TERMS AND CONDITIONS

These Terms and Conditions for Services (“Terms“) govern the provision of Services (as defined below) by Nexa Receptionists LLC d/b/a Answer 1 and its affiliates and subsidiaries (together, “Nexa“, “Company”, “we”, “us”, or “our”) to you (“Client” or “you”) pursuant to one or more Service Plans (as defined below) entered into by and between Nexa and Client from time to time. These Terms are a legal contract between you and Nexa. By using our Services, you are agreeing to all the Terms.

1. Services

The Service Plan which you and Nexa agreed to (the “Service Plan“) and these Terms (together with the Service Plan, this “Agreement“) comprise the entire agreement between you and Nexa, and supersede all prior terms and conditions and all other prior or contemporaneous understandings, agreements and communications. You understand and acknowledge that Nexa shall only provide Services to you pursuant to a Service Plan entered into by and between you and Nexa. The Service Plan is governed by these Terms and is hereby incorporated herein by reference. In the event of any conflict between these Terms and the Service Plan, the Service Plan shall govern. Nexa shall provide to Client the services described in the Service Plan (the “Services”) in accordance with these Terms and the Service Plan. If telephone answering services are included in the Services, (a) Nexa is not responsible for the transfer of Client telephone lines to the Call Center (as defined below in Section 8) and (b) Client hereby authorizes Nexa to record messages between Client’s callers and the Call Center. Nexa offers several different rate plans and billing models to meet individual client needs and objectives. Nexa bills either on a time-basis or on a per call-basis, unless otherwise specified on the Service Plan. The time-based billing will be calculated based on either worktime (“Worktime”) or talk time (“Talk Time”), as set forth on the Service Plan. Worktime and Talk Time are described in further detail below. Client understands, acknowledges, and agrees that Nexa does not and cannot control the types of inbound calls that ring into Client’s account and that all Worktime or Talk Time generated by any and all types of inbound calls, including but not limited to pre-recorded calls, robocalls, telemarketing calls, other unsolicited calls, and/or ‘dead-air’ calls, is billable to Client. Further, notwithstanding anything in this Agreement to the contrary, for Services billed on a per call basis, Nexa reserves the right to bill the Client for inbound calls that are pre-recorded calls, robocalls, telemarketing calls, other unsolicited calls, and/or ‘dead-air’ calls.

(a) Worktime. Worktime is any time that Nexa staff are working in or on your account on your behalf, including, but not limited to, time spent answering your calls, drafting and sending emails, initiating, facilitating, or making outbound calls, dispatching, reviewing and responding to customer service inquiries, programming, conducting account maintenance and/or otherwise corresponding with you or your callers on your behalf. Worktime is calculated on a minute usage-basis, which will be billed in increments specified on the Service Plan. All billing increments are rounded up to the nearest increment. For example, if you are on a 30 second increment plan and receive a call that lasts 10 seconds, it will be billed as 30 seconds; and if you are on a 30 second increment plan and receive a call that lasts 31 seconds, it will be billed as 60 seconds. For Services billed as Worktime, we do not bill for time when callers are on hold waiting to speak with the Call Center or for inbound ringing time, but we do bill for time when callers are on hold waiting to be transferred from the Call Center to the Client (including outbound ringing time), and we do bill for time when callers are on hold while the Call Center interacts with the Client.

(b) Talk Time. Talk Time is any time Nexa spends talking with you or your callers via your account, including, but not limited to, any time beginning when a call is answered and ending when the call is disconnected on a phone line dedicated to the Client. If multiple phone numbers (lines) are used for the Client’s account, then Talk Time for each number (line) is billable to the Client. Talk Time is calculated on a minute usage-basis, which will be billed in increments specified on the Service Plan. All billing increments are rounded up to the nearest increment. For example, if you are on a 30 second increment plan and receive a call that lasts 10 seconds, it will be billed as 30 seconds; and if you are on a 30 second increment plan and receive a call that lasts 31 seconds, it will be billed as 60 seconds. For Services billed as Talk Time, we do not bill for time when callers are on hold waiting to speak with the Call Center or for inbound ringing time, but we do bill for time when callers are on hold waiting to be transferred from the Call Center to the Client (including outbound ringing time), and we do bill for time when callers are on hold while the Call Center interacts with the Client.

(c) Per Call Billing. Nexa may bill per call, which will be notated on the Service Plan. In such a case, the Service Plan will specify a Recurring Charge (as defined below in Section 3) based on an allotted number of calls, and a fee for any Overage Usage (as defined below in Section 1(d)) for calls in excess of the allotted number of calls. The types of billable calls (whether inbound to or outbound from the Call Center), will be specified on the Service Plan.

(d) Service Fees. Our fees are calculated per cycle. Cycle periods are noted on the Service Plan and are either weekly, monthly, or 28-days, unless otherwise specified on the Service Plan. There are three types of fees charged in connection with our Services. First, we charge fixed Recurring Charges as outlined on the Service Plan, which include the fees for the base number of minutes (for either Worktime or Talk Time billing) or calls (for per call billing) allotted in the Service Plan. Recurring Charges are due in advance, on or before the first day of the applicable billing period. Next, we bill a variable overage fee if your usage of time or calls, as applicable, exceeds what is allotted in your base rate (“Overage Usage”), and such variable overage fee is due in arrears on the first day of the subsequent billing period. Lastly, we may bill certain miscellaneous fees as more fully described in Section 2 (“Miscellaneous Fees”) of these Terms. You are responsible for paying all of these fees in addition to any applicable sales and use taxes based on the address you provide upon signing up for the Service Plan. You agree to pay all fees and applicable sales and use taxes on time. IF YOU HAVE ANY QUESTIONS ABOUT HOW YOU ARE BEING BILLED FOR SERVICES, PLEASE CONTACT OUR BILLING DEPARTMENT VIA PHONE OR EMAIL AT 800-408-3408 OR BILLING@NEXA.COM. IN ADDITION TO ANSWERING ANY QUESTIONS ABOUT HOW YOU ARE BEING BILLED, WE WILL BE HAPPY TO PROVIDE YOU WITH A FULL DETAILED DESCRIPTION OF ANY AND ALL FEES RELATED TO YOUR ACCOUNT.

2. Miscellaneous Fees

Depending on the Service Plan features selected by the Client, Nexa will charge certain Miscellaneous Fees which will be noted on the Service Plan. These Miscellaneous Fees may include but are not limited to (a) a holiday related fee for the following holidays: New Years Day, Martin Luther King Jr. Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, and Christmas; (b) additional fees for maintenance, programming, coding, software development, general technology services, and telephony services and troubleshooting; and (c) additional fees, costs, and expenses relating to the additional training and coaching of Nexa employees in connection with new, enhanced, upgraded, or revised Client products or services, and / or material changes to call handling process or scripts as well as additional features provided to Client upon Client’s request. Nexa reserves the right, upon notice to Client, to increase or change any component of the Miscellaneous Fees after the first twelve (12) months of Services. If certain features are selected which are not included in the Recurring Charge noted on the Service Plan or otherwise noted on the Service Plan, Nexa may charge a fee for those features which may include, but are not limited to, voicemail boxes, call transfer fees, additional phone number rental fees, reporting fees, portal and mobile app access fees, and encrypted SMS messaging. Miscellaneous Fees which are known, predictable and recurring in nature, such as recurring phone number rental fees, will be billed in advance with the Recurring Charge and are due at the same time as the Recurring Charge. Miscellaneous Fees which are not recurring in nature and not predictable will be billed in arrears with any Overage Usage charges and are due at the same time as the Overage Usage charges. IF YOU HAVE ANY QUESTIONS ABOUT HOW YOU ARE BEING BILLED FOR SERVICES, PLEASE CONTACT OUR BILLING DEPARTMENT VIA PHONE OR EMAIL AT 800-408-3408 OR BILLING@NEXA.COM. IN ADDITION TO ANSWERING ANY QUESTIONS ABOUT HOW YOU ARE BEING BILLED, WE WILL BE HAPPY TO PROVIDE YOU WITH A FULL DETAILED DESCRIPTION OF ANY AND ALL FEES RELATED TO YOUR ACCOUNT.

3. Payment; Late Charges

As of the start date indicated in the Service Plan (“Start Date”), Nexa provides regular Services to the Client. On or before the Start Date, and on or before the first day of each successive billing cycle following the Start Date, Client shall pay the rate (or pro-rata portion thereof, as applicable) for the Services set by Nexa in the Service Plan (“Recurring Charge”). Nexa reserves the right, upon notice to Client, to increase or change any component of the Recurring Charge, variable Overage Use charge, or Miscellaneous Fees after the first twelve (12) months of Services. Client shall, at all times, maintain a valid form of payment on file with Nexa. Nexa reserves the right, and Client hereby authorizes Nexa, to charge the valid form of payment on file at any time for Services rendered but not yet paid. Nexa reserves the right upon notice to client to immediately charge the payment on file if usage materially exceeds the base rate allotment. All fees are quoted and to be paid in United States dollars. The foregoing authorization shall not affect your obligation to pay all sums due and payable to Nexa if Nexa fails to, is unable to, or refrains from charging any such payment on file. If a charge is not made by Nexa for whatever reason, the payment to Nexa may be late or past due. If you do not pay on time or if we cannot charge the payment method you have on file for any reason, Nexa reserves the right to suspend or terminate your account. Additionally, if any payment is not made within 21 days after the due date, we may charge a late charge equal to the greater of $10 or 10% of the amount then due, per cycle period, subject to any restrictions imposed by local law. IF YOU HAVE ANY QUESTIONS ABOUT HOW YOU ARE BEING BILLED FOR SERVICES, PLEASE CONTACT OUR BILLING DEPARTMENT VIA PHONE OR EMAIL AT 800-408-3408 OR BILLING@NEXA.COM. IN ADDITION TO ANSWERING ANY QUESTIONS ABOUT HOW YOU ARE BEING BILLED, WE WILL BE HAPPY TO PROVIDE YOU WITH A FULL DETAILED DESCRIPTION OF ANY AND ALL FEES RELATED TO YOUR ACCOUNT.

4. Term; Termination

Nexa shall provide the Services to Client for the time period described in the Service Plan (the “Term”), which Term shall automatically renew for successive periods unless Nexa or Client gives thirty (30) days prior written notice of termination. Client may request changes to the Service Plan by calling or emailing Nexa. Requested changes must be approved by a Nexa authorized representative. Any changes to the Service Plan will be reflected in the next billing cycle, unless otherwise agreed to by Nexa and Client. A credit may be applied to your account at Nexa’s sole discretion to reflect changes made and implemented during a billing cycle. Nexa may immediately terminate the Services with or without notice in the event that Client is in Material Default, as determined by Nexa. For purposes of this Agreement, a “Material Default” shall occur, or shall be deemed to have occurred, if (i) we suspect that providing Services to you aids in illegal activity, relates to fraudulent activity, or is party to potentially illicit activity including, for example, sexual encounters, (ii) you, your staff, or your callers are abusive, disrespectful or otherwise inappropriate to our personnel, (iii) you breach, violate, fail to perform under, or fail to comply with any of the terms set forth in the Agreement, (iv) Client fails to pay any other amount when due under this Agreement, or (v) Client becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. If Nexa does not resolve a Client service issue within 14 days after Client has notified Nexa of such issue in writing, Client may terminate this Agreement immediately by providing written notice to Nexa. Upon termination of the Agreement for any reason, Nexa shall maintain the right to collect any and all amounts then due, including any prorated amounts for Services rendered and not yet paid. Upon termination of the Agreement by Nexa as a result of Client’s Material Default, or otherwise in the event of Client’s Material Default that does not result in termination of the Agreement, in addition to any other rights Nexa may have at law or equity, (a) Nexa shall maintain the right to collect any and all amounts then due, (b) Client shall pay all legal fees and collection costs incurred by Nexa, and (c) Client shall pay all late fees that may accrue as a result of such Material Default.

5. Client's Obligations, Acts and Omissions

Client shall respond promptly to any Nexa request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Nexa to perform the Services in accordance with the requirements of this Agreement. If Nexa’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or any of its agents, subcontractors, consultants or employees, including communicating inaccurate or outdated information, Nexa shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client in connection therewith.

6. Methods of Communication and Disclosure

In accordance with applicable law, you hereby expressly agree that we may contact you via email, phone call, text message, or any other method of communication, and that we may use any information that you provide to us, for the purposes of fulfilling our duties under this Agreement as well as for marketing and promotional purposes, customer service purposes, system maintenance purposes, billing and collections purposes, survey purposes, and/or returning messages from you or your staff. Any and all phone, data, and other communications rates by your communications vendors may apply. You agree that we may disclose any information to comply with applicable law or regulation or with valid legal process including subpoenas, court orders, or search warrants. Client agrees that Nexa shall be entitled to identify Client as a customer in Nexa marketing materials and on its website.

7. Taxes

Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.

8. Scripted Readings

To the extent Client has not already done so, Client will promptly provide Nexa with scripted texts that enable the Call Center to answer questions about Client’s products and services. The “Call Center” is defined as the facility and staff engaged to provide Services to the Client and includes, but is not limited to, telephone service representatives, customer support representatives, supervisory and quality assurance staff, and administrative support personnel. Nexa will train the Call Center to answer questions about Client’s products or services based on the scripted texts provided by Client. Nexa will use reasonable efforts to ensure the Call Center follow Client’s scripts, directions, and account instructions. Client recognizes that, in any human encounter, it is not possible to anticipate and prepare for every conceivable question about Client’s products and services that the Call Center may be asked. Therefore, in instances in which the Call Center cannot answer questions raised by Client’s customers or prospects, the Call Center will direct their questions to Client for a more detailed response. Client is solely responsible for providing more detailed answers to questions asked by Client’s callers that the Call Center cannot answer. Thus, to the extent Client has not already done so, Client shall promptly provide appropriate contact email addresses and telephone numbers, which the Call Center may utilize to forward calls and questions that the Call Center cannot answer. Client will update the contact information provided to Nexa on a regular basis.

9. Intellectual Property

All intellectual property rights, including copyrights, trademarks, know-how and other confidential information, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to any work product and other materials that are or were delivered to Client under this Agreement or prepared by or on behalf of Nexa in the course of performing the Services shall be owned by Nexa.

10. Confidential Information

All non-public, confidential or proprietary information of Nexa, including information pertaining to business operations, strategies, pricing and marketing (collectively, “Confidential Information“), which was or is disclosed to Client in connection with the Services or otherwise and whether or not identified as “confidential” is confidential, and shall not be disclosed or used by Client without the prior written consent of Nexa. Confidential Information does not include information that is: (a) in the public domain; (b) known to Client at the time of disclosure; or (c) rightfully obtained by Client on a non-confidential basis from a third party. Nexa shall be entitled to injunctive relief for any violation of this Section 10 and Section 9.

11. Data Protection

Nexa will use commercially reasonable efforts to comply with all known applicable laws related to privacy and security of personal information that are standard in the industry. Client also agrees to comply with all applicable privacy and data protection laws including but not limited to FTC and HIPPA regulations. Client acknowledges the inherent risks, sensitivity and unknown consequences related to processing and storing personal information. Client shall be cautious and vigilant in limiting the personal information that will be processed by Nexa to only such personal information necessary to complete Services. Nexa will use commercially reasonable efforts guided by industry standards to secure information related to the Services from Client or third parties. Client acknowledges that Nexa cannot guarantee the security of information provided to it and Nexa is not responsible for a third party’s circumvention of any privacy safeguards or security measures.

12. Representation and Warranty

(a) Nexa represents and warrants to Client that it shall perform the Services in a professional and workmanlike manner in accordance with the terms in the Service Plan.

(b) Nexa shall not be liable for a breach of the warranty set forth in Section 12(a) unless Client gives written notice of the defective Services, reasonably described, to Nexa within ten (10) days of the time when Client discovers or should have discovered that the Services were defective.

(c) Subject to Section 12(b) and Section 15, Nexa shall, in its sole discretion, either: (i) re-perform such Services; or (ii) credit or refund the price of such Services at the pro-rata contract rate.

(d) THE REMEDIES SET FORTH IN SECTION 12(c) SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND NEXA’S ENTIRE LIABILITY, FOR ANY BREACH OF THIS AGREEMENT BY NEXA.

13. Disclaimer of Warranties

EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 12(a) ABOVE, NEXA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

14. Indemnification

Except to the extent arising from Nexa’s gross negligence or willful misconduct, Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless Nexa for all costs, charges and losses sustained or incurred by Nexa in connection with third party claims (including claims made by Client’s callers) arising in connection with the Client’s use of or Nexa’s provision of the Services or otherwise.

15. Limitation of Liability

IN NO EVENT SHALL NEXA BE LIABLE TO CLIENT OR TO ANY THIRD PARTY (INCLUDING ANY CLIENT CALLER) FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT NEXA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL NEXA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE AGGREGATE AMOUNTS PAID TO NEXA FOR THE BILLING CYLCE DURING WHICH THE ACTION(S) (OR INACTION(S)) ON WHICH THE CLIENT’S CLAIM IS BASED OCCURRED (OR FAILED TO OCCUR).

16. Waiver

No waiver by Nexa of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Nexa. No failure by Nexa to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege by Nexa hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

17. Force Majeure

Nexa shall not be liable or responsible to Client, or be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused or results from acts or circumstances beyond the reasonable control of Nexa including, without limitation, acts of God, disease outbreaks, flood, fire, earthquake, explosion, governmental actions, war, civil unrest, national emergency, lock-outs, labor disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers, inability to obtain supplies, adequate materials, or a telecommunication breakdown, power outage, or other service issue or interruption.

18. Assignment

Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Nexa. Any purported assignment or delegation by Client in violation of this Section 18 is null and void. Notwithstanding the foregoing, the Agreement shall be binding on Client’s successors and assigns.

19. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

20. Governing Law

All matters arising out of or relating to this Agreement or otherwise in connection with the Services are governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Delaware. Client and Nexa both waive a trial by jury of any or all issues arising in any action or proceeding between the parties hereto or their successors and assigns, under or connected with the Services or this Agreement. All disputes, controversies, or claims arising out of or relating to this Agreement or otherwise in connection with the Services shall be submitted to binding arbitration in the State of Arizona in accordance with the applicable rules of the American Arbitration Association then in effect.

21. Severability; Survival

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of this Agreement, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidential Information, Data Protection, Governing Law and Survival.

22. Agreement to Non-Hire / Non-Solicit

Client, its affiliates, and/or its related individuals and corporate entities agree not to solicit nor to hire any Nexa employee or former employee without either a) attaining Nexa’s prior written consent, or b) by paying Nexa a buy-out fee equal to the employee’s most recent three months of wages multiplied by four (4). The foregoing Non-hire / Non-solicitation restriction is in effect for the Term and for six (6) months after termination of Agreement for whatever reason.

23. Performance

Nexa quality performance metrics used for marketing purposes reflect historical averages and are not guarantees of future performance for Client.

24. Money-Back Guarantee

Money back guarantee is only valid for the first 21 days of Client service or 500 minutes of usage under a Service Plan, whichever occurs first. Money back guarantee does not apply to any renewal cycle under a Service Plan.

25. Amendment

Nexa may change these Terms from time-to-time. If we make any changes to these Terms, we will notify you by revising the last updated date at the bottom of the Terms, and in some cases, we may provide you with additional notice (such as adding a statement to your invoices, sending you an email notification, or providing a banner notification on Nexa’s website). Your continued use of the Services shall constitute your consent and agreement to, and acceptance of, the changes.

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