Terms & Conditions

3.1 Description

Aktify provides AI-driven SMS and voice outreach, lead nurturing, appointment scheduling, warm call transfers, and analytics services to help Client engage and qualify leads.

3.2 Access

Subject to these Terms and any applicable Agreement, Aktify grants Client a limited, non-exclusive, non-transferable license to access and use the Platform during the applicable subscription term solely for Client's internal business purposes.

3.3 Modifications

Aktify reserves the right to modify, update, or discontinue any aspect of the Services with reasonable prior notice to Client.

3.4 AI-Generated Communications

Client acknowledges that the Platform uses artificial intelligence to generate outbound communications on Client's behalf. Client is solely responsible for ensuring all such communications comply with applicable laws and regulations, including obtaining all required consents prior to deployment.

4.1 Creation

To access the Platform, you must register for an account and provide accurate, complete, and current information. You agree to keep this information up to date.

4.2 Security

You are responsible for maintaining the security of your account, including using strong passwords and enabling multi-factor authentication (“MFA”) where available. You agree to notify Aktify immediately at info@aktify.com of any unauthorized access or security breach. Do not share your credentials with anyone.

4.3 Authorized Users

Client is responsible for all actions taken by its authorized users and for ensuring those users comply with these Terms.

5.1 Compliance

Client is solely responsible for complying with all applicable federal, state, and local laws and regulations governing its use of the Services, including without limitation: the Telephone Consumer Protection Act (“TCPA”), including obtaining prior express written consent and maintaining consent records for at least four (4) years; Federal Communications Commission (“FCC”) rules and regulations; the CAN-SPAM Act; applicable state privacy and telemarketing laws; and the National Do Not Call (“DNC”) Registry requirements.

5.2 Opt-In Language

Prior express written consent is required before using the Platform to send SMS messages or initiate calls to any Consumer. Client is responsible for procuring and documenting such consent.

5.3 Prohibited Uses

You agree not to use the Services to:

• Contact individuals who have not provided the required prior express written consent
• Send spam, phishing messages, or other unsolicited commercial communications
• Harass, abuse, or harm any individual
• Infringe any third party's intellectual property rights
• Transmit malware, viruses, or other harmful code
• Circumvent or attempt to circumvent any security measures of the Platform
• Engage in any unlawful activity or facilitate unlawful activity by others
• Reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from the Platform

5.4 Client Data Accuracy

All Client Data submitted to the Platform must be accurate, current, and lawfully obtained. Client represents and warrants that it has the right to provide such data to Aktify and to use it in connection with the Services.

5.5 Indemnification for Consent and Compliance Failures

Client agrees to indemnify, defend, and hold harmless Aktify and its officers, directors, employees, and agents from and against any claims, liabilities, damages, losses, penalties, and expenses (including reasonable attorneys' fees) arising out of or related to Client's failure to obtain required consents or to comply with applicable laws and regulations.

6.1 Fees

Fees are set forth in the applicable Agreement and are denominated in U.S. dollars.

6.2 Payment Terms

Invoices are due Net 30 from the invoice date. All fees are non-refundable except as expressly set forth in the applicable Agreement.

6.3 Late Payments

Overdue amounts will accrue interest at the rate of 1.5% per month (or the maximum rate permitted by law, whichever is lower). Aktify reserves the right to suspend access to the Services for accounts with overdue balances.

6.4 Taxes

Client is responsible for all applicable taxes, levies, and duties associated with the Services, excluding taxes based on Aktify's net income.

7.1 Aktify IP

Aktify retains all right, title, and interest in and to the Platform, the Site, and all related Intellectual Property Rights. No rights are granted to Client except as expressly set forth in these Terms or a signed Agreement.

7.2 Client Data

Client retains ownership of Client Data. Client grants Aktify a limited, non-exclusive license to access and use Client Data solely to provide and improve the Services during the term of the applicable Agreement.

7.3 Feedback

If Client provides feedback, suggestions, or recommendations regarding the Services (“Feedback”), Aktify may use such Feedback freely without restriction or obligation to Client.

7.4 Aggregate Data

Aktify may collect and use aggregated and anonymized data derived from Client's use of the Services to improve, develop, and enhance the Platform and Services, provided such data does not identify Client or any individual Consumer.

8.1 Definition

“Confidential Information” means any non-public information disclosed by one party to the other that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure.

8.2 Obligations

Each party agrees to hold the other's Confidential Information in strict confidence, to use it only for the purposes contemplated under these Terms, and not to disclose it to any third party without the disclosing party's prior written consent.

8.3 Exceptions

Confidentiality obligations do not apply to information that: (a) is or becomes publicly available through no fault of the receiving party; (b) was known to the receiving party prior to disclosure; (c) is independently developed by the receiving party without reference to the Confidential Information; or (d) is required to be disclosed by law or court order, provided the receiving party gives prompt written notice to the disclosing party where legally permitted.

9.1 Role

With respect to any personal data included in Client Data, Aktify acts as a service provider or data processor, processing such data solely on behalf of and pursuant to Client's instructions.

9.2 Security Measures

Aktify maintains commercially reasonable administrative, technical, and physical security measures designed to protect Client Data from unauthorized access, disclosure, alteration, or destruction.

9.3 Breach Notification

In the event of a confirmed security breach affecting Client Data, Aktify will notify Client without undue delay in accordance with applicable law.

10.1 Term

These Terms remain in effect for the duration of any active Agreement between Aktify and Client.

10.2 Termination for Cause

Either party may terminate an Agreement and these Terms for cause upon written notice if the other party: (a) materially breaches these Terms and fails to cure such breach within thirty (30) days of written notice; (b) becomes insolvent or makes an assignment for the benefit of creditors; or (c) engages in fraud or willful misconduct.

10.3 Effect of Termination

Upon termination, all licenses granted to Client cease immediately and all outstanding fees become due and payable. Provisions that by their nature should survive termination will remain in effect, including Sections 7, 8, 11, 12, 13, and 14.

11.1 By Aktify

Aktify represents and warrants that: (a) the Services will perform materially in accordance with the applicable documentation; (b) Aktify has the right to provide the Services as described; and (c) Aktify will comply with all applicable laws in the provision of the Services.

11.2 By Client

Client represents and warrants that: (a) it has the authority to enter into these Terms; (b) it has obtained all required consents from Consumers prior to submitting their data to the Platform; (c) it will comply with all applicable laws; and (d) Client Data does not infringe any third party's rights.

11.3 Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.1, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” AKTIFY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. AKTIFY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY SPECIFIC RESULTS WILL BE ACHIEVED.

12.1 Exclusion of Consequential Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, BUSINESS, OR GOODWILL, ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.2 Liability Cap

EACH PARTY'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES WILL NOT EXCEED THE GREATER OF: (A) THE TOTAL FEES PAID OR PAYABLE BY CLIENT TO AKTIFY IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM; OR (B) ONE THOUSAND DOLLARS ($1,000).

12.3 Exceptions

The limitations in Sections 12.1 and 12.2 do not apply to: (a) Client's indemnification obligations under Section 5.5; (b) damages resulting from either party's intentional misconduct or fraud; (c) a party's breach of its confidentiality obligations under Section 8; or (d) liability that cannot be limited under applicable law.

13.1 By Client

Client will indemnify, defend, and hold harmless Aktify and its officers, directors, employees, and agents from and against any claims, damages, liabilities, losses, penalties, and expenses (including reasonable attorneys' fees) arising out of or related to: (a) Client's breach of these Terms; (b) Client's failure to obtain required Consumer consents; (c) Client Data; (d) regulatory claims arising from Client's use of the Services; or (e) Client's negligence or willful misconduct.

13.2 By Aktify

Aktify will indemnify, defend, and hold harmless Client from and against any third-party claims alleging that the Platform (excluding Client Data and any modifications made by Client) infringes such third party's Intellectual Property Rights.

13.3 Procedure

The indemnified party must provide prompt written notice of any claim, grant the indemnifying party sole control over the defense and settlement, and reasonably cooperate in the defense. The indemnifying party may not settle any claim that imposes obligations on the indemnified party without prior written consent.

14.1 Informal Resolution

Before initiating any formal dispute proceeding, the parties agree to attempt to resolve any dispute through good faith negotiation for a period of at least thirty (30) days following written notice of the dispute.

14.2 Governing Law

These Terms and any disputes arising hereunder are governed by the laws of the State of Utah, without regard to its conflict of law principles.

14.3 Venue

The parties consent to exclusive jurisdiction and venue in the state and federal courts located in Utah County, Utah.

14.4 Arbitration

The parties may elect to resolve commercial disputes through binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. This election is optional and must be agreed to in writing by both parties.

14.5 Class Action Waiver

Each party waives any right to bring or participate in any class action, class arbitration, or representative proceeding against the other party.

14.6 Emergency Relief

Nothing in this Section limits either party's right to seek emergency injunctive or other equitable relief from a court of competent jurisdiction to prevent irreparable harm pending resolution of a dispute.

15.1 Entire Agreement

These Terms, together with any applicable Agreement and the Privacy Policy, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements and understandings.

15.2 Amendments

Aktify reserves the right to modify these Terms at any time by posting updated Terms on the Site. Continued use of the Services after posting constitutes acceptance of the updated Terms.

15.3 No Waiver

Failure by either party to enforce any provision of these Terms will not be construed as a waiver of that party's rights.

15.4 Severability

If any provision of these Terms is found to be invalid or unenforceable, the remaining provisions will continue in full force and effect.

15.5 No Assignment

Neither party may assign these Terms or any rights hereunder without the other party's prior written consent, except in connection with a merger, acquisition, or sale of substantially all assets.

15.6 Force Majeure

Neither party will be liable for delays or failures in performance resulting from causes beyond its reasonable control, including acts of God, natural disasters, war, terrorism, government action, or internet or telecommunications failures.

15.7 No Third-Party Beneficiaries

These Terms are for the sole benefit of the parties and do not create any third-party beneficiary rights.

15.8 Notices

All notices under these Terms must be in writing and delivered by email, overnight courier, or certified mail to the addresses on record for each party.

15.9 Independent Contractors

The parties are independent contractors. Nothing in these Terms creates a partnership, joint venture, employment, or agency relationship between the parties.