Dialing Legal Responsibility & Liability
Automated Telephone Dialing Systems ("ATDS") are defined by the US Federal Communications Commission as "equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers" and "the capacity to dial numbers without human intervention." Using an ATDS is subject to a variety of laws and regulations, including without limitation, the Federal Trade Commission’s (FTC) Telemarketing Sales Rule (TSR) and the Federal Communications Commission’s (FCC) Telephone Consumer Protection Act (TCPA). Additionally, some states have local rules which may define ATDS differently and may be more restrictive than the national rules.
Predictive Dialers and Auto Dialers (Robo Dialers) are considered to be ATDS because, among other reasons, they dial lists of telephone numbers without human intervention. In most US jurisdictions there is currently unsettled law as to whether power dialers or click dialers could be defined as ATDS. (Some courts and regulators have however determined that these dialers, even though they require human intervention before making each call, are ATDS and are subject to the same rules as other ATDS.) Additional legal information, including a list of telemarketing attorneys, is provided at: http://www.HelpMeDial.com/legal. If you are subject to USA (or Canadian) telemarketing laws, you will need to register and get a SAN (Subscription Account Number) with the FTC (and perhaps other government agencies): http://www.telemarketing.donotcall.gov. Note that laws and rulings may change from time to time.
Additional behavioral restrictions and disclosures apply to manual and ATDS calls. For example, you must: (1) transmit ("push out") accurate Caller-ID information; (2) only call during allowable calling times and not on official holidays; (3) make all mandatory disclosures such as your true business name, purpose of the call, and telephone number; (4) honor all opt-out (internal DNC requests); and (5) obtain prior express written consent before using an ATDS to call Consumer or Business CELL phones. In some states you will be required to obtain the called parties' permission before recording a conversation. Some states also require telemarketers and sellers to obtain a local license and/or surety bond. Unless exempt, Buyer/User will be required to register and scrub against the Federal and State Do Not Call lists. If needed, there are companies that will scrub Do Not Call numbers and Cell Phone numbers from your lists; for a list of some of those companies, visit: http://www.HelpMeDial.com/legal
Onsite CRM dialing products (except the multiple line Predictive Dialer) call one telephone number at a time and there is no delay before hearing the call answered. If a person answers a call, the caller hears them say "Hello" and may speak to that person. If an answering machine or voice mail is reached, the caller has four choices with these products: (1) Don’t Leave Message: Click to hang up and make another call; (2) Leave Live Message: After the greeting and beep, speak a live voice message; (3) Play and Stay: After the greeting and beep, click one of the "1-2-3" buttons to leave one of the caller's three pre-recorded messages while staying on the line. If a person picks up the phone while the message is playing, the caller can stop the message and speak to him or her; (4) Play and Leave: After the greeting and beep, say "Hello" and speak the person's name, then click any of the 5 "PAM" (your recorded messages) buttons to instantly move on to another call while the caller's pre-recorded message plays. If someone picks up the phone, the caller will not be there to speak to him or her. Depending on who is called, where the call recipient is located, the purpose of the call, and whether or not you have obtained the proper prior consent, leaving a pre-recorded message may NOT be legal in all cases. If using multiple lines with the Predictive Dialer, you are responsible for abiding by all laws related to predictive dialers, including the 3% or less dropped calls rule.
By making any purchase and/or use of any of ' products, you warrant that you will at all times fully comply with all applicable laws and regulations. Onsite CRM cannot provide legal advice and assumes no responsibility to advise you on these laws or to supervise or ensure your compliance. Onsite CRM is merely providing you with a tool and you are expected to use that tool within the bounds of the laws. You should consult with your own legal counsel to ensure that your uses comply with laws and regulations. You agree to indemnify, defend, and hold harmless Onsite CRM, along with its owners, members, directors, officers, agents, employees, contractors, consultants, and vendors from and against any and all claims, suits, fines, costs, expenses, judgments, and fees, including reasonable attorney's fees, court costs, and expenses, arising out of a claim alleging any violation by Buyer/User of the law, or alleging facts that would constitute a breach of Buyer/User's warranties or obligations contained in this agreement. Buyer/User will promptly indemnify, defend or settle any such third-party claim, demand, lawsuit, investigation, or proceeding brought against Onsite CRM. You are 100% responsible and liable for using these products legally and will hold Onsite CRM harmless from any inability to make money with these products and from any fines, penalties, litigation, expenses, loss of revenue, fraudulent use, or claims for any reason. Any legal dispute between Buyer/User and Onsite CRM must be brought and heard only in the state or federal courts located in Orange County, California, and the prevailing party will be entitled to reasonable attorney's fees, court costs, and witness fees. California law shall apply to the interpretation and enforcement of this agreement. Onsite CRM has the right to terminate technical support and the use of its products (with no refund) if Onsite CRM determines that there is unlawful or immoral use by the Buyer/User. You understand there can be no refund in the event that any laws, or changes in laws, negatively affect the use of these products.
Onsite CRM strives to provide the highest quality software and hardware; however, there are a number of factors that can cause system malfunctions including, but not limited to, operator error, software corruption, software bugs, internet problems, electrical surges, and computer or hardware failures. Onsite CRM has provided you with tools to assist in cleaning your dialing lists of "Do Not Call" telephone numbers; however, Onsite CRM cannot guarantee 100% integrity or reliability of these tools. Onsite CRM cannot be responsible if you add other software or hardware that corrupt the system or for any other malfunctions. You are responsible for making frequent backups of your system(s) to protect against any loss of valuable data. Onsite CRM will not be liable or responsible for lost revenue or lost profits, penalties, fines, legal judgments, or other expenses due to loss of data, hardware or software or internet problems, or for any other reason.
Onsite CRM strives to keep our service to its customers operational 100% of the time. Onsite CRM has multiple safeguards; however, various factors can cause outages, interruptions, cybercrime, and degradation of VoIP service from time to time. Those factors (many are beyond Onsite CRM ' control) can include, but are not limited to, acts of nature, equipment failure, power outages, human error, and internet failure or disruption. (Note: Land lines and cellular lines are also subject to acts of nature, human error, equipment failures, and power failures.) Onsite CRM does not warrant that its service will always function without failure, delay, interruption, error, or degradation of voice quality or loss of content, data, or information. You agree to accept the service "as is." Regardless of the causes or damages or lost income or additional expenses incurred by any loss, interruption, or degradation of service, you are NOT entitled to any refund or credit in the event of loss, interruption, or degradation of service. Your sole remedy is cancellation of future service. In the event a court awards direct damages, despite the foregoing, such damages shall in no case exceed the amount of the last payment for any of your affected Onsite CRM accounts. In addition, Onsite CRM cannot be relied upon for calling 911 or other life-line services in an emergency. Operators will not automatically know your physical location to render assistance. Onsite CRM will in no way accept responsibility for failure of the service to contact help in cases of emergency. Onsite CRM may NOT be used for operator (or directory) assistance.
Onsite CRM make no warranty, express or implied, including but not limited to, any implied warranties of merchantability, fitness of the service for a particular purpose or any warranty that the service will meet Customers' requirements.
Buyer/User will promptly indemnify, defend or settle any such third-party claim, demand, lawsuit, investigation, or proceeding brought against Onsite CRM. Buyer’s purchase and use of Onsite Hardware and or software represents awareness and agreement that the Buyer is 100% responsible and liable for using these products legally and Buyer agrees and promises to hold Onsite CRM harmless from any inability from the commercial use of these products and from any fines, penalties, litigation, expenses, loss of revenue, fraudulent use, or claims for any reason. For the purposes of this agreement, the meaning of 'promptly’ will mean within thirty (30) days of notification by Onsite CRM services to Buyer of any complaint, lawsuit, court action or governmental enforcement by any party against the Buyer. Further, Buyer’s purchase and use of Onsite Hardware and or software represents awareness and agreement of Onsite CRM services' right to commence legal action against Buyer in the event of Buyers’ failure to meet the terms of this indemnification.
This Agreement shall become effective upon any of these conditions: 1) You begin using any of Onsite CRM ' products; 2) You accept this Agreement online electronically; or 3) You sign this Agreement in writing. The provisions of this agreement related to legal compliance, indemnity, and choice of forum for disputes shall survive the termination of this agreement.