ANSWER HERO LLC SUBSCRIPTIONS AND SERVICES AGREEMENT

TERMS AND CONDITIONS

Answer Hero LLC d/b/a Office Sense (collectively “ANSWER HERO”) is excited to have you as a Client and we look forward to your experience with the ANSWER HERO team. This Agreement sets forth the terms and conditions that govern our relationship at all times.  PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND ANSWER HERO.

  1. Services and Products

This Agreement shall apply to all Services, Subscriptions, Maintenance and Products (collectively “Service” or “Services”) provided by Answer Hero to you (“Client”).   By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. The Services under this Agreement consist of the following. Answer Hero will make reasonable efforts to provide the services selected and agreed to by the Client on its chosen and paid for written confirmation or customer care. Client authorizes Answer Hero to be their answering service (including Answering Service, Virtual Receptionist or Call Center as chosen and paid for by Client) and to act as their agent in matters relating to answering, messaging, and telecommunication services. Client agrees to use the services in accordance with the terms and conditions of this Agreement. Answer Hero will capture information and data as requested in the protocol, setup with the Client, utilizing their proprietary and/or third-party software, calendars, e-mail, fax, pager, message ticket, online information entry, or utilizing other means of electronic transmission required for the service and within the capabilities of Answer Hero. Client understands that it must provide the email, pager, fax, SMS text, forwarding service or other telecommunication service(s) or device(s) that will be used to deliver messages to the client. All telephone numbers, software and access provided by Answer Hero remain the property of Answer Hero upon termination of services. Answer Hero relies solely on the Client for the Client to safeguard its personal, confidential, and proprietary information and communication devices from third-party hacking or disruption.

If an increase in call volume is expected, Client agrees to give Answer Hero at least ten (10) business days written notice so that Answer Hero can appropriately staff for the change. Client also agrees that Answer Hero may automatically charge Client to upgrade to the next plan, without advance notice to Client, if the Client’s increase in usage exceeds their current plan. Initial staffing shall be based on the selected plan according to the Account Setup Form. Client will not use Answer Hero’s service(s) for any illegal, illegitimate or fraudulent purposes. Client will not sell, transfer or otherwise make available the Service to any third parties without the prior written consent of Answer Hero.

  1. Answer Hero Responsibilities.
    1. Answer Hero agrees that the services will be performed in a professional manner with their best effort. Answer Hero does not provide any guarantees or assurances with respect to the services hereunder.
    2. If Client believes that any Service does not perform as described in this Agreement, Client must notify Answer Hero in writing within thirty (30) days of the occurrence of the problem, and Answer Hero will use reasonable efforts to resolve the issue in good faith and to the best of Answer Hero’s ability. The foregoing provides Client’s sole remedy for Services or Services that do not comply with Client expectations.
    3. Except as provided herein, all Services provided by Answer Hero are provided “as is”.
    4. Answer Hero’s call center will be available 24 hours a day and 365 days a year, subject to the force majeure clause herein. Answer Hero customer care center will be Monday through Friday excluding commercially standard and federal holidays and subject to the force majeure clause herein. Answer Hero does not provide guarantees to uptime and expected availability. Answer Hero’s services are subject to unexpected interruptions by software, telephone outages, hardware, internet problems, datacenter issues, and acts of god.  Answer Hero will undertake its best efforts to ensure uptimes of services.
    5. Answer Hero expressly disclaims all representations and warranties for non-Answer Hero products and services, including without limitation, warranty of non-infringement, title, fitness for a particular purpose, or merchantability, whether express, implied, or statutory (by any territory or jurisdiction to the extent permitted by law). Answer Hero does not warrant that it will have sufficient resources to handle unexpected increases in call volume. Answer Hero does not warrant that the services are error-free, or will operate without delays or interruptions. Answer Hero is not responsible for transmission errors, corruption of data, or the security of information carried over telecommunication services. Subject to the foregoing limitations, Answer Hero will use commercially reasonable efforts to provide the services, and if Answer Hero fails to do so, Client’s sole remedy will be, at Answer Hero’s sole discretion, either: (1) the correction of the failure to provide the services, and/or (2) a credit of recurring charges paid to Answer Hero for such services during the period of time that the services were affected. Any credits offered by Answer Hero will not be refunded, but will be applied to Client’s account with Answer Hero for future services.
  2. Term

This agreement shall be on a month to month basis until terminated by either party upon written notice to CustomerCare (at) AnswerHero.com.  For termination to be effective, accounts with less than 5,000 minutes per month must provide 30 days advance written notice and accounts over 5,000 minutes per month must provide 60 days advance written notice.  Upon cancellation by Client, any overage amount at the time of cancellation will be due immediately.  Plan base rate charged for the month of cancellation will not be refunded or pro-rated. Answer Hero reserves the right to increase any of its rates or charges at any time upon thirty (30) days’ notice.

  1. Charges

For all Services, automatic payment by credit card or ACH is required and by using our services the Client authorizes the use of any payment method on file to be used to pay for any outstanding charges and agrees that the payment method provided is a valid payment.  A valid payment authorization is to be established, maintained, and updated for the amount of the plan chosen plus overage as stated and selected in the online sign up or by written confirmation to customer care. Client agrees to inform Answer Hero of any updates to payment method so that Answer Hero is timely paid. Base plan rate is due in advance and overage minutes are billed the following month. If the use of services depletes the selected plan, Answer Hero reserves the right to require that the plan be restored or the Client upgrade to a higher plan.

Answer Hero may prorate the first month charges attributable to Client.  All Client payments are due upon Client’s receipt of the invoice.  If the Client fails to timely submit payments or their account is suspended for non-payment, Answer Hero maintains the discretion to require Client to submit a non-refundable deposit that is equal to the sum of the previous two months of invoices billed to the Client.

All calls and work time are measured in increments which are left to the full discretion of Answer Hero. Time of call is measured from connect to disconnect time as recorded by Answer Hero’s software. Per minute charges include all inbound and outbound actions. Answer Hero will charge the selected payment method on a monthly basis for services rendered. Answer Hero reserves the right to require payment outside of the regular monthly billing cycle. Invoices will be issued and due on the date service is established and due each month thereafter until service is terminated in writing.

All Answer Hero invoices which are not paid in 30 days (except for any amounts with respect to which Client notifies Answer Hero in writing during such 30-day period of a good faith bona dispute) shall bear interest at the rate of 18% per annum, but not to exceed the maximum rate permitted by law.  Additionally, Client will be assessed a charge of $35.00 for each check or other payment whereby a financial institution refuses to honor for any reason. Client acknowledges and agrees that unless and until such invoice(s) and late charges are paid in full, Answer Hero reserves the right, without notice, to immediately suspend and/or terminate services and products under this Agreement, in addition to such other remedies it may have at law or in equity including reimbursement of legal costs and other collection service costs incurred in connection with the late payment. All charges and quotes under this Agreement are exclusively in US Dollars.

If the Client does not consume the base plan minutes within the monthly term, the unused minutes will not carry over to the next month. The base plan is charged to the Client in advance. Overage in excess of a plan is billed at the overage rate in arrears. At Answer Hero’s sole discretion, it may require the Client to upgrade its plan or restart their cycle to account for the labor required to service the Client.

Failure to give at least thirty (30) days written notice of intention not to renew the Services after the initial contract term will result in automatic renewal and Client will be liable for an additional year’s charges. The initial annual Services period begins on the 1st day of the next month following the date of your purchase of the Services from Answer Hero.  Any Client inquiry concerning an invoice must be made within thirty (30 days from the Client’s receipt of the invoice.

  1. Client Responsibilities

Answer Hero looks forward to working with the Client to provide the best Service possible. Client shall provide Answer Hero with all information relevant to the services to be performed and shall cooperate and provide Answer Hero with all assistance as may reasonably be required to perform the services.

Client shall be solely responsible for administering and monitoring the use of login IDs and passwords by its administrators and users. Upon the termination of employment of any such Client administrator or user Client will immediately terminate access by the login ID and password of that individual. Client is exclusively responsible for backing up, monitoring, and/or securing Client content, and Answer Hero is not responsible in any manner for loss of Client data, viruses, ransomware and/or the compromise of Client’s data integrity. Client is exclusively responsible for ensuring it has adequate safeguards (including on its external devices) and protocol to maintain HIPAA or other personal information, including ADA compliance, pertaining to its clients and prospective clients. Further, the client is solely responsible for paying all telecommunication taxes and fee, required for its operations. Client is also responsible for paying any applicable taxes applicable to its jurisdiction.

The Client is exclusively responsible for notifying its callers, clients, prospective client vendors, and business prospects that Answer Hero may record its calls with said third parties to this Agreement may be recorded for quality assurance purposes. Client is responsible for determining if it is legally responsible under state or federal law to notify its callers that the calls may be recorded.

  1. Non-Solicitation of Employees

During the term of this Agreement and for a two-year period thereafter, Client shall not directly or indirectly, solicit or accept for employment or for engagement as an independent contractor, or encourage to leave their employment or engagement, any employee or independent contractor of Answer Hero.  In the event that Client breaches this provision resulting in Answer Hero losing the services of an employee or independent contractor, Client shall pay to Answer Hero an amount equal to 100% of the most recent annual rate of compensation of the employee or independent contractor, payable upon the date of employment and/or engagement.

  1. Limitation of Liability

Client must notify Answer Hero of any dispute within 10 days of when the Client knew or should have known of any such dispute, and thereafter, Answer Hero will work in good faith to resolve the dispute within 5 days. Answer Hero shall not be liable for: (1) any consequential, incidental, special or punitive damages (including, without limitation, lost revenue, lost profits or loss of data), even if advised of the possibility of such damages, or (2) acts of negligence unless it is also proven to an arbitration panel that Answer Hero was an intentional wrongdoer in accordance with Florida law.  Notwithstanding anything contained herein to the contrary, Answer Hero’s total liability to Client under this agreement from all causes of action and under all theories of liability will be limited to the lesser of (a) payments actually received from Client under this agreement during the six (6) month period preceding the date a claim for liability arises hereunder or (b) $3,000. The parties agree to the mutual allocation of risk set forth herein, and the parties agree that this stipulated amount is reasonable and any amount of damages sustained in connection with this agreement are not currently ascertainable.

The Client shall fully indemnify and defend Answer Hero against any third-party claims asserted against Answer Hero that arise from the Client’s wrongful acts of any form.

Neither party will be liable to the other party for any loss or damage resulting from any delay or failure to perform all or any part of this Agreement, except for failure to pay monies due, if such delay or failure is caused by circumstances constituting force majeure.  Such circumstances include acts of God, strikes, lockouts, riots, acts of war, acts of violence, acts of terror, earthquakes, floods, windstorms, fire and explosions.

  1. Retention Policies

Answer Hero will destroy all Client data within 90 days after the information is initially obtained by Answer Hero. Notwithstanding the foregoing, all Client data will be discarded immediately after Client closes its account with Answer Hero. Furthermore, all Client billing data, statistics, and call detail records are purged after 90 days from the date of generation.

  1. General

Each party represents and warrants to the other party that (i) it has the right to enter into this Agreement and perform its obligations hereunder; (ii) it is organized under the laws of its jurisdiction in a corporate or equivalent form; (iii) to the best of its knowledge there are no claims, actions or proceedings against it (including without limitation bankruptcy, or any assignments for the benefit of creditors) that would impair its ability to honor all legal obligations (iv) the Agreement constitutes valid, legal and binding obligations enforceable in accordance with their terms, (v) Client was afforded the opportunity to consult with legal counsel in connection with the Agreement, and (vi) the terms of this Agreement represent the entire agreement between the parties hereto concerning the subject matter of this Agreement and supersedes any and all prior oral or written statements , agreements, quotations, and negotiations regarding the subject matter within this Agreement.  This Agreement cannot be altered, amended, or modified except in writing executed by an authorized representative of each party.  The parties hereto are independent of each other, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.  Neither party shall have the power to obligate or bind the other party to any other Agreement.

Arbitration under this Agreement shall be the sole means of resolving all disputes between the Client and Answer Hero to the fullest extent allowed by law.  The Arbitration shall be governed by the rules of the American Arbitration Association (“AAA” then in force and effect.  As part of any dispute hereunder, including within Arbitration, there will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective or representative action on behalf of a class of persons or the general public (“Class Action Waiver.)”

Arbitration under this Agreement shall occur in Miami-Dade County, Florida. Any decision in arbitration shall be final and binding upon the Parties. Judgment may be entered thereon in any court of competent jurisdiction. In the event of a dispute in connection with any services rendered under this agreement or in any collection action filed by Answer Hero, the prevailing party as defined by an arbitration panel or Court of law, shall be entitled to recover its reasonable attorneys’ fees and costs expended in relation to the dispute. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of Florida and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

You agree to indemnify and hold Answer Hero and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Answer Hero’s use of your content; (iv) your violation of the rights of any third party, including Third Party Providers; or (v) Answer Hero’s recordings of phone conversations with your clients, prospective clients, callers, or business prospects.

The Client authorizes Answer Hero to provide and/or produce to the trier of fact personal information (including call logs, messages, content) pertaining to your clients, prospective clients, or business leads in connection with any disputes between the parties.

If any provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, such determination will not affect the validity or enforceability of any other provision of this Agreement.

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