Dynamic Omni Channels and its affiliates, a Florida limited liability company, whose principal place of business is 9427 Corporate Lake Drive, Tampa, FL 33634, (hereinafter Dynamic Omni Channels) and the Service Customer. NOW, THEREFORE, the parties hereto agree as follows:
1. SERVICES. Dynamic Omni Channels will provide to Service Customer the selected services on the front of this agreement commencing on the agreed date, during the selected term and service type, by setting up access accounts. The accounts will provide connection access to the Dynamic Omni Channels engine, maintained by Dynamic Omni Channels. This service may use communication through voice, public electronic mail (E-Mail), Telnet, FTP (File Transfer Protocol), and/ or other existing or in development services or replacements thereof to which Service Customer is or may be connected and as mutually agreed by Service Customer and Dynamic Omni Channels. All accounts are subject to Setup Fees and Monthly Service Fees. Selected additional services will be subject to additional fees.
2. CONNECTION & ACTIVATION. Service Customer is responsible for all physical connect ions and costs to access this service. Dynamic Omni Channels may, at its sole option and for agreed lees, assistService Customer in setting up Service Customer’s equipment and software.
3. RESTRICTIONS & DEALINGS WITH SERVICE CUSTOMERS. Service Customer’s correspondence or business dealings with customers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such customers. You agree that Dynamic Omni Channels (and its authorized affiliates) shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such customers on the Service. You shall cause all communications initiated to your customers through the Service to comply with all applicable laws and regulations, including without limitation those promulgated by the U.S. Federal Trade Commission and the U.S. Federal Communications Commission in connection with telemarketing and the prevention of unwanted phone calls. You shall be solely responsible for ensuring that your customers are adults who are competent to engage in commercial transactions with you.
4. CANCELLATIONS. This agreement may be canceled at any time during the first ninety (90) days by either party upon written notice to the other party. Agreement MUST be canceled prior to the next monthly billing cycle in order to avoid the additional monthly service charge. Furthermore, Service Customer agrees that Dynamic Omni Channels may cancel this agreement at any time for unsatisfactory credit, delinquency in payment of any fees or charges, or for non-compliance with laws, regulations and restrictions herein. Because services provided to Service Customer may be in part or in total subject to local, state, federal or international regulations, Dynamic Omni Channels reserves the right to suspend or terminate the service immediately, without notification, and/or apply such regulations when in effect.
5. RENEWALS. This agreement shall remain in effect during the agreed Service Term and shall be automatically renewed for another equal term unless canceled by either party by written notification to the other party, 30 days before its termination.
6. INDEMNIFY. Service Customer assumes full responsibility concerning the use of any messages, whether written, graphic, sound or any other form, used in any transmission. Service Customer agrees to release, indemnify and hold Dynamic Omni Channels (and its authorized affiliates) harmless from any claims, loss, damage or liability arising from the use of services purchased under this agreement. Service Customer agrees to pay for all attorney fees, court costs and other costs that may arise from Service Customer’s activities using this service and in connection with this indemnity. Service Customer acknowledges and agrees that Dynamic Omni Channels exercises no control whatsoever of any content or transmission through the Internet or any other data transfer means and agrees and discharges Dynamic Omni Channels from any claims of injury or liability from accessing any communication environments and/ or arising from this service.
7. DISCLAIMER. Service Customer represents and warrants that it will review and approve all omni channel communications and final proofs prior to the final proof being mailed out. Once a final proof and communication has been approved by the Service Customer, Dynamic Omni Channels is no longer responsible for any of the content therein. Additionally, Dynamic Omni Channels does not represent, warrant nor guarantee the response or success of any communication sent. Dynamic Omni Channels is not responsible for nor does it guarantee a specific mailing date and is not responsible for any communication delivered late. Service Customer acknowledges that Florida law prohibits pre-selected give away and Service Customer does hereby and by these presents, for themselves, its successors, and assigns, fully acquit, release, and forever discharge Dynamic Omni Channels, its heirs, successors, and assigns, of and from any and all claims, demands, damages, costs, attorneys’ fees, actions, and causes of action, whether arising at law or in equity, which Dynamic Omni Channels may incur for Service Customers violation of Florida State law. Additionally, Service Customer does hereby and by these presents, for themselves, its successors, and assigns, fully acquit, release, and forever discharge Dynamic Omni Channels, its heirs, successors, and assigns, of and from any and all claims, demands, damages, costs, attorneys’ fees, actions, and causes of action, whether arising at law or in equity, which Dynamic Omni Channels may incur in trademark and/or copyright infringements due to the omni channel communications approved by Service Customer.
8. All rights and remedies of Dynamic Omni Channels specified herein are cumulative and none shall exclude any other rights or remedies allowed by law or equity. In the event court action relating to this Agreement is brought by either Party against the other, the prevailing Party shall be entitled to recover from the non-prevailing Party reasonable attorneys’ fees and costs incurred in such action, the amount thereof to be fixed by the court.
9. CONSENT TO PERSONAL JURISDICTION AND VENUE; Waiver of Jury Trial. The Service Customer hereby consents to personal jurisdiction and venue, for any action brought by Dynamic Omni Channels arising out of a breach or threatened breach of this Agreement, exclusively in the Circuit Court in and for Hillsborough County, Florida; the Service Customer hereby agrees that any action brought by him or her, alone or in combination with others, against Dynamic Omni Channels whether arising out of this Agreement or otherwise, shall be brought exclusively in the Circuit Court in and for Hillsborough County, Florida. The Service Customer hereby agrees that any controversy which may arise under this Agreement would involve complicated and difficult factual and legal issues. Any action brought by Dynamic Omni Channels against the Service Customer or brought by the Service Customer, alone or in combination with others, against Dynamic Omni Channels, whether arising out of this Agreement or otherwise, shall be determined by a Judge sitting without a jury.
10. RISK. Use of this service and any information transmitted or obtained from or through this service is at the Service Customer’s sole risk. Dynamic Omni Channels (and its authorized affiliates) is not responsible for content, accuracy, quality, and actions or otherwise taken in response to the information usage through its services.
11. NO WARRANTIES. Dynamic Omni Channels makes no representation or warranty, of any kind, expressed or implied, for its services. Dynamic Omni Channels does not warrant any connection to, transmission over, or the result of any use of any network connection. Dynamic Omni Channels (and its authorized affiliates) assumes no responsibility for any damage or loss, or expense suffered by Service Customer or its clients, customers, patients, associates or employees, including but not limited to loss of data, delays, non-deliveries, missed deliveries, interpretation of messages, or service interruption caused by Dynamic Omni Channels or Service Customer, error, omission or negligence. The parties agree that any liability for any reason derived from this service may not exceed one month’s subscription fee at the service level in effect at the time of the claim.
12. FEES & PAYMENT. Dynamic Omni Channels reserves the right to change its fees at any time, upon 30-day notice to Service Customer. Service Customer agrees to pay Dynamic Omni Channels for the services provided in advance on/or before due date, either monthly or as agreed between Dynamic Omni Channels and Service Customer. The OLC usage fees will be added to the bill for the following billing period. Dynamic Omni Channels wiII notice and bill Service Customer by e-Mail posting, by mail or, when authorized, by charging Service Customer’s credit card. Service Customer agrees to pay all taxes applicable to this service. If Service Customer fails to pay the billed amount within three (3) days of due date, in addition to any other remedy, Dynamic Omni Channels, may disconnect and cease all services. For service reactivation the Service Customer shall be charged $45.00. Also, a $20.00 service fee will be charged for returned checks. Acceptance of any partial moneys due hereunder, or its failure to act in the event of default by Service Customer, shall not constitute or waiver by Dynamic Omni Channels of any rights or remedies it may have at law or in equity. All outstanding balances shall accrue interest at 1.5% per month until paid.
13. NOTICES. All notices shall be considered delivered when posted to either party to e-Mail, by fax, or sent by registered mail.
14. APPLICABLE LAW. The laws of the State of Florida shall govern this Agreement.
15. ENTIRE AGREEMENT. This Agreement contains the entire Agreement between the parties and there are no other promises or conditions in any other agreement whether oral or written.
16. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.
17. CAUSES BEYOND CONTROL. Neither Dynamic Omni Channels nor its agents or authorized affiliates will be in breach of this agreement when for causes beyond its control Dynamic Omni Channels is unable to perform, in whole or in part, any of its obligations under this agreement Such causes shall include, but not be limited to, labor disputes, government regulations or controls, fire, flood, or other casualty, inability to maintain its services, technical failure, economic conditions, acts of God, insurrection, or any other cause not within reasonable control of Dynamic Omni Channels.