Master Services Agreement
This Master Services Agreement (“Agreement”) is made between Gryphon Networks Corp. (“Gryphon”), a Delaware corporation with its principal offices at 100 Summer Street, Suite 800, Boston, MA 02110 (“Gryphon”) and the customer identified within a Service Attachment (“Customer”) executed by both Customer and Gryphon. Customer and Gryphon may execute Service Attachments referencing this Agreement, and each Service Attachment shall fully incorporate the terms, conditions and descriptions contained within this Agreement.
Whereas, Gryphon provides services to businesses to aid their compliance with various state and federal statutes and regulations governing communications with their customers and prospective customers, maximize their universe of permitted communications, and more effectively manage their marketing activity, and Customer desires to obtain one or more of such services;
Now, therefore, in consideration of the mutual obligations contained in this Agreement, the Gryphon and Customer (together the “Parties” and each individually a “Party”) agree as follows:
Gryphon will provide and Customer shall have access to and may use the Service(s) described in each Service Attachment executed by Customer and Gryphon pursuant to this Agreement as ordered by Customer. Service Attachments may reference a Service described within Schedule A and/or one or more other Gryphon Service. Each Service Attachment shall fully incorporate all terms and conditions contained within this Agreement. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and any Service Attachment, the Service Attachment shall take precedence. Gryphon reserves the right to change or modify the terms, conditions and descriptions within this Master Services Agreement. Any such changes or modifications shall take effect thirty (30) days after they are posted to http://www.gryphonnetworks.com/legal/msa.html.
Customer may utilize each Service solely for its own internal business purposes. Customer shall designate Authorized Users of the Services, who shall be employees or other representatives of the Customer and only Authorized Users may use the Services. If an Authorized User is not an employee of Customer, Customer shall execute and keep in effect agreements with such person(s) to bind them to confidentiality and use terms no less restrictive than contained in this Agreement.
Customer shall not directly or indirectly (i) permit any third party except Authorized Users to use or have access to the Services; (ii) use the Services for the benefit of any third party; (iii) use the Services or any information in or from the Services to create any database or service that is similar to or competes with the Services; or, (iv) copy, distribute, modify, create derivative works of or translate any data or materials, including the Services, provided by Gryphon pursuant to this Agreement. This Agreement does not convey to Customer any ownership rights in the Services, any information or materials provided by Gryphon pursuant to this Agreement, or any intellectual property rights in the Services, which shall remain with Gryphon.
2. FEES AND PAYMENT
In consideration of Gryphon’s delivery of the Services, Customer shall pay Gryphon the fees specified in each respective Service Attachment hereto, without reservation or set-off. All fees are nonrefundable and are payable in U.S. currency.
Gryphon shall invoice Customer as specified in the Service Attachment(s) hereto. All fees are due within thirty days of the date of invoice. Should Customer not pay any invoice when due, Gryphon may, at its discretion and in addition to other available remedies, suspend all Services until Customer has paid all outstanding amounts due and/or charge interest on all overdue amounts, from the due date, at three (3) percent or the maximum rate permitted by law.
Customer shall be responsible for any and all fees and charges related to Customer’s access to the Internet, any telecommunications service, any customer relationship management service (Salesforce.com or Oracle), or any other service or connection used to access or utilize the Gryphon Services. Gryphon shall not be responsible for any fees or charges associated with such access by Customer, except as otherwise expressly set forth within a Service Attachment.
Gryphon warrants to Customer that during the Service Term and any Renewal Terms each Service provided by Gryphon shall substantially conform to and perform the Service functions identified within the Service Attachment.
The Warranty in this Section 3 shall not apply and Gryphon shall have no obligation to the extent that any deficiency or failure of a Service is caused by (i) improper use or operation of the Service by Customer, (ii) failure by Customer to properly obtain or subscribe to the appropriate Do Not Call lists, databases or similar data, as required in Section 4, (iii) the inaccuracy or insufficiency of any information or instructions provided by Customer, (iv) Customer’s refusal or delay to implement upgrades to the Service as provided by Gryphon, (v) failure or malfunction of any electronic, technology or telecommunications equipment or resource not under Gryphon’s sole control, or (vi) Customer requested modification, change to or alteration of any Gryphon Service default configuration, setting process or functionality.
If Customer uses Internet services, a customer relationship management service (Salesforce.com or Oracle) or telecommunications services to access or communicate with a Service, the warranty in this Section 3 shall not apply and Gryphon shall have no obligation to the extent that any deficiency or failure of the Service results from: (i) any interruption, discontinuation, malfunction, defect, change, disruption, termination, cancellation or other issue related to such third party service that is not attributable to the Service, or (ii) Customer’s improper or unauthorized use or operation of such third party service. Customer shall provide Gryphon with advance notice of any upcoming change related to such third party service. Customer acknowledges that any third party restriction and limitation governing Customer’s access to and use of such third party services shall also apply to Customer’s use of any Service accessed using such third party service. Gryphon has no control or responsibility over any communications link or telecommunications equipment between Customer and Gryphon, including, but not limited to, the Internet and any public telecommunications network.
Customer understands and acknowledges Gryphon obtains or may obtain do-not-call, do-not-email, do-not-text, do-not-mail, do-not-fax, wireless telephone number, and business telephone number data and lists from government bodies, private sources and Customer. Gryphon does not own or control the data and information it is provided by such sources and bears no responsibility for any deficiencies or inaccuracies contained in such data at the time it is provided to Gryphon. Service output reflects such do-not-contact data, Customer data and legal requirements existing at the time of Service utilization by Customer. Service output used at a later time or date may not reflect do-not-contact data or legal requirements at such later time or date.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, GRYPHON MAKES NO WARRANTIES REGARDING THE SERVICES TO BE PROVIDED HEREUNDER, OR THE RESULTS TO BE ACHIEVED OR EXPECTED THEREFROM. GRYPHON EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY SERVICES PROVIDED HEREUNDER.
4. DO NOT CONTACT DATA
Customer will at all times remain in compliance with laws requiring Customer to register for, acquire or purchase federal, state and private do-not-call or other do-not-contact lists or data. Customer shall provide Gryphon its federally assigned Subscription Account Number (SAN) associated with Customer’s subscription to the U.S. National Do Not Call Registry and, if applicable, the Canadian National Do Not Call List. Customer shall also provide Gryphon with confirmation information associated with Customer’s purchase of state do-not-call lists and any similar privately maintained lists upon request. Customer and Authorized Users shall not utilize Gryphon’s Services to attempt to contact a telephone number associated with any U.S. or foreign jurisdiction for which Customer has not purchased private, state or National Do Not Call Registry do-not-call or other do-not-contact data.
Customer and Authorized Users shall not use Gryphon Services to: (i) place calls to jurisdictions outside the U.S. unless otherwise specifically set forth within a Service Attachment, (ii) transmit false, defective or misleading caller ID information, or (iii) place any prerecorded or automated voice telephone calls.
Customer will defend, indemnify and hold Gryphon, its affiliates, directors, employees and agents and their successors and assigns harmless from any liability, claim, demand, suit or action to the extent that it is based on Customer’s failure to fulfill its obligations under this Section 4.
“Confidential Information” means (a) any information disclosed by either Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, algorithms, business plans, customer data, customer lists, customer names, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know‑how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, data tags and content, source code, trade secrets or any other information which is designated as “confidential,” “proprietary” or some similar designation (collectively, the “Disclosed Materials”) or should reasonably be understood by the receiving Party as being confidential and (b) any information otherwise obtained, directly or indirectly, by a receiving party through inspection, review or analysis of the Disclosed Materials. Confidential Information that is disclosed orally shall be Confidential Information if it is (i) designated as such at the time of disclosure or within a reasonable time after disclosure; or (ii) should be reasonably understood to be Confidential Information. Information may also include information of a third party that is in the possession of one of the Parties and is disclosed to the other Party under this Agreement. Confidential Information shall not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving party through no action or inaction of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving Party from a third party lawfully in possession of such information and without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession. Neither Party shall provide any social security number, personal health information, credit card information, account number, member identification number or any other similar sensitive information to the other Party without both Parties’ prior written agreement.
Each Party agrees not to use any Confidential Information of the other Party for any purpose except as reasonably necessary for its performance or enforcement of its rights under this Agreement. Each Party agrees not to disclose any Confidential Information of the other Party, except that, subject to Section 5.3 below, a receiving Party may disclose the other Party’s Confidential Information to its employees and agents and the employees and agents of its Affiliates and their respective officers, managers, directors, and advisors (including, without limitation, attorneys, accountants, underwriters, lenders, and consultants), and providers or prospective providers of financing and their advisors (“Representatives”) provided such Representatives are required to have such information as reasonably necessary for the Party’s performance or enforcement of its rights under this Agreement.
If a receiving Party or its Representative is required by law to make any disclosure that is prohibited or otherwise constrained by this Agreement, the receiving Party will provide the disclosing Party with prompt written notice of such requirement (to the extent permitted by applicable law) so that the disclosing Party may seek a protective order or other appropriate relief. Subject to the foregoing sentence, such receiving Party may furnish that portion (and only that portion) of the Confidential Information that the receiving Party is legally compelled or is otherwise legally required to disclose; provided, however, that the receiving Party (a) provides such assistance as the disclosing party may reasonably request in obtaining such order or other relief, (b) uses reasonable efforts to ensure that all Confidential Information that is so disclosed will be accorded confidential treatment, and (c) furnishes only that portion of the Confidential Information that is legally required. Each party acknowledges the disclosing Party’s Confidential Information is valuable both in whole and its individual parts, and each Party, as the receiving Party agrees that neither the receiving party, nor its Representatives will modify, reverse engineer, create other works from, disassemble or decompile any prototypes, software or other tangible objects that embody the other Party’s Confidential Information and that are provided to the party under this Agreement.
Each Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. Without limiting the foregoing, each Party shall take at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care (including, without limitation, all precautions the receiving party employs with respect to its confidential materials). Each Party shall ensure that its Representatives who have access to the other party’s Confidential Information have signed a non‑use and non‑disclosure agreement in content similar to the provisions of this Agreement or are otherwise legally obligated not to disclose such Confidential Information, prior to any disclosure of Confidential Information to such Representative. Each Party shall reproduce the other Party’s proprietary rights notices on any copies, in the same manner in which such notices were set forth in or on the original. A Party receiving Confidential Information shall promptly notify the party disclosing such Confidential Information of any use or disclosure of such Confidential Information in violation of this Agreement of which the receiving party becomes aware. Each Party shall be directly liable for its Representatives’ breaches of this Agreement.
All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either Party to the other Party, and all copies or extracts thereof that are in the possession or control of the other Party of its Representatives, shall be and remain the property of the disclosing Party and shall promptly be destroyed or returned to the disclosing Party upon the disclosing Party’s written request. Notwithstanding the foregoing, the receiving Party may retain Confidential Information disclosed hereunder to the extent required to provide evidence of compliance with legally imposed requirements, and a receiving Party is not obligated to remove the Confidential Information from its backed up electronic records outside of its normally scheduled retention policies, provided all restrictions on disclosure and use of Confidential Information set forth within this Agreement shall continue to apply to any retained Confidential Information.
Each Party’s obligations of confidentiality with respect to the other Party’s Confidential Information will continue for a period of three (3) years following the expiration or termination of this Agreement and each Service Attachment hereto; provided, however, all obligations with respect to Confidential Information that constitutes a trade secret shall remain in effect until such time as the information is no longer a trade secret under applicable law.
Each Party understands and agrees that its breach or threatened breach of this Agreement will cause irreparable injury to the other Party and that money damages will not provide an adequate remedy for such breach or threatened breach, and both Parties hereby agree that, in the event of such a breach or threatened breach, the non‑breaching Party will also be entitled, without the requirement of posting a bond or other security, to seek equitable relief, including injunctive relief and specific performance. The Parties’ rights under this Agreement are cumulative, and a Party’s exercise of one right shall not waive the Party’s right to assert any other legal remedy.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR SAVINGS OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY; PROVIDED, HOWEVER, THE LIMITATIONS ON SUCH DAMAGES SHALL NOT APPLY IN THE CASE OF A PARTY’S INDEMNITY OBLIGATIONS OR ABREACH OF THE CONFIDENTIALITY OR INTELLECTUAL PROPERTY RESTRICTIONS SET FORTH WITHIN THIS AGREEMENT. EXCEPT AS LIMITED BY APPLICABLE LAW EACH PARTY’S LIABILITY TO THE OTHER PARTY FOR DIRECT DAMAGES SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO GRYPHON UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH LIABILITY.
7. TERM AND TERMINATION
This Master Services Agreement shall commence on the Effective Date set forth in the first paragraph and shall continue in effect unless and until terminated by either Party as stated below, or automatically in the event there is no Service Attachment in effect for a continuous twelve month period. The Term for each Service Attachment shall be as specified within the applicable Service Attachment. Such Term for each Service Attachment shall automatically renew for consecutive renewal periods equal to the Term (a “Renewal Term”) upon expiration of the Term or any prior Renewal Term unless either Party provides the other Party written notice that it wishes to terminate the Service Attachment at least ninety (90) days prior to the expiration of the Term or Renewal Term. Termination of this Master Service Agreement shall not terminate any Service Attachment hereto, each of which shall constitute a separate agreement terminable in accordance with the terms therein and this Section 7 and shall continue to incorporate the terms of this Master Service Agreement.
Either Party may terminate this Agreement at any time upon thirty (30) days written notice to the other Party in the event that the other Party shall have breached any of its material obligations under this Agreement and shall not have cured such default prior to the expiration of the thirty (30) day notice period.
Gryphon shall indemnify and defend Customer, its affiliates, employees, officers and agents from any third party claims, fines, penalties or judgments (“Claims) to the extent caused by a breach of warranty during the Services Term and any Renewal Term as set forth within Section 3.
Gryphon shall indemnify, and defend Customer from and against any Claims alleging that the Services or their use by Customer, directly infringes or misappropriates any United States patent, trademark, copyright, or trade secret right of any third party. Customer shall permit Gryphon to modify any affected Services to avoid infringement, or to procure for Customer the right to continue to use such Services. Alternatively Gryphon may require Customer to cease using the affected Services and Gryphon’ sole liability in regard to such return shall be to refund the access and implementation fees paid by Customer for the remaining Service term. Gryphon shall have no obligation with respect to claims, actions, or demands to the extent they are based upon (i) the combination of Services with any services or items not supplied by Gryphon, (ii) any Customer breach of this Agreement or modification, alteration or improper use of the Services by Customer, (iii) any intellectual property right in which Customer or any affiliate of Customer has a proprietary interest. This Section states the entire liability of Gryphon with respect to indemnification or liability for infringement of patents, copyrights or other proprietary rights by the Services or any part thereof or by their use.
Either Party must notify the other immediately upon receiving notice of or learning of a Claim and in no event later than twenty (20) days thereafter. Indemnitor shall choose legal counsel to defend such Claim and make any decisions regarding its defense, provided that Indemnitor may not settle a claim regarding Indemnitee without Indemnitee’s prior consent which shall not be unreasonably withheld. Indemnitee shall have the right to participate in the defense of any such Claim, at its own expense, through counsel of its own selection.
Customer is an independent contractor under this Agreement. Nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the Parties, or to grant either Party the authority to enter into any agreement on behalf of the other Party. Gryphon shall not reimburse Customer for any expenses or costs incurred by Customer in the performance of its responsibilities under this Agreement. Neither Party may assign this Agreement, or its rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
Gryphon may use Customer’s name and logo in Gryphon marketing materials such as sales presentations, website references, informational presentations, seminars and trade shows.
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts (excluding its choice of law rules.) The exclusive jurisdiction for any legal proceeding regarding this Agreement shall be in the state or federal courts located in the Commonwealth of Massachusetts and each Party hereto expressly submits to the jurisdiction of said courts and hereby waives any objection to the venue in such courts.
Neither Party shall, by lapse of time or inaction, be deemed to waive any breach by the other Party of this Agreement. No waiver shall be effective unless in writing and signed by the Party against which enforcement of such waiver is sought. The waiver by either Party of a particular breach of this Agreement by the other Party shall not be a continuing waiver of such breach, or of other breaches of this Agreement. Neither Party shall be in default if failure to perform any obligation hereunder is caused by conditions beyond that Party’s control, including acts of God, civil commotion, strikes, labor disputes, and governmental demands or requirements. If any provision of this Agreement shall be held unenforceable or illegal, the validity of the remaining portions or provisions hereof shall not be affected thereby.
Unless otherwise specifically provided herein, all notices and other communications shall be sent postage prepaid either by U.S. registered mail, return receipt requested, or by overnight courier service and addressed to the Party at the notice address set forth within a Service Attachment, or an updated notice address provided to the other Party in writing. Notices shall be deemed received when such delivery is made or attempted.
In the event of any conflict or inconsistency between this Master Service Agreement and any Service Attachment executed hereunder, the terms within the Service Attachment shall control.
Any provision of this Agreement which contemplates performance or observance subsequent to termination or expiration of this Agreement (including, without limitation, confidentiality, and limitation of liability provisions) shall survive termination or expiration of this Agreement and continue in full force and effect.
No ISG/UCITA. The convention on the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. The Parties hereby agree that their respective rights and obligations hereunder shall be solely and exclusively as set forth herein and that UCITA, whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified, shall not apply to this Agreement and is hereby disclaimed.
No Third-Party Beneficiaries. Nothing in this Agreement shall confer any rights upon any person or entity who is not a Party to this Agreement or a Service Attachment hereto, nor shall anything in this Agreement be construed as creating an obligation by either Party to any non-party to this Agreement.
This Agreement, along with Service Attachments and any exhibits, constitutes the entire agreement between the Parties and supersedes all previous agreements, promises, proposals, representations, understandings, and negotiations, whether written or oral, between the Parties respecting the subject matter hereof. No amendments or modifications, including shrink wrap, purchase order, click through or similar terms, shall be binding upon either Party unless made in writing and signed by both Parties.
Signed facsimile or electronic copies of this Agreement and any Service Attachments shall legally bind the Parties to the same extent as original documents. This Agreement and Service Attachments may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same instrument.
When executed by both Parties each Service Attachment shall constitute a separate agreement and, except for any provisions herein which are specifically excluded or modified in such Service Attachment, each Service Attachment shall incorporate the terms and conditions of this Agreement.
This Schedule A contains descriptions of some Gryphon Services that may be ordered by Customer pursuant to a Service Attachment.
A. GRYPHON SALES INTELLIGENCE™ PLATFORM.
The Gryphon Sales Intelligence Platform (the “Service Platform”) is a cloud-based telephony platform consisting of interconnected servers, networking, and software that securely processes outbound phone calls originating from integrated Gryphon Universal Access methods delivered through supported web interfaces, telephonic devices and software applications. The Platform processes inbound phone calls from any external telephony source to a provisioned called party via virtual number mapped to the Gryphon cloud-based telephony platform and resides on the Service Platform. DTMF tones are captured and applied before or after the call via keypad dispositions and recorded in an associated call detail record. The Service Platform also supports enhanced services such as call recording, speech analytics, pre and post call whispers and call compliance screening/blocking.
Gryphon’s Sales Intelligence Dashboard will analyze telephone sales call data generated from Customer’s use of Gryphon phone based Services to transform call activity data into actionable sales intelligence. Gryphon Sales Intelligence Dashboard will help Customer gain insight into sales performance across regions, offices, teams and individual sales representatives, establish data-driven best practices and benchmarks, increase accuracy of sales projections, make training more efficient and effective and identify where and when additional training is needed.
B. UNIVERSAL ACCESS OF GRYPHON SALES INTELLIGENCE PLATFORM.
Gryphon Universal Access is the phone-based initiation point for calls carried via Carrier partners (the “Network”) and the Service Platform. Calls are initiated by provisioned agents through a series of Gryphon supported web interfaces, telephonic devices and software applications that are provisioned and configured to route through subscribed compliance screening and/or call treatment processes performed by the Sales Intelligence Platform. The process begins when a SIP or other signaling or networking protocol message sent from provisioned Gryphon application or integrated Carrier Partner switch to the Network. The Network carries the message to the Service Platform where the screening and/or treatment processes take place based on supported and configured capabilities. Call treatments can be applied to the call before, during or after the call via keypad dispositions.
Each access method to the Service Platform functions through a series of applications, computer programs, databases and transmission protocols that interact and exchange data or information with third party technology and telecommunications resources and the Customer Customized Call Environment, a secure and proprietary Customer database or series of databases hosted for Customer by Gryphon that includes the Customer company-specific Do Not Call List, U.S. National Do Not Call Registry, U.S. state Do Not Call lists, and DMA TPS List. Customer agrees that none of the access methods will be used in conjunction with an automated telephone dialing system (ATDS).
1. 800 Access. Gryphon Sales Intelligence Platform (800 Access) is accessed via one or more toll free Network Access Numbers (“NAN”) supplied by a third party regulated telecommunications service provider. Customer appoints Gryphon as its limited agent during the Term and any Renewal Term(s) for the sole purpose of arranging for Customer to receive NAN from the third party regulated telecommunications service provider to enable Customer to connect to the Sales Intelligence Platform. This appointment shall terminate along with any termination of Customer’s access to the Sales Intelligence Service under the Agreement. Gryphon shall receive and pay the telecommunications service provider’s bills for Customer NAN connection time and be reimbursed by Customer as set forth within the Fees Section 7 below.
2. Click To Dial. Gryphon Sales Intelligence Platform (Click to Dial) is accessed via a Click-to-Dial link from Gryphon App for CRM (f.k.a. Core CRM Service). When an Authorized User views a record in the Gryphon App, a Click-to-Dial link will display in the record if a telephone number is not do-not-call restricted. The Click-to-Dial link will allow the Authorized User to click the link to initiate the first leg of the call to the Authorized User’s designated telephone number. When the designated telephone is answered by the Authorized User and the first leg of the call is connected, the second outbound leg of the call will be initiated via the Gryphon Sales Intelligence Service to the destination telephone number.
3. Desktop Dialer App. Gryphon Sales Intelligence Platform (Desktop Dialer App) is accessed via Gryphon’s applications for desktop softphone dialing. Gryphon’s Desktop Dialer App Service applications support standard softphone keypad interfaces and ten-digit number entries through the Authorized User’s desktop computer. The Desktop Dialer Service applications will be downloadable by Customer’s Authorized Users to their desktop computers via the Gryphon portal.
4. Mobile Dialer App. Gryphon Sales Intelligence Platform (Mobile Dialer App) is accessed via Gryphon’s applications for Android and iOS smartphone handsets. Gryphon’s Mobile Dialer App Service applications support standard mobile keypad interfaces and ten-digit telephone number entries through the Authorized User’s mobile device. The Mobile Dialer Service applications supporting iPhone OS and Android™ smartphones will be downloadable by Customer’s Authorized Users to their smartphones via the Gryphon portal and/or the iTunes store with a provided promotional code.
5. In-Network (Outbound & Inbound). Gryphon Sales Intelligence Platform (In-Network) is accessed via SIP (Session Initiation Protocol) connectivity that communicates with the Service Platform In-Network Service via SIP signaling protocol. When a Customer Authorized User initiates an outbound and/or inbound telephone call on a properly configured phone or PBX, a SIP message is sent to the Sales Intelligence In-Network Service for connection (or blocked for certification, if applicable). Only U.S. telephone numbers received via Customer Trunk Groups and ANIs identified in writing to Gryphon will receive the Sales Intelligence Services. Toll-free and/or international telephone numbers may not be supported by the Sales Intelligence Service.
C. COMPLIANCE FOR SALES INTELLIGENCE PLATFORM.
Gryphon’s Compliance for the telephony Service Platform shall identify for Customer in real time U.S. telephone numbers that Customer is proscribed from calling because they are on (i) the Customer company-specific Do Not Call List, (ii) a U.S. state Do Not Call list, Direct Marketing Association Telephone Preference Service List (DMA TPS List), or the U.S. National Do Not Call Registry (Customer Subscription Account Number ________________________, Expiration Date ___/___/_____), (iii) a list of wireless telephone numbers in a jurisdiction where manually dialed calls to wireless telephone numbers are prohibited, or (iv) at the time the telephone number is dialed, prohibited by U.S. federal or state calling hour restrictions. Gryphon Compliance for the Service Platform will allow Customer to update the Customer company-specific Do Not Call List in near real time via telephone keypad DTMF tones to reflect additional do not call opt out requests.
Gryphon Compliance for the telephony Service Platform functions through a series of applications, computer programs, databases and transmission protocols that interact and exchange data or information with third party technology and telecommunications resources and the Customer Customized Call Environment, a secure and proprietary Customer database or series of databases hosted for Customer by Gryphon that includes the Customer company-specific Do Not Call List, U.S. National Do Not Call Registry, U.S. state Do Not Call lists, and DMA TPS List.
1. EXEMPTION PHONE SERVICE. Gryphon’s Exemption Phone Service, used in conjunction with Customer’s other Gryphon Service(s), shall allow Customer to increase its universe of permitted communications by enabling Customer to take advantage of certain U.S. state and federal established business relationship exemptions for “Transactions” and “Applications or Inquiries” in order to contact U.S. telephone numbers that Customer would otherwise be prohibited from calling because they are included on state Do Not Call lists, the National Do Not Call Registry, or Direct Marketing Association Telephone Preference Service List (DMA TPS List).
Gryphon’s Exemption Phone Service functions through a series of applications, computer programs, databases and transmission protocols that interact and exchange data or information with third party technology and telecommunications resources, and the current Exemption Data Set, a series of telephone numbers, transaction types and transaction dates identified and transmitted by Customer in a form, format and frequency mutually defined by Customer and Gryphon, based upon Customer selected Exemption Service Settings which control the application and duration of certain U.S. state and federal established business relationship exemptions.
2. B2B LEAD RECOVERY™ SERVICE. Gryphon B2B Lead Recovery Service, used in conjunction with Customer’s other Gryphon Services, shall enable Customer to identify in real time telephone numbers included within a third party directory of U.S. business telephone numbers. For telephone numbers included within the directory of business numbers, B2B Lead Recovery Service shall identify telephone numbers Customer is proscribed from calling because they are (i) on a state Do Not Call list that restricts calls to businesses telephone numbers, (ii) on the Customer company-specific Do Not Call List maintained by Gryphon, (iii) on a list of wireless telephone numbers in a jurisdiction where manually dialed calls to wireless numbers are prohibited, or (iv) at the time the telephone number is dialed, prohibited by state or federal calling hour and holiday restrictions. For telephone numbers not included within the directory of business telephone numbers, Customer’s other Gryphon Service(s) shall function as set forth within their respective Service descriptions. B2B Lead Recovery Services accesses a private third party database of U.S. business telephone number data. Gryphon does not own, control or warrant the data provided by such source. Gryphon is not responsible for any deficiencies or inaccuracies in such data, including, without limitation, residential telephone numbers identified as business telephone numbers, to the extent such deficiencies or inaccuracies are not caused by Gryphon. Customer, not Gryphon, shall be responsible for ensuring that calls to business telephone numbers are made to induce a sale of goods or services from a business entity, and not from individuals employed by the business.
3. IDNC EXPIRATION SERVICE. IDNC Expiration Service shall expire telephone number records from the Customer company-specific Do Not Call List maintained by Gryphon. Expiration shall be based on the opt-out date associated with each telephone number on the Customer company-specific do-not-call List. Opt-out dates are supplied by Customer or, when no date is supplied, may be based on the date a telephone number is added to Customer’s company-specific Do Not Call List maintained by Gryphon.
IDNC Expiration Service determines U.S. jurisdiction based on telephone number area code. U.S. federal regulations require company-specific opt-outs to be honored for a minimum of five (5) years. Arizona, Delaware and Virginia require company-specific opt-outs to be honored for a minimum of ten (10) years. For U.S. states and other jurisdictions that do not specify a minimum legal duration for honoring company-specific opt-outs, Customer instructs Gryphon to expire Customer company-specific Do Not Call List opt-outs records five (5) years from their associated opt-out date. Once a telephone number record is expired from the Customer company-specific Do Not Call List, telephone calls to that telephone number will be permitted, and the telephone number will no longer be identified as do-not-call, by any Gryphon Service unless the Service identifies the telephone number as do-not-call for a reason other than it being included on the Customer company-specific Do Not Call List.
Gryphon makes no representation regarding the legality of expiring Customer company-specific Do Not Call List opt outs, and disclaims any warranty other than that the IDNC Expiration Service will function as set forth within the Service description in this Section. Customer, and not Gryphon, shall be responsible for any action, claim or demand that results from expiring Customer company-specific opt outs records as set forth above.
D. SECURE CLOUD CALL RECORDING FOR SALES INTELLIGENCE PLATFORM.
Gryphon’s Secure Cloud Call Recording Service, used in conjunction with the Service Platform, shall automatically record all answered telephone calls placed through the Service Platform. Answered telephone calls may include, but are not limited to, calls answered by: (i) the called party, (ii) an answering machine, (iii) fax/modem, or (iv) a carrier designated message (special information tone). Call recording of a telephone call will be terminated when either party disconnects the telephone call. Customer’s assigned administrators may play back the recorded telephone call by clicking on a link accessible within the Service Platform and displayed by the administrator’s browser supported media player. Call recordings are stored and available for playback for up to forty-five (45) days.
E. TARGETED SPEECH ANALYTICS SERVICE.
Targeted Speech Analytics Service, in conjunction with Secure Cloud Call Recording Service, shall provide Customer automated conversational analytics tools to help Customer improve contact center and enterprise performance. Conversations are automatically evaluated for sentiment and acoustics, categorization, and performance scoring, and data visualization allows efficient evaluation and comparison of performance and key metrics. Search functionality also allows Customer to find and playback recordings containing certain words and phrases or sharing other characteristics. Targeted Speech Analytics Service may only be enabled if Customer also enables Secure Cloud Call Recording Service.
F. CORE SEARCH™ PHONE SERVICE
Gryphon’s Core Search Service, accessed via the Internet, shall identify U.S. telephone numbers that Customer is proscribed from calling because they are: (i) on the Customer company-specific Do Not Call List, (ii) on a state Do Not Call list, the National Do Not Call Registry, or Direct Marketing Association Telephone Preference Service List (DMA TPS List), (iii) prohibited by U.S. state or federal calling hour restrictions, or (iv) on a list of wireless telephone numbers in a U.S. jurisdiction where manually dialed calls to wireless telephone numbers are prohibited. The Core Search Phone Service will allow Customer to update the Customer company-specific Do Not Call List to reflect additional do-not-call opt out requests.
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