1. Introduction

This Service Agreement (the "Agreement") governs the purchase and use of the Services (as defined below). Services may be purchased by: (a) executing an order form (an "Order Form"); or (b) using the Services. The individual or legal entity executing an Order Form or opening an account for Services under this Agreement shall be referred to as "Client" in this Agreement and the other party who executes the Order Form or provides the Services shall be referred to as "TeleVox" in this Agreement. Each Order Form must incorporate this Agreement by reference, shall govern and control in case of conflict with the Agreement, and in conjunction with this Agreement shall form a separate agreement between the parties that execute the applicable Order Form. Please read this Agreement carefully before executing an Order Form or using the Services. By executing an Order Form or using the Services you agree to be bound by this Agreement. Please maintain a copy for your records. If you do not agree with the terms of this Agreement, do not use the Services.

2. Scope of TeleVox ASP Service

TeleVox will contact the Client's members (each a "Recipient") using its PostcardPlus member outreach service, utilizing information provided by Client and transmitting a message approved by Client (collectively, the "Content")(the "Services"). Services includes a mailed reminder followed by an automated phone reminder (each, a "Message"). A report of attempted, completed, and failed calls will be provided to the Client immediately following each campaign. Client's return mail address will be required and added to each postcard before delivery.

3. Data Transfer

The Client will generate and transfer the necessary member data to TeleVox, where it will be securely housed only long enough to complete the campaign and generate the necessary reports. The Client will be provided with a HIPAA-compliant method for transferring the data to TeleVox.

4. Pricing

There is no cost to the Client for the Services covered by this program. Wyeth will pay fees directly to TeleVox for Services rendered by TeleVox, as agreed separately between Wyeth and TeleVox.

5. Maintenance of Services

Client agrees to provide information reasonably required by TeleVox to perform Services, including as applicable, but not limited to: program content and materials; Client or third party databases; forecasts; routing and network addresses and configurations; and key contacts for problem escalation (collectively the "Client Materials").

6. Responsibility For Content, Transmitting Messages, and Accounts

Client represents and warrants that: (a) it is solely responsible for the Content and it has the legal right to use all Content and send all Messages to the Recipients (including obtaining any required consents from the Recipients) and the content, timing and purpose of all Messages, and Client's campaigns and programs are in compliance with all applicable laws, rules and regulations; (b) it is the transmitter of all Content and Messages and TeleVox is merely acting at Client's direction as a technology conduit for the transmission of the Content and the Messages; (c) TeleVox's use of the Content shall not violate the rights of any third party or any law, rule or regulation; (d) it has obtained prior express consent to contact each cell phone number delivered by Client to TeleVox in connection with the provision of the Services; (e) it has (1) incorporated an interactive opt-out mechanism as part of any program relating to any Services or (2) the contacts that are the subject of such Services are not initiated to induce the purchase of goods or services or to solicit a charitable contribution ("Solicitations"); (f) from and after September 1, 2009, it has obtained from the recipient of any Solicitation an express written agreement that meets the requirements set forth in Section 310.4(b)(1)(v)(A) of the FTC's Telemarketing Sales Rule; and (g) Client will not transmit or allow to be transmitted any Content or Messages that: (i) it does not have a right to make available under any law or under contractual or fiduciary relationship; (ii) are false, inaccurate, misleading, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable; harmful to minors in any way; (iii) infringe any patent, trademark, trade secret, copyright, or other proprietary rights or rights of publicity or privacy of any party; (iv) utilize any unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", or any other forms of solicitation; or (v) interfere with or disrupts the Services or servers or network operator networks. Upon request, Client shall provide reasonable proof of compliance with the provisions set forth in this section and where TeleVox reasonably believes that Client may not have complied with such provisions or with all laws, rules and regulations, TeleVox may, at its option (A) scrub all numbers against any appropriate data base deemed necessary to remove all cell phone numbers, (B) insert an interactive opt-out mechanism and pass the resulting data to client or (C) not provide any Services. Client shall indemnify, defend and hold TeleVox, its affiliates and their officers, directors, employees and agents harmless from and against any and all claims of loss, damages, liability, costs, and expenses (including reasonable attorneys' fees and expenses) arising out of or resulting from: (i) TeleVox following Client's instructions in sending the Messages or any breach of its obligations in this section; (ii) Client's failure to obtain prior express consent to contact each of the cell phone numbers delivered by Client to TeleVox in connection with the provision of Services or the failure of such consent to comply with any law, rule or regulation; (iii) the failure to provide an opt-out mechanism in connection with any Solicitation or the failure of any opt-out mechanism to comply with any law, rule or regulation; or (iv) Client's failure to comply with any third party rights or law, rules or regulations applicable to Client's systems, materials or programs relating to the Services.

7. Indemnity

Client shall indemnify, defend and hold TeleVox and its Affiliates and their officers, directors and employees harmless from any and all third-party claims, actions, suits, proceedings, costs, expenses, damages (including punitive, treble and enhanced damages) and liabilities, including reasonable attorneys' fees arising out of, connected with or resulting from: (i) a breach by Client of any term of this Agreement; (ii) the Client Materials; or (iii) a claim by any customer of Client or any party called on Client's or its customer's behalf relating to any defect in any product or service offered by Client. TeleVox shall indemnify, defend and hold Client and its officers, directors and employees harmless from any and all third-party claims, actions, suits, proceedings, costs, expenses, damages (including punitive, treble and enhanced damages) and liabilities, including reasonable attorneys' fees which arise out of or result from a breach by TeleVox of any term of this Agreement.

  • The party claiming indemnification shall: (i) promptly notify the indemnifying party of any claim in respect of which the indemnity may apply; (ii) relinquish control of the defense of the claim to the indemnifying party; and (iii) provide the indemnifying party with all assistance reasonably requested in defense of the claim. The indemnifying party shall be entitled to settle any claim without the written consent of the indemnified party so long as such settlement only involves the payment of money by the indemnifying party and in no way affects any rights of the indemnified party.

8. Limitation of Liability

EXCEPT AS EXPRESSLY PROVIDED HEREIN, TELEVOX MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. TELEVOX EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE. NO CAUSE OR ACTION RELATING TO THIS AGREEMENT MAY BE ASSERTED MORE THAN TWO (2) YEARS AFTER IT ACCRUED. CLIENT'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY TELEVOX SHALL BE THE RIGHT TO TERMINATE THE AGREEMENT. UNDER NO CIRCUMSTANCES SHALL TELEVOX BE LIABLE TO CLIENT FOR ANY INDIRECT, EXEMPLARY, DIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOSS OF PROFITS GOODWILL OR DATA, OR COST OF COVER EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH.

9. Governing Law

This Agreement shall be governed and construed in accordance with the laws of the State of Nebraska without regard to its conflict of law provisions. Client agrees that any legal action involving or related to this Agreement will be heard exclusively in the state and federal courts located in Douglas County, Nebraska, and Client irrevocably consents to the personal jurisdiction of such courts over Client.

10. Health Insurance Portability and Accountability Act of 1996 ("HIPAA")

If Client is a Covered Entity (as defined by HIPAA) and provides individually identifiable health information or PHI (each as defined by HIPAA) to TeleVox as a Business Associate (as defined by HIPAA), then the Business Associate Agreement set forth at http://www.televox.com/baa is hereby incorporated by reference herein.

11. Modification

TeleVox may, at any time, amend the provisions of this Agreement. Any amendment proposed by Client may only be accepted by TeleVox in a non-electronic writing manually signed by authorized representatives of the parties. Notwithstanding anything in this Section to the contrary, if TeleVox posts amended terms on its website, such terms will automatically become effective ten (10) days after they are posted on the website. By using the Services after such revised terms are posted, Client agrees to be bound by any such amended provisions. Therefore, Client agrees to periodically visit the website to examine the then-current Agreement.


Revised November 18, 2009