CyburDial Services Agreement

Last updated: 10/27/2023

Welcome to CyburDial. The terms set forth below govern your use of CyburDial Services.  Please read it carefully before you begin using CyburDial Services.  You will find defined terms (such as “Customer”) in the “Definitions” section (Section 13).

Binding Agreement. Once you sign an Order Form, that means you, as Customer, have agreed to the terms set forth below. That means that this document, which includes its Schedules, Addenda and each Order Form is a legally binding contract between CyburDial, LLC. and you, the Customer. It is called the “CyburDial Services Agreement” or the “Agreement” (as defined below).

If you do not wish to be bound by this Agreement, do not sign an Order Form and do not use the CyburDial Services. If you are using the CyburDial Services and you do not wish to be bound by this Agreement, then you must cancel your order by following the procedure set forth in this Agreement. Please note that use of CyburDial Services through one or more of your Account(s) by any User, whether authorized by you or not, is governed by this Agreement and you are liable for all actions of every such User.  

The Parties acknowledge valid consideration and hereby agree as follows:

1. Access to and Use of CyburDial Services

(a)   Customer Access to the CyburDial Services.  CyburDial authorizes Customer to access and use, during the Term, the CyburDial Services specified in the relevant Order Forms only for the use of CyburDial Services provided (e.g., Installations, tech support, DIDs), such access and use subject to Customer’s compliance with this Agreement.

(b)   Order Process. In addition to accepting this Agreement, Customer shall submit its initial Order Form and subsequent Order Forms to increase or decrease CyburDial Services Customer orders. If there is a minimum order, decreases in an order shall not fall below the minimum order.  (Each Order Form is incorporated into this Agreement once it has been accepted by CyburDial.)

(c)    Responsible Use. CyburDial provides tools for Customer’s responsible use and it is Customer’s responsibility for such use. CyburDial may, but is not obligated to, monitor uploading of information, databases or audio messages. In addition to other requirements set forth in this Agreement, Customer agrees that, during the Term, it shall comply with all applicable laws and regulations then in effect and the following requirements:

(i)    Respect

• Customer shall treat all Communication recipients with the utmost respect.
• Customer shall not use harassing, abusive, obscene, or coercive language in its Communications.
• Customer shall not use the CyburDial Services to transmit Communications that contain sexually explicit content, promote unlawful goods or services or goods or services that are unlawful based on the receiving party’s age or location, or encourage unlawful conduct.

(ii)   Affirmative Consent Where Required or Appropriate

• If Customer does not have either consent or a business relationship with a Communication recipient as required by applicable law or legally valid exemption from, or legally valid exception to, such laws, then Customer shall not make that Communication.
• Customer (i) has the records to prove that Customer had the necessary consent, business relationship or legally valid exemption from, or legally valid exception to, such laws at the time of the Communication and (ii) will provide certified copies of such records to CyburDial promptly on CyburDial’s email request.
• Customer understands that there may be different “levels” of consent for different Communications.

(iii)  Proper Identification

• In its campaigns and other uses of CyburDial Services Customer shall provide valid contact information such as phone number and address within the initial greeting message or as otherwise required by law.
• Customer shall not misrepresent its identity or the identity of the party on whose behalf Customer is communicating or use any trademark, service mark, trade name, or logo of any company or organization in a manner that is likely or intended to cause confusion about the owner or authorized user of such mark, name, or logo.
• Customer shall ensure it has the right to use the caller ID information associated with each Communication at the time of such Communication and Customer shall not take any actions to prevent the display of accurate caller ID information.
• Customer will not (1) re-classify or re-originate traffic or take any other action to intentionally make traffic appear as if it:  (i) is anything other than the type of traffic delivered to such called party (including but not limited to making TDM originated traffic appear to be IP originated) or (ii) originated from a place or on a type of equipment different from the place or type of equipment from where it, in fact, originated; or (2) modify, alter, or delete in any manner calling party number information, originating point codes, or any other signaling information or call detail in connection with the transport and termination of traffic to the called party.

(iv)  Other Prohibited Communications

• Customer shall not make any Communications (e.g., calls and/or audio messages) to “life-line” services such as police and fire and other law enforcement agencies, emergency calling (e.g., 911), and others such as hospitals and other healthcare facilities, physicians and poison control centers where such Communications are prohibited by applicable law.
• Without proper consent from recipients or a legally valid exemption from, or legally valid exception to, applicable laws, Customer shall not send unsolicited Communications that result in charges to such recipients.
• Customer shall not engage in the use of strings of numbers that result in connecting with two or more lines of a multi-line business.
• Customer shall not make Communications that violate calling time/day restrictions.
• Customer shall not make Communications that violate laws applicable when such Communications are made.
• Customer will provide all Communications recording disclosures required under applicable laws.

(v)   Removal

• If a recipient requests that its number(s) be added to the Customer’s “Do Not Call List” (DNC List) then Customer shall promptly do so.
• Customer understands that the CyburDial Services provide opt-out features relating to its DNC and it is Customer’s responsibility to use such features in compliance with applicable laws.

(vi)  Know Your Customer and Robocall Mitigation

• Customer will fully and timely cooperate with requests from CyburDial for information to assist CyburDial in fulfilling its Know Your Customer and Robocall Mitigation Programs. A response in connection with CyburDial’s Know Your Customer and Robocall Mitigation Program will generally be considered timely if received within three (3) business days of CyburDial’s request; however, Customer understands that CyburDial may exercise discretion in setting response deadlines. If Customer uses the CyburDial Services on a BPO basis, then it will be responsible for knowing its customers and providing information to CyburDial as to those customers, promptly upon request.
• Customer will fully and timely respond to requests from CyburDial to enable CyburDial to respond to requests from the Industry Traceback Group and regulators. Customer understands that requests from CyburDial related to Industry Traceback Group or regulator inquiries almost always require Customer to provide all requested information in less than 24 hours.
• Customer will maintain up-to-date contact information for at least one business representative and one compliance representative on file with CyburDial at all times. The contact information will consist of at least name, title, mailing address, telephone number, and email address.

(vii) Applicable Law

• Customer represents and warrants that, throughout the Term: (i) it is familiar, and shall remain familiar, with applicable law (as amended from time to time);  (ii)  it shall comply with all such applicable laws;  and  (iii) it shall seek legal counsel when Customer might be unclear regarding compliance.  If Customer Communicates from outside of the US or makes calls to non-US numbers, there could be additional compliance requirements relating to such calls.
• Customer acknowledges that, throughout the Term: (i) it is familiar, and shall remain familiar, with applicable industry standards;  (ii)  it shall comply with all applicable industry standards;  and  (iii) it shall seek professional advice when Customer might be unclear regarding compliance.
• Customer agrees and acknowledges that this Responsible Use portion of the Agreement is not a complete list of compliance requirements.

(viii) Certain CyburDial Platform Features

• CyburDial may provide certain features and functionality of the CyburDial Platform enabling Customer to insert certain constraints on how Communications are made, e.g., the time of day for, or the frequency of, Communications. These features do not necessarily provide legal compliance.  They must be properly configured by Customer.  It is Customer’s responsibility to use these features in compliance with applicable laws.   Customer should seek legal counsel with any questions as to such configuration and understands that any default settings may not achieve compliance for Customer’s intended use.

In addition to the above obligations Customer represents, warrants, and covenants that, during the Term, its use of CyburDial Services and data for/from such use shall comply with all applicable laws and regulations (including the laws of non-US jurisdictions in which use may result in jurisdiction over Customer actions) in effect during the Term. Customer hereby assumes all responsibility and liability for any violation of such applicable laws and regulations.

(d)   TRACED Act Compliance, etc.  To the extent it applies, Customer shall comply with the TRACED Act, along with the implementing regulations thereunder and as interpreted by the FCC and extensions provided for adherence to the Act.  CyburDial shall use commercially reasonable efforts to assign and transmit appropriate levels of call attestation under the STIR/SHAKEN framework but, given the evolving regulatory and industry environment, including that attestation in accordance with the STIR/SHAKEN framework throughout the call path is not fully under CyburDial’s control, CyburDial shall have no liability to Customer, any User, any customers of Customer or any other Third Party for the level of attestation assigned to calls to or from any of the foregoing, nor shall CyburDial be liable for the refusal of any other carrier or service provider to validate, transmit or terminate any call based on such carrier’s or service provider’s assessment of such calls or the attestation level assigned thereto.  For calls originated by Customer, or by devices or numbers assigned to Customer, or for calls that transit any network facilities owned, controlled or utilized by Customer for termination on or through CyburDial Services, Customer agrees that if it receives a request from (i) a traceback administrator authorized by the USTelecom Industry Traceback Group (ITG), (ii) CyburDial, or (iii) any applicable law enforcement or regulatory authority (a “Traceback Requestor”) for information about calls that have been sent to a downstream provider or received by a consumer (a “Traceback Request”), Customer will promptly respond to the Traceback Request in good faith but in no event later than as required by regulation or industry standards (currently twenty-four hours) after receipt of a Traceback Request and within a shorter period if required by regulation, industry requirements, or CyburDial.  Without limiting the generality of the foregoing, Customer shall identify the immediately preceding source of the calls or numbers subject to the Traceback Request, if any, and provide other information relevant to the determination of any immediately preceding source, and, to the extent possible, shall further identify any other upstream providers in the call’s path. Customer shall promptly share this information with CyburDial without requiring a subpoena or other formal demand or request.

(e)        Certain Restrictions on Use. Customer agrees not to: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make any CyburDial Services available to any third party in any way unless expressly permitted in writing in advance by CyburDial; (ii) permit access to and/or use of any CyburDial Services by more than the Seats specified in the relevant Order Form(s); (iii) modify, or make derivative works based upon, any CyburDial Services, (iv) access any CyburDial Services for any purpose not expressly authorized in the Agreement, including without limitation to develop a competitive product; (v) reverse engineer any CyburDial Services or any other services provided by CyburDial; (vi) access or attempt to access the CyburDial Services by any means other than the interface provided by CyburDial, including but not limited to any automated means such as the use of scripts or web crawlers, and/or (vii) use any CyburDial Services in a manner that: (A) violates any terms of the Agreement or otherwise conflicts with the general intent of the Agreement and/or (B) would in the opinion of CyburDial violate this agreement and/or CyburDial’s intellectual property rights. Customer agrees and acknowledges that Customer shall be solely responsible for actions or omissions in the access to and use of CyburDial Services by Customer Users.

Notwithstanding the foregoing, if Customer notifies CyburDial that Customer wishes to provide Customer services as a BPO to its customers and CyburDial approves such offering in writing in advance, then Customer shall be permitted to do so, provided that it remains in full compliance (including with all applicable laws) with this Agreement, as amended, and provided further, that Customer (i) is responsible for the actions and omissions of each such customer and its users in the use of the CyburDial Services provided by Customer on a BPO and (ii) the written agreement between Customer and each such customer includes provisions as to use and compliance substantially similar in effect as the provisions of the Agreement.  Customer expressly acknowledges that it shall also be responsible for all compliance requirements as to its customers and their users (e.g., agents) and, in particular, as to “Know Your Customer.” Customer shall provide all such records to CyburDial promptly upon request (email being acceptable).  Customer warrants that it shall not permit any of its customers to provide any CyburDial Services on a BPO basis.

(f)    Customer Content. Customer is solely responsible for all Customer Content.  CyburDial has no responsibility to Customer or any third party for Customer Content. CyburDial reserves the right, but not the obligation, to pre-screen, refuse, flag, filter, or remove any Customer Content from the CyburDial Services at CyburDial’s discretion without notice or liability to Customer or any other party. Customer shall retain copyright and any other intellectual property rights Customer holds in Customer Content.  Customer shall remain solely responsible for protecting and enforcing such rights where applicable. Customer hereby grants to CyburDial a non-exclusive, world-wide, royalty free, sub-licensable, transferable, perpetual, irrevocable license to use, copy, modify, adapt, translate, publish, publicly perform, publicly display, reproduce, transfer, prepare derivative works of, and distribute Customer Content, as is necessary or appropriate for CyburDial to provide the CyburDial Services and exercise its rights under this Agreement. Customer represents and warrants that it has all necessary rights, licenses, consents, and permissions to grant such license and permit such use.

(g)       Manual Disl. CyburDial offers a CyburDial Service known as “Manual Dial” that only permits Users to initiate certain Communications with human intervention for each one made. If Customer utilizes the Manual Dial, Customer shall not take any action, and/or permit any action to be taken through it, that gives the Manual Dial the capacity to (i) randomly or sequentially generate and dial telephone numbers; (ii) function as a predictive or power dialer; or (iii) dial numbers in any other manner that does not involve human intervention for each Communication.

(h)       No Dependence on Future Functionality. Customer agrees that Customer is not entering into this Agreement contingent on the provision of any future functionality relating in any way to the CyburDial Services and no statement or other information made or provided orally or otherwise shall be binding unless specifically set forth in a written document (e.g., a new Schedule) signed by both Parties and expressly stating that such statement or information shall be binding.  An exchange of emails does not constitute a written document.

(i)    711 Dialing and Service Exclusions. Certain voice service offerings that CyburDial may make available from time to time will allow dialing 711 to reach Telecommunications Relay Services (TRS).  In the event the User’s registered location is not the same as the User’s geographic location, 711 calls, if required or available through the CyburDial Service, may not be routed to the correct TRS center for the User’s location. The CyburDial Service does not include directory listings and operator and directory assistance and does not support 976 or 900 calls.  The CyburDial Service may not support 311, 411, 511, or other X11 calling (other than 911 and 711 as detailed in this Agreement) in all or certain service areas.

2. Certain Intellectual Property

(a)   Customer Intellectual Property.  Customer hereby grants CyburDial a license to the Customer Content and the Customer Data to enable CyburDial to provide access to and use of CyburDial Services and for CyburDial to access and use Customer Content and Customer Data for enhancing CyburDial Services (including new services), anonymization and aggregation, research, development, maintenance, enforcement and audit purposes and to keep an archived copy to respond to legal inquiries.  CyburDial agrees and acknowledges that access and use of Customer Content and Customer Data shall not be for commercial exploitation with third parties.

(b)   CyburDial Content.  Customer can use the CyburDial Content but Customer cannot and shall not download it or otherwise use it.  Its use is also subject to the restrictions set forth elsewhere in this Agreement.

(c)    CyburDial Intellectual Property.  This Agreement does not grant title to any CyburDial intellectual property.  Apart from the limited, non-exclusive and revocable rights specified in this Agreement, CyburDial reserves all other rights.

(d)   Marketing.  Without Customer’s prior written approval, CyburDial shall not use Customer’s name and logo in CyburDial’s marketing efforts, such as its customer list and other methods of identifying customers, in all cases including but not limited to posting to the CyburDial website, on social media channels and in financial reports, prospectuses and other business-related documents.

(e)        Feedback and Derivative Works.  Customer is not required to provide (a) any suggestions, comments, requests, recommendations, or other feedback (“Feedback”) or (b) any ideas, technology, developments, derivative works, or other intellectual property (“Derivative Works”) related to the CyburDial Services or any test features, services, or products to which Customer is given access. If, however, Customer provides any Feedback or Derivative Works to CyburDial, Customer grants CyburDial a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use (or not use), or incorporate into any of the CyburDial Services any such Feedback or Derivative Works without compensation to Customer and without implying or creating any interest on Customer’s part in any of CyburDial’s Services that may be based on such Feedback or Derivative Works.

3. Customer Equipment

(a)   Compliance with Technical Specifications. In order for CyburDial to be able to properly and effectively implement CyburDial Services, Customer must ensure that it meets or exceeds the Customer Equipment requirements as described during onboarding process.

(b)   Customer Equipment Assessment. Although CyburDial is not obligated to do so, CyburDial may from time to time assess Customer Equipment to establish equipment suitability for use of CyburDial’s services.  Customer agrees to cooperate with CyburDial staff during this assessment. It will be Customer’s responsibility to adjust and/or otherwise optimize the Customer Equipment, whether the result of such assessment or otherwise, in order for CyburDial to activate CyburDial Services and for Customer’s Account(s) to remain accessible.  Such assessments (and/or making recommendations) are not a guarantee or warranty, expressed or implied, that the Customer Equipment is or will be suitable to utilize CyburDial Services. In the event that after an assessment the Customer Equipment is deemed to be unsuitable, then Customer will have the option to upgrade the Customer Equipment, per CyburDial’s recommendations, or to cancel the Agreement prior to activation of CyburDial Services and CyburDial shall have the right to terminate this Agreement. Customer shall have no right to any refund and shall be liable for payment for use of and/or access to CyburDial Services and shall be responsible for cancellation of its Account(s) in accordance with the Agreement.

4. Term, Termination, Withdrawal Right and Renewal

(a)   Term. This Agreement commences on the Effective Date and will remain in effect for the Term (defined as the period specified in the Initial Order Form, or if in a subsequent Order Form only if extending such period), unless this Agreement is earlier terminated by operation of its terms or the Agreement renews.  If the Agreement is renewed, then “Term” includes each renewal period. An exchange of emails does not constitute an agreement in writing. There is no minimum commitment.

5. Maintenance, Outages and Beta Services

(a)   Scheduled Maintenance; Beta Services; Outages; Access Credentials. CyburDial will, from time to time, conduct scheduled and unscheduled maintenance and upgrades to the CyburDial Services, and therefore, they may be inaccessible or inoperable. CyburDial will use commercially reasonable efforts to perform maintenance so that CyburDial Services may be restored in a timely fashion. However, Customer understands that some maintenance/upgrades might be more extensive than others and might take more time to implement and complete.

(b)   Beta Services. From time to time, CyburDial might offer Beta Services to Customer or third parties so that Customer or third parties can try potential new services and provide feedback to CyburDial.  CyburDial might offer Beta Services for free or for a fee, as agreed by a Customer or Third party that orders such Beta Services.  If Customer participates in any testing of Beta Services, then CyburDial and Customer will enter into an agreement as to such testing, which incorporate some of the provisions of this Agreement.  Customer agrees and acknowledges that Customer Content and Customer Data, as well as personal information of contacts at Customer, will be transferred to cloud or other providers, each of which will be subject to standard contractual terms, as well as the provisions of data privacy agreements, where applicable.  The Privacy Addendum provide more details as to data transfers and security.

(c)    Outages. Customer understands that, from time to time, the CyburDial Services and other related services may be inaccessible or inoperable due to reasons such as the operation of Customer Equipment, telecommunications and network connections and/or causes that may include, without limitation, Force Majeure Events. CyburDial will have no liability for such disruptions or the consequences thereof.

(d)   Access Credentials. Customer shall be responsible for maintaining the security of any required usernames and passwords (including both for the Account Administrator and Customer Users) and shall not disclose them to any third party Customer does not authorize.  Customer shall be solely responsible to CyburDial for all activities that occur under Customer’s Account(s) or subscription, including any unauthorized use.  Customer agrees to notify CyburDial immediately via email upon becoming aware of any unauthorized use of Customer’s password, Account(s), or subscription. 

(e)    Customer Proprietary Network Information. In the normal course of providing certain voice services, which CyburDial now or hereafter may provide, CyburDial may collect and maintain certain customer proprietary network information (“CPNI”) typical to the industry. CPNI includes the types of telecommunications and interconnected VoIP services Customer may purchase or subscribe to, how Customer uses those services, and billing information related to those services.  Customer’s telephone number(s) acquired from CyburDial, name, and address do not constitute CPNI.  Except as set forth in this Agreement, CyburDial does not sell, trade, or otherwise share Customer’s CPNI with anyone outside of CyburDial and those parties authorized to represent CyburDial to offer its services or to perform functions on CyburDial’s behalf related to CyburDial Services, except as the law may require or Customer may authorize.  Federal law currently applicable to telecommunications and certain voice services that CyburDial may offer from time to time generally permits CyburDial to use CPNI in its provision of the telecommunications and interconnected VoIP services Customer purchases or subscribes to, including billing and collections for those services.  Notwithstanding the foregoing, CyburDial may also use or disclose Customer CPNI for legal or regulatory reasons, to investigate fraud or potential fraud, to protect CyburDial’s rights or property, to protect against the use of CyburDial Services in violation of this Agreement or to protect other Users.

If the CPNI regulations apply to CyburDial Services, Customer may elect to prohibit CyburDial’s use of Customer’s CPNI to market services other than services of the same type that Customer already purchases from CyburDial by providing CyburDial with Customer’s “opt-out” notice within thirty (30) calendar days of Customer’s commencement of voice services via https://help.CyburDial.com/hc/en-us/requests/new.  If Customer fails to do so within such timeframe, Customer will be deemed to have given CyburDial consent to use Customer’s CPNI to market services other than services of the same type that Customer already purchases from CyburDial.  Restricting CyburDial’s use of Customer CPNI will not affect CyburDial’s provision of any service, nor will it necessarily eliminate all types of CyburDial marketing.

6. DIDs and Number Portability

• DID Availability. When supply is sufficient, CyburDial may make available to Customer a list of DID/ telephone numbers from which Customer may choose their DID/telephone numbers, if applicable to the voice service subscribed to by Customer.  Customer will not be the owner of any DID/telephone number (including fax numbers) assigned to Customer by CyburDial, and Customer will not transfer or attempt to transfer its number(s) to anyone else (except as provided below with respect to Porting Out).  CyburDial reserves the right to change, cancel, withdraw, or move such numbers at its sole discretion immediately upon notice.  Customer will surrender all rights to the DID/telephone numbers and fax numbers upon termination of either the Voice Services or this Agreement (whichever comes earlier) if they have not been ported out in accordance with this Agreement prior to such termination, and the numbers assigned to Customer may be reassigned upon withdrawal of such numbers or termination.  CyburDial will not be liable for any direct or indirect damages or incidental costs arising out of such reassignment.
• Porting In.  For certain voice service offerings that CyburDial may make available from time to time, Customer may elect to port an existing DID/ telephone number to CyburDial (“Port-In”) for use with the Service.  In the event the Voice Services permit Customer to Port-In a number, it is permitted by law and Customer elects to do so, Customer must first select a temporary number from the list of DID/ telephone numbers CyburDial presents to Customer, which will be used until the Port-In is complete.  Unless CyburDial is required by law, CyburDial may elect not to support any number of valid requests, but if it does, then it will cooperate with Customer to perform the Port-In in accordance with Customer’s reasonable directions, CyburDial’s operating procedures and applicable law.  Neither CyburDial nor its providers are responsible for any delay, rejection, or false processing of Port-In requests to the extent such delay, rejection, or false processing is attributable to Customer, Customer’s prior provider, or any third parties.
• Porting Out. For certain Voice Services that CyburDial may make available from time to time, Customer or a third-party provider acting as agent on behalf of Customer (“Requesting Party”) may request that CyburDial port a number assigned to Customer by CyburDial to a third-party provider (“Port-Out”).  To the extent required by law and technically feasible (each as determined by CyburDial in its sole and absolute discretion), CyburDial will support all such requests and will promptly cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party’s reasonable directions and CyburDial’s standard operating procedures.  In the event of any Port-Out, Customer agrees that until such time as the Port-Out is complete and Customer terminates the CyburDial Services for such DID/telephone number, Customer shall remain bound by the terms of this Agreement related to that DID/telephone number.  Once the Port-Out is complete, Customer must terminate use of the CyburDial Services associated with such ported DID/telephone number in order to stop incurring charges for such DID/telephone number.  Customer agrees that in the event of a Port-Out Customer shall remain responsible for paying the CyburDial’s fees associated with such DID numbers in accordance with this Agreement until such use ceases.
• Effect of Termination on DIDs. Upon termination of Voice Services, CyburDial may deactivate or delete Customer’s Account(s) and may also delete some or all related information and files and/or bar any further access thereto, and Customer shall have no further access to any DID/telephone number(s) assigned to it by CyburDial (unless the ability to Port-Out such phone number was required or available for Customer’s own voice service, and Port-Out was completed prior to termination of this Agreement).

7. Billing for Customer; Activating Account(s); and Payment Obligations

(a)   Payment(s). Upon CyburDial’s acceptance of the initial Order Form and prior to activation of the ordered CyburDial Services, Customer shall pay CyburDial for all charges and fees due, consistent with the initial Order Form and this Agreement.  Customer also agrees that it shall pay CyburDial for all charges and fees due, consistent with each subsequent Order Form and this Agreement. If there is a minimum order, then in no event shall Customer pay less than the amount specified on the Order Form with such minimum order.  Any and all payments due must be made by credit card or wire transfer of immediately available funds or such other payment processes specified in a Schedule. CyburDial will not activate and/or deliver any service in advance of receiving immediately accessible funds for all amounts due. CyburDial must also have on file a fully executed credit card authorization form prior to activating the CyburDial Service(s).

(b)   Activation of Account(s).  Once CyburDial has received payment in readily accessible funds, CyburDial will activate Customer’s initial Account.  If you wish to one or more additional Accounts, Customer must first obtain CyburDial’s prior written consent (email from CyburDial’s CEO or its designee will be valid), provided that: (i) in advance of CyburDial’s consideration, to open one or more additional Accounts, Customer provides CyburDial with details as to the use and Users of such Account(s); (ii) Customer agrees and acknowledges that Customer remains fully responsible and liable for use of such Account(s) in strict compliance with this Agreement.  The decision to open one or more additional Accounts is in CyburDial’s sole and absolute discretion.

(c)    All Payment(s) Are Pre-Payments; Auto-renewal. Customer agrees that all payments are pre-payments for access to CyburDial Services. CyburDial has no obligation to continue providing CyburDial Services if Customer is not current with payments. While the initial payment may be made to CyburDial by a payment method other than credit card, the renewal of tech support packages, activation of any additional services and/or activation of any CyburDial Service by Customer subsequent to the Effective Date will be billed to the credit card on file (unless the Parties agree in a Schedule to alternative method(s) of payment as specified in a Schedule. CyburDial may, in its sole discretion, choose to decline any such alternative payment methods). Customer authorizes CyburDial to charge such amounts to the card on file (or such other method selected) and Customer hereby assumes all liability for payment of all amounts due. If CyburDial accepts the receipt of an alternative payment method, it will be Customer’s sole responsibility to ensure that payments through any such alternative payment method are delivered to CyburDial in time in order to ensure the timely renewal and/or activation of any tech support packages and any other CyburDial Service. CyburDial will not be responsible for any Seat and/or other CyburDial Service that is cancelled and/or not activated due to it not receiving payment in a timely fashion.

(d)   New Credit Card.  In the event that Customer desires to designate a new credit card, then Customer must (i)  give CyburDial timely written notice of its intent to change its method of payment, in no event less than fifteen (15) days prior to the effective date of such change;  and (ii)  provide CyburDial with a fully executed credit card authorization form that will be provided by CyburDial to Customer, once CyburDial receives the written notice.  CyburDial must be able to charge such card prior to renewal.

(e)    Past Due Balances. In the event that Customer is past due on any balance due, whether because their credit card is declined or otherwise, Customer will be subject to:  (i) an interest charge of 1.5% per month for all past due sums (unless such amount is prohibited in Customer’s jurisdiction, in which case it will be the highest amount permitted); (ii) suspension or cancellation of their Account(s), and liability for any and all costs and fees CyburDial incurs in suspending or terminating Customer’s Account(s) and/or in attempting to collect past due balances, including costs and attorney’s fees.

(f)    Chargebacks; Collection of Fees.  If a chargeback occurs, then CyburDial shall have the right, in its sole discretion, to revoke access to CyburDial Services and to invoice Customer for the full disputed amount regardless of the outcome of this right and will be entitled to such sum within ten days of invoicing. In the event that Customer is past due on any balance due, CyburDial may at its discretion give Customer reasonable time to cure the delinquency, but Customer must still pay any and all interest accrued on the past due balance. Customer agrees and acknowledges (i) that payment of such interest does not discharge the debt of Customer to CyburDial and (ii) that Customer remains liable for such amounts owed. However, if Customer does not cure the delinquency and make such payments in the time specified by CyburDial, then CyburDial may, at its discretion, exercise any and all legal collection rights to collect all past due balances, in addition to accrued interest and costs and fees incurred by CyburDial in its collection efforts, as well as any other remedies CyburDial may have at law or in equity.

(g)   Taxes and Fees. All applicable taxes and other governmental fees are the responsibility of Customer. Without limiting the generality of foregoing, CyburDial may charge Customer fees including, but not limited to, the following the following:  (i) CyburDial is required to make contributions to the Federal and certain state Universal Service Funds (USF: rates are subject to change each quarter) and is permitted but not required to recover such costs from its customers;  (ii) This fee is imposed by local governments to help pay primarily for the handling of calls for emergency services such as fire and rescue and CyburDial may charge a per-DID/telephone number fee to recover CyburDial’s costs directly associated with providing 911 and E911 as part of those voice services where it does so; (iii) CyburDial may charge a monthly regulatory recovery fee to offset costs it incurs in complying with obligations imposed by, and inquiries made by, federal, state, and municipal regulatory bodies/governments and related legal and billing expenses; if assessed by CyburDial, the regulatory recovery fee will also apply to every DID/telephone number assigned to Customer, including toll free and virtual numbers:  and (iv) CyburDial may charge for additional fees specified by applicable laws of regulations extant during the Term. CyburDial may, but is not required to, bill Customer directly for such taxes and fees. Customer agrees that if CyburDial must pay for any taxes and/or penalties arising from Customer’s use of the CyburDial Services, then Customer shall promptly reimburse CyburDial within fourteen (14) days of demand by CyburDial.

(h)   No Refunds. Customer hereby acknowledges and understands that CyburDial does not provide any refunds or credits and any and all payments to CyburDial are considered final.

8. Representations, Warranties and Disclaimer

(a)   Mutual Warranties.  Each Party represents and warrants that:  (a)  it has the legal power to enter into this Agreement and to fully perform its obligations hereunder;  (b)  by entering into this Agreement, it does not violate any agreement existing between it and any other person or entity;  and  (c)  this Agreement, when executed and delivered, will constitute the legal, valid, and binding obligations of such Party, enforceable against it in accordance with its terms.

(b)   Additional Customer Representations and Warranties.  Customer represents and warrants that all lists of subscribers/phone numbers provided to CyburDial or used in connection with CyburDial Services (collectively “Subscriber List”) and all messages to be sent to the Subscriber List, including but not limited to, the opt in and out procedures (collectively “Subscriber Procedures”) are in compliance with any and all applicable state, local and federal laws, including without limitation, TCPA requirements regarding required consent, to receive phone calls and/or text messages at the phone numbers in the Subscriber List.

(c)        No Warranty. CyburDial MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE CyburDial SERVICES AND/OR ANY CyburDial CONTENT. CyburDial DOES NOT REPRESENT OR WARRANT THAT (1) THE USE OF THE CyburDial SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA, (2) THE CyburDial SERVICES AND/OR DATA OR OTHER INFORMATION ACQUIRED BY USE OF, OR RESULTS OF USE OF, THE SERVICES WILL MEET REQUIREMENTS OR EXPECTATIONS, (3) ANY STORED CUSTOMER DATA, CUSTOMER CONTENT AND ANY OTHER DATA PROVIDED BY CUSTOMER OR GENERATED FROM THE USE OF CyburDial SERVICES WILL BE SECURE, COMPLETE, TIMELY, ACCURATE OR RELIABLE, (4) THE CyburDial SERVICES AND THE NETWORK(S) AND/OR HARDWARE USED BY CyburDial ARE FREE OF VIRUSES, OTHER MALWARE OR OTHER ELEMENTS THAT MIGHT BE INJURIOUS. FOR THE AVOIDANCE OF DOUBT, ALL BETA SERVICES ARE PRE-RELEASE, ARE EXPECTED TO CONTAIN DEFECTS WHICH MAY BE MATERIAL, AND ARE NOT EXPECTED TO OPERATE AT THE LEVEL OF PERFORMANCE OR COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE PRODUCT OR SERVICE OFFERING. BETA SERVICES MAY NOT OPERATE ACCURATELY AND MAY BE SUBSTANTIALLY MODIFIED OR WITHDRAWN AT ANY TIME. ACCORDINGLY, ACCESS TO AND USE OF THE BETA SERVICES AND/OR BETA TEST OUTPUT IS ENTIRELY AT CUSTOMER’S OWN RISK. CUSTOMERS AND ANYONE USING THE CyburDial SERVICES ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF ANY BETA SERVICES AND/OR BETA TEST OUTPUT.  THE CyburDial SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. THE CyburDial SERVICES MAY BE SUBJECT TO OUTAGES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, TELECOMMUNICATIONS AND OTHER FORMS OF COMMUNICATIONS AND CyburDial IS NOT AND SHALL NOT BE RESPONSIBLE FOR ANY DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY CyburDial. NO ADVICE, INFORMATION OR ACTION FROM CyburDial OR ANY OTHER SOURCE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

9. Limitations of Liability.UNDER NO CIRCUMSTANCES SHALL CyburDial BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, THE PROVISON OF CyburDial SERVICES OR ANY INFORMATION MADE AVAILABLE BY CyburDial FOR CUSTOMER, INCLUDING WITHOUT LIMITATION ANY LOSS, DAMAGE OR LIABILITY RELATING TO: (A) LOSS OR CORRUPTION OF DATA; (B) INABILITY TO ACCESS THE CyburDial SERVICES; (C) PERFORMANCE RELATED DELAYS; (D) COMPUTER VIRUSES; (E) LOSS OF BUSINESS DUE TO INOPERABILITY OR PERFORMANCE OF CyburDial SERVICES; (F) NON-DELIVERY OR MIS-DELIVERY OF COMMUNICATIONS; (G) THE NEGLIGENT ACTS OF OTHER CyburDial/SUBSCRIBERS AND/OR THIRD PARTIES; (H) ANY DEFECTS, FAILURES, ERRORS, OMISSIONS OR MISSTATEMENTS IN ANY AND ALL INFORMATION DELIVERED BY OR PROVIDED FOR DELIVERY BY THE CyburDial SERVICES; (I) USE OF ANY CyburDial PRODUCTS AND/OR SERVICES THAT COULD OR DOES GIVE RISE TO CLAIMS BY THIRD PARTIES OR GOVERNMENT AGENCIES OF A VIOLATION OF LAWS OR REGULATIONS; AND (J) LOSS OR LIABILITY RESULTING FROM ACTS BEYOND CyburDial’S REASONABLE CONTROL. IN NO EVENT WILL CyburDial’S TOTAL LIABILITY OF ANY AND ALL KINDS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PROVISON OF CyburDial SERVICES OR ANY INFORMATION MADE AVAILABLE BY CyburDial FOR CUSTOMER, (REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED UPON CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE) EXCEED THE TOTAL SUBSCRIPTION FEES PAID TO CyburDial BY CUSTOMER IN THE AGGREGATE FOR THE MONTH IN WHICH THE CAUSE OF ACTION OCCURRED AND ONE MONTH BEFORE AND AFTER SUCH MONTH.
10. Indemnification

(a)   Additional Definitions.  For purposes of this Section, the following definitions shall apply:

“Claim,” means each action, cause, claim, governmental investigation, lawsuit, damage, settlement, fine, injury, penalty, debt, demand, or liability, including reasonable costs and attorney’s fees.

“Indemnitee” means each of a given Party, subsidiaries, successors, assignees, shareholders, directors, officers, employees, contractors, representatives, and agents.

(b)   Customer Indemnification.  Customer shall indemnify, hold harmless, and defend CyburDial Indemnitees from and against every (real or threatened) Third-party Claim arising out of or relating to (i) Customer’s actual or alleged breach of the terms of this Agreement; (ii) Customer’s actual or alleged violation of any applicable law; (iii) Customer’s gross negligence or willful misconduct;  or  (iv)  violations of the agreement set forth in Addendum D.

(c)        Indemnification Procedure.  CyburDial shall provide Customer with reasonably prompt notice of any Third-party Claim, threatened or made, or suit instituted against it that could result in a claim for indemnification; however, any delay in providing notification will not release Customer of its indemnification obligations except to the extent such delay materially prejudices its ability to defend against a Third-party Claim. Customer may elect to assume the defense of such Third-party Claim at its own cost and expense and CyburDial will have the right to be represented by its own counsel at its own cost in such matters. Customer will use counsel reasonably acceptable to CyburDial. Customer agrees that in the event that indemnification is sought under this provision and Customer elects to assume defense of the Third-party Claim, CyburDial shall furnish Customer, upon request, all reasonable information and assistance for defense against any such Third-party Claim, to the extent permitted by law or court action and taking into account any non-disclosure obligations CyburDial may have. Customer will not settle or dispose of any such Third-party Claim in any manner that would, in the reasonable opinion of CyburDial, adversely affect the rights or interests of CyburDial without its prior written consent.

11. Compliance with Law. Customer shall use CyburDial Services in strict compliance with all applicable federal, state and local laws, rules or regulations, as amended from time to time, of the United States and any other jurisdiction that are applicable to Customer’s use of the CyburDial Services. The following lists some but not necessarily all of the laws:  prohibitions against the use of unfair, deceptive, or abusive acts or practices; laws, ordinances, regulations, and orders relating to privacy, data security, and the processing, storage, protection, and disclosure of personal information; and laws, ordinances, regulations, and orders relating to the marketing and sale of goods and services to consumers, including, but not limited to, the Telemarketing and Consumer Fraud and Abuse Prevention Act (TCFAPA), the Federal Trade Commission’s (FTC) Telemarketing Sales Rule (TSR), the TCPA, and any rules or regulations (including court interpretations) arising from or relating to any of the foregoing, as well as the rules, regulations and other actions of state, federal, and non-US agencies that have jurisdiction, including, but not limited to, the FTC, Consumer Financial Protection Bureau, and Federal Communications Commission (FCC).  Customer and CyburDial may be required to enter into a form of data privacy agreement as required by state laws, in addition to the privacy addendum incorporated into this Agreement.  A violation of any such laws may result in substantial penalties and other sanctions by government agencies, as well as suspension or termination by CyburDial. Any person intending to use CyburDial Services for solicitation purposes and/or for any other purpose regulated by federal, state or local laws should consult with his or her own legal counsel prior to entering into, and during the term of, the Agreement to determine the extent of permissible activities. Customer agrees that CyburDial will not be responsible for Customer’s use of the CyburDial Services and other services and that Customer’s indemnification covers all costs, expenses and payments of damages, fines and all other charges arising in whole or in part from violations, or allegations of violations, of laws, including all charges associated with or resulting from governmental investigations or other responses to requests for information (“Charges”). Charges shall be paid by Customer as incurred and invoiced to Customer by the date specified in such invoice(s). Customer will promptly and fully comply with all requests for information or interviews made by CyburDial to investigate Customer’s compliance with applicable laws and regulations.  Customer also acknowledges that CyburDial can audit Customer’s records (including Customer Content and Customer Data and CyburDial’s archived copies thereof) to evaluate compliance with applicable laws, and, in complying with applicable law, could include access to and copying of some Customer Content and Customer Data and its disclosure to the relevant third party/ies, in accordance with the instructions for such disclosure.  Customer waives any right to be notified of any such disclosure or to be informed of the requestor’s identity or the substance of the request and CyburDial’s response thereto if the conditions of the request include directions as to nondisclosure.  Customer will promptly reimburse CyburDial for its costs, as incurred and invoiced, associated with responding to any subpoena, civil investigative demand, court order, or other investigative inquiry from any governmental agency, industry self-regulatory body, or private litigant related to Customer’s use of the CyburDial Services.  Such cost shall include, without limitation, legal fees and staff time associated with responding to any subpoena, civil investigative demand, court order, or other investigative inquiry from any governmental agency, industry self-regulatory body, or private litigant related to Customer’s use of the CyburDial Services.  Such reimbursement shall be by the date specified in each such invoice.
12. 911 Emergency Services.Customer understands and acknowledges that CyburDial generally does not and may be required to provide emergency (911) services.  CyburDial Services differ and are more limited than the 911 service available from traditional telephone companies. Customer acknowledges that it has read and understood the 911 notice contained in the relevant Addendum and Customer agrees to the limitations on 911 service and on CyburDial’s liability contained therein.  In addition, the relevant Addendum may change if 911 requirements are imposed on CyburDial.
13. Definitions

“Account” means the files CyburDial creates to manage the relationship with Customer and to provide access to CyburDial Services.  CyburDial can open additional Accounts upon CyburDial’s approval as specified in this Agreement.

“Activation Date” means each date that CyburDial activates CyburDial Services for which Customer has made payment.

“Addendum” means the documents entitled as such by CyburDial and subsequent documents provided by CyburDial and each marked as Addendum, and each as amended from time to time.  The Addenda normally refer to matters that might change during the Term (other than business terms), such as technical specifications and legal and regulatory compliance.  CyburDial will use commercially reasonable efforts to provide early notice of when such Addenda are included, but in rare circumstances, it might be necessary for certain Addenda to take immediate effect.  Each Addendum is incorporated into this Agreement and therefore takes effect on the Effective Date or if added subsequent to the Effective Date, as of the date specified on each such Addendum.

“Agreement” and “CyburDial Services Agreement” each means (i) this document or (ii) a written agreement signed by both Parties that either expressly supersedes or amends this Agreement and is on file with CyburDial, in both cases of (i) and (ii) including each Addendum, Schedule and Order Form added in compliance with this Agreement.

“Beta Services” means those CyburDial Services, including upgrades, updates and bug fixes, as well as custom integrations, that CyburDial is testing, revising and evaluated.

“Billing Cycle” means the period between each Billing Date.

“Billing Date” means the date that CyburDial uses to calculate payments for each Billing Cycle.  That date might be changed during the Term for purposes of simplifying billing (e.g., all Billing Cycles are coordinated to commence on the first of each calendar month).

“BPO” or “Business Processing Outsourcing” means that Customer is utilizing the CyburDial Services, in full compliance with this Agreement, to permit any Third party under written contract with Customer to use certain CyburDial Services ordered by Customer for access and use by users engaged or employed by or on behalf of that Third party.  For BPO use, the phrase “Customer Use” or similar phrases also applies to BPO Users.  The CyburDial Services cannot be used with the BPO or service bureau model without the prior and express written approval of CyburDial.

“BPO User” means the Users of Customer’s customers who access and use CyburDial Services provided by Customer on a BPO basis.

“Communication” means the use by a Customer of one of the CyburDial Services (such as TalkPro, various types of SMS services, RVM, Conversational AI Agent, Workflow Triggers and Voice Broadcasting, provided through the CyburDial Contact Center) to contact an individual, e.g., a call, an SMS message, a text and so forth.  “Communicate” is the verb for effecting such Communication.

“Content Use Data” means the data resulting from use of Customer Content and CyburDial Content by Users.

“Conversational AI Agent” means one of the features of the CyburDial Contact Center that enables a Customer to handle incoming calls through use of computers that permits Users to provide information orally or through their keypads.

“CyburDial” means CyburDial, Inc., and its successors-in-interest.

“CyburDial Contact Center” means the core components of the CyburDial Services, including, for example, the various types of SMS services, RVM, Conversational AI Agent, Workflow Triggers and Voice Broadcasting, provided through the CyburDial Contact Center.

“CyburDial Content” means content CyburDial uploads to the CyburDial Platform for use by Customer of certain features and functionality of CyburDial Services.

“CyburDial Platform” means the website and applications underlying it through which the CyburDial Services are accessed and used, in most cases through a browser.

“CyburDial Services” means each service option that, during the term of the Agreement, CyburDial provides, including onboarding, technical support and Beta Services.

“Customer” means the entity that enters into this Agreement and submits Order Forms during the Term and, as to limitations on use of the CyburDial Services, also includes all Users who obtain access to such CyburDial Services through Customer’s Account(s).

“Customer Content” means the content that Customer uploads for use of certain of the CyburDial Services (e.g., employee training), but excluding Customer Data.

“Customer Data” means the data Customer uploads for use of certain of the CyburDial Services (e.g., lead lists), but excluding Customer Content.

“Customer Equipment” means any and all software, databases, desktops/PCs/other devices, bandwidth connectivity, firewall/router, network configuration, headsets, internal network system and network equipment, as well as any additional items identified in the Technical Manual, deployed for access to and use of the CyburDial Services through Customer’s Account(s).

“User” and “Customer User” each means each person who uses any number of CyburDial Services through one or more of Customer Accounts, including BPO Users.

“Customer User Data” means the data on use of the CyburDial Services (i) including call logs and/or recordings of calls or (ii) that is aggregated and anonymized by CyburDial to determine the effectiveness of, and to enhance, CyburDial Services.

“DID” means a direct inward dialing telephone number.

“Effective Date” shall be the date that Customer signs this Agreement, which occurs by executing the initial Order Form.

“Force Majeure Event” means an event beyond either Party’s reasonable control, including acts of war or terror, criminal acts, riots, natural disasters, electrical shortages, blackouts, acts of war or terror, civil disturbance, acts of god or nature, strikes, national emergencies, or acts of any court or government, network system failure of communications systems (such as the Internet backbone or connections to the Internet other than those under direct control of a Party) and malware, DoS attacks, or variants thereof (e.g. “DDoS”) and other malicious acts occurring through the Internet or other digital communications networks.

“Manual Platform” means the CyburDial Service that only permits Users to initiate calls/texts with human intervention for each call/text or certain other Communications.

“Mass Texting” is a type of SMS by which one person sends a test message to more than one person, usually a larger group of people and in all cases with consent required by applicable law from each recipient.

“Order Form” means each document that Customer signs and submits to CyburDial and CyburDial approves, which specifies the initial CyburDial Services ordered and all subsequent increases and decreases in CyburDial Services ordered. Each Order Form is incorporated into this Agreement by this reference.

“Party” means each of CyburDial and Customer and “Parties” mean each Party.

“RVM” means a system for leaving messages without, or prior to, the receiving telephone number ringing to indicate a call coming through on that number or line.

“Seat” means the login by each Customer User (or Agent) to the CyburDial Services.  If Customer signs up for the “Per Minute Plan” then the Seat can be used for the entire twenty-four hours of each day.  If Customer signs up for the “Unlimited Minute Plan” then a “Seat” is limited to one login for use up to eight hours per day—i.e., one login, such login and use limited to 8 hours per day. Customers signed up for the Unlimited Minute Plan who require more than 8 hours of use per Seat must order additional Seats.

“Schedule” means each document (other than an Order Form) the Parties intend to add to this Agreement during the Term that expressly states that it modifies this Agreement and that each Party executes (by which it is then incorporated into this Agreement). An exchange of emails does not constitute a valid Schedule for purposes of this Agreement.

“SMS” means the digital text messages that can be sent through CyburDial Services and includes Mass Texting and Two-way Texting.

“TCPA” means the Telephone Consumer Protection Act of 1991, as amended.

“Term” means the period specified as such on the initial Order Form, subject to adjustment as specified in this Agreement.

“Third-party” means an individual or corporate or governmental entity other than the Parties and their officers, directors, employees, licensors and advisors and, for purposes of indemnification provisions of this Agreement, all other Indemnitees (as defined in the those provisions).

“Two-way Texting” is a feature of CyburDial Services that enables a sender to send and receive text messages, usually by short codes or long codes (also known as virtual mobile numbers).

“Usage-based Services” means the Services provided on a per-minute, per-message or similar metric, e.g., call minutes for voice calls and SMS.

“Usage-based Adjustments Policy” means the policy provided from time to time by CyburDial specifying the procedure for adjusting, and paying for such adjustments to, orders for Usage-based Services during any given Billing Cycle(s).

“Voice Broadcasting” is a feature of CyburDial Services that can play an automated message and a person can press an option to get to a live agent or just continue the message.

“Voice Services” means certain CyburDial Services for which porting out and porting in are possible.

“Workflow Triggers” means the CyburDial Service that enables the system to trigger a Communication using certain other CyburDial Services such as RVM, SMS, etc.

15. Miscellaneous

(a)   Dispute Resolution; Mandatory Arbitration. Except for actions to seek equitable relief, any dispute arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered as specified below.

(i)    Claims under one million dollars ($1,000,000) shall be heard by a single arbitrator mutually accepted by both Parties within fifteen (15) days of commencement of arbitration. If no arbitrator is mutually selected, then the arbitrator shall be selected according to the rules of the American Arbitration Association. Claims submitted exceeding this amount shall be heard by a panel of three arbitrators. In such cases, within fifteen (15) days after the commencement of arbitration, each Party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten days of their appointment. If the arbitrators selected by the Parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association in accordance with its procedures for such selection.

(ii)   The place of arbitration shall be the City of Miami, Florida. The arbitration shall be governed by the laws of the State of Florida, without giving effect to choice of law principles, law and case law.

(iii)  Each Party will, upon written request of the other Party, promptly provide the other with copies of all relevant documents. There shall be no other discovery allowed unless otherwise agreed by the Parties in writing. In making determinations regarding the scope of exchange of electronic information, the arbitrator(s) and the Parties agree to be guided by The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production or its successor. The arbitration will be based on the submission of documents and, unless otherwise agreed in writing signed by the Parties, there shall be no in-person or oral hearing.

(iv)  Time is of the essence for any arbitration under this agreement and arbitration hearings shall take place within ninety (90) days of filing and awards rendered within one hundred twenty (120) days. Arbitrator(s) shall agree to these limits prior to accepting appointment.

(v)   The arbitrators will have no authority to award punitive or other damages not measured by the prevailing Party’s actual damages, except as may be required by statute. The arbitrator(s) shall not award consequential damages in any arbitration initiated under this section. The arbitrator(s) can award to the prevailing Party, if any, as determined by the arbitrators, all of their reasonable costs and fees. “Reasonable costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. The award of the arbitrators shall be accompanied by a reasoned opinion.

(vi)  Except as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties. The Parties agree that failure or refusal of a Party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that Party to present evidence or cross-examine witness. In such event, the other Party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying Party in the absence of evidence presented as provided for above.

(vii) The prevailing Party shall have the right to seek enforcement of the judgment solely in the state and federal courts sitting in the City of Los Angeles, Los Angeles County, California.

(b)   Governing Law and Venue. Actions for equitable remedies available under this Agreement and for enforcement of any arbitration judgment shall be pursued exclusively in a state or federal court of competent jurisdiction located in the Miami, Florida and the Parties expressly consent to personal jurisdiction and venue of such courts.  The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

(c)    Force Majeure. Neither Party shall be deemed in default, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, government action, labor strike, lockout, boycott or public health situation the impact of which extends beyond the local jurisdiction of a Party, provided that the Party relying upon this section shall use commercially reasonably actions to mitigate the effects of the force majeure event.

(d)   Amendments and Modifications.  This Agreement, including its Addenda, cannot be amended or otherwise modified except (i) in a writing signed by authorized representatives of each Party, which writing expressly states that such writing amends or otherwise modifies this Agreement (e.g., a Schedule) or (ii) by CyburDial from time to time posting an Addendum or a new version of the Technical Manual with prior notice, provided that the each such document does not alter the business terms set forth in Orders in effect at the time, or Sections 1(a), (e), (f); 2; 4; 5(a) through (d); 7; 8; 9; 10; and 15 of this Agreement.  Except as specified elsewhere in this Agreement, an exchange of emails does not constitute a valid writing for purposes of this Agreement.

(e)    Waiver and Severability. No failure, delay in exercising or enforcing any right or remedy hereunder by CyburDial shall constitute a waiver of any other right or remedy, or future exercise thereof. If any provision of the Agreement is determined to be invalid under any applicable law, the balance of the Agreement shall remain enforceable.

(f)    Survival. Sections 2(a) and (c) shall survive indefinitely; Sections 7(d), (e) and (f) shall survive until all liabilities thereunder are resolved; Sections 8-15 shall survive for as long as there may be liability for CyburDial.

(g)   Assignment. CyburDial is licensing and granting access to the CyburDial Services and any other Services to Customer, and accordingly Customer may not assign the Agreement or any of its rights or obligations hereunder without the prior written consent of CyburDial. Any attempted assignment without such prior written consent shall be void and will be considered a material breach of the Agreement.

(h)   Attorneys’ Fees. In any legal action at law or equity that is brought by one of the Parties to enforce or interpret the provisions of the Agreement, CyburDial will be entitled to reasonable attorneys’ fees and other expenses.

(i)    Notices. All notices given per the Agreement must be in writing and shall be deemed as given: (i) three (3) business days after said notice is placed in the mail with the United States Postal Service, with a tracking number, first class postage prepaid, or (ii) two (2) business days after said notice is mailed via a reputable carries such as FedEx, or (iii) upon confirmed receipt of an email to an authorized representative. Persons identified by each Party to the other Party for support and Usage-based Services are hereby deemed authorized representatives with respect to those subject matters only. Any notice given by Customer, including without limitation, notices of cancellation of service, must comply with the above and Customer must be able to provide proof of delivery of any notice give, otherwise the notice will be null and void. For the purposes of the Agreement, proof of service will include tracking numbers for notices mailed, delivery verification receipt if sent via email. Contact information shall be as set forth in the initial Order Form, as changed from time to time in accordance with this notice provision.  In addition, all notices required by this Agreement must also be sent by email to legal@CyburDial.com.

(j)    Waiver of Draughtsman’s Rule.  Relevant judicial opinions and statutes specify “rules of construction” of an agreement, among them being the “Draughtsman’s Rule.” In simple terms, the rule (or rules in the statute and interpreting opinions) means that if there is any uncertainty in interpreting an agreement’s terms after applying all of the rules of interpretation, then the language should be interpreted most strongly against the Party who caused the uncertainty to exist.  Accordingly, each Party acknowledges that it has arrived at this Agreement through arms-length negotiation, that it has been represented by counsel or has voluntarily, knowingly and freely waived such representation by counsel, and that it has had the opportunity to participate in the preparation of this Agreement, for example, by proposing changes to provisions.  Therefore, the Parties hereby waive the protections of any law or statute which provides that in the case of uncertainty not removed by the laws relating to the interpretation of contracts, the language of the Agreement should be interpreted most strongly against the Party who caused the uncertainty to exist, or any other similar law, statute or regulation.

(k)   No Election of Remedies. Except as expressly set forth in this Agreement, the exercise of either Party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or other rights and remedies available at law or in equity.

(l)    Entire Agreement; Interpretation. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, which is access to and use of CyburDial Services and payment therefor, pursuant to this Agreement.  This Agreement supersedes all prior written and oral agreements between the Parties regarding such subject matter. Exchanges of emails do not constitute an agreement or amendment or other modification to this Agreement except to the extent that emails permitted for Usage-Based Services Adjustments alter only Usage-based Services and/or payment therefor or as specified in this Agreement.  Similarly, no changes made by Customer to the terms of any Order Form or any terms included in payments, constitutes an amendment or other modification to this Agreement, unless expressly accepted by an authorized CyburDial representative, such express acceptance to be stated in the authorizing email. Headings are for convenience only.  Any pages or other text on CyburDial’s website(s) and, except for emails permitted by an authorized CyburDial officer, written or oral statements by or on behalf of CyburDial before, during or after the Term are observations and recommendations for guidance only and do not constitute a part of this Agreement.  Customer waives all claims as to CyburDial’s liability for any damages arising therefrom.  Specificity of obligations in the provisions of this Agreement regarding compliance does not narrow Customer’s obligations to comply with all applicable laws throughout the Term and does not narrow any representations and warranties of Customer.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

Addendum A

CyburDial Services Agreement

CyburDial Support

1. Designated Contact. Customer must designate up to two (2) of its employees as designated technical contacts (or more as agreed in writing by the Parties). Unless otherwise agreed in writing by the Parties, these contacts will undergo CyburDial product training included in any Order Form (or otherwise provided by CyburDial at its discretion). The designated contacts are the only individuals who are authorized to create tickets and/or contact CyburDial regarding any issues related to the CyburDial Services. Inquiries from individuals other than the designated contacts will be referred back to the designated contacts on file. Customer’s designated contacts are responsible for training Customer’s employees and staff. CyburDial will not support any issues or questions that are due to lack of training or poor training by the designated contacts. Customer may change the designated contacts at any time by contacting CyburDial in the manner specified in the Agreement.
2. Technical Support

(a)       Procedure. If Customer has any questions or issues, then Customer MUST follow the procedures below in the order specified:

(i)    Customer will direct any questions to its designated contacts.

(ii)   If the designated contacts cannot address the question, then they should refer to CyburDial’s customer support page at help.CyburDial.com. This URL contains frequently asked questions and provides various downloads necessary to support CyburDial Services.

(iii)  If the matter cannot be resolved via CyburDial’s customer support page, then the designated contacts may create a ticket via dialer one. CyburDial staff will review and prioritize the ticket accordingly and will attempt to resolve the issue via the assigned priority level of the ticket. CyburDial has no obligation to provide support on Customer Equipment that does not comply with Addendum A. You can contact CyburDial through this procedure but CyburDial can elect to decline.

(iv)  Customer’s designated contacts may contact CyburDial in order to discuss the issue if a ticket has been created.

CyburDial staff will address questions that have a respective ticket ONLY. No questions or issues will be handled by CyburDial staff unless Customer has created a ticket. Customer also acknowledges that CyburDial will require a reasonable amount of time to review the ticket internally and to begin to troubleshoot the matter. Therefore, Customer must wait a reasonable amount of time before contacting CyburDial once a ticket has been created.

(b)   Information to Provide.  When creating a ticket and/or contacting CyburDial in order to troubleshoot an issue, Customer must be prepared to provide various technical information such as, but without limitation, network set up (how hardware is connected), type of connection, type of router/firewall, type of gateway, type and model of phone, type of operating system and version, version of java installed, full description of the problem, accurate list of steps to reproduce the issue, Username, password, IP address and/or domain name.

3. Priority Issues.This Section gives an overview of how CyburDial will prioritize Customer’s tickets.

(a)   Priority 1:  Critical Issue. Any issue which precludes Customer from any operation of the service(s), such as recurring server crash, high number of phone call crashes, complete audio loss or any such related issue which prevents Customer from its operations of the CyburDial Services or related services.

(b)   Priority 2:  Moderate Issue. Any issue with precludes Customer from some of the operation of the service(s), but where the majority of the functions are still usable, such as inability to use one of the product features, some dial errors or product does not conform to full specifications but is still functional.

(c)    Priority 3: Minor Issue. Any issue which does not significantly affect the service(s), such as cosmetic interface issues or any other issue.

4. Exclusions.In addition to other exclusions specified elsewhere, CyburDial shall have no obligation to provide support as to issues: (i) relating to Customer Equipment that does not comply with the Technical Manual or that CyburDial has identified that it does not support; (ii) caused by Customer’s negligence, hardware malfunctions, software installed in a hardware or operating environment not supported by CyburDial, Customer’s internal network or Customer’s ISP provider issues; (iii) arising from software not licensed directly from CyburDial; (iii) , arising from lack of training or poor training by the designated contacts of Customer’s staff and employees; or (iv) BPO Customers.

Addendum B

Data Retention Policy

Although CyburDial may provide data storage as a convenience to its customers, CyburDial has no obligation to Customer to store or retain any Customer Data or Customer Content for any period of time and CyburDial retains the right to periodically purge Customer Data from CyburDial owned or managed servers. It is Customer’s sole responsibility to download, maintain and preserve its data if Customer so chooses. If Customer chooses to download, maintain and preserve the data, then Customer is responsible for setting up and designating servers and any other equipment on which the data is saved. Certain types of data may be stored by CyburDial for an additional fee. Customer should contact CyburDial if Customer intends to make arrangements for CyburDial to store certain data.

The information below details CyburDial’s current minimum data retention periods:

1. CRM Data: 90 Days, Retrieve with Lead Sheet Reports
2. CRM Session Data: 90 Days, Retrieve with Lead Sheet Reports
3. Call Logs: 60 Days, Retrieve with Call Log Reports
4. Campaign State: 90 Days, Retrieve with List Status Reports
5. Dialing Lists: 90 Days, Retrieve with Lists / Export
6. Recordings: Sooner of 30 Days or successful offload Via FTP
7. Callbacks: 90 Days after “Complete By Date” Export in Administrator

Addendum C

Additional Terms and Conditions for Voice Services

1. 911 Availability.  If a two-way interconnected voice Service is offered by CyburDial and subscribed to by Customer, that service may include a 911/E911 access component.  The Voice Service is not required to, and will not provide 911/E911 capability, unless otherwise stated by CyburDial in writing.  Customer shall inform all Users if 911/E911 access is not available through the voice service subscribed to by Customer.
2. 911 limitations and restrictions.  The CyburDial Services’ 911/E911 access component, when required or available, will not have the same functionality or availability as that associated with traditional wireline 911/E911 services and will be subject to certain limitations and restrictions including those described herein.  Customer acknowledges, and is hereby on notice, that the 911/E911 access portion of a voice service, if required or available, will not function or will not function properly for any of the reasons detailed below and represents and warrants it has been informed by CyburDial of the reasons to have at least one backup method of accessing 911/E911 service, such as a circuit-switched TDM telephone or cellular telephone, per customer location. Customer agrees to notify any potential User of the service of the 911/E911 limitations below:

• Loss or interruption of electrical power to Customer’s VoIP telephone, its ATA, modem, router, switch or any other devices in the critical path from Customers VoIP handset to the CyburDial switching center. The User will not be able to use the CyburDial Service for calls during such a power interruption or outage.  Following the power interruption or outage, Users may find it necessary to reset or reconfigure the voice service prior to being able to use the voice service for making and receiving calls, including “911” calls.
• Loss or interruption of Internet access at the User’s location.
• Failure of the User’s broadband or VoIP hardware (including without limitation phones).
• Failure of the User’s broadband or VoIP software (including without limitation soft phones).
• Improperly installed or configured User broadband or VoIP hardware.
• Improperly installed or configured User broadband or VoIP software (including without limitation soft phones).
• Suspension, disconnection, or termination of the voice service for any reason, including without limitation (i) for failure to pay or default, or (ii) failure of the voice service to function for any reason.
• Customer failed to provide CyburDial with any physical location of the CyburDial-served VoIP handset-User or failed to provide the correct physical location of same (i.e., the address is incorrect, incomplete, abbreviated, or misspelled).
• Customer failed to update the User’s physical location with CyburDial when the User moved or changed location/address.
• The User attempts a 911 call via a CyburDial-served VoIP handset from a location/address different than the location/address registered with CyburDial.
• For the purposes herein (911/E911), the terms location and address shall be understood to designate information necessary to generate a proper Automatic Location Identification record ensuring proper routing to and from the proper PSAP for the call’s originating location.  Such location and address may include but not necessarily limited to the street name and number, building, unit, and zip code (e.g., Unit B-22, 1111 North Main Street, Anywhere, State, 99999).

3. Requirement to Register and Update Location Information. Customer is required to register the physical location of each User’s equipment (phone or softphone) with CyburDial shortly after ordering CyburDial Services and upon adding a User to an existing subscription and when a User’s location changes. CyburDial will provide the sign-up process to Customer during onboarding if such registration is required. Customer acknowledges that, for Voice Service where 911 is required or available, the physical location registered for the User’s equipment will be the location transmitted to the emergency call taker, and that CyburDial’s only mechanism for routing 911 calls to the correct emergency call taker will be the then-current registered physical location for the User’s equipment. If Customer does not accurately identify a User’s location upon ordering the CyburDial Voice Service and/or does not update such information when the User’s location changes, 911 communications, when required or available, may not be directed to the correct emergency call taker.  When Customer notifies CyburDial of a change in the registered location of a User of a Voice Service for which 911 calling is required or available, there may be a delay in making the new registered location available to route 911 calls and to advise the appropriate emergency call taker of the new registered location.
4. Warning Labels/Notice. If the Voice Service subscribed to by Customer is one for which 911 service is required or available, CyburDial may, but is not required to, provide Customer with labels warning that the 911/E911 component of the voice service may be limited or not available. If such labels are provided, Customer agrees to place such labels on or near the equipment used in conjunction with the voice service.
5. Additional 911/E911 Limitations. For voice services that require or permit 911/E911 calling, the local emergency call taker receiving the 911 call may not have a system configured for E911 services or be able to capture and/or retain number or location information. Therefore, the emergency call taker may not know the phone number or physical location of the User making the 911 call which may delay or prevent emergency services.  Due to technical factors in network design and in the event of network congestion there is a possibility that, for voice services where 911 calling is required or available, a 911 call will produce a busy signal, will experience unexpected answering wait times, and/or take longer to answer than 911 calls placed via wireline 911 services.
6. 911/E911 Limitation of Liability/Indemnity.  CyburDial and its affiliates, officers, directors, employees, consultants, agents, licensors, suppliers, and resellers will have no liability to Customer, its Users, or any Third party for, and Customer waives all claims and causes of action, arising out of or related to, Customer, its Users, or any Third party’s inability to dial 911 or any other emergency telephone number or access to an emergency service operator or emergency services or CyburDial not providing such emergency calling services or systems. Customer hereby releases and agrees to indemnify, defend, and hold harmless CyburDial, its affiliates, officers, directors, employees, consultants, agents, licensors, suppliers, and resellers from any and all claims, liability, damages, losses, expenses, and/ or costs (including but not limited to attorneys fees and cost of suit) by or on behalf of Customer or any Third party or User arising from or related to the failure of 911/E911 to function or function properly or CyburDial’s provision of 911/E911 services or failure to provide access to 911/ E911 services.

Addendum D

Data Processing Addendum

This Data Processing Addendum (together with its Exhibits, “DPA”) is incorporated into the Agreement.  All capitalized terms not defined herein shall have the meaning set forth in the Agreement.

In the course of providing the Services to Customer pursuant to the Agreement, CyburDial may Process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.

1. Definitions

“Controller” or “Data Controller” means the entity that determines the purposes and means of the Processing of Personal Data.  Customer is a Controller.

“CyburDial Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Customer Data Incident” means the accidental or unlawful destruction, loss, alteration, unlawful disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by CyburDial or its Sub-processors of which CyburDial becomes aware.

“Data Protection Laws and Regulations” or “DPLR” means all laws and regulations of the United States and its states, applicable to the Processing of Personal Data pursuant to the Agreement.

“Data Subject” means the identified or identifiable person to whom Personal Data relates and that such Personal Data has been provided to CyburDial by Customer.

“Data Subject Request” or “DSAR” means a request: (i) from a Data Subject to Customer, which is then sent by Customer to CyburDial; (ii) is compliant in form and delivery method with DPLR; (iii) contains information sufficient for Customer to verify that the Data Subject is entitled to such rights and Customer has so verified;  and (iv) for the purpose of exercising the Data Subject’s rights specified in the relevant DPLR.

“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws), where for each (i) or (ii), such data is Customer Data.

“Processing” or “Process” means any operation or set of operations performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Processor” or “Data Processor” means the entity that Processes Personal Data on behalf of the Controller, Processing according to the Agreement and Data Processing Laws.  CyburDial is the Processor for Personal Data provided by Customer for CyburDial to Process.

“Security Measures” means the security measures applicable to the specific CyburDial Services used by Customer.

“Sub-processor” means any Processor engaged by CyburDial or by Customer.

2. Processing Personal Data

(a)   Role of Customer as Controller and CyburDial as Processor. The Parties agree and acknowledge that (i) Customer is the Controller, and CyburDial is the Processor as to Personal Data provided by or on behalf of Customer that CyburDial Processes and (ii) CyburDial, as Processor, might engage Sub-processors.

(b)   Processing of Personal Data. Customer shall provide notice to Data Subjects as to the use of CyburDial as Processor when required by DPLR. Customer’s instructions for the Processing of Personal Data shall comply with DPLR and the Agreement. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Customer specifically acknowledges that its use of the CyburDial Services will not violate the rights of any Data Subject that has exercised its rights under Data Processing Laws.

(c)    CyburDial Processing of Personal Data. CyburDial shall Process Personal Data on behalf of and only in accordance with Customer’s documented instructions only for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by Users in their use of the Services; and (iii) Processing to comply with other documented lawful and reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.  Customer confirms that the Processing that Customer, as Controller, directs CyburDial, as Processor, to Process are for limited and specified business purposes under DPLR.  In particular, CyburDial does not and shall not retain, use, disclose or otherwise Process Personal Data for any purpose other than for business purposes under the Agreement or as otherwise permitted under the CCPA.

(d)   Details of the Processing. The subject-matter of Processing of Personal Data by CyburDial is the performance of the CyburDial Services pursuant to the Agreement.  The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Exhibit 1 to this DPA.  CyburDial does not sell or share, as those terms are defined in the DPLR, the Personal Data and CyburDial’s agreements with Sub-processors shall include a similar provision.

(e)    Details of the Processing. CyburDial certifies that it understands these contractual restrictions and will comply with them.

3. Rights of Data Subjects. It is Customer’s responsibility to: (i) verify that the Data Subject possesses the rights claimed in the DSAR; (ii) if the Data Subject possesses such rights, inform CyburDial of such facts;  (iii) respond to each DSAR and take the actions that Customer determines are to be taken in the response, including, without limitation, altering, copying or removing the Personal Data from databases it controls and that are used by Customer’s Users and from its own databases not used with the CyburDial Services.  If CyburDial receives a DSAR with the verification specified above, then it shall follow the instructions of the Customer as to any further actions CyburDial must take to the extent that CyburDial possesses any such Personal Data and to direct its Sub-processors to do the same.  CyburDial shall, to the extent legally required, promptly notify Customer if CyburDial receives a DSAR by reasonably convenient means provided by the Customer. CyburDial can, but is not obligated to, respond to a Data Subject Request itself, except that CyburDial has the right to inform the sender of the DSAR as to CyburDial’s actions and that Customer authorizes CyburDial to redirect the DSAR as necessary. To the extent legally permitted, Customer shall be responsible for any costs arising from CyburDial’s provision of such assistance.
4. CyburDial Personnel

(a)   Training and Personnel.  CyburDial shall ensure that its personnel engaged in the Processing of Personal Data have received appropriate training on their responsibilities.  CyburDial shall take commercially reasonable steps to ensure the reliability of any CyburDial personnel engaged in the Processing of Personal Data.  CyburDial shall ensure that CyburDial’s access to Personal Data is limited to those trained and reliable personnel developing, marketing or selling and maintaining the CyburDial Services. CyburDial has appointed a data protection officer. The appointed person may be reached at privacy@cybur-dial.com

5. SUB-PROCESSORS

(a)   Appointment of Sub-processors. Customer acknowledges and agrees that (i) CyburDial Affiliates may be retained as Sub-processors; and (ii) CyburDial and CyburDial Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. CyburDial or a CyburDial Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this Schedule with respect to the protection of Personal Data to the extent applicable to the nature of the services provided by such Sub-processor.

(b)   List of Current Sub-processors and Notification of New Sub-processors.  CyburDial shall make available to Customer, upon request, the current list of Sub-processors for the CyburDial Services used by CyburDial. Such Sub-processor lists shall include the identities of those Sub-processors, a summary of their processing activities and their country or countries of operation relevant to Processing, if requested by Customer.  Customer hereby consents to these Sub-processors, their locations and processing activities as it pertains to their Personal Data. At Customer’s request (email being acceptable) CyburDial shall provide email notification of a new Sub-processor(s) before authorizing any new Sub-processor(s) to Process Personal Data in connection with the provision of the relevant Services.

(c)    Objection Right for New Sub-processors.  Customer may object to CyburDial’s use of a new Sub-processor by notifying CyburDial promptly in writing at privacy@CyburDial.com within thirty (30) days after receipt of CyburDial’s notice in accordance with the mechanism set out above.  Customer’s objection shall be reasonable and the notice to CyburDial shall provide in sufficient detail the reasons for such objection.  If Customer thusly objects to a new Sub-processor, CyburDial will use reasonable efforts to make available to Customer a change in the Services, recommend a commercially reasonable change to Customer’s configuration, obtain another Sub-processor or recommend use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening Customer.

(d)   Liability. CyburDial shall be liable for the acts and omissions of its Sub-processors to the same extent CyburDial would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.

6. SECURITY

(a)   Controls for the Protection of Customer Data. CyburDial hereby certifies that it shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unlawful disclosure of, or access to, Personal Data) and integrity of Personal Data subject to the provisions elsewhere in this Agreement. CyburDial regularly monitors compliance with these measures. CyburDial will not materially decrease the overall security of the CyburDial Services during a subscription term.

(b)   Third-Party Certifications and Audits. Upon Customer’s written request at reasonable intervals, and subject to a written confidentiality agreement, CyburDial shall make available to Customer that is not a competitor of CyburDial (or Customer’s independent, third-party auditor that is not a competitor of CyburDial) a copy of CyburDial’s then most recent third-party audits or certifications, as applicable (including ISO 27001).

(c)    Data Protection Impact Assessment. Upon Customer’s request, CyburDial shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under DPLR to carry out a data protection impact assessment related to Customer’s use of the CyburDial Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is reasonably available to CyburDial.

7. Personal Data Incident Management. CyburDial maintains security incident management policies and procedures and shall notify Customer without undue delay after becoming aware of a Personal Data Incident. CyburDial shall make reasonable efforts to identify the cause of such Personal Data Incident and take those steps as CyburDial deems necessary and reasonable in order to remediate the cause of such a Personal Data Incident to the extent the remediation is within CyburDial’s reasonable control. The obligations herein shall not apply to incidents that CyburDial believes are caused, directly or indirectly, by Customer or Customer’s Users.
8. Return and Deletion of Personal Data. CyburDial shall return Customer Data to Customer and, to the extent allowed by applicable law, delete Customer Data, in each case in accordance with the procedures and timeframes specified in the Agreement.
9. Authorized Affiliates. Customer’s Affiliates must have their own written agreements with CyburDial.  To the extent that Customer shares or otherwise Processes Personal Data with its Affiliates, or one or more of its Affiliates Processes Personal Data, then Customer shall be fully responsible for all such activities and CyburDial shall have no liability whatsoever.
10. Limitation of Liability. CyburDial’s liability, and the liability of CyburDial Affiliates, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the liability limitations set forth in the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.

DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

• Prospects, customers, business partners and vendors of Customer and Customer’s customers (who are natural persons)
• Employees or contact persons of Customer’s prospects, customers, business partners and vendors
• Employees, agents, advisors, freelancers of Customer (who are natural persons)
• Customer’s Users authorized by Customer to use the Services

Categories of personal data transferred

Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

• Customer’s users authorized by Customer to use the Software Services
• Title
• Position
• Employer
• Contact information (company, email, phone, physical business address)
• Order data
• Professional life data
• Personal life data
• Connection data
• Localization data
• Payment data
• Business requirements

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

• Not applicable.

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

Nature of the processing

• CyburDial will Process Personal Data as necessary to perform the Services pursuant to the Agreement, and as further instructed by Customer in its use of the Services.

Purpose(s) of the data transfer and further processing

• The objective of Processing of Personal Data by data importer is the performance of Services pursuant to the Agreement.

The duration of the processing

• Subject to Section 8 of the DPA, CyburDial will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

• Personal Data will be retained for the length of the Agreement, or in accordance with applicable Data Privacy Laws.