I understand that by signing up for serves rendered by RallyPoint, I agree to the following Terms and Service agreement. I also understand that the terms and service agreement may (with or without notice) change and agree to abide by said changes.
I understand that the RallyPoint, LLC is to be used for the intended purpose of communicating informational messages to our members or contacts and will not be used for solicitation and/or telemarketing. We have and do obtain permission from every member, family, or contact to use the landline or cell phone number used to communicate these messages. Use to contact cellular numbers without prior permission or for telemarketing or solicitation purposes will, at RallyPoint’s sole discretion, result in termination of account and no fees will be refunded. Additionally, client using the Service in such manner shall be liable for Federal FCC and FTC damages, fines, and legal costs, plus any applicable state penalties, fines, and legal costs and to indemnify RallyPoint for its damages and reasonable attorney’s fees for any claim against RallyPointt by any third party that its use of the service violated the Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule (“TSR”), or any other applicable law.
Further, I understand that this service shall not be used to transmit messages that contain profane language and/or other material deemed to be offensive to the recipients of RallyPoint and agree that any use of the RallyPoint Service will conform to the Service Agreement as outlined below.
Definition of Unlimited Calls
Certain plans are classified as “unlimited,” which means you can send an unlimited number of time-sensitive messages to a relatively static list of members or recipients, provided, however, that messages conform with all FTC and FCC regulations, and are not considered as spamming by your recipients. The following results may result in a plan adjustment or account cancellation by RallyPoint: frequently changing recipient lists; frequently sending messages that have a high percentage of disconnected numbers; frequent hang-ups by recipients shortly after the call begins, and receiving a high percentage of opt-out requests from your recipients. Organizations (excluding schools and emergency groups) on unlimited plans who send 15 or more call deliveries per phone number in a 30-day period will be subject to conversion to a Pay Per Call plan.
In consideration of the covenants and conditions contained herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Customer and RallyPoint LLC agree as follows:
Article I: Services
General Description: RallyPoint LLC will operate an interactive voice response and Internet-based Secure Group Communications and Tracking system (“System”) which provides a secure communication and tracking platform which Customer may use to gather certain information about and provide certain information to its subscribers in the event of a natural disaster, pandemic, act of war, or other emergency affecting the area in which Customer and/or its subscribers are located.
Project Management & Implementation: RallyPoint LLC will provide the following management-related functions during the deployment of the Services as applicable:
- Monthly status reports;
- Consultation to Customer regarding optimal testing, deployment procedures, and use of the Services in the Customer’s or the
- Customer’s End User environment; and
- Training where required by the customer;
RallyPoint Hosted Application Software: RallyPoint LLC shall provide Customer with access to the standard RallyPoint Hosted Application Software, which shall provide the following minimum functions:
- Collect and Organize Personnel;
- Track Employees from Location to Location;
- Real-Time Virtual Head Counts;
- Electronic and Voice Messaging;
- Multi-Homed Network for Guaranteed Uptime; and
- Real-Time Reporting Dashboard;
Sections 1.1 through 1.3, inclusive, shall constitute the “Services”.
The Services will be provided in accordance with the following minimum Performance Standards and Service Levels (“SLAs”):
- System availability will be assured at a 99.9% operating level by RallyPoint LLC as measured monthly. System availability is defined as the ability of RallyPoint System to process Customer’s calls without returning a busy signal.
- System reliability will be assured at a 99.9% level by RallyPoint LLC as measured monthly. System reliability is defined as the System’s ability to properly perform within the scope of the approved technical specifications.
- Host process availability will be assured at a 99.9% operating level by RallyPoint LLC as measured monthly. Host processing availability is defined as the portion of the host process under the control of RallyPoint LLC and is reliant upon Customer’s owned connectivity and system availability. Any failure to achieve SLAs that occur beyond the control of RallyPoint LLC or that are directly or indirectly related to Customer’s host responsibilities will not be included in the monthly calculation of Host process SLA. This means the Customer is responsible for his/her own Internet access and phone services for connectivity to the system as well as any other devices or personnel required to use the system.
Customer will be credited on its next invoice for failure to comply with SLAs in amounts as follows:
- For each hour in excess of the SLAs defined in Sections 1.5 (a) and (b) above that the RallyPoint LLC system is not available to Customer or Customer’s customer, a $500 credit will be applied.
- For each hour in excess of the SLAs defined in Sections 1.5 (c) through (d) above that the RallyPoint LLC system is not available to Customer or Customer’s customer, a $250 credit will be applied.
- The credits in any given month will be capped at 100% of the previous month’s invoice. There will be no carry forward of unused credit amounts.
Article II: Customer Responsibilities
Customer covenants and agrees to provide RallyPoint LLC with a schedule of all testing events that it expects will have any material effect on the volume of calls to or access of the System. Such a schedule will be provided at least ten (10) days in advance of such an event. The schedule will include the date and time of the event, and the projected number of users accessing the System that will result from such an event.
Nothing in this Agreement will require RallyPoint LLC to perform any Services in violation of any law, as determined by RallyPoint LLC in its reasonable discretion. If RallyPoint LLC believes that its Services cannot be performed as described in this Agreement without violating or aiding or abetting the violation of a Law, RallyPoint LLC may, in addition to its other rights under this Agreement, terminate the Services immediately (without penalty or financial obligation of any type or kind imposed on RallyPoint LLC).
RallyPoint LLC may identify Customer in RallyPoint LLC marketing materials, website and/or proposals or disclose that it provided or is providing Services in support of Customer’s program. Neither party may use the other’s trademarks or logos without prior written approval.
Article III: Duration
The Effective Date of this Agreement is set day of sign up with the RallyPoint service. The Term of the Agreement shall run Month to Month. This Agreement shall automatically renew for successive one (1) year terms (each a “Renewal Term”) until terminated by either party according to Sections 3.2.
This Agreement may be terminated (i) after the initial term without cause by RallyPoint LLC upon ninety (30) days advance written notice, or (ii) upon the occurrence of any event of breach or default provided that the party not in default shall give the party deemed to be in default written notice of such default, and such party in default shall have thirty (30) days from receipt of such notice to correct the alleged default.
RallyPoint LLC may, at RallyPoint LLC’s discretion, by giving written notice to Customer, immediately suspend or terminate Customer’s rights under this Agreement in the event that:
- Customer fails to pay when due (i) any amount payable under this Agreement or (ii) any amount payable by Customer to RallyPoint LLC or any related or affiliated company under any other agreement or arrangement;
- Customer commits any fraudulent act;
- (i) Customer files a voluntary petition in bankruptcy or (ii) there is filed against Customer an involuntary petition in bankruptcy;
- Customer sells, assigns, leases or otherwise disposes of (whether in one transaction or in a series of transactions) all or substantially all of its assets and/or there is a change in control in the ownership of Customer.
Any suspension shall continue until the earlier of the day (i) RallyPoint LLC lifts it by written notice to the Customer or (ii) this Agreement is terminated.
In the case of any termination of this Agreement under Section 3.3(d) due to a sale, assignment, lease or other disposal of all or substantially all of Customer’s assets and/or a change of control, Customer agrees to pay any remaining amounts due and owing from Customer to RallyPoint LLC under this Agreement from the proceeds of such transaction. In furtherance of such Agreement, Customer hereby irrevocably transfers, assigns and conveys to RallyPoint LLC that amount of transaction proceeds necessary to satisfy Customer’s obligations to RallyPoint LLC under this Agreement.
Articles IV: Fees and Expenses
In exchange for the Services provided by RallyPoint LLC pursuant to this Agreement, Customer shall pay, where applicable:
- Monthly End User Fee, which shall be calculated by multiplying the number of End Users by the per End User rate, attached hereto and incorporated herein;
- System Usage Fee if not on unlimited plan, which shall equal the product of the minutes used for all applications and the per minute rate set forth on the Features and Pricing page our the website; Member card at the cost of $2 per card upon order including S&H;
- Setup Fee equal to the Monthly End User Fee for the first month of Services, but not be less than $500.00;
- Training fees at a rate of $1500 per day;
- Reimbursement for reasonable travel expenses incurred for training;
To the extent the rates, charges and fees set forth in this Section 4.1 conflict with Cost Summary, Cost Summary shall control.
Customer will pay all amounts due hereunder within fifteen (15) days after Customer’s receipt of an invoice therefore.
Late payments will be subject to a late payment fee. The late payment fee will begin accruing 30 days after Customer’s receipt of an invoice and will be included in the following month’s invoice. The late payment fee will be equal to the lesser of one and one-half percent (1.5%) per month of the then-outstanding overdue balance or the highest percentage rate permitted by law, from the date due until paid. In addition, Customer will reimburse RallyPoint LLC for all reasonable legal fees and other costs of collection incurred by RallyPoint LLC in connection with collecting overdue amounts.
The amounts due hereunder do not include taxes, assessments, regulatory fees or similar charges. Customer will pay or reimburse RallyPoint LLC (as appropriate) for all such taxes, assessments, regulatory fees or similar charges, excluding taxes on RallyPoint LLC income, on a pass–through basis. Any such amounts will be separately stated on Customer invoice and are payable in accordance with the payment terms of this Agreement.
If fees are not paid within thirty (30) days after Customer’s receipt of an invoice therefore, and Customer fails to cure such delinquency within fifteen (15) days after written notice, then RallyPoint LLC may, in addition to its other rights under this Agreement or otherwise, suspend access to the Services until all financial obligations are met in accordance with this Agreement. RallyPoint LLC reserves the right to require Customer to provide additional security and to pay reinstatement charges as a condition precedent to the reinstatement of Services hereunder.
Article V: Intellectual Property
Intellectual Property Rights: Customer acknowledges that RallyPoint LLC develops or licenses software applications for a variety of platforms and environments. Notwithstanding anything in this Agreement or any other writing relating to and made a part of this Agreement, nothing herein shall limit or transfer in any way RallyPoint LLC’s ownership or right to use the methodologies or design concepts, techniques, knowledge or know-how resulting from RallyPoint LLC’s performance of the work contemplated by, or employed or produced under, this Agreement. Further, RallyPoint LLC hereby retains all right, title and interest in and to, all operating application and enabling software, hardware and technology used in connection with the provision of the Services, and all inventions, copyrights, trade secrets, know-how, tools, utilities, methodologies, trademarks and other intellectual property and other proprietary rights and interests developed by or on behalf of RallyPoint LLC in whatever form under a Work Order. In addition, Customer acknowledges and agrees that RallyPoint LLC may perform services similar to the Services for third parties and in doing so may use the same personnel and intellectual property used in performing the Services for Customer.
Article VI: Confidential Information
Customer acknowledges that in the course of dealings between parties, Customer may acquire information about RallyPoint LLC, its business activities and operations, its technical information and trade secrets, including but not limited to computer programs, all of which are highly confidential and proprietary to RallyPoint LLC (the “RallyPoint LLC Confidential Information”). RallyPoint LLC Confidential Information shall not include information generally available to or known by the public, or information independently developed outside the scope of this Agreement. Customer shall hold all such RallyPoint LLC Confidential Information in strict confidence and shall not reveal the same except pursuant to a court order or upon request of RallyPoint LLC. The RallyPoint LLC Confidential Information shall be safeguarded with at least as great a degree of care as Customer uses to safeguard its own most confidential materials or data relating to its own business, but in no event less than a reasonable degree of care.
RallyPoint LLC acknowledges that in the course of dealings between parties, RallyPoint LLC may acquire information about Customer, its business activities and operations, its technical information and trade secrets, including but not limited to employee information, all of which are highly confidential and proprietary to Customer (the “Customer Confidential Information”). Customer Confidential Information shall not include information generally available to or known by the public, or information independently developed outside the scope of this Agreement. RallyPoint LLC shall hold all such Customer Confidential Information in strict confidence and shall not reveal the same except pursuant to a court order or upon request of Customer. The Customer Confidential Information shall be safeguarded with at least as great a degree of care as RallyPoint LLC uses to safeguard its own most confidential materials or data relating to its own business, but in no event less than a reasonable degree of care. This provision shall survive termination of the Agreement.
RallyPoint LLC and Customer acknowledge that in order to provide the Services, RallyPoint LLC may obtain certain confidential employee and/or Customer End User information, including but not limited to names, birth dates, social security numbers, addresses, and telephone numbers (“Confidential End User Information”). RallyPoint LLC shall use commercially reasonable means, including but not limited to data encryption, to prevent the Confidential End User Information from being disclosed. Customer acknowledges that the Confidential End User Information will be stored on a computer system that is connected to the internet and thus, despite the use of commercially reasonable means to prevent the information from being disclosed, the Confidential End User Information may be accessed by unauthorized persons through “computer hacking” or other similar means.
Article VII: Liability
LIMITATIONS ON LIABILITY: (a) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, CUSTOMERS OR GOOD WILL) RELATING TO THIS AGREEMENT ARISING FROM ANY CAUSE WHATSOEVER, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY OR NEGLIGENCE, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR IT WAS OTHERWISE FORESEEABLE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO WARRANTIES, EXPRESSED OR IMPLIED (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), ARE MADE BY RALLYPOINT LLC. RALLYPOINT LLC DOES NOT WARRANT THAT THE SERVICES WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
Notwithstanding anything contained in this Agreement, RallyPoint LLC ’s total liability to Customer for any claims for damages, losses, costs, expenses or other liability relating to this Agreement (whether arising from tort, contract or otherwise) will not, in any case, exceed the greater of (i) fees paid to RallyPoint LLC by Customer during the month preceding the month in which the claim arose or (ii) required minimum monthly charges, if any, paid to RallyPoint LLC during the month during which the claim arose. No action, regardless of form, arising out of this Agreement may be brought by Customer more than one year after the cause of action arises.
Notwithstanding anything in this Agreement to the contrary and provided that RallyPoint LLC uses commercially reasonable means to prevent the disclosure of the Confidential End User Information, Customer shall hold harmless, indemnify and defend RallyPoint LLC and its affiliates, shareholders, directors, officers, employees and representatives (the “Customer Indemnified Parties”), from and against all claims, demands and actions (and all costs, expenses, losses and damages incurred by any such Customer Indemnified Party as a result of each such claim, demand, cause of action or proceeding, including, without limitation, attorney’s fees, costs of discovery and costs of court) incurred as a result of any claim, demand, cause of action or proceeding in any manner attributable to the disclosure of Confidential End User Information.
Article VIII: Alternative Dispute Resolution
In the event that any dispute arises between the parties hereto pertaining to this Agreement and the parties are unable to resolve such dispute within a reasonable time through negotiation, the parties shall attempt to resolve such dispute pursuant to a mutually agreed upon alternative dispute resolution mechanism. Such resolution of the dispute shall be initiated by written notice given by one party to the other. If within 10 days after submission of such notice the parties have not agreed upon an alternative dispute resolution mechanism, the dispute shall be submitted to arbitration in East Baton Rouge Parish, Louisiana. In the event the dispute is to be resolved pursuant to arbitration, if within 20 days after the original notice of the dispute the parties have not agreed on the identification of a single arbitrator to resolve the dispute, the arbitrator shall be designated by the American Arbitration Association in East Baton Rouge Parish, Louisiana. If the arbitrator becomes disabled, resigns or is otherwise unable to discharge the arbitrator’s duties, the arbitrator’s successor shall be appointed in the same manner as such arbitrator was appointed. The parties shall not be permitted to conduct discovery in connection with the arbitration, and, subject only to the availability of the arbitrator, the arbitration hearing shall be held within 30 days after appointment of the arbitrator. The arbitrator shall not have authority to (a) limit, expand, or otherwise modify the terms of this Agreement or related Work Order or (b) award special, consequential, punitive or treble damages. The parties shall share equally all costs (other than costs incurred by the parties themselves) related to the arbitration. Except as aforesaid, the arbitration shall be conducted under the Commercial Rules of the American Arbitration Association. Any determination of the arbitrator shall be binding and conclusive upon the parties. Either party may make application to any court having jurisdiction thereof for judicial confirmation of any determination by the arbitrator and/or for an order of enforcement of any such decision.
The parties’ commitment to support and participate in Alternative Dispute Resolution programs specifically is not a waiver of their rights to later resort to litigation before any judicial or administrative forum.
Article IX: Miscellaneous
Both parties acknowledge and agree that the obligations set forth herein, which by their nature are intended to survive, including but not limited to Articles IV, V, VI, VII and VIII, and each party’s obligation to pay the other party any fees for any work performed pursuant to this Agreement, survive expiration or termination of this Agreement.
The validity, interpretation and performance of this Agreement shall be controlled by and construed under the laws of the State of Louisiana without taking into account its conflict of law principles.
RallyPoint LLC may at any time assign any rights or delegate any duties under this Agreement to one or more of its wholly-owned subsidiaries or to any affiliated company. Customers may not without the prior written approval of RallyPoint LLC assign any rights or delegate any duties under this Agreement. Any such delegation by RallyPoint LLC or Customer shall not limit the other parties’ liabilities to the others under this Agreement.
This Agreement contains the entire agreement between RallyPoint LLC and Customer and supersedes any and all prior agreements between the parties with respect thereto. No representations were made or relied upon by RallyPoint LLC or Customer other than those expressly set forth herein.
No employee, agent, or other representative of Customer has the power to alter or amend any of the terms of this Agreement. This Agreement may be amended only by a written document signed both by Customer and by an executive officer of RallyPoint LLC.
Unless otherwise stated herein, all notices pertaining to this Agreement shall be in writing and be delivered by electronic facsimile transmission, by personal hand-delivery, by commercial overnight courier, or through the facilities of the United States Postal Service, to the addresses set forth above, or to any address identified in a written notice of change of address to the other parties hereto. Notice shall be effective upon receipt or refusal thereof.
Headings are used in this Agreement for ease of reference only, and shall not be used in construing or interpreting this Agreement.
All obligations and responsibilities of Customer under this Agreement shall be performed and carried out as an independent contractor, and none of the provisions of this Agreement shall be deemed to create any partnership, joint venture or other relationship with RallyPoint LLC.
Should any provision of this Agreement or the application thereof to any person or circumstance be held invalid or unenforceable to any extent, (i) such provision shall be ineffective to the extent, and only to the extent, of such unenforceability or prohibition and shall be enforced to the greatest extent permitted by law; (ii) such unenforceability or prohibition in any jurisdiction shall not invalidate or render unenforceable such provision as applied to other persons or circumstances or in any other jurisdiction; and (iii) such unenforceability or prohibition shall not affect or invalidate any other provision of this Agreement.
All disputes in connection with this Agreement shall be litigated, if at all, in and before the United States District Court for the Middle District of Louisiana. Customer hereby consents to the jurisdiction of the United States District Court for the Middle District of Louisiana and Customer hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
Force Majeure: Neither party will have any liability for damages arising from errors, delays, or nonperformance due to events beyond its reasonable control, including, without limitation, fire, explosion, lightning, power surges or failures, water, earthquake, windstorms, strikes, labor disputes, work stoppages, failure of equipment belonging to others, riots, acts of God, the elements, war, civil disturbances, act of civil or military authorities or the public enemy, fuel or energy shortages, acts or omissions of any common carrier or billing service providers, any failure, disruption or malfunction of any telecommunications network, facility or equipment, any regulatory restrictions, changes in laws or other acts of governmental authority, provided, however, that Customer’s obligation hereunder to pay for Services previously rendered at the time of the occurrence of any force majeure condition will not be excused or delayed by any force majeure condition.
Failure to exercise any power given any party hereunder or to insist upon strict compliance by any other party shall not constitute a waiver of any party’s right to demand exact compliance with any of the terms or provisions hereof.
This Agreement shall not be assignable by Customer without the prior written consent of RallyPoint LLC except to (i) a parent, subsidiary, or affiliate of Customer or (ii) pursuant to a sale of all or substantially all of the assets of Customer or the merger or consolidation of Customer into another entity provided that with respect to clause (i) or (ii) preceding such entity agrees to comply with the terms and conditions of this Agreement, including, the payment of all fees owing hereunder. Any attempted assignment of this Agreement or any right in other circumstances shall be void. This Agreement will be binding on and inure to the benefit of the parties hereto and their successors and permitted assigns.
This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.
RallyPoint, LLC (Last updated January 1, 2019)