toll, inter LATA toll, interstate toll, international toll, 700, 800, 900, collect, 3rd party, operator assisted, calling card, billed to CLECS, or any other services that may result in charges being assessed to the Customer telephone numbers, as such numbers are provided through this Agreement, or to the Company, its local providers or its database providers. Customer also acknowledges that Biz King program cannot be utilized by Customer, its employees, its agents, its contractors or its authorized users in an attempt to avoid paying intrastate switched access surcharges, interstate switched access charges, international switched access charges and tariffs, or reciprocal compensation charges which are normally applicable. Customer also acknowledges and agrees that any attempt by the Customer, its employees, its agents, its sub-contractors or its authorized users to use services provided under this Agreement to obtain any of the aforementioned non-provided and excluded services or in an attempt to avoid intrastate switched access charges, interstate switched access charges, international switched access charges and tariffs, or reciprocal compensation charges without providing the Company, or its partners, an opportunity to recover its costs, plus a reasonable profit, will result in the immediate termination of this Agreement for caller ID usage. Customer agrees to comply with all applicable local, state and federal rules and laws when using Biz King Services, including, but not limited to, those rules and laws which may pertain to consumer fraud, obscenity, telemarketing and/or "no call" lists (e.g., Part 310 of the FTC's rules and Part 64 of the FCC's rules). Likewise, Customer warrants that it has obtained all government approvals, licenses, authorizations, consents or permissions necessary to provide the services for which Customer will use Biz King assigned numbers. Customer agrees to indemnify and hold Biz King , its local providers and its database providers harmless from any of the Customer’s actions, or actions of Customer's employees, agents, subcontractor’s and authorized users, which are not in compliance with any such, rules, laws, regulations or requirements. Customer understands and acknowledges that the Customer will not generate any revenues or income for the usage of Biz King caller ID’s as detailed below. The Customer agrees that use of Biz King Caller ID Management Services is provided to the Customer pursuant to this Agreement will be for the delivery of queries for outbound calls only, which outbound calls will be provided by and through the facilities of the Customer's local and long distance carriers of choice. The Customer agrees to provide Biz King with a toll-free number or IP address to forward return calls to. In the event that a normal POTS number is provided for forwarding, Customer agrees to accept charges related to call forwarding.
During the term of this Agreement, nor following the termination of said service to Customer/User by Biz King , Customer/User agrees they shall not, whether on their own or through or on the behalf of any other person or entity disturb or negatively affect the business relationship between Biz King and/or any of its business relationships, including, but not limited to telemarketing firms, call centers, LEC's, CLEC's, ILEC'S, IXC'S and sales agents, and customers.
Biz King makes no warranties or representation, whether expressed or implied, including any warranty of merchantability or fitness for a particular use, except those expressly set forth in this Agreement.
Biz King liability for any claim, loss or damage arising out of the furnishing of its services (caller ID usage), including but not limited to mistakes, omissions, interruptions, delays, errors, other defects, or representations by the Company, or use of these caller ID’s or damages arising out of the failure to furnish the service whether caused by act or omission shall damages occur. Biz King will not be liable for any direct, indirect, incidental, special, consequential, exemplary or punitive damages, or for any lost profits of any kind, to customer as a result of any service, equipment or facilities, or the acts or omissions or negligence of Biz King employees or agents.
In any event, no action or proceeding against Biz King shall be commenced more than three months after said service has been rendered. Biz King shall not be liable for any delay or failure of performance or equipment due to causes beyond its control, including but not limited to: acts of God, fire, flood, explosion or other catastrophes; any law, order, regulation, direction, action, or request of The United States government or of any other government, including state and local governments having or claiming jurisdiction over Biz King , or of any department, agency, compensation, bureau, corporation, or other instrumentality of any one or more of these federal, state, or local governments, or of any military authority; preemption of existing service in compliance with national emergencies; insurrections; riots; wars; unavailability of lights-of-way or materials; or strikes, lockouts, work stoppages, or other labor difficulties. Biz King shall not be liable for any damages or losses due to the fault or negligence of the Customer, or Customer's authorized users or due to the failure or malfunction of Customer-provided equipment or facilities or the equipment or facilities of Customer's authorized users.
Biz King shall be indemnified, defended and held harmless by the Customer, against any claim, loss or damage arising from Customer's use, or by the use of others authorized by the Customer, of services furnished under this Agreement, including, but not limited to: claims for libel, slander, invasion of privacy or infringement of copyright arising from the material, data, information, or other content transmitted via Biz King service; and patent infringement claims arising from combining or connecting the service offered by Biz King with apparatus and systems of the Customer or others; all other claims arising out of any act or omission of the Customer or others, in connection with any service provided by Biz King pursuant to this Agreement.
Notices, under this Agreement, shall be sent in writing to the authorized representatives, identified by the parties.
Prior Agreements; Severability; Complete Understanding; Modification
If any provision of this agreement is for any reason found to be unenforceable, the remainder of this Agreement will continue in force and effect. This Agreement constitutes the complete and exclusive statement of the agreement between the parties concerning the subject matter of this agreement. Any and all prior or contemporaneous agreements, whether written, oral or otherwise, are hereby superseded and are null and void. No amendment of this Agreement shall be binding after the Acceptance has been established below by the Customer/User.
The terms and conditions of this Agreement contain proprietary information pertaining to both Biz King and Customer of a highly sensitive nature such that improper disclosure would expose each party to an unreasonable risk of harm from their competitors. Accordingly, the terms and conditions of this Agreement are to be held as strictly confidential among those employees and agents of both parties with a need to know such terms and conditions. The parties agree that impending or existing breaches in the confidentiality of this Agreement, or any of the terms and conditions herein, would cause the party to whom such confidential information pertains to irreparable injury for which it would have no adequate remedy at law, and agree that the aggrieved party shall be entitled to immediate injunctive relief prohibiting such breach in confidentiality, in addition to any other rights and remedies available to it.
Neither party shall assign its rights and/or obligations under this agreement without approval of the other Party, which approval shall not be unreasonably withheld.
There is no compensation to Customer for the use of Biz King caller ID’s. The caller ID’s are furnished solely to Customer for usage for their outbound dialing requirements as agreed. Again, the usage of said Caller Id’s, as furnished to Customer by Biz King will be used accordingly, ethically, and accordance to all Federal and State laws where required.
Refunds and Acceptance
By clicking the “ACCEPT” button, you, the User agree to the above terms “TOS” for the Biz King System and its Caller ID’s that they may furnish to you, the Customer/User for usage. You furthermore agree to and understand all of the Federal and State laws in regards to and prior to the usage of the Biz King System and its Caller ID’s. Finally, there will be No Refunds given by Biz King to you, the Customer/User, for any reason.
Last Revised Date: 11/29/2012