Terms and Conditions

Last Update: August 10th, 2024

These online Terms and Conditions (“Terms and Conditions”) constitute a binding agreement between Swades AI and the Customer (as defined below) and set forth the terms and conditions pursuant to which the Customer may access and/or use the Site and the Services provided by PowerDialer, developed by Swades AI.

By clicking on the “I have read and agree to the Terms and Conditions” when subscribing to any of the Services, or otherwise using any of the Services, the Customer:

(i) acknowledges that it has read, agreed, and will comply with this Agreement;
(ii) warrants and represents that: (a) its representative is at least eighteen (18) years of age or the applicable statutory age of majority to enter into a binding agreement; and (b) it has the right, power, and authority to enter into this Agreement on behalf of the company, corporation, governmental organization, or other legal entity, and to bind such organization to these Terms and Conditions.

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. IF CUSTOMER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, CUSTOMER IS NOT ENTITLED TO USE THE SERVICES.

1. Definitions

“Abandoned Call” means any call attempt that is received by PowerDialer for completion but is abandoned and/or cancelled by the calling party for any reason prior to completion.
“Affiliate” means any entity existing from time to time that directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control means having rights to more than 50% of the equity, ownership, or voting rights of the respective entity.
“Billing Tab” means part of the Customer's Account where the Customer can find various information with respect to its Plan and used Services, e.g., billing information, credit amount, etc.
“Call to an Unallocated Number” means any call attempt that is received by PowerDialer for completion but is terminated to an unallocated number.
“Carrier Requirements” means any and all requirements and/or obligations imposed by the local telecommunication carriers (such as requirements included in the T-Mobile Code of Conduct, AT&T Code of Conduct, and/or trade organizations representing the telecommunication carriers operating in a certain territory).
“Customer’s Account” means the numbered account established by PowerDialer and associated with the Customer and the Services provided to the Customer under this Agreement.
“Customer’s Account Information” means business contact information associated with the Account; usage records of the Services; configuration data; and Customer’s call data records.
“Administrator” means the person(s) of a minimum age of 18 years of Customer’s organization recognized by PowerDialer’s systems as being vested with specific rights with respect to the Services, who is (are) responsible for the administration and management of Customer’s Accounts and has (have) access to specific functionalities attached thereto.
“PowerDialer Number” means the phone number provided to the Customer by PowerDialer.
“PowerDialer Dashboard” means the online portal through which the Administrator(s) controls settings, may select the Customer’s Plan, and any other Services, and monitors usage of the Account(s).
“Confidential Information” means any proprietary and confidential information disclosed, in the course of and during the Term of the Agreement, by one Party (the “Disclosing Party”) to another Party (the “Receiving Party”).
“Customer” means, in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity on behalf of which such individual is accepting this Agreement, as well as any Affiliate of such company or other legal entity, which have entered into Purchases and/or Order Form(s).
“Customer Data” means the data in the Customer’s calls, facsimiles, messages, voicemails, voice recordings, shared files, conferences, call meta-data, configuration data, or other communications transmitted or stored through the Services.
“Effective Date” means the date on which the Customer first subscribes to any of the Services or the date of execution of the Order Form by the Customer.
“Fees” means, collectively, Fixed Fees, Usage Fees, and any and all other applicable charges and fees associated with the Services. Fees may be indicated either in USD or in Euros, as applicable.
“Intellectual Property” means all intellectual property and technology, regardless of form, including without limitation: (a) published and unpublished works of authorship; (b) inventions and discoveries, including without limitation business methods, compositions of matter, methods, and processes, and new uses for any of the preceding items; (c) words, names, symbols, devices, designs, and other designations, and combinations of the preceding items, used to identify or distinguish a business, good, group, product, or service or to indicate a form of certification; (d) information that is not generally known or readily ascertainable through proper means, whether tangible or intangible; and (e) computer programs, operating systems, applications, firmware, and other code, including all source code, object code, application programming interfaces, data files, databases, protocols, specifications, and other documentation thereof.
“Law” means any and all law, statute, regulation, rule, ordinance, administrative guidance, treaty, convention, and/or court or administrative order or ruling of any governing body with jurisdiction over the Services, the Customer, and/or the Customer’s use of the Services.
“Order Form” means the document that may be entered between the Customer and PowerDialer, from time to time, to offset forth certain fees, the selected Plan, the Order Form Term, and other material terms associated with this Agreement and executed by the Customer.
“Order Form Term” means the term set forth in the Order Form.
“Plan” means any of the subscription plans made available to the Customer whose features are listed on the Site and that the Customer may select either via a Purchase or by executing an Order Form, including PowerDialer Numbers, as applicable. For the avoidance of doubt, the Free Trial shall also be deemed a Plan.
“Plan Term” means collectively, the Plan Initial Term and the Plan Renewal Term.
“Purchase” means an order for certain of PowerDialer’s Services, including Plans and PowerDialer Numbers, which is placed through the PowerDialer Dashboard or the Site.
“Regulatory A2P Messaging Frameworks” means any regulation establishing rules for A2P messaging in the relevant market where the Services are provided.
“Representatives” means a Party’s Affiliates and its employees, officers, directors, agents, or other representatives.
“Services” means any and all services made available to the Customer by PowerDialer from time to time according to the Order Form or Purchase and/or provided by PowerDialer under this Agreement.
“Short Duration Call” means any outbound call of a duration of less than or equal to fifteen (15) seconds.
“Site” means the websites www.powerdialer.com or www.swades.ai.
“User” means an employee, consultant, contractor, or any person using the Services via the Customer’s Account, without any specific administration or management rights attached thereto.

2. Description of the PowerDialer Services

PowerDialer operates and provides an online-based phone solution and services that include call handling and integration with various third-party applications not affiliated with PowerDialer (“Integrations”). A non-exhaustive description of the PowerDialer system is available on the Site. PowerDialer is not a “dial-tone” provider, and its Services are not a replacement for any phone lines, whether wired, wireless, or Internet-based, and selected numbers and/or certain services may not be reachable through the Services. The Customer acknowledges and agrees that the Services do not support any emergency calls to any type of hospitals, law enforcement agencies, medical care units, or any type of emergency service (collectively as “Emergency Services”) or premium, surcharged, or special services of any kind, which may need to be obtained/granted from a local telephone service provider. Furthermore, the Customer acknowledges and agrees that: (i) PowerDialer is not required to offer access to any Emergency Services under any applicable Law; and (ii) it is the Customer’s responsibility to inform Users and Administrators that access and/or calls to Emergency Services are not accessible using the Services.

Before subscribing, the Customer must ensure that its telephone/internet service providers or network administrators allow phone calls to be made and received directly through the browser Chrome (at least version 58), a mobile application, or any SIP phone. Otherwise, the use of the Service is not possible.

It is the responsibility of the Customer to ensure that, in order to receive quality service:

it has a high-quality internet connection with a real speed of 100 kbps per channel;
voice stream data is prioritized on network flows;
the use of access equipment respects the integrity of SIP messages;
response time between the Customer’s device and PowerDialer’s system should not be longer than 150 milliseconds;
flows are open toward TCP 443, 1443, 2443, and 5060 and UDP
16384-32768 ports;
codecs are used in order of preference: OPUS, Speex, G711 (PCMA, PCMU).

The Customer can find further information about network and device configurations and requirements on the subpage https://www.powerdialer.ai.

3. Quality, Maintenance, and Accessibility

3.1 General Terms

The Services are designed to be available with minimal disruptions outside of regularly scheduled maintenance times. PowerDialer may modify, enhance, and/or replace features of the Services from time to time, with or without notice or posting to the Site, provided it will not materially reduce the key functions, features, and/or the security of the Services during the Term (as defined below) without obtaining the Customer’s written pre-approval. The Customer’s written pre-approval is not required in the event such modifications, enhancements, or replacements are required by applicable Law.

3.2 Equipment Requirements

The Customer acknowledges and agrees that the standard functioning of the Services is dependent on the Customer maintaining adequate access to the Internet, the availability of an adequate power supply, and the use of the correct equipment configuration. The Customer also acknowledges and agrees that a number of factors outside of PowerDialer’s control may impact the quality of the Customer’s communications and the access and use of the Services, including but not limited to: the Customer’s local network, public Internet lines, the public switched telephone network, the Customer’s Internet service provider, and/or local network hardware. PowerDialer takes no responsibility and will not be liable for any disruption, interruption, or delay caused by any failure in any of these items or any other item over which PowerDialer has no control.

3.3 Accessibility

The Customer, Users, and/or Administrators (or PowerDialer at the Customer’s request) will choose a unique password and user name (collectively as “Login Details”) for each User or Administrator. The Customer acknowledges and agrees that the Customer is prohibited from sharing Login Details with any third party. The Customer will be responsible for the confidentiality and use of the Login Details. The Customer will also be responsible for all electronic communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind entered electronically through the Services. Any and all electronic communications transmitted via the Customer’s Account will be deemed to have been sent by the Customer. PowerDialer may terminate any of the Services and/or this Agreement if it believes in its sole discretion that the Customer has breached its obligations contained in this Section 3.3. PowerDialer is not responsible for any breach of security caused by the Customer’s failure to maintain the confidentiality and security of any of the Login Details. The Customer agrees to notify PowerDialer immediately in the event of loss, theft, or disclosure of any or all of the Login Details, if the Customer believes the confidentiality or security of any or all of the Login Details has been compromised in any way, or in the event of the Customer learning about a possible or actual unauthorized access to and/or use of the Site and/or the Services. To the extent permissible by Law, the Customer will be liable for any and all expenses, damages, losses, and costs, including reporting costs, notice costs, recovery and remediation of data security system issues, usage charges, and fines, fees, civil judgments, and reasonable attorneys’ fees resulting from the Customer’s failure to safeguard the Customer’s Login Details and information and data as set forth herein.

3.4 Maintenance

PowerDialer may be required to suspend access and/or use of Services and/or the Site to enable maintenance, upgrading, or improvements operations of the Services and/or Site, including in the event of an emergency. PowerDialer will endeavor to provide the Customer with advance notice where practicable and carry out such maintenance, where possible, outside of regular business hours.

4. Intellectual Property

4.1 Limited License

Subject to, and conditional upon the Customer’s continued and full compliance with all of the terms and conditions in this Agreement, PowerDialer grants to the Customer and its Users and Administrators, during the Term, a revocable, non-transferable, non-exclusive, limited license and right to access and use the Services and the Site solely for its internal business purposes subject to the other terms and conditions of this Agreement.

4.2 Restrictions

The Customer must not and is obliged to manage that its Users and Administrators will not: (i) sublicense, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit or make the Services, or any part thereof, available to any third party other than to Users and Administrators; and (ii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer the Services or any part thereof, and shall not build a similar or competitive product or service. The Customer must not and is obliged to manage that its Users and Administrators will not use the call recording functionality in the event credit card, debit card, or other payment information is made available to the Customer, User, and/or Administrators during a call.

4.3 PowerDialer Ownership

The Customer acknowledges and agrees that: (i) PowerDialer and its Affiliates own all rights, titles, and interests in and to all Intellectual Property rights in the Services and in the Site as well as any content thereof or therein; (ii) the limited license granted to the Customer in Section 4.1 does not convey any rights in the Services express or implied, other than those expressly granted herein. All rights not expressly granted to the Customer are reserved by PowerDialer and its licensors. The Services may contain open source software or code, and the Customer acknowledges that misuse of the Services may infringe upon third-party’s IP rights.

4.4 Customer Data

The Customer grants PowerDialer and its Affiliates a limited, non-exclusive, royalty-free license and right to use, copy, transmit, distribute, and store the Customer Data to the extent necessary or desirable for PowerDialer to provide the Customer with the Services and improve the Services. PowerDialer will only disclose or provide the Customer Data to parties who need to access it in order for PowerDialer to provide the Services in accordance with this Agreement. The Customer also hereby grants PowerDialer the right to use and reproduce the Customer’s name, logo, and trademarks to identify the Customer as a PowerDialer customer on the Site and other marketing materials. If the Customer does not agree with the use and/or reproduction of the Customer’s name, logo, and/or trademarks to identify the Customer as a PowerDialer customer, the Customer should notify its disagreement to PowerDialer at the email address support@powerdialer.com.

4.5 Feedback

PowerDialer may ask for or collect and/or the Customer may provide, written suggestions, feedback, or comments from time to time as part of the Customer’s and/or Users’ use of the Services (collectively as “Feedback”). The Customer acknowledges and agrees that such Feedback shall be deemed the property of PowerDialer and its Affiliates. PowerDialer and its Affiliates shall exclusively own all now known or hereafter existing rights to the Feedback throughout the universe in perpetuity and shall be entitled to use the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Feedback.

4.6 Integrations

The Customer may decide in its sole discretion to integrate the Services with the Integrations. Such Integrations are not PowerDialer products or services, and all use of Integrations is solely between the Customer and the applicable third party. If an Integration is enabled from the Customer’s PowerDialer workspace, the Customer should be mindful of any Customer Data and/or Customer Confidential Information that will be shared with the third-party provider and the purposes for which the provider requires access. The Customer warrants and represents that it has obtained all necessary consents and licenses to transfer Customer Data from the Services to the Integrations and/or from the Integrations to the Services and that it will be solely responsible for the processing and use of such data by the Integrations in accordance with Law. PowerDialer will not be responsible for any use, disclosure, modification, or deletion of Customer Data and/or Customer Confidential Information that is transmitted to, or accessed by, an Integration.

5. Permissible Use Policy

Any and all access to and/or use of the Services by the Customer, its Users, and/or Administrators is conditioned upon compliance with the following Permissible Use Policy (“PUP”). The Customer must not and will cause its Users and Administrators not to use the PowerDialer Services to:

circumvent or disable any technological features or security measures implemented in the Services;
violate any Law, published policy, or any applicable third-party policy or requirement communicated or otherwise made available by PowerDialer;
violate or infringe upon PowerDialer’s or a third party’s Intellectual Property, publicity privacy, or other tangible or intangible rights and/or use, without a valid license, any material or content that is subject to third-party proprietary rights;
transmit or store any illegal content;
use the Services for benchmarking or for any other purpose other than as necessary to use the Services the Customer is authorized to use;
stalk, harass, or harm another individual, engage in spamming, phishing, pharming, or other unsolicited advertising, marketing, or other activities in connection with any unsolicited communications (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls or voicemails;
engage in fraudulent activity to the prejudice of third parties or otherwise use the Services to bypass phone identification systems;
perform “robocalls” or other abusive practices;
use automated call mechanisms (switches, PABX, dialers, etc.);
perform more than one call by a single User at any given time;
perform more than 50 outbound completed calls by a single User during any
calendar day (from midnight CET to midnight CET), and more than 25% of the User’s call attempts are Calls to Unallocated Numbers (hereinafter the “Calls to Unallocated Numbers Threshold”);
use any type of spider, virus, worm, trojan-horse, time bomb, or any other codes or instructions that are designed to distort, delete, damage, emulate, or disassemble the Services;
expose any third party to material that is offensive, harmful to minors, indecent, or otherwise objectionable in any way;
send any communications, including email messages on behalf of, or purporting to originate on behalf of PowerDialer;
trunk or forward the Customer’s PowerDialer number to another phone number(s) capable of handling multiple simultaneous calls, or to a private branch exchange or a key system;
send messages that violate any and all regulations within Regulatory A2P Messaging Frameworks regarding forbidden message use cases or categories;
violate any and all of the Carrier Requirements; and
bypass or attempt to bypass and/or evade forbidden content restrictions by withholding use case or message content details during A2P registration.

The restrictions contained in this Section 5 are not exhaustive or exclusive. PowerDialer may impose additional restrictions upon notice or posting to the Site from time to time. PowerDialer may suspend or terminate the Services and/or this Agreement in accordance with Section 12.4 if, in PowerDialer’s sole discretion, the Customer’s, its Users’, and/or Administrator’s use of the Services violates the terms of the PUP. Notwithstanding anything set forth in this Agreement and in addition thereto, the Customer’s use of the call recording functionality must comply with any and all local laws and regulations, including local notice requirements thereof.

Fair Use Policy

Notwithstanding the other provisions of these Terms and Conditions (mainly of this Clause 5 Permissible Use Policy), PowerDialer reserves the right to limit the Customer’s plan (even in cases of Customers with unlimited plans) for cases of unreasonably high usage of Services. Such limits may include the following:

General summary limit applicable to all Customer’s numbers of 3,000 (three thousand) minutes per user per month. PowerDialer reserves the right to modify the general limit defined in this provision of these Terms and Conditions for any Customer on an individual basis.
Individual limit based on the Customer’s use of the Service. Such a limit shall be based on the Customer’s call history and the costs of providing the Service to Customers based primarily on the Customer’s call destination countries, call duration, number of numbers used, and number of called numbers. PowerDialer reserves the right to use other criteria for the calculation of the limit for individual Customers.

Notwithstanding the other provisions of these Terms and Conditions (mainly of this Clause 5 Permissible Use Policy), Customers with unlimited plans must not and will cause their Users and Administrators not to use the PowerDialer Services to:

perform more than 50 outbound completed calls by a single User during any calendar day (from midnight CET to midnight CET) if at the same time 60% of all the calls completed by the User during any calendar day are Short Duration Calls (hereinafter the “Short Duration Calls Threshold”);
perform more than 50 outbound completed calls by a single User during any calendar day (from midnight CET to midnight CET) if at the same time more than 25% of the User’s call attempts are Abandoned Calls (hereinafter the “Abandoned Calls Threshold” and together with the Calls to Unallocated Numbers Threshold and the Short Duration Calls Threshold hereinafter the “Thresholds”).

6. PowerDialer Numbers

6.1 Usage Rules

As part of the Services, PowerDialer may make available PowerDialer Numbers to the Customer in multiple countries. PowerDialer has agreements in place with regulated providers of electronic communications that provide PowerDialer with phone numbers from multiple countries. The Customer acknowledges that the provision of PowerDialer Numbers is subject to the numbering rules and regulatory practices applicable in the countries where the Customer, Users, and/or Administrators are located as well as in the relevant country(ies) from which the PowerDialer Numbers were purchased. Such rules and regulatory practices may change or be amended from time to time, and PowerDialer therefore reserves the right to modify the terms hereunder to the extent necessary to comply with such changes or amendments. The Customer is entitled to purchase PowerDialer Numbers and assign them to a Customer’s Account subject to the allocation requirements displayed upon the Customer’s subscription to any Services. The Customer is obliged to use the PowerDialer Numbers in compliance with any and all applicable Law, including such applicable allocation requirements. PowerDialer reserves the right, in its sole discretion, to cancel the subscribed PowerDialer Numbers for any reason, including in the event the Customer, its Administrators, and/or Users breach such applicable allocation requirements without penalty and without prejudice to its rights to claim damages therefore. If one or several Users reach the threshold for either Short Call Duration and/or Abandoned Calls and/or Calls to Unallocated Numbers (as defined in the relevant Surcharge section in Clause 7 of these Terms and Conditions three or more times during any calendar month, PowerDialer reserves the right to suspend such Users and/or to terminate this Agreement.

6.2 Portability

In using the Services, the Customer may request a PowerDialer Number or may port its existing numbers (“Existing Number”) into the Customer’s Account subject to the terms and conditions herein. In order to request porting of an Existing Number into a Customer’s Account, the Customer’s Account Administrator for the Customer’s Account into which the Customer wishes the Existing Number to be ported must complete all steps listed on the Site and provide all information requested by PowerDialer, any other relevant service provider, and/or third party from time to time. The Customer must provide accurate and detailed information to PowerDialer, any other relevant service provider, and/or third party in order to port a number into an Account, and the Customer represents and warrants that such information is and will be at all times accurate, true, and up to date. The Customer acknowledges and agrees that as part of the porting process, PowerDialer, any other relevant service provider, and/or third party must, as part of its compliance with applicable Law and industry standards, follow certain processes, and that therefore the completion of any number porting request may be delayed for reasons outside of PowerDialer’s control. PowerDialer must, by Law, comply with all valid porting requests. Phone numbers may be ported out of a Customer’s Account in connection with acts or omissions of third parties, and the Customer acknowledges that: (i) it may be impossible for PowerDialer to prevent such porting out of numbers from a Customer’s Account; (ii) PowerDialer may not be able to retrieve a phone number ported out of a Customer’s Account; and (iii) PowerDialer will not be liable for any such porting out. Upon termination or cancellation of a Customer’s Account, all telephone numbers associated with the Customer’s Account may be released by PowerDialer if such numbers have not been ported to another provider prior to such cancellation or termination. The Customer acknowledges and agrees that it is solely responsible for coordinating with its new third-party provider to port out any telephone numbers prior to termination or cancellation of the Customer’s Account and/or termination of this Agreement.

7. Pricing, Invoicing, Cancellation & Refunds

7.1 Free Trial

The Customer may elect to try the Services for a specific period from the Effective Date and shall be permitted to make outbound calls for the credit (such trial of the Services, the “Free Trial”) specified in more detail when subscribing to the Free Trial. At the end of the Free Trial period, the Customer may purchase additional products and services not included in the Free Trial by selecting a Plan.

7.2 Fixed Fees

The Customer may select a Plan on an annual basis and the Customer may also select the corresponding currency for such Plan (either Euro or USD), and unless otherwise provided in the relevant Order Form, the fees associated with such Plan are indicated on the Site (such fees, the “Fixed Fees”). Additional PowerDialer Numbers purchased by the Customer either via the PowerDialer Dashboard or listed in the relevant Order Form, as applicable, shall also be deemed Fixed Fees. For the avoidance of doubt, fees associated with outbound calls or inbound calls (where applicable) are not included in the Fixed Fees. PowerDialer is entitled to update Fixed Fees at any time, and will provide notice to the Customer at the email address on file with the Customer’s Account or via a pop-up on the Site and/or Customer’s Account, as decided by PowerDialer in its sole discretion. Such updated Fixed Fees will become effective ten (10) days after such notice to the Customer. The Customer must inform PowerDialer of the Customer’s reasonable objection in writing within ten (10) days of receiving the notice provided under this provision. If the Parties, negotiating in good faith, cannot reach an agreement within thirty (30) days, the Customer may terminate this Agreement without penalty by written notice to PowerDialer. Any use of the Services after the effectivity of updated Fixed Fees will be deemed as the Customer’s acceptance of such updated Fixed Fees.

7.3 Usage Fees

The fees associated with outbound calls and/or inbound calls, where applicable, will be calculated by multiplying the per-minute rate applicable to such calls (“Per-Minute Rates”) with the Chargeable Time (as defined below) (such fees, the “Usage Fees”). Usage and the duration of calls will be calculated as follows: (i) in full-minute increments; (ii) calls will be rounded up to the next full minute increment at the end of each call for invoicing purposes; (iii) calls will be deemed to begin for (A)

outbound calls when a connection to the number the Customer is trying to reach is established and recorded in PowerDialer’s system, and for (B) incoming (inbound) calls when a signal connection from the caller is recorded in PowerDialer’s system; (iv) calls will be deemed to end when the Customer or the Customer’s correspondent has ended the call or where the call has ended due to a technical malfunction, but a call shall not be deemed ended until the Customer’s wireless telephone signal of a call disconnect is recorded in the PowerDialer system; (such calculation of the duration of calls as detailed in (i) through (iv) included, “Chargeable Time”). PowerDialer is entitled to change the Per-Minute Rates at any time without notice. The Customer may request the Per-Minute Rates currently applicable by sending a request to sales@powerdialer.com.

The Services shall be subject to the following conditions:

a) Outbound calls made by the Customer with a local/toll-free phone to countries outside of the European Union will incur Usage Fees;
b) Inbound calls to the Customer are free regardless of whether they come from a foreign country or not, provided they are made to a local or geographic telephone number (non-toll-free);
c) All inbound calls on a toll-free phone line shall incur Usage Fees;
d) Any internal calls or communications (including but not limited to calls, voicemail deposits, and call transfers) between Users, or between a User and an Administrator, shall be free of charge provided such calls have been made using the Services;
e) Outbound calls for which PowerDialer receives answer supervision (i.e., connecting time) including ring time, shall incur a minimum of one (1) minute of Chargeable Time (answer supervision may also be generated by voicemail systems, private branch exchanges, and interexchange switching equipment);
f) Calls forwarded to mobile phones or landlines shall be deemed outbound calls and shall incur Usage Fees including in the event the Customer has purchased an unlimited outgoing/incoming call bundle, at the then applicable rate; and
g) Calls received by the Customer from a third party using a local/toll-free phone line which call is subsequently forwarded or transferred shall be deemed to be the same call;
h) Customers with Unlimited call packages are subject to the Permissible Use Policy, Fair Use Policy, and other restrictions listed in these Terms and Conditions.

7.4 Payment

By providing valid credit or debit card information and/or bank account information (“Payment Method”), the Customer expressly: (i) authorizes PowerDialer and/or any other company or individual acting as PowerDialer’s billing agent or other authorized person to charge the Payment Method as follows: (a) monthly for the Usage Fees; at the billing frequency chosen and specified by the Customer on the relevant Order Form or Purchase, as applicable, for fees corresponding to Fixed Fees (the “Billing Frequency”); and (b) for any and all other fees in connection with the Services including recurring payments billed on an annual basis and to continue attempting to charge and/or place holds on such the Customer’s Payment Method until such amounts are paid in full; (ii) agrees to update such Payment Method from time to time as necessary; and (iii) acknowledges and agrees that PowerDialer will not be liable for any expired credit/debit card, insufficient funds, or other charges the Customer incurred as a result of such attempts to charge, and/or place holds on, such Payment Method. In the event the Customer selects a Plan that includes a predetermined allotment of services, unless otherwise specifically provided as a part of such Plan, any unused allotment of such services from one billing cycle will not carry over to any future billing cycle. The Customer agrees that it will be responsible for any and all fees, if any, associated with wire transfers used for payment of invoices to PowerDialer. The Customer is obliged to pay all invoices within thirty (30) days of the invoice date.

7.5 Taxes

The Fees are exclusive of VAT (where applicable), costs/disbursements, charges, regulatory assessments, or any other duties, levies, registration fees, or taxes which will be charged additionally. The invoiced amount and/or amounts charged to the Payment Method may hence fluctuate from month to month and the Customer agrees to pay all fees and/or taxes due. The Customer (and where applicable Affiliates) shall make all payments for the Services without withholding or deduction of, or in respect of, any tax unless required by law. If the Customer is required by law to make any such withholding or deduction, the Customer must (a) first notify PowerDialer of such an obligation, and (b) increase the sums paid to PowerDialer so that the amount received by PowerDialer after the withholding tax is deducted is the full amount PowerDialer would have received if no withholding or deduction had been made.

7.6 Late Fees

If the Customer is in delay with the payment of Fees or a part thereof, PowerDialer is entitled to request the interest on late payment of 0.07% of the due amount for each day of delay and the Customer is obliged to pay the interest on late payment upon the request of PowerDialer within the period set out in the request. In addition, PowerDialer is entitled to a forty (40)-euro administrative recovery fee for any late payment. Notwithstanding any of the foregoing and in addition thereto, in the event the Customer fails to pay invoices due within thirty (30) days, PowerDialer may, in its sole discretion, suspend the Customer’s access to the Services and/or terminate this Agreement in whole or in part, in accordance with Section 12.4 without any liability whatsoever and without prejudice to its right to claim all amounts due by the Customer to PowerDialer, as the case may be.

7.7 Cancellation

All Plans come with an initial free trial period of 14 days. A valid credit card is required for paying accounts. The Customer is responsible for the proper cancellation of the Service and deactivation of paying accounts in the Billing Tab. The Customer is responsible for tracking the subscription plan. PowerDialer does not send any reminders before the customer is charged again.

7.8 Refunds

The Service is billed in advance on an annual basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.

7.9 Plan Change

Downgrading of Service may cause the loss of some functions, features, or capacity of the Customer’s Account. PowerDialer does not accept any liability for such loss.

7.10 Surcharges

PowerDialer reserves the right to charge a surcharge for any violation of these Terms and Conditions (e.g., the violation of any of the Thresholds listed under Section 5 of these Terms and Conditions, or the violation of Regulatory A2P Messaging Frameworks) by any User.

8. Confidentiality

8.1 Non-Disclosure

During the Term of this Agreement, the Confidential Information will be kept confidential by the Receiving Party and will not be disclosed to any other person, provided that each Party may disclose Confidential Information to its Affiliates, and its and their employees, contractors, advisors, agents, and subcontractors who have a need to access and/or use the Confidential Information in order to perform or exercise such Party’s rights or obligations under this Agreement and who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. The Receiving Party is obliged to use the same care and discretion, but in no event less than a reasonable degree of care and discretion, to avoid disclosure as it uses with its own similar information that it does not wish to disclose, to safeguard the Confidential Information from unauthorized disclosure.

8.2 Exceptions

The term Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives (as defined below) in violation of the terms hereof; (ii) is or becomes available to the Receiving Party or any of its Representatives on a non-confidential basis from a source that is not known to the Receiving Party to be prohibited by a contractual, legal, or fiduciary obligation to the Disclosing Party from disclosing such information to the Receiving Party; (iii) is independently developed, conceived, or discovered by the Receiving Party or its Representatives; or (iv) is already known to the Receiving Party or any of its Representatives prior to disclosure of the same to the Receiving Party or its Representatives by the Disclosing Party or the Disclosing Party’s Representatives.

9. Warranties

9.1 PowerDialer Warranties

PowerDialer will provide the Services using a commercially reasonable level of care and will materially comply with applicable Law. To the extent permissible by applicable law, PowerDialer will pass through to the Customer the relevant and applicable warranties it receives from its third-party suppliers where applicable.

9.2 Customer Warranties

The Customer undertakes that it will and will cause its Users and/or Administrators to use the Services in compliance with all applicable Law and this Agreement.

9.3 Disclaimer

TO THE FULLEST EXTENT PERMITTED BY LAW, THE CUSTOMER AGREES THAT THE SERVICES ARE BEING PROVIDED “AS IS” AND “AS AVAILABLE,” AND EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, POWERDIALER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE IN THE EVENT POWERDIALER MAY NOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. POWERDIALER FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY PORTION OF THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, CONTINUOUS, ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES POWERDIALER WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE SERVICES. CUSTOMER ALSO ACKNOWLEDGES AND AGREES THAT POWERDIALER CANNOT GUARANTEE THAT IP BASED COMMUNICATIONS ARE COMPLETELY SECURE, ERROR OR VIRUS-FREE.

9.4. Sanctions Lists.

Customer represents that Customer, its Affiliates, Users and Administrators are not on any government denied/prohibited / unverified party, sanctions, or exclusion list, including, without limitation of the United States of America and European Union (“Sanctions Lists” or individually as “Sanctions List”). PowerDialer is entitled to suspend or terminate the Services and/or this Agreement immediately and without notice or liability whatsoever if Customer, its Affiliates, Users or Administrators are placed on any Sanctions List.

10. Indemnification

Customer agrees to indemnify, defend and hold harmless PowerDialer and its Affiliates (“PowerDialer Parties”) for, from and against any and all losses, liabilities, damages, and claims (including any and all reasonable attorneys’ fees,) as incurred, arising out of or in connection with (i) any breach or alleged breach of this Agreement by Customer, Users and/or Administrators; (ii) Customer’s, Users’ and/or Administrators’ violation of any Law and/or the rights of a third party; (iii) Customer’s, Users’ and/or Administrators’ failure to promptly install any updates, upgrades or patches of any software provided by PowerDialer; and (iv) claims relating to the Customer Data and/or claims relating to the data transferred to the applications of third parties. Further, Customer is obliged to indemnify and hold harmless PowerDialer Parties against all damages, costs, and legal fees awarded against PowerDialer Parties by a court of competent jurisdiction in connection with such claims, or agreed to in a written settlement agreement approved in writing by PowerDialer. Notwithstanding the above-mentioned, the Customer agrees to indemnify PowerDialer Parties from and against any fees and/ or penalties issued to PowerDialer as a result of the Customer’s violation of the Regulatory A2P Messaging Frameworks and/ or Carrier Requirements.

11. Limitations of Liability

IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF PowerDialer OR ITS AFFILIATES EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM GIVING RISE TO SUCH DAMAGES OR ONE HUNDRED EUROS (100€) IF FOR A FREE TRIAL PERIOD. IN NO EVENT SHALL POWERDIALER OR ITS AFFILIATES BE LIABLE FOR: (I) ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, REPUTATIONAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND SUCH AS LOSS OF DATA OR PROFIT, OR BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, HARM TO THE IMAGE OR REPUTATION, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY EVEN IF POWERDIALER OR ITS AFFILIATES HAVE BEEN NOTIFIED ORALLY OR IN WRITING OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO CUSTOMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN SUCH CASES, THE LIABILITY OF PowerDialer AND ITS AFFILIATES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. ANY CLAIM OR CAUSE OF ACTION RESULTING FROM THE CUSTOMER’S USE OF THE SITE AND THE SERVICES MUST BE PROVIDED OFFICIALLY IN WRITING TO POWERDIALER BY REGISTERED MAIL WITH RECEIPT ACKNOWLEDGEMENT ADDRESSED TO ITS HEAD OFFICE WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION HAS ARISEN OR IT SHALL BE DEEMED WAIVED BY CUSTOMER.

12. Term, Termination and Suspension

12.1 Term.

The term of this Agreement will commence on the Effective Date and will continue until the expiration of the last Plan Term, the last Order Form, or unless terminated earlier in accordance with the terms herein (the “Term”). The Plan initial term starts on the date of the Purchase and will continue for the duration set forth in the Purchase (“Plan Initial Term”). Thereafter, the Plan Initial Term will automatically renew for additional periods of the same duration unless either Party provides a notice of non-renewal to the other Party no less than thirty (30) days prior to the end of the current period of the Plan Term. The Order Form Term will automatically renew for additional periods of the same duration unless either Party provides a notice of non-renewal to the other Party no less than thirty (30) days prior to the end of the current period of the Order Form Term.

12.2 Termination.

Either Party may terminate this Agreement and any Services purchased hereunder in whole or part by giving written notice to the other Party if the other Party: (i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of such notice; (ii) upon the commencement by or against the other Party of insolvency, receivership or bankruptcy proceedings; (iii) following the written recommendation of a government or regulatory agency following a change in either applicable Law. PowerDialer may terminate this Agreement and or any Order Form at any time and for any reason without any liability whatsoever. In the event such termination does not result from a breach by Customer of its obligations hereunder, PowerDialer will refund Customer for any unused portion of prepaid Fees covering the remainder of the Order Form Term from the effective date of such termination.

12.3 Effects of Termination.

Upon termination of this Agreement Customer must pay to PowerDialer immediately and without further notice, and in any case no later than thirty (30) days thereof, any accrued fees, charges, including any outstanding Fees. Upon termination or expiration of this Agreement for whatever reason, the Customer is obliged to immediately cease to (i) have access to and (ii) use the Services.

12.4 Suspension.

PowerDialer may suspend Users’ and/or Administrators’ use of any Service if such use is determined by PowerDialer, in its sole but reasonable discretion, to be (i) in violation of the terms of the Agreement (including in case of non-payment on the due date) or of the Law or any policy provided or made available to Customer in writing; (ii) resulting in a degradation of the Service; (iii) otherwise damaging or likely to damage the rights or property of PowerDialer, its Affiliates or third parties, until such violation, degradation, or damage has been remedied. Except in the event legally prohibited or commercially unfeasible, PowerDialer will use reasonable endeavors to provide Customer with prior notice before any suspension detailing the causes and the expected duration of such suspension. PowerDialer reserves the right, in its sole but reasonable discretion, to delete, remove or block access to, all or part of any Customer Data that may violate or infringe the Law, the PUP, or any third-party rights, or otherwise expose or potentially expose PowerDialer or its Affiliates to civil or criminal liability. Suspension will not relieve Customer of its obligation to pay the Fees and the costs associated with the reactivation of the Services. PowerDialer is not responsible for any damages arising from the Service suspension under this Section 12.4. During the suspension period, Customer and PowerDialer will use their best endeavors to minimize any inconvenience caused by such suspension of the Services.

13. Privacy

By entering into this Agreement, the Parties also enter into the Data Processing Agreement. The Data Processing Agreement forms an inseparable part hereof and governs the Processing of Personal Data (as defined in the Data Processing Agreement) by PowerDialer, as a data processor, on behalf of the Customer, as a data controller, under this Agreement. PowerDialer takes its Customer’s privacy seriously and will use the information provided by Customer in accordance with the terms contained in the Data Processing Agreement (when acting as a data processor) and in the Site’s privacy policy available at https://www.powerdialer.ai/privacy as may be amended by PowerDialer from time to time (when acting as a data controller).

14. Governing Law

This Agreement shall be governed in all respects by the laws of Slovakia. In the event of any dispute, claim, question or disagreement (the “Dispute”) arising from or relating to these Terms and Conditions or breach thereof, the Parties shall use their best efforts to settle the Dispute by normal business discussions. Should the Dispute remain unresolved thirty (30) days after notice of the Dispute was provided by one Party to the other, the Parties may take further legal action to resolve the Dispute. These Terms and Conditions, and any Dispute resulting therefrom, shall be subject to the exclusive jurisdiction of the Slovak courts. The illegality, invalidity or unenforceability of any provision of these Terms and Conditions will not affect the legality, validity or enforceability of any other provision.

15. Force Majeure

Excluding either Party’s payment obligations under the Agreement, neither Party will be responsible or liable for any failure to perform or delay in performing to the extent resulting from any event or circumstance that is beyond that Party’s reasonable control, including without limitation any act of God; national emergency; third-party telecommunications networks; riot; war; terrorism; governmental act or direction; change in Law; fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; earthquake; storm; hurricane; flood, fire, or other natural disaster; strike or labor disturbance; or other cause, whether similar or dissimilar to the foregoing, not resulting from the actions or inactions of such Party (“Force Majeure Event”). During the suspension period, the Parties will use commercially reasonable efforts to limit the duration and mitigate the consequences of such event. If the Force Majeure Event lasts for more than thirty (30) days, the Parties undertake to negotiate in good faith an Agreement amendment. If, following such thirty (30) day period, it becomes impossible to continue the performance of the Agreement, each Party will be entitled to terminate the Agreement by sending a written notice to the other Party.

16. Notices

Except where otherwise expressly stated in the Agreement, all notices or other communications must be in English and are deemed to have been fully given when made in writing and delivered in person, upon delivered email, confirmed facsimile, or five days after deposit with an reputable overnight courier service, and addressed as follows: to PowerDialer, s.r.o., Tallerova 4, 811 02 Bratislava, Slovakia with a copy to hello@PowerDialer.io, and to Customer at either the physical address or email address associated with the Customer’s Account. Customer acknowledges and agrees that all electronic notices have the full force and effect of paper notices. Customer is solely responsible for the accuracy and completeness of Customer’s physical address and email address and must immediately update such addresses on the Site upon any change. Customer acknowledges and agrees that all electronic notices have the full force and effect of paper notices.

17. Amendments

PowerDialer reserves the right to update/change the terms of this Agreement or any of its policies from time to time, and will provide notice to Customer at the email address associated with the Customer’s Account or via a pop-up on the Site, as decided by PowerDialer in its sole discretion. Such updates will become effective ten (10) days after such notice to Customer (such date, the “Updated Date”). If any such update would be of material detriment to Customer and is not required by Law, Customer must inform PowerDialer of Customer’s reasonable objection in writing (including reason of such objection) within ten (10) days of receiving the notice provided under this provision. If the Parties, negotiating in good faith cannot reach agreement within thirty (30) days, Customer may terminate the portion of the Services affected by the change without penalty by written notice to PowerDialer. Any use of the Services after the Updated Date will be deemed as Customer’s acceptance of such updates to the terms of this Agreement and/or policies, as applicable.

18. General Provisions

Customer and PowerDialer are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Customer and PowerDialer. PowerDialer’s failure or delay in exercising any right herein will not operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right herein. This Agreement, together with any Order Form(s), Purchases, Exhibits and/or Schedules, each of which is expressly incorporated into this Agreement with this reference, constitutes the entire agreement between the Parties and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise, regarding such subject. In the event that the terms of this Agreement and the terms of an Order Form conflict the terms of the Order Form shall prevail. Sections 4, 5, 7, 8, 10, 11, 12.3 and 18 included shall survive termination of this Agreement. PowerDialer reserves the right to refuse to provide the Services at its sole discretion to any Customer.

Each of the Parties waives its rights to a trial by jury of all claims or causes of action (including counterclaims) related to or arising out of this Agreement brought by either Party against the other. This waiver will apply to any subsequent amendments of or modifications to this Agreement. All claims between the Parties related to this Agreement will be litigated individually and Customer will not consolidate or seek class treatment for any claim with respect to the Services.

In case of any discrepancy between the English version of these Terms and Conditions and other language versions of the Terms and Conditions the English version shall prevail. For the avoidance of doubt, in the case of Customer, each Order Form may be signed by Customer or any of its Affiliates, provided Customer will remain jointly and severally liable for any and all actions or omissions of its Affiliates in connection with this Agreement. Customer may not assign or transfer any of its rights or obligations under this Agreement, in whole or in part, without PowerDialer’s prior written consent. Notwithstanding the foregoing, each Customer may assign this Agreement to (i) its Affiliates, and (ii) an entity in which the Customer may be merged or consolidated, or which purchases all or substantially all assets or equity interest of the assigning party. The assignee or transferee will assume all of the rights and obligations of the assignor or transferor under the Agreement and will be deemed the signatory of the Agreement without any further changes or amendment.