ZinKick Terms of Service

These terms of service (the “Terms”) govern your use and access, and any users’ (who are authorized by you) use and access, to the website located at app.zinkick.com (the “Site”). They also govern your and authorized users’ use of and access to the Services (as that term is defined below). By accessing or using the Site, and using the Services, you and each authorized user agree to be bound by these Terms. In these Terms, anyone person or entity that accesses the Site, or uses or receives the Services, may be referred to as “you”. Zinkick, LLC may be referred to as “ZinKick”. These Terms may also refer to an “authorized user” as a person or entity designated by you to use or receive the Services.

IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE OR ACCESS THE SITE OR USE OR RECEIVE THE SERVICES. YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED THESE TERMS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM.

You warrant that if you are an individual, you are at least 18 years of age or the applicable state age of majority, and that you are a resident of the United States, and that you possess the legal right and ability to agree to these Terms.

1. Services Offered by ZinKick

Upon your payment for and subscription to the Services, Zinkick will make the Site available to you, and making Outreach Attempts, for the purpose of creating call Transfers and placing Voicemail Drops, and any other services expressly agreed to by ZinKick in an order or these Terms (collectively the “Services”).

Under these Terms, the following definitions will apply:

• Transfer: The act of a ZinKick agent transferring the target contact to the assigned user when that contact answers the phone.
• Voicemail Drop: A pre-recorded message delivery to a target contact.
• Outreach Attempt: A call made by a ZinKick agent with the primary purpose of a Transfer and a Voicemail Drop if a Transfer is not possible.

2. ZinKick Obligations

ZinKick representatives will make reasonable Outreach Attempts (based on the plan you have selected) to target contacts with the primary purpose to achieve a Transfer. Alternatively, if a Transfer is not possible for any reason, the relevant ZinKick representatives will make a reasonable effort to play a Voicemail Drop (provided by you) into the voicemail recording system of the target contacts using the contact information provided by you. Outreach Attempts will not be made until an authorized user logs into ZinKick and initiates the Outreach Attempts to be made on your behalf. The success of Outreach Attempts will be dependent on the accuracy of the information provided in the List.

Subject to the disclaimers below in these Terms, ZinKick will make commercially reasonable efforts to provide you access to the Site.

By accessing the ZinKick Site and paying for Services, ZinKick grants to you a limited, non-exclusive, terminable right to use the Site to initiate access and enable use of the Services. You (if you are a person or entity that has purchased the Services) are allowed to invite authorized users to receive your Services and account, and grant certain authorized users administrator privileges. An “authorized user” refers to an employee, consultant or contractor who is authorized by you to use your ZinKick account. A person that is granted “administrator privileges” is a person authorized to act on your behalf to administer and manage your ZinKick account.

3. Your Obligations

You have several obligations in connection with receiving the Services:

1. You will provide a list of contacts and phone numbers in the United States for target contacts who are residents of the United States to whom ZinKick will perform Outreach Attempts (a “List”). You may not include in the list of contacts any person residing outside of the United States.
2. You will send to ZinKick (or its designated representatives) both (a) a call-script that will be used by ZinKick (and its designated representatives) for Outreach Attempts (the “Call Script”), and (b) pre-recorded messages that you want ZinKick to use as Voicemail Drops. You will, if required by Law, include in your Call Script that calls may be recorded or monitored.
3. You will keep authorized user contact information current to ensure that Transfers made will be successful, and Voicemail Drops will contain accurate contact information.
4. You represent and warrant, to the best of your knowledge after investigation, that the List:
   1. will comply with any and all applicable international, federal, state or local “Do-Not-Call” rules, including, without limitation, those rules contained in the Federal Communications Commission regulations implementing the Telephone Consumer Protection Act and the Federal Trade Commission Telemarketing Sales Rules;
   2. will not contain any contacts listed on any Customer-specific do-no-call list or who, to your knowledge, has otherwise requested not to be contacted;
   3. does not contain any information that, and ZinKick’s use or possession of the List will not, violate or infringe on the rights of any third-party, including, without limitation, privacy rights, contractual rights or intellectual property rights.
5. You acknowledge that ZinKick will be relying on the List to provide Outreach Attempts, and that ZinKick will use and receive the List from you “as-is” and has no obligation to conduct any independent verification procedures with respect to the List. Your ability to gain the benefit of ZinKick’s Services depends on the List being accurate and complete.
6. You will not use the Services in or for any illegal, abusive, or otherwise unacceptable or inappropriate manner, including:
   1. Violating any law, regulation, other published policy or requirements that ZinKick has communicated to you;
   2. Violating or infringing on intellectual property, privacy, or rights of another;
   3. Transmitting any content that is illegal, abusive, harassing, racist, hateful, harmful to anyone, or in our sole discretion otherwise objectionable;
   4. Transmitting any material that contains or links to viruses, trojan horses, worms or any other malicious, harmful, or deleterious program, software or application;
   5. Transmitting sexually explicit, pornographic, obscene, or other content which in our sole discretion we find objectionable;
   6. Impersonating another, or misrepresenting or falsely identifying yourself;
   7. Engaging in fraudulent activity with respect to third parties or otherwise using your account to bypass phone identification systems;
   8. Failing to comply within three days with any request by a recipient to not be contacted;
   9. An excessive amount of calling contacts manually, or using the Services other than for business purposes.

If you know of or suspect any violations of the above prohibitions or restrictions, please notify ZinKick at support@zinkick.com. ZINKICK WILL DETERMINE COMPLIANCE WITH THE ABOVE POINTS AT ITS SOLE DISCRETION, AND ANY VIOLATION WILL CONSTITUTE A BREACH OF THESE TERMS.

4. Term

1. Effectiveness of Effective Date.These Terms will be effective with respect to you (including each authorized user) on the date you create a user account on the Site (the “Effective Date”), and will continue for not less than one (1) year after the date your first payment is made to ZinKick, and thereafter for so long as you continue to use the Services and ZinKick continues to provide them.
2. Automatic Renewal.Upon the expiration of the original term or any renewal term, your subscription will be automatically extended for additional periods of one year unless, any time prior to each anniversary of the Effective Date, you cancel your subscription in the admin section of the Site or by contacting ZinKick support. During any renewal term, these Terms will remain effective unless they are modified before the renewal, in which case the modified Terms will apply.

5. ZinKick Phone Numbers

ZinKick may either randomly assign, or specifically select and assign, or allow you to assign (each at ZinKick’s discretion or as otherwise agreed with you in an order) phone numbers to you and authorized users from which Outreach Attempts will be made (each a “ZinKick Number”). ZinKick Numbers assignments are subject to applicable numbering rules and regulatory practices, which may change or be amended from time to time. ZinKick reserves the right to change the terms related to assignment of ZinKick Numbers at its discretion, including to impose or amend local residency requirements and require the provision of further authorized user information for continued access to defined ZinKick Numbers.

You must comply with any applicable phone number allocation requirements relating to ZinKick Numbers. In particular, you are responsible to comply with rules and regulatory practices related to your residence and location.

You are responsible to notify authorized users of any applicable restrictions or requirements relating to the use of a ZinKick Number, and to ensure authorized users comply with those restrictions and requirements. Your failure to comply with restrictions and requirements, applicable terms of service (including allocation requirements) relating to ZinKick Numbers, will be a breach of these Terms.

You and certain of your users identified by you may obtain access to, and use, authorized users’ personal data, usage patterns, traffic data, and other information relating to their use of the Services and ZinKick Numbers to which they are assigned. You must inform each authorized user that information will not be private, but is accessible to you and others. This information and data may be considered personal data under applicable privacy and data protection laws. You acknowledge and agree that you will use and process such personal data in accordance with all Laws, including applicable data protection and privacy laws.

6. Additional Services Provided

ZinKick will make reasonable efforts to notify you of any scheduled maintenance and will make reasonable efforts to perform maintenance on the weekends and between the hours of 8pm and 5am US Central Time during the week.

ZinKick will employ industry standard commercial security measures and protocols in accordance with ZinKick’s security policies that apply from time to time. However, you are responsible to maintain security measures for your own networks and IT infrastructure systems and servers. Unless prohibited by Laws, ZinKick may not be held responsible for any breaches of security, but will make reasonable efforts to comply with Laws applicable to breaches of security.

ZinKick provides a help desk for your benefit. Any issues with ZinKick services should be reported to 805-360-5425 or support@zinkick.com.

7. Proprietary Rights

The Site and all right, title and interest in the Services and any content contained therein is the exclusive property of ZinKick, except as otherwise expressly agreed by ZinKick. You may not modify, create derivative works from, participate in the transfer or sale of, post online, or in any way exploit the Site or any portion thereof for any public or commercial use without ZinKick’s express written permission. You may, however, print, copy and download any information directly related to your receipt of the Services, for the purpose of retaining and maintaining data and records belonging to you, or for your reference while using the Services. If you copy or download any information or software from this Site, you agree that you will not remove or obscure any copyright or other notices or legends contained in any such information. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer, or otherwise use in any other way for commercial or public purposes, in whole or in part, any information, software, products or services obtained from the Services, except for the purposes expressly provided herein, without ZinKick’s prior written approval. All trademarks, trade names, service marks and logos on the Site and in connection with the Services are proprietary to ZinKick. Your use of any marks on the Site in any manner other than as authorized in these Terms and Conditions, or as authorized in a signed writing by ZinKick, is strictly prohibited.

Subject to the rights of ZinKick set forth above, you own all of data, information and materials you provide to ZinKick in connection with the Services (“Your Data”). You have sole responsibility for the accuracy and quality of Your Data, and your ability to use Your Data with ZinKick. You grant to ZinKick, its agents, representatives, employees, and others acting with ZinKick to provide the Services to you,  a non-exclusive, fully paid-up license to use, reproduce, store, modify and display Your Data, to the extent necessary for ZinKick to perform its obligations under these Terms.

8. Right to Use Your Anonymized Data

You acknowledge and agree that ZinKick may (a) anonymize and aggregate benchmarking results of your use of the Services with results of other customers’ use (collectively “Results”), and (b) use and disclose the Results for any purpose provided that the Results do not individually identify you.

ZinKick and its suppliers may analyze Your Data and Results to improve the Services and publish best practices that we’ve observed across multiple customers, provided that what is published does not individually identify you or Your Data.

9. Content License

You grant ZinKick a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise any and all rights that you have as the copyright owner in any content or feedback that you provide to ZinKick.

10. Pricing and Billing

Annual subscription plans are billed and charged for on a quarterly basis. Quarterly payments are used to purchase “Credits”. One Credit can be redeemed for one Outreach Attempt. Credits expire one year after purchase. Additional Credits can be purchased anytime.

You authorize ZinKick to charge and place a hold on your credit card with respect to any unpaid charges related to the Services. You authorize the issuer of the credit card to pay any amounts described herein without requiring a signed receipt, and you agree that your acceptance of the Terms is authorization to the issuer of the credit card to pay all such amounts.

You authorize ZinKick and any other company acting as billing agent for ZinKick to charge your credit card on a recurring quarterly basis on quarterly anniversary of your initial registration (“Billing Anniversary”) for a paid ZinKick plan and to continue to attempt to charge and place holds with respect to all sums described herein, or any portion thereof, to your credit card until such amounts are paid in full.

You will provide ZinKick with updated credit card information if ZinKick requests it and any time the information you previously provided is no longer valid. You are solely responsible for maintaining and updating the credit card information. ZinKick is not liable for any non-sufficient funds or other charges incurred by you as a result of such attempts to charge or place holds on your credit card. If you mistakenly provide a debit card number, instead of a credit card number, you authorize all charges described herein to be applied to such debit card unless and until you provide a credit card number.

You will receive a minimum notice of 15 days before any pricing changes. ZinKick cannot be held responsible for any cases of pricing changes.

The amount charged to you to use the Services does not include any applicable taxes. You are responsible for any and all applicable taxes.

You also remain responsible for paying your Quarterly Service fee if your Services are suspended or terminated for nonpayment.

You agree that for amounts not paid by the due date, ZinKick may charge, as a part of its rates and charges, and you agree to pay, a late payment fee of 5% per month of delayed period from the data of payment fail or the maximum allowed by law. If you fail to pay billed charges when due and it becomes necessary to refer your account(s) to a third party for collection, ZinKick will charge a collection fee at the maximum percentage permitted by applicable law, but not to exceed 18% to cover our internal collection-related costs.

Using ZinKick will not incur charges to your personal voice plan (cellular or otherwise) unless you redirect calls to a mobile located in a foreign country. In that case, your operator will charge its standard rates for roaming on incoming calls.

11. Disclaimer

The materials on the Site are provided “as is”. ZinKick makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, ZinKick does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on the Site or otherwise relating to such materials or on any sites linked to this site. Since the ZinKick’s ability to perform the Services depends on the IP network, the availability of an adequate power supply, and correct equipment configuration, we do not guarantee that any portion of the Services will be continuous or error-free. You also acknowledge and understand that we cannot guarantee that IP based communications are completely secure. ZinKick makes no uptime (availability) guarantees; however, if Services are interrupted, we will recommence performing the Services as soon as commercially practicable after the interruption is resolved.

12. Limitations

In no event shall ZinKick or its suppliers be liable for any consequential, indirect, special, punitive or similar damages, including loss of data or profit, or business interruption, arising out of the use of, or inability to use, the Service, even if ZinKick or an ZinKick authorized representative has been notified orally or in writing of the possibility of such damage. In no event will the officers, directors, employees, affiliates, agents, licensors, representatives, attorneys, and business partners to any party be liable for damages, whether in the type of action whether in contract, tort (including negligence), or otherwise.

You must notify ZinKick in writing within three months after you become aware of any claim or cause of action you may have with respect to your use of the Site or the Services, or you will waive the right assert the claim or cause of action in formal proceedings.

Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, those limitations may not apply to you.

13. Revisions

The materials appearing on ZinKick’s Site may include technical, typographical, or photographic errors. ZinKick does not warrant that any of the materials on its Site are accurate, complete, or current. ZinKick may change the materials on the Site at any time without notice. ZinKick makes no commitment of any kind to update the materials.

14. Assumption of Risk

You use the internet solely at your own risk and subject to all applicable local, state, national, and international laws and regulations. Although ZinKick has endeavored to create a secure and reliable Site and related Services, the confidentiality of any communication or material transmitted to or from ZinKick over the internet cannot be guaranteed. Accordingly, ZinKick is not responsible for the security of any information transmitted via the internet, the accuracy of the information contained on the Site, or for the consequences of your reliance on such information. ZinKick will not be liable for interruptions or omissions in internet, network or hosting services. You assume the sole and complete risk of using the Services. Any material downloaded or otherwise obtained through the use of the Services is at your own discretion and risk. You will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.

15. Your Responsibility to Protect Data and Password

It is your responsibility to protect your personal data and maintain the confidentiality of your user information and password. You agree to take all reasonable precautions to prevent unauthorized access to or use of the Services and will notify ZinKick promptly of any unauthorized access or use of your account or any authorized user’s account. ZinKick will not be liable for any loss that you may incur as a result of someone else using your username or password, either with or without your knowledge. To the extent allowable by law, you will be liable for any expenses, including usage charges and fines, fees, civil judgments, and reasonable attorney’s fees for your failure to safeguard user and password information and to promptly notify ZinKick about unauthorized use of your account or breach of your account information or password.

16. Links

The Site may include links to certain website, materials, or content developed by third parties. ZinKick has not reviewed all of the sites linked to its Site and is not responsible for the contents of any such linked website. The inclusion of any link does not imply endorsement by ZinKick of the linked website. Use of any such linked website is at your own risk. ZinKick reserves the right in its sole and absolute discretion to discontinue links to any websites at any time and for any reason.

17. Enforcing Security

Actual or attempted unauthorized use of any of the Site may result in criminal or civil prosecution. For your protection, we reserve the right to view, monitor, and record activity on the Site without notice or further permission from you, to the fullest extent permitted by applicable law. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on any of the Site.

18. Compliance with Laws

You will use the Services in material compliance with all applicable laws and regulations with regard to your use of the Service including, without limitation, US federal laws, individual state laws, international laws and all other laws and regulations concerning privacy, telemarketing, Internet marketing and the transmission of electronic communications (collectively “Laws”). You will not use the Services in violation of any service agreement that you have with a third-party telecommunications provider.

If necessary and in accordance with applicable law, ZinKick will cooperate with local, state, federal, and international government authorities to protect its Site, materials, content, the Services, accounts, visitors, customers, its parents, subsidiaries, affiliates and their respective members, managers, directors, officers, employees, stockholders and agents and operational providers, from the unauthorized use of its Site, materials, content, the Services, and accounts.

ZinKick is not responsible to monitor or ensure that you comply with applicable laws and regulations. If ZinKick becomes aware that your activities in relation to the Services fail to comply with Laws, ZinKick has the right to remove or restrict you from use of the Site or suspend ZinKick’s Services until it receives adequate assurances that you are no longer out of compliance.

19. Indemnity

You agree to indemnify, defend, and hold ZinKick, its affiliates, officers, directors, employees, agents, legal representatives, licensors, subsidiaries, joint venturers and suppliers, harmless from all liabilities, losses, claims, damages, causes of action, costs and expenses (including attorney’s fees) (collectively “Losses”) relating to or arising from any allegation:

1. made by a third party due to or arising out of your breach of your obligations under these Terms, or your or an authorized user’s violation of Laws or the rights of a third party;
2. relating to your, or an authorized user’s, acts or omissions in connection with call recordings, whether such claims arise under contract, tort, statute or other legal theory, including but not limited to your failure to comply with telephone recording and wiretapping laws.

Notwithstanding ZinKick’s provision of any features or information relating to call recording laws or regulations generally, ZinKick makes no representation or warranty with respect to call recording laws or regulations.

20. Suspension or Termination of Services and License

ZinKick may without notice suspend or terminate your account, license to access the Site, and right to receive the Services if (a) you fail to timely make any payment due, (b) if you commit a breach of these Terms or your obligations under any order and fail to cure the breach within five (5) days after ZinKick notifies you of the breach, (c) your subscription to Services expires and is no longer extended, or (d) for prepaid “one-time” services you purchase, upon ZinKick’s completion of those prepaid Outreach Attempts. ZinKick may also without cause or notice suspend or terminate your right to use the Services and terminate the license to access the Site, without incurring liability of any kind, except that if the Services are terminated without cause, you will be excused from your obligation to pay for unperformed Services. You may also terminate the Services at any time directly from your ZinKick account or by calling support; however, unless termination is due to ZinKick’s breach of these Terms that is not cured within thirty (30) days after ZinKick receives written notice of the breach, you will remain obligated to pay for the remainder of your subscription.

If ZinKick terminates, ZinKick will make reasonable efforts to let you know in advance and help you retrieve Your Data, though there may be some cases (for example, if you have repeatedly or flagrantly breached your obligations, or create harm or threat of harm to ZinKick or other users) when you may no longer have access to Your Data.

Your obligation to pay accrued charges and fees will survive any termination of your account, license, the Services, or these Terms, except as otherwise expressly agreed by ZinKick in these Terms, or in a writing signed by ZinKick’s vice president of customer relations. If termination occurs, the limitations and requirements set forth in the Section entitled Pricing & Billing will survive such termination, and you agree to be bound by those terms.

21. Intellectual Property Infringement

ZinKick respects the intellectual property rights of others and encourages you to do the same. Accordingly, it is a breach of these Terms to use the Site in violation of ZinKick’s or any third-party’s intellectual property rights.

22. Governing Law

All controversies and claims will be governed by the laws of the state of Kansas without regard to its conflict of law provisions.

23. Dispute Resolution

Any claim or cause of action relating to your failure to pay for Services or any other amount due or owing to it under these Terms, may be brought by ZinKick in the federal or state courts located in Johnson County, Kansas.

All other controversies and claims must be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Expedited procedures will apply to all claims of any nature or size, unless otherwise agreed by ZinKick. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof, and the decision of the arbitrator will be final and binding on you and ZinKick. Attorneys’ fees relating to the arbitration proceeding will not be awarded to the prevailing party, unless the arbitrator determines that a party acted in bad faith. All claims will be resolved individually and you may not consolidate or seek class treatment for any claim or series of claims. The place of arbitration will be Johnson County, Kansas.

24. No Waiver

Even if ZinKick does not require strict compliance with these Terms in each instance, you will be obligated to comply with them, and ZinKick’s failure to enforce, at any time, any provision, condition or requirement of these Terms, or ZinKick’s failure to require, at any time, your full performance of any of these Terms, will in no way waive your obligation to comply with the Terms or ZinKick’s ability to enforce them as written. No waiver will be effective against ZinKick unless the waiver is in a writing signed by ZinKick’s vice-president of customer relations.. A written waiver will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

25. Assignment and Delegation

You may not assign or delegate any rights or obligations you have under these Terms. Any purported assignment and delegation will be void. ZinKick may freely assign or delegate our rights and obligations, fully or partially, without notice to you. ZinKick may also substitute for ZinKick any third party that assumes our rights and obligations, by way of unilateral novation, effective upon notice to you.

26. No Injunctive Relief

You may not seek, or will not be entitled to, rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services.

27. Contacting Users

By using the Services, you agree that ZinKick may contact you, or any authorized user, via voice call, text message or other electronic medium. If any information you have provided to ZinKick changes, including but not limited to, e-mail, address, or phone number, you must promptly update the information.

28. Privacy Policy.

ZinKick respects the information that you provide and wants to be sure you fully understand exactly how ZinKick uses that information. By using the Site, you (and each authorized user) agree to the terms of the privacy policy listed at www.zinkick.com (“Privacy Policy”), which is incorporated as a part of these Terms. These Terms will prevail over any conflicting term or provision of the Privacy Policy.

29. Entire Agreement; Miscellaneous

These Terms, together with the exhibits, attachments and documents referred to herein, contain the entire agreement between you and ZinKick and supersede any prior or inconsistent agreements, negotiations, representations and promises, written or oral, respecting the subject matter hereof. If for any reason an arbitrator or court of competent jurisdiction finds any provision of these Terms, or a portion thereof, to be unenforceable, that provision must be enforced to the maximum extent permissible so as to affect the intent of these Terms, and the remainder of the Terms will continue in full force and effect. A printed version of these Terms will be admissible in any formal or informal proceedings relating to its interpretation or enforcement.

30. Phone Recording

This paragraph serves as a notice that occasionally Transfers resulting from an Outreach Attempt may be recorded and monitored for quality assurance purposes.

31. Force Majeure

You acknowledge and agree that government action, pandemics, fire, flood, natural disasters, protests, labor and contractor shortages, equipment malfunctions, telecommunications breakdowns and bandwidth problems, and other circumstances beyond ZinKick’s reasonable control (each a “Force Majeure Event”), may delay or prevent performance of the Services or ZinKick’s other obligations described in these Terms. In that event, ZinKick’s failure to perform will be temporarily excused until resolution of, or recovery from, the Force Majeure Event.