TAVOCA INC., a Nevada Corporation (“Tavoca”) and Customer (subscriber completing online sign up) enter this Service Agreement (the “Agreement”) on the date noted with the Customer’s signature below (the “Effective Date”) or on the date that online acceptance was completed.
RECITALS: Tavoca has developed Messaging Solutions for reminders, notifications and other message delivery purposes. The Customer desires to use one or more of the Messaging Solutions in accordance with the terms of this Agreement.
1. OWNERSHIP: Tavoca owns all right, title, and interest in and to the Messaging Solutions, including all copyrights, patents, trade secrets, trademarks and other intellectual property rights therein recognized in any country (collectively, “Intellectual Property Rights”).Customer agrees not to use Tavoca’s trademarks or other business names for any purpose without express written permission.Customer will not earn or acquire any licenses or Intellectual Property Rights to the Messaging Solutions on account of this agreement or Customer’s performance hereunder.
2. PERMISSION TO USE SERVICES: Subject to the terms of this agreement, Tavoca grants to Customer non-exclusive, non-transferable, and revocable permission to use one or more Messaging Solutions during the term of this Agreement. Customer agrees not to transfer, copy, distribute, abuse, misuse or reverse-engineer the Messaging Solutions. Messaging Solutions shall include all options and services made available to the Customer for the sole purpose of facilitating the Customer’s use of Tavoca services, including but not limited to Electronic Calendars, File Upload tools, Reports, Account Management, List Management, Telephone Message Delivery, Text Message Sending and Receiving, e-Mail Sending and Receiving, Smart Phone Applications, online tools and any other solutions that Tavoca makes available to client during the term of this agreement.
3. PRIVACY AND NON-DISCLOSURE: Tavoca will take all reasonable action to protect Customer’s data and the privacy of Customer’s clients, including but not limited to the use of regularly changed administrative passwords, password restricted access to servers, files, and notes, and the use of industry-standard encryption, firewall, and security precautions. Tavoca will not sell, give, lend, or disclose any personal or confidential information of Customer's clients to any third parties. Tavoca will not use Customer data for purposes other than to deliver the services to which Customer has subscribed. Tavoca will modify practices and procedures, as required, to remain in compliance with all current and future regulations of personal and private data, including HIPAA, HITECH, PCI, FTC, FCC, and any other laws and regulations that may apply to specific services rendered on behalf of Customer or that may apply to specific types of data disclosed to Tavoca by Customer. Customer (and not Tavoca) shall besolely responsible for disclosing to its patients, clients, or associates the use of Tavoca services if and when required. Customer fully indemnifies Tavoca from any claims that may arise from the lack of proper disclosure as required by any current or future regulations or laws.
4. NATIONAL AND STATE DO NOT CALL COMPLIANCE AND SMS/TEXT/EMAIL OPT-IN: This section applies to telemarketing calls. This does not apply to appointment reminders and other allowed patient/customer calls. It is the sole responsibility of the Customer to comply with National and State Do Not Call regulations that restrict telemarketing calls. Tavoca will not knowingly violate any federal or state dialing regulations. Customer warrants that every telephone number submitted to Tavoca for call generation is either exempt from such regulations and/or that Customer has verified that the telephone numbers submitted to Tavoca are not included in any State or Federal Do No Call lists. Customer is fully and solely responsible for any action that results from any violations of Do Not Call Lists and fully indemnifies Tavoca from any and all such actions. Customer shall pay the cost of Do Not Call List compliance, and acknowledges that the fees listed in this agreement do not and shall not include any aspect of DO NOT CALL LIST compliance. For SMS/Text Messaging services and emailing, Tavoca provides opt-in and opt-out options as required by regulatory provisions. Some services allow Customer to create and send text messages to any phone number or email messages to any email address. If Customer chooses to use these features, then Customer agrees to be fully responsible for obtaining permission to send messages to any and all phone numbers and email addresses that the Customer submits to Tavoca.
5. WRONG NUMBER COMPLIANCE: As of July 2015, the FCC requires that automated telephone calls and text messages include an option for wireless subscribers to report that a wrong number has been contacted. Compliance with this rule is required by Tavoca in order to use our services. Wireless subscribers can text WRONG in response to a text to indicate we have messaged the wrong number. Once we receive a WRONG text response, we prevent further text message delivery to that phone number. In the event of an erroneous WRONG number reply, we provide mechanisms for correcting such an error. Telephone calls to wireless numbers must provide an option that the user can select to indicate we have dialed a wrong number. Telephone calls that reach voicemail or answering machines must also include a toll-free number that the consumer can dial in order to report a WRONG number issue. Each account in the Tavoca system will have a toll-free number assigned for Wrong Number callback. As disclosed in Schedule A, there is a monthly fee for the toll free number and usage charges for calls to the number. Once we receive feedback that we’ve contacted a wrong number, we prevent calls and texts to that number. The wireless subscriber can opt back in by texting GO, which will override the Wrong number setting. The wireless subscriber can opt back in for telephone calls by contacting your office and asking that the Wrong Number indicator be removed from their number.
6. FEES AND BILLING: Tavoca will bill for services on a monthly basis. Customer accepts that invoices may be delivered electronically. Amounts billed are due upon receipt. Amounts due that remain unpaid for a period of 45 or more days from the date of the bill will be charged a late fee. The late fee shall be the greater of $5.00 or 1.5% of the total past due balance. Customer agrees to pay the indicated fees for the services as listed in Schedule A. Tavoca will bill and Customer agrees to pay the indicated fee(s) for each message or message recipient for which Tavoca attempts delivery, regardless of the result of delivery attempts. Messages that are delivered internationally (outside the continental United States) may be subject to a delivery surcharge. International delivery charges are volatile and beyond the control of Tavoca. Any changes to International surcharges will be immediate. This agreement contains and Customer agrees to pay any monthly minimum charges for services as disclosed in Schedule A. Customer shall be billed for the services provided by Tavoca on behalf of Customer, as initiated either by the delivery of data to Tavoca or by written request, verbal request, or online selection for services available to Customer. When applicable, Customer agrees to pay all sales taxes as required by their local and state tax authorities.
7. DUE DILIGENCE: Tavoca will make every reasonable effort to deliver messages in a timely manner and in compliance with all applicable state, federal and international laws. Factors that are beyond the control of Tavoca, including acts of nature, may interfere with the delivery of messages and such interference in no way shall constitute a breach of contract with regard to Tavoca. Customer will fully indemnify Tavoca from any claims, suits, losses, filings or judgements that may arise from the failure to deliver any or all messages, regardless of the reason(s) for non-delivery.
8. RATE ADJUSTMENTS: The rates in Schedule A will not change during the initial 36 months beginning on the date of sign up as long as the account remains in good standing. After 36 months, the rates shall not increase without a 60-day advance notice provided by Tavoca via online alerts and email notification. The volume discounts in Schedule B are subject to immediate revocation if the account becomes 90 (ninety) days past due. If discounts are revoked, all past due invoices will be re-billed at the non-discounted top tier rate.
9. TERM AND TERMINATION: This Agreement will begin on the Effective Date and remain in effect until the first day of the following month. Unless either party provides written notice to the other on or before the 20th day of the then-current month, this agreement shall then automatically renew and continue to automatically renew on the first day of each month until written notice to cancel is provided by either party. Either party may terminate this agreement at any time, for any reason or for no reason, by providing the other party (10) days prior written notice. Tavoca may terminate this Agreement immediately if Customer breaches any provision of this agreement regarding Tavoca’s Intellectual Property Rights or Confidential Information or Message Content. The rights and obligations of the parties under sections 1, 3, 9, 10, 12, and 13 will survive the termination of this Agreement.
10. MESSAGE CONTENT AND OPT-IN: All messages will be subject to Tavoca review. Tavoca will not knowingly deliver messages that violate any state, federal, or international rules, regulations, or laws. Tavoca reserves the right to suspend or discontinue service in the event Customer is using Tavoca's Messaging Solutions to deliver any messages that are illegal, illicit, lewd, vulgar, promiscuous, solicitous, harassing, in violation of any state, federal or international laws, or that contain language that in any manner may cause harm to Tavoca's image, reputation, good will, or ability to conduct business freely and without interference. Customer will remain responsible for all monies due for the entire term of this agreement regardless of any action on the part of Tavoca with regard to message content. Services such as email and text messaging will include opt-out provisions. Customer is responsible of providing instructions and notices to end-users regarding opt-out procedures.
11. CONFIDENTIAL INFORMATION: Customer will hold the Messaging Solutions, any features, results or output produced by the Messaging Solutions, any related written documentation, and the terms of this Agreement (collectively, "Confidential Information") in strict confidence and not use or disclose any Confidential Information except as expressly permitted in this Agreement or by subsequent written agreement between the parties. Customer will employ all reasonable steps to protect such Confidential Information from unauthorized disclosure or use, including but not limited to all steps that Customer takes to protect its own Confidential Information that it considers proprietary and trade secret. Customer may disclose Confidential Information only to its employees with a need to know in order to use the Messaging Solutions. Customer will instruct all such employees in advance that they must comply with the restrictions set forth herein.
12. PERMISSION TO DISPLAY CUSTOMER PHONE NUMBER: Customer grants permission to Tavoca to display the Customer's business telephone number on outbound telephone calls placed on behalf of Customer. Tavoca agrees and hereby warrants that at no time will Customer’s business telephone number be used on any calls that are not delivered on behalf of Customer. Tavoca cannot control Caller ID services on any particular telephone network and therefore makes no warranties or guarantees regarding the actual displayed content that any particular carrier chooses to display on Caller ID.
13. DISCLAIMER OF WARRANTIES: The Messaging Solutions are supplied on an “as is” basis without warranty of any kind.Tavoca disclaims all warranties, both express and implied, including but not limited to any implied warranties of merchantability and fitness for a particular purpose and any warranties of non-infringement.
14. LIMITATIONS OF LIABILITY: In no event shall Tavoca be liable to Customer or any other party for damages of any kind arising from use of the Messaging Solutions, whether resulting from tort (including negligence), breach of contract or otherwise, including but not limited to loss of data or loss of use, or for any direct, indirect, special, incidental, and consequential damages of any kind, even if advised of the possibility of such damage. Should Tavoca be made a party to any suit arising from the Customer’s use of the Messaging Solutions or have a judgement entered against it as a result of the Customer’s use, the Customer agrees to fully indemnify Tavoca, it’s officers, directors and employees for any such judgement and to provide costs of defense as necessary.
15. GENERAL: Customer may not assign this Agreement without Tavoca’s prior written consent. Customer acknowledges that any breach of its obligations under this Agreement with respect to Tavoca’s Intellectual Property Rights, Confidential Information or Message Content will cause Tavoca irreparable injury for which there are inadequate remedies at law, and therefore, Tavoca will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law or equity. This Agreement shall be governed by and construed in accordance with the laws of Nevada, without regard to or application of conflict of law rules or principles. The waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default. If a court of competent jurisdiction shall hold any provision of the Agreement invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect, and the provision or portion thereof affected shall be construed so as to be enforceable to the maximum extent permissible by law. Any protections and indemnifications granted to Tavoca in this agreement, either expressed or implied, shall also inure to the shareholders, officers, employees, associates, resellers, affiliates, and business partners of Tavoca as well.
16. ELECTRONIC SIGNATURE: By accepting this agreement and completing online sign up, Customer and Tavoca accept and recognize this action as the execution of this agreement and that no physical signature is required. Customer agrees to be bound by the terms of this agreement just as if a paper document had been signed by both parties.
ENTIRE AGREEMENT: This Agreement constitutes the entire Agreement between the parties regarding the subject matter hereof, and supersedes any and all prior agreements and understandings (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
Monthly Minimum Billing Amount
The minimum monthly fee for Tavoca messaging services is $50. If billable charges are more than $50, actual charges are billed. Regardless of how many services are selected, only one minimum fee applies.
Appointment Messaging and Group Messaging – Fees are based on telephone, text, and/or email delivery. The delivery fee includes:
Records with more than one wireless number will be charged 1¢ for each additional text message delivered.
Text replies are 1¢ each
Appointment Messaging includes appointment reminders, no-show follow up, recalls, health maintenance messaging, emergency cancellation notices, past due balance notices, appointment rescheduling messaging, pre-op and post-op instructions, pick-up notices, birthday messages, and any other appointment-based messages.
Group Messaging includes delivery of message such as change of address notices, flu clinic announcements, event notices and invitations, change of insurances accepted, new provider announcements, open-house invitations, etc.
5 cents per billable record
An appointment is one billable record. A No-Show Follow Up is one billable record, etc.
|Email-Only Messaging - applies to messaging when email is the only allowed delivery method||3 cents per sent email. No fee for replies.|
|Email Opt-In Management||1 cent per email address|
|Text Messaging - Opt-In, Opt-Out Texts, Replies and other extra texts||1 cent each|
|Text Messaging – Staff-to-Patient Two-Way texting||1 cent per text sent or received|
Text Messaging Keyword or Text-enabled Phone Number Monthly Fee - each
The quantity of text-enabled phone numbers depends on locations, departments and the volume of each
|$1 per phone number or keyword|
|Wrong Number Compliance||
$1 per toll-free number for Wrong Number callback
5 cents per minute for telephone usage
|Live Transfer Calls or Connect-to-Office Telephone Calls||5 cents per minute for duration of connected calls|
$5 per month for private toll-free number
5 cents per delivered message
5 cents per minute for telephone usage
5 cents per sent text
1 cent per received text
Results that are entered into the system but which are never delivered have no fees
|After Hours Voice Mail with On-Call Handling options||
$30 - After Hours service with unlimited inbound usage
Outbound usage is 5 cents per minute or 5 cents per sent text for paging, call transfer to answering service, call transfer to on-call provider or any other outbound alerts
|Data Interface Set Up Fees||
$50 for one-way data interface
$100 for bi-directional interface
$25 additional for automated interfaces
One-time Appointment Messaging Setup Fee – English recordings
Includes up to 10 locations or departments
Request quote for larger organizations
|Email Customization Fee - custom email templates using your logo and color scheme||$100|
|One-time Appointment Messaging Setup Fee – non-English recordings||
$50 for Spanish
$100 for each additional language
|After-Hours Messaging One-Time Setup Fee||$50|
|Studio message recording - (edits and additions) after setup or for Group Messaging||
$10 minimum per session.
Significant edits and re-recording will be quoted
Emergency Message Processing
Self-service emergency messaging and cancellations does not have a processing fee. Emergency Messaging that requires Tavoca personnel involvement is subject to a processing fee.
$5 to $25 based on complexity.
|LabResults - One-Time Setup Fee and online user training||$50|
|Lobby Posters. Professionally printed full-color lobby and desktop posters. Includes five 11 x 17 posters and ten 8.5 X 11 flyers. Shipping is included.||$35|
|International surcharges. Telephone calls and text messages that are delivered outside of the United States, Canada and U.S. territories are subject to surcharges. Rates are subject to change without notice.||Please request current rates|
Long-Duration Voice Message Surcharge
|2 cents per minute of talk time after the initial 90-seconds|
Permanent Call Recordings
|One-time fee of $5 for each 1,000 recordings that are stored|
Taxes and Pass-Through Fees
In jurisdictions where state sales tax is required, Tavoca will collect state sales tax from non-exempt customers. Any changes to state or federal telecom taxes will be applied to all customer invoices immediately. Carrier surcharges are passed through to clients at cost.
Sales taxes vary by state.
Carrier pass-through fees: Verizon charges $0.0025 per text delivered to a mobile device. Other carriers are considering similar fees. Canadian carriers charge a $0.006 delivery surcharge.
Free Trial Addendum - Appointment Messaging Tavoca agrees to provide a free trial of Appointment Messaging Services for the first sixty (60) calendar days of service limited to a five hundred dollar ($500.00) maximum of free services. The free trial ends whenever billable services exceed $500 or whenever sixty calendar days have passed, whichever comes first. The Free Trial includes Appointment Messaging services and does not include any other services offered by Tavoca. Appointment Messaging Service includes appointment reminders, no-show follow up messages, annual recalls, and appointment cancellation/rescheduling messages. Setup Fees are not waived and are due when setup is completed. The Free Trial will begin on the first day that reminder calls are delivered. All setup fees paid during the free trial are refundable if service is discontinued on or before the last day of the free trial. During the Free Trial, you will be invoiced for services at our normal rates so that you can see exactly how much your services will cost you. Free Trial credits are issued to offset your balance to $0 until your free trial ends. Free Trials are limited to one free trial per organization.