These terms and conditions, together with any Service Orders, and any other materials attached or incorporated by reference, constitute the entire agreement between Aktify, Inc. (“Aktify“) and the entity signing below (“you, your, or Customer”), regarding Customer’s access to, and use of, any Services provided by Aktify (collectively, the “Agreement“).
1. AKTIFY RESPONSIBILITIES
1.1 Aktify agrees to make reasonable efforts to contact each lead provided to Aktify by Customer. Aktify will attempt to contact the lead via email, text, and/or phone call. A “Lead” is defined as someone with a name and contact information, provided to Aktify for the purpose obtaining information on their experience with Customer.
1.2 Aktify will use goodwill marketing tactics to elicit feedback from each lead. Goodwill marketing tactics include, but is not limited to, the offering of event vouchers. Event voucher redemption and fulfillment will be delivered by SpinGo Solutions, Inc.
1.3 Aktify agrees to create a Pulse Report at the end of each campaign. The report will summarize the results of the campaign and provide recommendations and insights back to the Customer.
1.4 Aktify will enhance each lead record with data obtained through the campaign. Campaign data includes, but is not limited to, (1) notes made by Aktify’s fulfillment team and (2) primary stall reason category. Enhanced lead profiles will be delivered to Customer via an API connection or in bulk, via a .CSV file.
1.5 Aktify will safeguard Customer’s lead information and will not repurpose, resell, or otherwise distribute Customer’s data. 30 days after a campaign has been completed, Aktify will anonymize the individual lead records. Personal information will be purged from Aktify’s fulfillment database, but Aktify reserves the right to retain anonymized campaign-related information.
2. CUSTOMER RESPONSIBILITIES
2.1. Customer agrees to provide leads to Aktify for the purpose of finding out why the leads stalled in the sales funnel. Leads can be provided via a .CSV file or via a direct API connection to Customer’s database.
2.2 Each lead record must include the following information: First Name, Last Name, Email Address, and Phone Number. Additional fields that are valuable to the campaign, but are not required, include Lead Status, Dial Attempts, Company Name, Title, Assigned Sales Rep, Lead Create Date, Zip Code, State, Lead Source.
2.3 Customer agrees to provide Aktify with the following company information: company name, company logo, primary brand color (hex #), company address, email address, phone number, company website, and a brief description of services.
2.4 Customer gives permission to Aktify to use company materials listed in section 2.3 through the duration of the contract, only as required for Aktify to fulfill the agreement. All Aktify outreach efforts will come from Aktify, but may mention the Customer’s name. An example call might include something like this: “This is John with Aktify. I’m calling to learn more about your experience with Acme Corp”. Event vouchers and other goodwill offers will be branded with Customer’s brand.
3. PRICING AND PAYMENT. Pricing and payment terms are set forth in the signed Service Order, as amended from time to time. Customer agrees to pay Aktify for its services according to the terms outlined in the Service Order. The term “Service Order” is sometimes referred to as the Proposal, Contract, or Insertion Order attached to this agreement.
4. CONFIDENTIALITY. By entering into this Agreement, Customer acknowledges that Aktify will receive information that is confidential and not generally known to the public. In order to protect this information, Aktify and Customer will maintain the confidentiality of the Leads and use such information only for the purposes outlined in this agreement.
5. TCPA COMPLIANCE. Customer has the responsibility to adhere to national Do Not Call laws and local and state laws related to communications with each lead. It is the Customer’s sole responsibility to understand these laws and to adhere to TCPA compliance. Customer agrees to only provide leads to Aktify that meet the legal requirements outlined in federal and state laws. Aktify will not use auto-dial technology to contact the leads provided by Customer. Leads provided to Aktify will not be called more than 2 times in a single day and never more than 5 times in a single week. Aktify will not be held responsible for lawsuits related to Customer’s failure to adhere to these laws.
6. MUTUAL NON-DISCLOSURE. Customer and Aktify also agree to keep confidential any and all information they receive from each other related to business operations, applications, processes, customers, models, technology, and other information that would be reasonably considered to be confidential.
7. LIABILITY LIMIT. EXCEPT WITH RESPECT TO OBLIGATIONS DESCRIBED IN SECTIONS 4,5,6, and 11 CONTAINED HEREIN, EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, WHETHER OR NOT ARISING FROM SUCH PARTY’S ACTIONS, SHALL IN NO EVENT BE GREATER THAN $1,000. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. TERM AND TERMINATION.
8.1 The term of this Agreement is specified in the Service Order between Aktify and Customer. If left unspecified, the Agreement commences on the date the Service Order was signed and continues until all Service Orders have expired or been terminated.
8.2 Termination or Suspension for Cause. Any breach of your obligations under this Agreement will be deemed a material breach of this Agreement. Aktify, in its sole discretion, may terminate, suspend, or otherwise restrict your password, account or use of the Services if you breach or otherwise fail to comply with any of your covenants, representations, or warranties in this Agreement. Where the breach is for non-payment, you shall have 10 days following receipt of written notice by Aktify to cure the breach for past due amounts owing before Aktify may terminate the Agreement. You will continue to be charged for services provided during any period of suspension or while your account is otherwise limited or restricted.
8.3 Survival. Sections 4-12 will survive termination of this Agreement.
9. RELATIONSHIP OF THE PARTIES. The parties are independent contractors and not the franchisee, partner, or agent of each other. Neither party shall have the right to make any representations on behalf of the other or to legally bind the other party in any way. There are no third-party beneficiaries to this Agreement.
10. COMPLIANCE WITH APPLICABLE LAW. The parties each agree to comply with all applicable laws, regulations, and orders related to the performance of their duties and the enjoyment of their rights set forth in this Agreement. Customer will not use the Leads for any unlawful purpose.
11. MUTUAL INDEMNIFICATION. Both parties shall defend, indemnify, and hold harmless each other from and against any and all damages, costs, judgments, rulings, or other losses, including without limitation reasonable attorneys’ fees and court costs, arising out of or relating to (1) Both parties use of the Leads, (2) Both parties violation of any applicable law; (3) Both Parties breach of any of the provisions of this Agreement; and (4) Both parties fraud, gross negligence, or willful misconduct. Aktify or Customer shall give notice of any claim they receive in writing.
12. MISCELLANEOUS. This Agreement will be governed by the laws of the State of Utah, without reference to conflict of law principles. All disputes arising out of or related to it, will be subject to the exclusive jurisdiction of the state and federal courts located in Salt Lake County, Utah, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Aktify may assign this Agreement, only with Customer’s approval, in connection with the sale of Aktify or of all or substantially all of Aktify’s assets or other corporate restructuring.