GENERAL TERMS AND CONDITIONS
1. GENERAL
This agreement ("Agreement") is between DMS Technologies Corporation. ("DMS")
and the Client ("CLIENT") specified at end of agreement. This Agreement sets
forth the terms and conditions under which CLIENT agrees to use DMS' Turnkey
ISR Service ("Service" or "Services") and shall become effective upon signing
of this agreement.
2. SCOPE OF SERVICE
The initial scope of service subject to this agreement includes those described
in ATTACHMENT A of this agreement. The scope may be modified from time to time
through documented amendments to the agreement signed by both parties.
3. TERM
The term of this agreement shall commence upon CLIENT execution of this
Agreement for the Service and shall continue for the duration specified at
ATTACHMENT A.
4. Termination
CLIENT agrees that if the Service is terminated, for any reason, DMS has the
right to delete all data, files or other information that is stored in CLIENT
account upon thirty (30) days notice to CLIENT. However, CLIENT will receive
all data belonging to CLIENT and stored by DMS, when all monies due are
rendered.
DMS reserves the right to terminate the Service to CLIENT in the event it is
used in a manner which:
1) constitutes violation of any law, regulation or tariff;
2) is defamatory, fraudulent or deceptive;
3) is intended to threaten, harass or intimidate;
4) lack of payment;
5) tends to damage the name or reputation of DMS, its parent, affiliates
and subsidiaries; or
6) interferes with other CLIENTS' use and enjoyment personal/business of
the Services provided by DMS.
Following completion of the Initial Term, this agreement will continue in
effect on a month-to-month basis until such time as either party provides the
other party with advance written notice of its intent to terminate the
agreement. Such notice to be provided at least 30 days prior to the effective
termination date, and CLIENT to be responsible for all fees through the
effective termination date requested by CLIENT, or (ii) through the completion
of the 30 day period following DMS' receipt of written notice from CLIENT of
CLIENT'S intent to terminate the agreement, whichever is later. CLIENT may
terminate this agreement upon fifteen (15) days notice if the service provided
by DMS fails to meet CLIENT'S requirements.
5. FEES
DMS will xxxx CLIENT monthly, NET 30, for any Services provided to CLIENT under
this agreement, plus applicable taxes, if any. DMS will xxxx one month in
advance of Service usage. DMS will xxxx CLIENT monthly plus last month for
service.
If any portion of CLIENT hill is not paid by the due date, DMS may charge
CLIENT a late fee on late unpaid balances. The monthly late fee will be $30 and
2.5% of the entire outstanding balance.
In the event DMS resorts to legal action to recover monies due, CLIENT agrees
to reimburse DMS for all expenses incurred to recover such monies (including
attorney's fees.)
In the event CLIENT prematurely terminates this agreement without cause, CLIENT
shall be liable to DMS for the remaining value of the agreement, payable in
full upon termination. The remaining value shall be determined using the fees
and the term agreed to and documented at ATTACHMENT A of this agreement.
The initial term of the agreement, the terms under which this agreement may be
extended or canceled, and the nonrecurring and recurring fees for the services
provided under this Agreement are contained at ATTACHMENT A. DMS reserves the
right to change the rates and otherwise modify these terms and conditions by
notifying CLIENT 60 days in advance of the effective date of thc change, which
CLIENT may then accept or reject. All telephone company fees represent a pass
through of telephone company charges and are subject to change without notice.
6. REPRESENTATIONS AND WARRANTIES
DMS shall make reasonable efforts to provide continuous, uninterrupted,
expedient and error-free Service to CLIENT. CLIENT understands and agrees that
temporary interruptions may occur as normal events in the provisioning of the
Service. Under no circumstances shall DMS be held liable for any financial or
other damages due to such Service interruptions not caused by DMS. CLIENTS
monthly xxxx will be prorated for any outages of the Service that exceed
industry standards. DMS shall maintain a 99% service functionality and response
rate, and failure to maintain such rate shall be cause for termination by
CLIENT.
DMS DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL DMS BE LIABLE FOR ANY
INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT
LIMITATION, LOST PROFITS OR LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE,
PARTIAL USE OR INABILITY TO USE THE SERVICE, EVEN IF DMS HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
7. INDEMNIFICATION
Each party agrees to indemnify and save harmless the other party from all
claims, losses, liens, expenses, suits and attorneys' fees ("Liabilities") for
damages which may in any way arise out of or result from or in connection with
this Agreement, except to the extent that such Liabilities arise from the
active negligence or willful misconduct of the other party. The offending party
shall, at its expense, defend any claim, legal proceeding or suit asserting a
claim for Liabilities and shall pay all costs and attorneys' fees incurred by
the other in connection therewith.
The parties agree to comply with the terms and conditions as set forth in all
Attachments incorporated into this Agreement by reference.
B) FORCE MAJEURE
DMS will not be liable for delays, damages, or failures in performance due to
causes beyond onr reasonable control, including, but not limited to, acts of a
governmental body, acts of God, acts of third parties, fires, floods, strikes,
or other labor-related disputes, or an inability to obtain necessary Equipment
or Services.
9. SEVERABILITY
If any of the terms or conditions in this agreement are properly found to be
invalid or unenforceable by a government body, the remaining terms or
conditions of this agreement shall not be affected by the finding and shall
continue to apply.
10. GOVERNING LAW
This agreement shall be governed by the laws of the State of Texas and the
United States of America.
11. NOTICES
Notices to each party shall be deemed given when deposited in the U.S. mail,
addressed to such party at last-known address or hand delivered to such party.
Each party reserves the right to provide electronic or telephone notice to the
other party, which shall be deemed given when left with the other party.
12. NON-WAIVER
The failure of either party at any time to enforce any of the provisions of
this Agreement or any right or remedy available hereunder or at law or equity,
or to exercise any option herein provided shall in no way be construed to be a
waiver of such provisions, rights, remedies or options or in any way to affect
the validity of this Agreement. The exercise by either party of any rights,
remedies or options provided hereunder or at law or equity shall not preclude
or prejudice such party from exercising thereafter of the same or any other
rights, remedies or options.
13. MISCELLANEOUS
This agreement includes ATTACHMENT A, and ATTACHMENT B. This agreement is the
entire agreement between CLIENT and DMS on the subject matter of this
agreement, and it supersedes all prior representations, understandings or
agreements on the subject matter of this agreement.
DMS is an independent contractor to CLIENT and not an agent, partner, or joint
venturer.
These terms and conditions supersede all previous representations,
understandings or
agreements and shall prevail notwithstanding any variance with terms and
conditions of any order submitted.
14. AGREEMENT
DATA MOUNTAIN SOLUTIONS, INC. BIDGIVE GROUP, LLC
/s/ Xxxx Xxxxxxxx, Co-founder /s/ Xxx Xxxxxx, Manager
Sign Sign
Xxxx Xxxxxxxx, Co-founder Xxx Xxxxxx, Manager
Print Print
Date: December 2, 2003
ATTACHMENT A
SERVICE ORDER
TURNKEY ISR SYSTEM
BidGive ISR system:
Background - BidGive requires an automated call center that will allow a
BidGive user to call a toll free number that will access an interactive Speech
Response system that will use plain speech to interact with the call by asking
a series of questions and allow the user to respond by speaking. The system
will need to support for the start of the service 300 calls per every 2week
time period. The service must be available via a toll free phone number and
under use the English language. The system must be able to scale rapidly to
handle an anticipated growth rate.
Solution - Data Mountain Solutions will provide BidGive a fully functioning
ISR system that will meet all the requirements above and will follow a similar
call process to the one below. DMS will provide a toll free number and one 1
ISR port to start the service off. Once the call volume is sufficient, DMS will
add additional ISR ports to support the necessary call volumes at the defined
rates in this document.
The system may be updated every two weeks to add additional cities and retail
merchant and restaurant data. BidGive will supply this data to DMS every two
weeks, or multiple thereof, in a simple coma delimitated file that meets a
predefined template format that will be provided by DMS.
Cost:
DMS will provide the above service for the following fee:
Setup fee - $1,000 (any changes that go beyond the call process below may be
subject to additional setup fees.
Base monthly fee - $350.00 per ISR port
Per minute cost - $. 11 (based on a call volume of 5,000 per month at the end
of the first year. If the volume has not reached that volume then the price
will be adjusted to $.18 per minute.)
Total due at signing:
$1000.00 set-up fee
$ 700.00 1st and last months service fees
$1,700.00
Term:
Contract Term is for 90 days.
ATTACHMENT B
SYSTEM CALL PROCESS (DRAFT)
INTERACTIVE VOICE RECOGNITION SYSTEM
VR: Welcome to BidGive where you always save at least 30% on shopping and
dining certificates while benefiting your favorite charity.
Do you wish to PURCHASE a new certificate, or to VERIFY an existing
certificate?
VR: (recognizes choice)
If "VERIFY" (copy provided below)
If "PURCHASE":
Are you already registered with BidGive? (If "Yes" then proceed with the
following. If "No" copy provided after the "Yes" copy).
From which CITY do you wish to purchase a certificate?
VR: (recognizes choice of cities)
Do you want a DINING, or a RETAIL/SERVICE certificate?
VR: (recognizes selection)
State the NAME of the restaurant or retail/service provider?
VR: (recognizes selection)
A $(dollar amount) certificate is available for only $__. Would you like to
purchase this certificate? (OR SORRY, WE ARE SOLD OUT OF THIS OFFERING. WOULD
YOU CARE TO MAKE ANOTHER SELECTION?)
[[?VR: Do you want the certificate mailed to you or to someone else as a gift?
VR: (recognizes response. If as a GIFT, collects mailing information; if
mailed to purchaser confirms mailing info on file, provides for edit capability
of address, credit card, etc. XXXXX: I don't know what info you need here,
since I do not know how you manage the processing, etc., via your IVR).]]
IF PURCHASER HAS NOT REGISTERED:
VR: You must be registered with BidGive and have selected a charity to receive
a portion of your purchases. All of the information including your credit card
number is a secure transaction. We do not keep your credit card information on
file. Would you like to register now?
VR: (recognizes Yes or No response) Please state your name as it
appears on the credit card you will be using (XXXXX: I Have no idea how your
VR collects registration data, so I'm leaving this to you to list and collect
the data we need for them to
register with our system.).
VR: Which charity do you want to benefit? Please include the city and state
(FOR
CANADA CALLS: PROVINCE)
VR: You are now registered with BidGive. Would you like to purchase a
certificate? (recognizes Yes/No response: if NO, then "Goodbye"; if Yes, then
system returns them to above litany for ordering).
if CALLER WANTS TO "VERIFY" A CERTIFICATE:
VR: What is the unique certificate number printed on the certificate?
VR: (recognizes number response, checks database, and states either:) This
certificate is valid. Thank you. OR This certificate is listed as not valid.
Please repeat the number again.
VR: (repeats process)
If certificate is still listed as not valid, should we have them hold to speak
with a live rep to check to insure cert is not in system before having them
decline the cert?
