Terms of service
Last Revised: 03/03/2023
These Terms of Service govern the provision of the products and services of Dialect, LLC, and/or any of its parents, subsidiaries or affiliates , as identified in the service order(s) submitted by you and accepted by us (each an “Order”) or service contract or subscription agreement executed by you and us (the “Service Contract”). These Terms of Service, the Order(s) and/or Service Contract, any other mechanism by which you have ordered our Services (as hereinafter defined), and all documents and policies referenced herein or therein (collectively, the “Agreement”) constitute a binding contract made by and between Dialect LLC. (“BatchService” or “we/us/our”) providing you with Service(s) and you (the “Subscriber” or “you/yours”).
IF YOU DO NOT AGREE TO ALL OF THE TERMS HEREIN, YOU ARE PROHIBITED FROM MAKING ANY USE OF OUR PRODUCTS OR SERVICES. By using or accessing any of our websites and any applicable subdomains thereof, or any applications, software, products, services, platforms or functionalities provided by BatchService (collectively, the “Services”), whether as a guest or a registered user, you are agreeing to the following terms and conditions. By signing or accepting any Order(s) or Service Contract, ordering any service plan posed on our website, or by using our Services, you represent and warrant to use that (a) you are at least eighteen years old and, (b) if you are submitting the Order(s), entering a Service Contract or otherwise obtaining Services on behalf of an entity, you are a duly authorized employee of such entity with power to bind that entity to the Agreement.
This Agreement contains significant limitations on our liability as well as restrictions on your legal rights—read them thoroughly. It is your obligation to read, understand and agree to these terms before you proceed to use any of our Services.
1.1 General. BatchService offers and/or may offer from time to time a variety of Services. At present, BatchService’s affiliates provide Services over the following platforms/product lines: BatchLeads, BatchData, BatchDialer and BatchSkipTracing, all of which are described more fully on, or on sites which may be accessed through, our website. Subscriber may subscribe to one or more Services in accordance with the service and pricing plans (“Plans”) posted on our website(s) from time to time; provided, that your “Agreement” will be solely with BatchService, which shall make its or its affiliates’ Services available to you, and you shall have no rights to seek performance directly from, or to directly enforce any Service Contract, Order or any provision of these Terms of Service against, any parent, subsidiary, affiliate, vendor or supplier of BatchService. All Services are intended for Subscriber’s internal business use only. Without limiting the generality of the foregoing, the Services shall not be used for residential purposes or by persons under the age of eighteen (18).
1.2 Services may be modified, updated, cancelled or discontinued, in whole or in part, and new service offerings may be introduced, in BatchService’s sole discretion. These Terms of Service may be modified or amended by BatchService from time to time Any changes that do not materially affect the terms of your Agreement will be effective immediately when published or posted on a BatchService website. If we make material changes to these Terms, which affect material provisions of, those changes will be effective as of the earlier of the next Billing Cycle (as hereinafter defined) or thirty (30) days from the date on which the modified Terms of Service are posted on our website. Your continued use of the Services after the effective date of the change, will act as your consent to the updated Terms of Service.
(a) Trial Terms. BatchService may offer free or discounted trials of our Services (a “Trial”), in our sole discretion. If BatchService offers such a Trial, the Trial will be subject to these Terms of Service and/or any other terms as BatchService determines, in its sole discretion, to apply to such Trial. Except as expressly modified by the written terms of a Trial, these Terms of Service govern our provision of Service to you and your receipt and use of Service during any Trial. BatchService may cancel or modify the terms of any Trial at any time and in our sole discretion, without prior notice and without liability. Unless otherwise stated in writing at the time of entering a Trial, you will be required to provide credit or debit card information, and, upon completion of the Trial you authorize BatchService to charge the card on file in accordance with Sections 1.2(b) and 3.3 hereof.
(b) Billing After Trial. IF YOU SIGN UP FOR A TRIAL, YOUR TRIAL WILL AUTOMATICALLY CONVERT TO A PAID SUBSCRIPTION AT THE END OF YOUR TRIAL PERIOD, UNLESS YOU CANCEL THE TRIAL PRIOR TO THE END OF YOUR TRIAL PERIOD. ONCE YOUR TRIAL CONVERTS TO A PAID SUBSCRIPTION, YOU WILL BE AUTOMATICALLY BE CHARGED THE SUBSCRIPTION FEES AND ANY OTHER APPLICABLE CHARGES FOR THE SERVICES OR SERVICE PLAN DESCRIBED AT TRIAL CHECKOUT, AND IN ACCORDANCE WITH THESE TERMS OF SERVICE. TO AVOID BEING CHARGED AFTER YOUR TRIAL ENDS, YOU MUST VISIT YOUR MEMBERSHIP SETTINGS AND CANCEL BEFORE THE END OF YOUR TRIAL PERIOD.
2. Non-Exclusive License.
2.1 Upon BatchService’s acceptance of your Order and conditioned upon your payment of all required license fees when due and continuing compliance with the Agreement, BatchService grants to you a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to use the Services to which you have subscribed (the “License”).
2.2 Services for which the License entails or includes the ability to access the Service via an app may also require or permit in-app purchases, and may require Subscriber or the Authorized User (as hereinafter defined) to accept additional terms in the app.
2.3 Subscriber shall be responsible for ordering and paying all associated fees for the number of Licenses sufficient to cover all of Subscriber employees who will use the Services, each of whom will be an “Authorized User.” Subscriber will not allow any other person or entity (“Unauthorized Users”) to use or access the Services under Subscriber’s account, and will take reasonable security measures (including, without limitation, with respect to the protection of passwords) to ensure that Unauthorized Users do not obtain access to the Services. Subscriber must immediately report to BatchService any use or attempted use of the Service by any Unauthorized Users. BatchService may, but shall be under no obligation to, take any action that BatchService deems appropriate with respect to any unauthorized use of its Services, including without limitation, conducting investigations, pursuing civil, criminal or administrative remedies against an identified Unauthorized User, referring the matter to law enforcement or modifying security features of an affected Service, and Subscriber will use commercially reasonable efforts to cooperate in any action that BatchService may determine to undertake. Notwithstanding any actions that BatchService may take or any other remedies that BatchService may pursue with respect to any unauthorized use of its Services, Subscriber will remain liable for payment for all fees, charges and other amounts associated with the use of Services under or through Subscriber’s account and no such amounts may be offset by any recovery which BatchService may obtain from any Unauthorized User.
2.4 If you subscribe to the Services, you will be permitted to access certain content from our websites that is only available to Subscribers (the “Subscription Content”). We grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access the relevant Subscription Content only in connection with your use of the Services and for your internal business purposes. This license granted to you does not give you any other rights in our Subscription Content (including any material that we may license from third parties) or the right to share the Subscription Content with anyone else or grant anyone else access to the Subscription Content. We may make modifications, updates, additions, and enhancements to the Subscription Content at any time and from time to time, without notice. We may also remove Subscription Content at any time. BatchService makes no representation, warranty or commitment of any kind with respect to the accuracy or completeness of any Subscription Content.
2.5 Subscriber may not, at any time, resell, re-license, transfer, assign or convey the Services, including any software comprising or incorporated in the Services or any Subscription Content or other data derived therefrom, to any other person or entity.
2.6 Upon termination by either party, this License shall immediately terminate, and Subscriber shall make no further use of the Services or any software associated with the Services.
2.7 Except as otherwise specifically permitted in this Agreement, Subscriber may not: (a) modify or create any derivative works of any Service, software, or documentation, including translation or localization (provided that code written to published APIs (application programming interfaces) for licensed software shall not be deemed derivative works); (b) sublicense any Service, software or documentation; (c) permit simultaneous use of any Service or software by more than one user, unless permitted under the applicable License; (c) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for any Service or associated software (except to the extent applicable laws specifically prohibit such restriction); (d) redistribute, encumber, sell, rent, lease, sublicense, use the software in a timesharing or service bureau arrangement, or otherwise transfer rights to any software; (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the software; (f) publish any results of benchmark tests run on any software to a third-party without prior express written consent from BatchService; or (g) copy any software.
2.8 The License shall immediately and automatically be suspended if at any time, Subscriber defaults under its obligations under this Agreement, including by failure to pay all amounts when due.
3. Fees and Payment.
3.1 Fees for the License and any other Services or products provided hereunder will be as stated in the Service Contract or applicable Order, or a posted Plan. Fees for the License will be payable in advance on a monthly, multi-month, annual or multi-year basis, as specified in the Service Contract, Order or Plan (a “Billing Cycle”). Any fees or charges based upon usage or otherwise unable to be determined in advance will be invoiced in arrears and shall be paid within thirty (30) days of the issuance of BatchService’s invoice therefor.
3.2 All prices quoted in any Plan are exclusive of sales and use taxes, value added taxes, fees, surcharges, assessments, levies or other costs imposed by any governmental entity upon the Services or in support of a regulatory program, including without limitation and if applicable federal and state Universal Service Fund assessments (“Taxes and Fees”). Customer shall be responsible for the payment of all Taxes and Fees associated with the Services.
3.3 Plans and Fees. We may offer different Plans from time to time. The features included in each Plan are described on one or more designated pages which may be accessed through our website, BatchService.com. We will charge you the fees associated with your purchased Plan (or as agreed in a Service Contract or Order) and any applicable Taxes and Fees (collectively, “Subscription Fees”) in accordance with these Terms.
3.4 Billing. Upon selecting a Plan, or entering into a Service Contract or Order, except as provided therein, you will provide current credit or debit card information. YOU AUTHORIZE BATCHSERVICE TO CHARGE, AND BATCHSERVICE WILL CHARGE, THE APPLICABLE SUBSCRIPTION FEES TO YOUR PAYMENT METHOD AT THE START OF YOUR SUBSCRIPTION (AS IDENTIFIED IN THE PLAN, SERVICE CONTRACT OR ORDER), AND ON A RECURRING BASIS ON EACH BILLING DATE, UNLESS AND UNTIL YOUR AGREEMENT IS CANCELLED IN ACCORDANCE WITH THESE TERMS. Subscriber must provide current, complete, and accurate information for its billing account, and promptly update any changes (such as a change in billing address, credit card number, credit card expiration date, bank account number) and contact email address. If Subscriber fails to provide or timely update any of the foregoing information, Subscriber agrees that BatchService may continue to charge such payment mechanism as may be associated with Subscriber’s account. Subscriber’s card issuer may also contact BatchService to notify it of changes to Subscriber’s account, and Subscriber hereby authorizes BatchService to update Subscriber’s billing account based upon such notice. In the event that BatchService is unable to process Subscriber’s payment at any time or for any reason, or if payment is not received by the due date, then in addition to the Subscription Fees, Subscriber shall be responsible for any and all administrative fees associated in processing or attempting to process payment, and Subscriber’s account may be suspended or terminated in accordance with these Terms of Service.
3.5 Changing Subscription Fees. WE MAY CHANGE OUR SUBSCRIPTION FEES FROM TIME-TO-TIME. CHANGES IN SUBSCRIPTION FEES WILL NOT AFFECT THE SUBSCRIPTION FEES FOR YOUR CURRENT BILLING CYCLE BUT WILL BECOME EFFECTIVE AS OF YOUR FIRST BILLING DATE FOLLOWING 30 DAYS AFTER WE INSTITUTE THE CHANGE. IF YOU DO NOT AGREE TO SUCH A CHANGE, YOU MAY TERMINATE THE AGREEMENT. Notwithstanding the foregoing, Subscribers whose Agreements have a yearly or longer Term will be notified of any change in Subscription Fees for the next Renewal Term in advance of the deadline to provide notice of non-renewal.
3.6 Pre-Authorization. When you enter your initial payment method, we may issue a pre-authorization charge or hold to your payment method to ensure your payment method is valid. The pre-authorization is a temporary pending charge that will be automatically reversed (usually as a voided charge or refund) once your payment method is verified; your account will not actually be charged. The pre-authorization charge may take a few days to appear on and to then be deleted from your payment method. If the pre-authorization is successful and your payment method is verified, You will be charged for your Services in accordance with your Service Contract, Order or Plan, and these Terms of Service. If the pre-authorization is unsuccessful and your payment method is not verified, your Agreement (or Trial, as the case may be) will not become effective and no Services will be provided to you. BatchService may, but shall be under no obligation to, allow you to submit an alternate payment method, which alternate method will be subject to pre-authorization pursuant to this Section 3.6.
3.7 Except as otherwise expressly agreed by BatchService in writing, no fees or other amounts prepaid for any Service, or for or through any website or application made available by us, will be subject to refund.
3.8 In the event that Subscriber fails to timely pay any amount when due hereunder, BatchService may pursue any remedy available to it hereunder, at law or in equity, including without limitation, suspension pursuant to Section 9.3 hereof and/or referral to a collection agency. Subscriber shall be liable for all of BatchService’s costs incurred in collecting any past due amounts.
4. Term. The “Term” of this Agreement and the License granted hereunder shall be specified in the Service Contract or Order. Unless otherwise stated in the Service Contract or Order, this Agreement will automatically renew at the end of the current Term for a like term. Except for Service Contracts or Plans with month-to-month terms (which may be terminated on one month’s notice), either Party may give the other Party notice of its intention not to renew this Agreement no less than sixty (60) days prior to the end of the then-current Term.
5. Subscriber Obligations and Acceptable Use.
5.1 Subscriber is solely responsible for using the Services and all data obtained through the Services in full compliance with all applicable federal, state and local laws, including without limitation all laws concerning privacy, solicitation and advertising practices, and data security, and Subscriber is solely responsible for monitoring and complying with any changes in law that may affect its use of the Services or data obtained through the Services. Without limiting the generality of the foregoing, Subscriber represents, warrants and covenants that it will comply with the following laws and regulations: (a) Do-Not-Call (“DNC”) registry prohibitions for both voice calls and text messages; (b) any licensing and bonding requirements applicable to Subscriber’s business; (c) consumer cancellation rights; (d) mandatory disclosures; (e) cell phone restrictions; (f) text messaging restrictions; (g) opt-out rules; (h) call recording laws; (i) record retention requirements; (j) direct mail rules and best practices; (k) CAN SPAM Act and related email rules; and (l) all other applicable laws and regulations, as the same may be adopted or amended from time to time.
5.2 Without limiting the generality of any other provision hereof, in the event that Subscriber uses text messaging to communicate with persons whose information is obtained through or using the Services, Subscriber represents and warrants that it is aware that, among other requirements, and will comply with the Telephone Consumer Protection Act (“TCPA”) and consumer protection rules and regulations that restrict and set forth circumstances under which you must obtain prior express written consent from a consumer before you can send them marketing calls or text messages. You must obtain consent from each and every recipient of such calls and texts, on each and every subject beyond the scope of the original consent. You are responsible for obtaining all required consents, and for complying with all applicable laws, including all amendments thereto from time to time, with respect to all text messages sent or received using your account.
5.3 Subscriber shall obtain and maintain a sufficient browser and bandwidth in order to use the Services. Subscriber must provide a high-speed internet connection for use of the Services, training, updates, and technical support. The Subscriber is responsible for all aspects of its broadband connection and hardware, including without limitation network configuration, installation and maintenance of antivirus protection, and installation, configuration and set up routers, firewalls, and any peripherals. Subscriber shall be responsible for testing the functionality of the Services with its computer hardware and Internet connections, and for upgrading its hardware or connections as may be required. Upon request, BatchService’s technical support will use commercially reasonable efforts to assist in such testing.
5.4 Subscriber may not make any changes to, or misuse or tamper with, any software or hardware provided as part of the Services. Subscriber shall not introduce any viruses, malware, Trojan horses or other harmful programs into any software, hardware or BatchService platforms used in connection with the Services. Any technical support required because of virus contamination will be at Subscriber’s expense at the rate of up to $300 per hour or such other rate as BatchService may have in effect from time to time.
5.5 Subscriber represents, warrants and covenants that:
(a) All information Subscriber provides to us under this Agreement or in an Order, or otherwise communicates to us during the Term, is accurate.
(b) Subscriber shall obtain all required consents of any person with whom Subscriber communicates using the Services or data derived from the Serviced. Subscriber shall honor all opt-outs and consent revocations received from any person, and that Subscriber is solely responsible for doing so.
(c) Subscriber will promptly report to BatchService any errors, bugs, unauthorized access methodologies or any breach or suspected breach of our intellectual property rights that it experiences or uncovers in connection with its use of the Services.
(d) Subscriber will not transfer, sell, convey, use, resell or sublicense any data, information or services provided by BatchService to Subscriber in any medium, form, manner or format whatsoever, for any purpose except as expressly authorized in this Agreement.
5.6 Subscriber will use the Services only in a manner that is acceptable under this Agreement and BatchService policies. Without limiting the generality of the foregoing, the following are prohibited or unacceptable uses of the Services, and Subscriber covenants that it will not:
(a) Use the Service or any data derived therefrom for other than Subscriber’s legitimate business purposes;
(b) Reproduce, reformat, publish, distribute or disseminate any data derived from the Service or otherwise make to any third party;
(c) Use the Services for any marketing or telemarketing except in strict compliance with all governing laws;
(d) Use the Services in a manner that is actually or potentially libelous, threatening, harmful, harassing, indecent, obscene, in violation of the intellectual property rights of any person or so as to cause nuisance, annoyance or inconvenience to any person;
(e) Violate the publicity or privacy rights of another individual;
(f) Create or compile, directly or indirectly, any collection, compilation, or other directory from any content displayed through the Services except for Subscriber’s internal, legitimate business use;
(g) Modify the Service or include or combine the Services or any data derived therefrom with any other service or product of any kind;
(h) Use the Services or any data derived therefrom for credit evaluation of or any other form of background check on an individual;
(i) Use the Service in a way intended to avoid incurring fees or exceed usage limits (including allowing multiple persons to use a single user license);
(j) Access or use the personal or confidential information of any third party without their permission, or attempt to do so;
(k) Use the Service for purposes of competitive analysis or the development or provision of a competing service or product;
(l) Use the Services in any way that could damage, disable, overburden or impair any of our servers, or the networks connected to any of our servers.
(m) Mislead recipients of any call, text, email or other message as to Subscriber’s identity, including without limitation by creating a false caller ID (e.g., ID spoofing), forging addresses or headers, or fraudulently undertaking other technical measures to misrepresent the origin or identity of the sender or caller;
(n) Perform auto-dialing or “predictive dialing” in violation of applicable laws;
(0) Attempt to gain unauthorized access to any part of the Services and/or to any service, account, resource, computer system and/or network connected to any of our servers;
(p) Impersonate another person, act as another entity without authorization, or create multiple accounts;
(q) Upload pictures, data, audio or visual files, or any other content that is excessive in size, as determined by us in our sole discretion;
(r) Deep-link to the Services or access the Services manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy or monitor any portion of the Services or any content or data available through the Services;
(s) Use the Service to evaluate risk in connection with the marketing or sale of insurance products of any kind, including but not limited to life, health, long-term care, disability, casualty, umbrella, mortgage, title or property;
(t) Use the Service or any data derived therefrom for purposes of debt collection or for marketing or selling debt relief products or services;
(u) Extract, select or draw out any data element for any use except as expressly authorized herein; or
(v) Engage in any other unlawful, fraudulent or malicious conduct.
6. Voice Services.
6.1 Subscriber understands that the voice services and dialing capabilities provided through BatchDialer or any other Service do not operate as traditional telephone services and are not intended to replace Subscriber’s traditional telephone or Voice over Internet Protocol (“VoIP”) services.
6.2 Certain of our Services may rely upon third-party providers and VOIP providers to send messages and place phone calls. For those Services, which will be identified in the applicable Service description on our (or an affiliated) website, Subscriber must register its own account (Bring Your Own Carrier – BYOC) for sending text messages or place calls through BatchService’s platforms. BatchServices maintains a list of its supported vendors of such services, which list may be modified from time to time and will be made available to Subscriber during onboarding or thereafter upon request. Once registered with one of our supported vendors, you agree to abide by such vendors terms of service and policies, including its acceptable-use policies, as the same are made available by the supported vendor. BatchService will provide you with website information for its supported vendors so that you may access their current terms and policies, but undertakes no obligation with respect to any information contained on any such vendor website. This Section 6.2 does not apply in the event that Subscriber has subscribed to BatchDialer.
6.3 Subscriber may order one or more DID/telephone numbers, as provided in the Service Contract or Order. DID/telephone numbers are acquired from and assigned by our supported vendors, and therefore BatchService makes no representation, warranty or commitment regarding the availability of any such numbers. Procedures for obtaining and porting DID/telephone numbers in or out, and charges therefor, will be established by the underlying vendor. BatchService may provide Subscriber with the vendor’s procedures and charges for number porting or direct Subscriber to the vendor’s website, at BatchService’s election, upon request. BatchService may invoice Subscriber for charges and costs associated with DID/telephone numbers (including on behalf of its vendors) and such charges and costs will be payable in accordance with Section 3.
6.4 BatchService will use best efforts to pass through to Subscribers whose Services include BatchDialer or other outbound-calling VoIP capabilities the 911/E911 services provided by BatchService’s vendors. 911/E911 service over VoIP, when available, is different from traditional 911 service and is subject to a number of limitations. If you subscribe to such Services, you represent and warrant that you have read, understood and agreed to the 911 Addendum at https://batchservice.com/911-e911-addendum.
7. BatchService Services; Disclaimer of Warranties.
7.1 Subscriber understands and acknowledges that the Services rely on third-party products, services and data, including without limitation, third-party telecommunications networks for the provision of voice and dialing functionality and public and private third-party sources of the data that is available through the Services. BatchService cannot and does not make any representation or warranty as to the accuracy, availability or quality of the Services except as expressly provided in these Terms of Service.
7.2 The Services are provided through one or more websites, which are browser-based. BatchService cannot guarantee the reliability of its third-party providers/suppliers related to the domains, or that the hosting services shall be available at all times or free from isolated errors. Reasonable hosting downtime may occur, including without limitation for provider outages, system upgrades, maintenance, repairs, and acts of God/nature. BatchService assumes no legal responsibility or liability for the Subscriber’s use of any BatchService website or Service.
7.3 BatchService may provide training materials via its websites from time to time. BatchService will also provide limited technical support. Technical support is generally available (subject to reasonable downtime) Monday through Friday during regular business hours. These times are subject to change based upon our evolving business practices, as well as Force Majeure (as hereinafter defined) or other unforeseen events out of our control. BatchService will make commercially reasonable efforts to resolve questions and problems on a timely basis; however, BatchService may not always be able to resolve every problem, nor respond to every call immediately. BatchService and Subscriber each agree to pay for their own calls placed to the other party for in connection with any support, customer service inquiry or other communication hereunder.
7.4 BatchService does not warrant that it has obtained the consent of individuals whose data may be included in the Services for the disclosure or use of their personally identifiable information or for such individuals to be contacted. BatchService does use commercially reasonable efforts to honor requests from such individuals that their data be removed from our systems. BatchService therefore does not commit that any search results or other data set obtained through the Services reflects all individuals who might meet the search criteria, or that subsequent searches will return consistent results.
7.5 BatchService makes no representation or warranty of any kind as to whether Subscriber will or may obtain any business opportunities, earn any revenues or achieve any other results through the use of the Services.
7.6 THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, BATCHSERVICE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, AND ALL WARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING WITHOUT LIMTATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. Record Retention. BatchServices will not assume any obligation to maintain records related to the Subscriber’s use of the Services, including without limitation queries or searches of data or records of calls placed using the Services.
9. Termination or Suspension.
9.1 Termination for Convenience. BatchService reserves the right to terminate this Agreement and Subscriber’s account hereunder at any time in its sole discretion for any or no reason whatsoever, upon fourteen (14) calendar days’ prior written notice to Subscriber.
9.2 Termination for Cause. Either Party may terminate this Agreement if the other Party (a) breaches any of its materials obligations hereunder and such breach, if capable of cure, is not cured within three (3) days of written notice from the non-breaching Party; or (b) files or becomes subject to any proceeding in bankruptcy or receivership, makes an assignment for the benefit of creditors, or becomes insolvent.
9.3 Suspension. BatchService may immediately suspend Service to Subscriber, with or without notice, and without liability to Subscriber, and may thereafter terminate this Agreement upon notice, in the event that:
(a) Subscriber fails to pay any amount when due.
(b) BatchService believes, in its sole discretion, that Subscriber or any person using or accessing the Services under its account, has violated any applicable law, any of the acceptable use provisions hereof, or any of the provisions of Section 2 related to activities prohibited under the License.
(c) BatchService receives any complaint from any individual that Subscriber or anyone using Subscriber’s account has contacted such individual without consent.
Upon Subscriber’s cure of any cause for suspension within the period provided in Section 9.2, BatchService may require payment of a reinstatement fee prior to restoring the account and, where Subscriber’s account was suspended for failure to make timely payment, BatchService may require a letter of credit or other guarantee of payment. Notwithstanding any other provision hereof, in the event that BatchService is entitled to suspend any Service under this Agreement a second time, BatchService may terminate the Agreement immediately upon notice to Subscriber without opportunity to cure.
9.4 In the event that Subscriber attempts to terminate or cancel Service prior to the end of the then-current Term for any reason other than BatchService’s uncured breach, BatchService may continue to collect all amounts due for the remainder of the then-current Term.
9.5 Upon termination, expiration or cancellation of your Service for any reason, your account will be deleted and no
10. Indemnification. Subscriber will defend, indemnify and hold BatchService harmless from and against any and all claims, damages, losses, suits, fines, forfeitures, liabilities or expenses of any kind, including without limitation court costs and attorneys’ fees (collectively, “Losses”) arising from or related to (a) the use of the Services and the data derived therefrom by Subscriber or any of its Authorized Users; (b) access to or use of the Services or Subscriber’s account by Unauthorized Users; (c) any violation of law by Subscriber or any person accessing or using Subscriber’s account; or (d) any violation of this Agreement or the License granted hereunder by Subscriber or any person accessing or using Subscriber’s account.
11. Limitation of Liability. Except for indemnification pursuant to Section 10, neither party shall be liable for any consequential, incidental, special, punitive or indirect damages (including, but not limited to, loss of profits, goodwill, use, data, or other intangible items) even if the other party has been advised of the possibility of such damages or losses. With respect to any other damages, BatchService’s liability hereunder shall in no event exceed an amount equal to the amount actually paid by Subscriber to BatchService for the one (1) month immediately preceding the claim being made, regardless of the basis for the claim. SUBSCRIBER UNDERSTANDS THAT THIS IS A SIGNIFICANT LIMITATION ON SUBSCRIBER’S RIGHT TO SUE BATCHSERVICE AND SUBSCRIBER SHOULD NOT PROCEED IF SUBSCRIBER DOES NOT AGREE.
12. Liquidated Damages. In the event that you violate this Agreement by (a) sub-licensing your rights to a third party; (b) permitting, intentionally or negligently, a third party to gain access to your login credentials; (c) selling any of the data that you access or receive through the Services; or (d) otherwise allowing a third party to benefit from your subscription or use of the Services, you acknowledge that damages to BatchService may be difficult to calculate, and therefore you agree that we shall have the right to elect to demand, and you agree to pay, the following amounts as liquidated damages and not as a penalty:
$10,000 per third party user who accesses your account;
$2 per data record obtained in violation of these Terms of Service;
$2 per data record sold by you;
$2 per data record obtained by a third party as a result of your violation of these Terms of Service.
13. Relationship of the Parties. The parties hereto are independent contracting parties. Nothing in this Agreement shall be construed to create any partnership, joint venture, franchise, agency, employment relationship, fiduciary relationship or
14. Choice of Law; Jurisdiction. This Agreement shall be governed by and construed according to the laws of the State of Arizona, without giving effect to the conflict of laws principles thereof. The parties agree exclusive jurisdiction and venue for all litigation under this Agreement shall be in the state and federal courts in or for Maricopa County, Arizona. Each party submits to the jurisdiction of such courts and waives any defense that such courts lack jurisdiction or constitute an inconvenient forum.
15. Assignment & Subcontractors. BatchService may assign the Agreement to any of its affiliated entities or to any entity to which BatchService may sell, transfer, convey, assign or lease all or substantially all of the assets or properties used in connection with its performance under the Agreement. BatchService may partner with others or subcontract any or all of its obligations under the Agreement, but will retain its responsibility to Subscriber for the timely performance of the work necessary to the provision of Service in accordance with this Agreement. Subscriber may not assign this Agreement or any of the rights granted hereunder without the prior written consent of BatchService.
16. Force Majeure. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including without limitation, fire, flood, Act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, and inability to secure materials, systems, subsystems, components, underlying services or transportation facilities (“Force Majeure”).
17. Notices. Any notice required or permitted under this Agreement shall be deemed properly made when delivered by email, hand delivery, overnight courier, or mailed via Certified or Registered Mail (Return Receipt Requested), if to Subscriber, to the address stated on the Service Contract or Order; and if to BatchService, to 4625 S Wendler Dr, Tempe, AZ 85282, Attn: BatchService Customer Support Team, Email: email@example.com.
18. Entire Agreement. The Agreement, including these Terms of Service, the Service Contract and/or Order(s), and any Attachments hereto or thereto, constitute the entire understanding of the parties with respect to the subject matter of the Agreement and will supersede all previous and contemporaneous communications, representations or understandings, oral and/or written, between the parties relating to that subject matter This Agreement will not be contradicted or supplemented by any prior course of dealing between the parties or any advertising, marketing, web pages or other materials released or made available by BatchService. BatchService may amend or update these Terms of Service at any time, from time to time, in accordance with Section 1.2 hereof. Except as otherwise specified in a Service Contract or Order, prices may be changed by BatchServices in its sole discretion. Except as otherwise stated herein, the Agreement may not be modified or amended unless in a written instrument signed by the parties. In the event of an actual conflict between one or more provisions of any Service Contract, Order or Attachment and any provision of these Terms of Service, these Terms of Service will control unless such Service Contract, Order or Attachment (a) explicitly states that such document supersedes one or more provisions of the Terms of Service and explicitly sets forth the provision(s) that are superseded; and (b) is signed by an officer of BatchService.
19. Severability. If any provision of the Agreement is determined to be unenforceable or invalid by court decision, the Agreement will not be rendered unenforceable or invalid as a whole, and the original unenforceable provision will be changed only minimally as required for it to be enforceable and interpreted so as to best accomplish the objectives of the original provision within the limits of applicable law.
20. No Waiver. The failure of either party to assert any of its rights under the Agreement, including, but not limited to, the right to terminate the Agreement in the event of breach or default by the other party, will not be deemed to constitute a continuing or permanent waiver by that party of its right to enforce each and every provision of the Agreement in accordance with their terms.
21. Parties; Third Party Beneficiaries. The parties to the Agreement are you and BatchService. In no event will any parent, subsidiary or affiliate of BatchService have any obligation or liability to you, under the Agreement or otherwise. The Agreement shall inure solely to the benefit of Subscriber and BatchService and their permitted successors and assigns; provided, that any parent, subsidiary or affiliate whose Services BatchService provides to you shall be a third party beneficiary of the Agreement.
22. Export Controls. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. You shall not access or use any Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
23. Interpretation. Capitalized terms defined in this Agreement will have the meanings attributed to them. Unless context clearly requires otherwise, the plural of any term will include the singular and vice versa, and terms of any gender will include all genders. Section headings are for convenience of reference only and will not affect the interpretation of any provision of this Agreement. In the event that this Agreement requires interpretation, it shall be construed fairly in accordance with its terms and no provision hereof shall be construed more strictly against either party. In the event of an actual conflict in the provisions of any of the documents comprising the Agreement, an express provision in Trial terms, a Service Contract, Order accepted by BatchService or a Plan that explicitly supersedes or directly contradicts a provision of these Terms of Service shall control; provided that contradictory terms applicable for a Trial shall only control for the period of such Trial.