Software As A Service (SAAS) Agreement

Standard Terms Of Service

dialOS LLC 

Notice: Last updated Terms of Service November 2024. 

For all other customers, your use of the Service will be governed by the dialOS Terms of Service displayed below. 

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THESE TERMS OF SERVICE, TOGETHER WITH THE ORDER, IS A BINDING CONTRACT FOR THE USE OF THE DIALOS LLC SERVICE. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS OF SERVICE THEN DO NOT ACCESS OR USE THE DIALOS LLC SERVICE. 

Agreement:

These Software as a Service (SAAS) Terms of Service are entered into as of the date of last signature below (the “Effective Date”) between the client identified in the Order Form (“Client”) and dialOS LLC, a Tennessee corporation with a principal place of business at 926 Boscobel Street, Nashville TN 37206 (“dialOS”). The “Agreement” means these Software as a Service (SAAS) Terms of Service together with the Order Form. Client and dialOS may each be known as the “Party” or collectively as the “Parties.”

Section 1. Definitions

1.1 “Affiliate” means any parent, subsidiary, or other company or entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, or which operates, or is operated by, Client. The term “control” means the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise. 

1.2 “Agent Seat” means a license that is provided to an Authorized User who is using the Service.

1.3 “Authorized Users” shall include: (a) all directors, officers, and employees of Client and any Affiliate; and (b) any other person using the Service on behalf of Client and any Affiliate. 

1.4 “Client Data” means any and all: (a) data input into the Service by Client, its Affiliate or Authorized Users, including any call, setter, or CRM data (b) reports that are specific to Client provided to Client through the Service’s dashboard. 

1.5 “De-Identified Data” means data that is derived from Client Data by dialOS and that has been de-identified from Client and any individual using industry-standard methods such as deleting or masking personal identifiers (for example, by deleting a name and a social security number), and suppressing or generalizing quasi-identifiers (for example, suppressing a date of birth and a zip code). 

1.6 “Documentation” means the documentation for the Service provided in writing or in online documentation, as well as training and tutorial videos and materials, and telesales agent playbook materials which dialOS makes generally commercially available to its customers. 

1.7 “Fees” means those Service subscription fees and other fees set forth on the Order Form. 

1.8 “Intellectual Property Rights” means all intangible legal rights or interests evidenced by or embodied in (a) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (b) any work of authorship, regardless of copyright-ability, but including copyrights and any moral rights recognized by law; (c) any trademark, trade name or service mark; and (d) any other intellectual property, proprietary or similar rights, in each case, including all goodwill pertaining thereto and on a worldwide basis. 

1.9 “Manager Seat” means a license that is provided to an Authorized User who does not make telesales or service calls processed by the Service and has access to the reporting dashboard for the Service. 

1.10 “Order Form” means an order form provided by dialOS and executed by the Parties which references these Software as a Service (SAAS) Terms of Service. 

1.11. “Service” means dialOS’s hosted, proprietary software as a service described on the Order Form and the related documentation.

Section 2. License Terms 

2.1 Grant of Access. Subject to the terms and conditions of the Agreement, dialOS hereby grants to Client a limited, non-transferable, non-exclusive and non-sublicensable license to, and to permit its Affiliates and Authorized Users to, access and use the Service during the Term (defined below) for the internal business purposes of Client and its Affiliates, up to the maximum number of Agent Seats and Manager Seats identified in the Order Form. Client will remain liable for the actions and inactions of its Affiliates under the Agreement. The Agreement does not permit access by persons who are not Authorized Users. 

2.2 Changes. dialOS continually strives to improve its products and services, and reserves the right to improve or modify the Service in any manner and at any time, including during the Term, at its sole discretion; provided however that such modifications will not materially reduce the functionality of the Service. 

2.3 Feedback. dialOS shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or on behalf of Client, solely as such information relates to the Service and expressly excluding any Client Data or other Client Confidential Information. 

2.4 Suspension. dialOS may suspend access to the Service, in whole or in part, if (i) Client or its Authorized Users are using the Service in violation of the Agreement or applicable law, (ii) Client’s systems or account has been compromised or unlawfully accessed, (iii) required under the law, or (iv) Client fails to pay the applicable fees within twenty (20) days of when due. 

2.5 Prohibitions. Use of and access to the Service is permitted only by Authorized Users. Client shall not allow any third party to use or view the Service without dialOS’s prior written consent. Under no circumstances may Client modify, decompile, reverse compile, disassemble, reverse engineer, decrypt, or otherwise seek to recreate the source code of the Service, adapt the Service in any way, use the Service to create a derivative work, or grant any other person or entity the right or access to do so, without the advance written consent of dialOS. Except as expressly authorized by the Agreement, Client shall not modify, copy, duplicate, reproduce, unbundle, sublicense, hypothecate, sell, assign, transfer, display, distribute, lend, rent, or lease the Service or any portion thereof to any third party. All proprietary and/or other notices of dialOS or its licensors, if any, shall be provided and maintained on the Service at all times. 

2.6 Ownership. 

2.6.1 Ownership. dialOS owns all Intellectual Property Rights and all right, title, and interest in the Service, including any modifications or enhancements made thereto and the De-Identified Data. Access to the Service is licensed and not sold. Except as otherwise provided herein, Client shall not, by virtue of the Agreement or otherwise, acquire any ownership rights in the Service aside from the limited licenses granted in the Agreement. 

2.6.2 Reservation of Rights. No rights are granted to either Party except as expressly set forth in the Agreement. Except as expressly set forth in the Agreement, nothing in the Agreement grants any license to, or transfers any right, title or interest in or to, the Service, De-Identified Data, Client Data, the Confidential Information of either Party, or any patents, copyrights, trade secrets, logos, trademarks, trade names or service marks of either Party, whether by implication, estoppel, or otherwise.

2.7 Notification. If Client becomes aware of any determination, discovery, or notification that any person or entity is or may be misusing or infringing any Service, Client shall notify dialOS. 

2.8 Order Forms and Special Terms. Client shall order the Service pursuant to an Order Form. Each Order Form shall include at a minimum a listing of the Service, any Professional Services, the number of Agent Seats and Manager Seats (if limited) and the subscription period start date. Except as otherwise provided on the Order Form, each Order Form shall be subject to the terms and conditions of these Software as a Service (SAAS) Terms of Service. To the extent these Software as a Service (SAAS) Terms of Service conflict with the express terms of an Order Form, the terms of the Order Form will prevail. 

Section 3. Professional Services 

Subject to Client’s payment of the Fees, during the Term, dialOS shall provide Client, at no additional charge, with the Support Services described in Exhibit A. The Service will be available according to the service levels described in the dialOS Software Service Level Agreement. In the event that Client requests software consulting and management services, information technology services, installation services, training services, or other professional services acceptable to dialOS (“Professional Services”) then the Parties shall execute an Order Form or statement of work covering such Professional Services. 

Section 4. Fees 

4.1 Fees. Client shall pay to dialOS the Fees in the amount, at the times, and in the manner set forth in the Order Form. If dialOS has not received payment within fifteen (15) days after the due date, interest shall accrue on past due amounts at the rate of one and one-half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by dialOS. Fees do not include any applicable taxes or duties, including, without limitation, state and local use, sales and property taxes and duties. Client is responsible for all taxes and duties incurred as a result of its purchase, license, use of, or access to the Service. 

4.2 Forgiveness Days. Pricing for the Service is based on the permitted maximum number of Agent Seats entitled to access the Service stated on the Order Form. In the event of a random spike in the number of Agent Seats above the permitted maximum dialOS may, in its sole discretion, choose not to count this spike towards Client’s permitted maximum, for up to 14 consecutive forgiveness days. 

4.3 Overages. If Client’s number of Agent Seats exceeds the permitted maximum in any given month, not including forgiveness days described in Section 4.2, then Client shall agree to upgrade its permitted maximum number of Agent Seats to account for the overage in the prior month, and pay the related additional Fees on a prorated basis for the remainder of the Order

Form term. Additional Fees will be calculated using the Monthly per User Fee listed on the Order Form.

Section 5. Client Obligations 

5.1 Credential Security. Client shall be solely responsible for the security and confidentiality of any usernames or passwords granted to Client or its Authorized Users to access the Service, and shall limit disclosure of such usernames and passwords to its Authorized Users. Client shall be solely responsible for any authorized or unauthorized access to the Service using such usernames and passwords, and any actions taken thereunder.
 
5.2 Compliance with Laws. Client shall ensure that it and its Affiliates and Authorized Users use the Service only in accordance with applicable laws, including but not limited to all data privacy laws. 

5.3 Prohibited Content. Client shall ensure that Client and all Authorized Users shall not, and shall not permit any third party to, distribute, upload, transmit, store, make available or otherwise publish or process through the Service any Client Data that: (a) is unlawful or encourages another to engage in anything unlawful; (b) is untrue, inaccurate, outdated or not current, (c) contains a virus or any other similar programs or software which may damage the operation of dialOS’s or another’s computer; (d) violates the rights of any third party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any third party; or, (e) is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, or illegal. Client understands and agrees that dialOS reserves the right to edit, modify or remove content being hosted by dialOS, including for violations of the above standards. Client shall ensure that all Client Data is true and accurate at all times, and shall promptly update any such Client Data accordingly. 

5.4 Prohibited Use. Client shall ensure that Client and its Authorized Users shall not (a) use the Service for any conduct or activity that violates applicable law or for any illegal or unlawful purpose; (b) resell, distribute, or sublicense the Service or use any of the foregoing for the benefit of anyone other than Client or the Authorized Users; (c) use the Service to build or research a competing product or service; (d) interfere with, impair or disrupt the Service and related dialOS systems; (e) introduce any virus or programming routine which is intended to or does disrupt or interrupt the use of the Service or dialOS’s systems; or (f) reverse engineer or otherwise conduct research into the internal operations of the Service. 

Section 6. Term & Termination 

6.1 Term. The initial term (the “Initial Term”) of the Agreement shall be as specified in the initial Order Form, unless terminated earlier pursuant to Section 6.2. Unless either Party provides notice in writing at least thirty (30) days before the last day of the Initial Term or then-current Renewal Term, as appropriate, that such Party does not wish to renew the Agreement, the Agreement will automatically renew for successive additional terms equal in length to the Initial Term or one year, whichever is greater (each, a “Renewal Term”) at dialOS’s then-current pricing. The Initial Term and Renewal Term are referred to as the “Term.” 

6.2 Termination. The Agreement may be terminated by either Party as provided in the Order Form. In addition, if a Party materially breaches this Agreement, the other Party may terminate this Agreement by giving thirty (30) days prior written notice, provided that the material breach set forth in such notice is not cured to the reasonable satisfaction of the nonbreaching Party within such thirty (30) day period. 

6.3 Effect of Termination. 

6.4.1 Upon the termination or expiration of the Agreement for any reason: (i) Client’s license to use the Service shall terminate, (ii) Client shall cease, and shall cause its Affiliates and Authorized Users to cease, all access and use of the Service and any dialOS Intellectual Property related thereto; and (iii) Client shall immediately return to dialOS any Documentation and other dialOS Intellectual Property in Client’s possession. 

6.4.2 At any time following the termination or expiration of the Agreement, dialOS may irrevocably delete any and all information associated with Client’s account, including Client Data. In addition, within ninety (90) days following the termination or expiration of the Agreement, dialOS shall irrevocably delete Client Data to the extent required by applicable data protection laws. 

6.4.3 If the Agreement is terminated by Client due to an alleged breach by dialOS pursuant to Section 6.2 (Termination) which dialOS does not either contest or cure, then dialOS shall refund the prepaid, unused Fees for the remainder of the Term. 

Section 7. Limited Warranty, Disclaimer, Limitation Of Liability 

7.1 Limited Warranties. (a) Each Party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under the Agreement. (b) dialOS represents and warrants that when used in accordance with the Documentation the Service will perform substantially in accordance with the Documentation. Client’s sole and exclusive remedy for breach of this warranty in Subsection 7.1(b) shall be for dialOS to correct the Service at its own expense so that it conforms to the warranty. 

7.2 Disclaimer. EXCEPT AS EXPLICITLY PROVIDED IN THE AGREEMENT, THE SERVICE AND ANY PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. DIALOS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SUITABILITY OR NON-INFRINGEMENT. EXCEPT AS EXPLICITLY PROVIDED IN THE AGREEMENT, DIALOS DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS, THAT ACCESS TO OR OPERATION OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE. DIALOS MAKES NO WARRANTY AND ASSUMES NO RESPONSIBILITY OR LIABILITY REGARDING ANY RELATIONAL DATABASE SERVICE OR SERVERS, OR ANY OTHER THIRD PARTY HARDWARE OR SOFTWARE WITH WHICH THE SERVICE COMMUNICATES OR OPERATES. 

7.3 Limitation of Liability. 

7.3.1 Disclaimer of Indirect Damages. Except as stated in Section 7.3.3, neither Party shall be liable for any indirect, incidental, consequential, special, exemplary or punitive damages (including loss of use, data, business or profits) regardless of the theory of liability. 

7.3.2 Cap on Liability. Except as stated in Section 7.3.3 and except for each Party’s liability for damages related to claims under the Agreement, neither Party shall be liable for aggregate damages in excess of the fees paid or payable by Client under the Agreement during the twelve months prior to the event giving rise to liability, regardless of the theory of liability. Each Party’s total liability for damages related to claims shall not exceed three times the fees paid or payable by Client under the Agreement during the twelve months prior to the event giving rise to liability. 

7.3.3 Exclusions. The limitations of liability set forth in Sections 7.3.1 and 7.3.2 do not apply to either Party’s gross negligence, intentional misconduct, or where not permitted by law. The limitations of liability set forth in Section 7.3.2 do not apply to either Party’s liability for misappropriation of the other Party’s intellectual property. 

7.3.4 Independent Allocation of Risk. The limitations and exclusions of this Section apply even if the liable Party has been advised of the possibility of such damages, even if the damages were foreseeable and even if a limited remedy fails of its essential purpose. Each provision of the Agreement that provides for a disclaimer of warranties, exclusion of damages or limitation of liability is to allocate the risks of the Agreement between the parties. This allocation of risk is reflected in the pricing offered by dialOS to Client and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of the Agreement. If applicable law limits the application of the provisions of this Section, then the limitations will apply to the maximum extent permissible. 

Section 8. Confidentiality 

8.1 Definition. “Confidential Information” means: (a) in the case of Client, all Client Data, and (b) in the case of dialOS, any and all non-public features of the Service including, without limitation, the pricing plans and features, the Order Form, and all pages and materials on the dialOS website that are accessible only after logging in. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (ii) is independently developed by receiving Party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of wrongdoing by receiving Party; or (iv) is approved for release in writing by disclosing Party. 

8.2 Confidentiality Restrictions. Receiving Party shall not use Confidential Information for any purpose other than to provide, facilitate, access or use the Service as allowed under the Agreement. Receiving Party shall not disclose Confidential Information: (a) to any employee or contractor of receiving Party unless such person needs access in order to provide, facilitate the access or use the Service and is subject to a nondisclosure agreement with receiving Party; or (b) to any other third party without disclosing Party’s prior written consent, or as expressly permitted under the Agreement. Receiving Party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. With respect to each item of Confidential Information, the obligations of this Subsection will continue for five years after the date of disclosure. 

8.3 Exceptions. Notwithstanding the provisions of Subsection 8.2, receiving Party may disclose Confidential Information to the extent required by applicable law or by proper legal or governmental authority, provided that receiving Party shall, to the extent allowed by law, give disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure by lawful means, at disclosing Party’s expense. 

Section 9. Client Data 

9.1 Ownership; License. The Service involves the receipt, processing, hosting and storage of Client Data. Client retains all Intellectual Property Rights and all right, title and interest in the Client Data. Client grants to dialOS a revocable, limited, non-exclusive, non-transferable (subject to Section 10.2), right and license to host, copy, transmit, display and otherwise use the Client Data solely as necessary: (a) for dialOS to perform its obligations under the Agreement, and (b) to derive De-Identified Data for the improvement of the Service and dialOS’s other products and services (as may exist now or in the future). 

9.2 Client Warranty. Client represents, and warrants that Client owns or has the necessary licenses, rights, consents, and permissions to use and to authorize dialOS to use, host, copy, transmit and display Client Data in the manner contemplated under the Agreement. 

9.3 Accuracy. All Client Data originates from Client and its Affiliates and Authorized Users, and as such, is not in the control of dialOS. Without limiting the generality of any other provision of the Agreement, dialOS shall have no responsibility or liability related to the accuracy, content, currency, completeness or delivery of the Client Data. Client is responsible for the accuracy, content, currency, completeness, and delivery of the Client Data.

9.4 Backup. The Service is a productivity tool, not a backup system. Client understands that it is Client’s responsibility to back up its Client Data in the manner and at intervals of its choosing, and that dialOS does not have the obligation to maintain copies or backups of Client Data.

Section 10. General Provisions

10.1 Relationship of the Parties. The relationship of dialOS and Client established by the Agreement shall be solely that of independent contractors, and nothing herein shall create or imply any other relationship. dialOS does not grant Client or any of Client’s representatives the power or authority to make or give any agreement, statement, representation, warranty or other commitment on behalf of dialOS, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of dialOS, or to transfer, release or waive any right, title or interest of dialOS. dialOS shall have the right to determine the method, details, and means of performing any services pursuant to the Agreement. 

10.2 Assignment. Except for an assignment to an Affiliate, the Agreement and any Order Form may not be assigned by either Party without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. Any attempted assignment in violation of this Section 10.2 shall be void. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

10.3 Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the Party to be notified; (b) when sent by confirmed electronic mail to the address specified in the Order Form, or (c) one (1) business day after being sent by recognized overnight courier.

10.4 Entire Agreement; Amendment; Waiver. The Agreement, including the Order Form and any exhibits or attachments, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, understandings, and agreements, written or oral, regarding such subject matter. This Agreement may be amended only by a written agreement signed by both Parties. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party granting the waiver. No waiver of any breach or default shall be deemed a waiver of any subsequent breach or default.

10.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions will continue in full force and effect, and the Parties will work in good faith to agree upon a valid and enforceable provision that will achieve, to the greatest extent possible, the purpose of the original provision.

10.6 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee without regard to its conflict of laws principles. Any dispute arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Nashville, Tennessee, and each Party consents to the jurisdiction of such courts.

10.7 Force Majeure. Neither Party shall be liable for any failure or delay in performance under this Agreement due to causes beyond its reasonable control, including but not limited to acts of God, acts of government, natural disasters, labor disputes, or interruptions in the availability of third-party services, provided that the affected Party promptly notifies the other Party of the delay and makes reasonable efforts to resume performance as soon as possible.

10.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

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