Terms of service

1. Agreement and acceptance

These Terms of Service (the “Terms”) are an agreement between Modern Apex Strategies LLC, a Michigan limited liability company (“Modern Apex,” “we,” “us” or “our”), and the business or organization that uses Banana Dialer (“you” or “Customer”). Banana Dialer includes the website, the web workspace, the Banana Dialer Companion browser extension and related services (together, the “Service”).

You accept these Terms when you create or join a workspace, accept an order or invoice for the Service, or use the Service. If you accept on behalf of a business, you confirm that you have authority to bind it. If you use the Service as a sole proprietor, you accept for yourself and your business. If you do not agree, do not use the Service.

The Service is for business use only. It may not be used for personal, family or household purposes. You and each of your users must be at least eighteen years old.

The Acceptable Use Policy is part of these Terms. Any order, invoice or written plan confirmation from Modern Apex (an “Order”) is also part of this agreement. If an Order conflicts with these Terms about price, plan, billing schedule or refunds, the Order controls on that point. Our privacy policy explains how we handle personal information.

2. Beta service

Banana Dialer is offered as an assisted beta. It is still being tested and improved. Features may change, be limited or be removed, and the Service may contain errors. We will try to give reasonable notice of changes that materially reduce the Service you pay for.

The Service helps you organize prospect records, plan call lists, record call notes and outcomes, schedule follow-ups and manage a pipeline. It does not include a phone number, phone service, calling minutes, a text messaging service or an email sending service. Those come from providers you choose.

The product tour and keyboard demo use fictional sample information. They are illustrations, not evidence of any customer result.

3. Accounts, workspaces and roles

Provide accurate account information, keep sign-in credentials confidential and do not share a login between people. Tell us promptly if you believe an account, extension token or connected provider key has been compromised.

Each workspace has an owner. The owner and any administrators the owner appoints control membership, roles, settings, connected provider keys and workspace data. Other users may have sales or view-only access. You are responsible for everything done in your workspace, for the users you invite and for making sure they follow these Terms and the Acceptable Use Policy. A user who joins your workspace acts on behalf of your business, and the workspace owner controls the records that user creates there.

4. How calling works

Banana Dialer is not an automatic telephone dialing system, and it does not place calls. It does not generate random or sequential numbers, dial numbers on its own, dial several numbers at once, connect calls to available agents, leave prerecorded messages, or use artificial or AI-generated voices.

Every call is started by a person on your team who decides to make it. The call runs through the phone or calling service you choose, such as the phone app on your device or Google Voice. The Service may suggest which prospect to work next, but it never starts the call. The optional Banana Dialer Companion extension only enters the selected number into the Google Voice dial pad in your browser. Your user reviews the number and presses Call in Google Voice. The companion never presses Call.

The Service does not record calls. If you record or monitor calls with another tool, you are responsible for giving every notice and obtaining every consent the law requires.

You must not modify, script or automate the Service, the companion extension or a connected calling service so that calls are placed without a person starting each one.

5. Your responsibility for lawful outreach

You are the caller and sender

You decide whom to contact, when, how and what to say. You or your users start every call and send every text and email. You are solely responsible for making sure your outreach, and the outreach of anyone acting for you, complies with every law, regulation and provider rule that applies to it. Modern Apex does not make calls or send messages on your behalf.

Laws that may apply

Depending on whom you contact and how, these include:

• The Telephone Consumer Protection Act (47 U.S.C. 227) and the Federal Communications Commission's rules (including 47 CFR 64.1200 and 64.1601), which cover autodialed calls, prerecorded and artificial voice calls (including AI-generated voices), text messages, consent and its revocation, caller ID and company-specific do not call lists.
• The Federal Trade Commission's Telemarketing Sales Rule (16 CFR Part 310). Many calls to businesses are exempt from parts of it, but its prohibitions on misrepresentations and false or misleading statements still apply to those calls.
• The National Do Not Call Registry and state do not call lists. Calls to businesses are generally outside the federal registry rules, but that exemption is narrow. A number a business lists publicly may be a personal or mixed-use mobile phone that can be treated as residential. You are responsible for deciding whether a number is a business or residential line and for checking the national and state registries when the law requires.
• State telemarketing and telephone solicitation laws, including calling-hour limits, limits on how often the same person may be called, caller disclosures and telemarketer registration or bonding. Federal rules prohibit telephone solicitations to residential subscribers before 8 a.m. or after 9 p.m. in the called party's local time, and several states are stricter. Some end calls at 8 p.m., and at least one limits calls on weekends and holidays.
• Call recording and monitoring laws, including state laws that require the consent of every party to a call.
• Text messaging rules, including consent requirements under the TCPA and state law, carrier and industry messaging guidelines, A2P 10DLC brand and campaign registration for messages sent from standard ten-digit numbers, and your messaging provider's policies.
• The CAN-SPAM Act (15 U.S.C. 7701 and following) and state email laws. CAN-SPAM has no exception for business-to-business email.
• Privacy and data protection laws that apply to the prospect information you collect, import or use.

Your commitments

You represent and agree that you and your users will:

1. Call only during the hours allowed in the recipient's local time, following the strictest rule that applies.
2. Keep an internal do not call list, record every request not to be contacted, honor it promptly (and never later than the law allows) and keep it for as long as the law requires. The workspace do-not-contact list can help you do this.
3. Check the National Do Not Call Registry and applicable state lists when the law requires, and keep proof that you did.
4. Display accurate caller ID for a number you are authorized to use, which can receive calls and do not call requests. Never spoof caller ID.
5. Make no call through or in connection with the Service using an autodialer, a prerecorded voice, an artificial voice or an AI-generated voice.
6. Send text messages only to people who gave the consent the law and your provider require (prior express written consent for marketing texts), only through a registered A2P 10DLC campaign or another method your provider approves, and stop immediately when someone opts out.
7. Send commercial email only in compliance with CAN-SPAM and state law, including accurate sender information, honest subject lines, a valid physical postal address and a working unsubscribe method that you honor.
8. Obtain every consent required before recording or monitoring a call.
9. Keep your own records of consents, opt outs, registry checks and registrations that are sufficient to show your compliance. The Service is not your system of record for compliance.
10. Hold any telemarketer registration, license or bond a state requires for your outreach.
11. Identify yourself and your business truthfully and never misrepresent who you are, what you sell or why you are calling.
12. Train your users on these obligations and the Acceptable Use Policy.

Guardrails are aids, not guarantees

The Service includes compliance aids, such as a default calling window of 8:00 a.m. to 8:00 p.m. in the prospect's estimated local time, stricter windows for some states, a limit on call attempts to the same number within 24 hours, and a workspace do-not-contact list. Local time is estimated from the prospect's state or area code and can be wrong. When the Service cannot determine a prospect's time zone, a user must confirm the local time before calling. Workspace administrators can adjust some settings within limits. These aids depend on the information you and your providers supply, do not cover every law and do not make any call, text or email lawful.

Modern Apex does not provide legal advice, and nothing in the Service or these Terms is legal advice. Consult your own attorney about the rules that apply to your outreach.

Complaints and cooperation

Tell us promptly about any complaint, demand letter, lawsuit, regulator inquiry, or carrier or provider notice about outreach you conducted with the Service. Cooperate with our reasonable requests for information, such as consent and opt-out records, so we can respond. We may share information about your use of the Service with courts, regulators, carriers and providers when the law requires it, to respond to a complaint about your outreach or to protect our rights. You will reimburse our reasonable costs of responding to subpoenas and government requests about your outreach.

6. Connected providers and your own keys

The Service lets you connect your own accounts and API keys for providers such as Google Maps Platform (Places), Anthropic, Twilio and Instantly, and use your own phone or calling service, such as Google Voice (together, “Third-Party Services”). You are that provider's customer. You must accept and follow its terms, policies and pricing, and you pay its charges directly. Modern Apex does not control Third-Party Services and is not responsible for their availability, accuracy, charges, security or changes, or for a provider suspending your account.

You authorize us to use your connected keys to make the requests you direct in the Service. We store connected keys in encrypted form. You are responsible for keeping keys valid and appropriately restricted, rotating a key you believe is compromised, and all usage and charges on your keys.

Built-in business directory

The Service includes a directory of United States business listings from the open data of the Overture Maps Foundation, available under the Community Data License Agreement Permissive 2.0, with some listings under Apache 2.0 or CC0 1.0. It is not a Third-Party Service you connect and needs no key. Prospects you add from it become Customer Data in your workspace and count toward your plan's monthly prospect limit.

Google Maps

Banana Dialer includes Google Maps features and content. Use of Google Maps features and content is subject to the then-current versions of the Google Maps End User Additional Terms of Service and the Google Privacy Policy.

When you use the discovery features with your own Google key, your use is also governed by the Google Maps Platform Terms of Service. You will not use the Service to scrape, bulk download, cache, store, export or reuse Google Maps content beyond what Google's terms permit, to build a listings or directory product, to train or improve machine learning or AI models, or to display Google Maps content on a non-Google map. We may limit, refresh, remove or restrict the export of Google Maps content in your workspace, or suspend Google Maps features, to comply with Google's terms or at Google's request. If you or your users do not comply with Google's terms, we may suspend or end your access to Google Maps features.

Google Voice and other calling services

Google Voice is a Google product. Banana Dialer is not affiliated with, endorsed by or sponsored by Google. Your use of Google Voice is subject to Google's terms and policies, which prohibit automating calls and sending unwanted or mass solicitations. The same applies to any other calling service you use with the Service.

Messaging, email and AI providers

Texts sent through your Twilio account are subject to Twilio's terms, its messaging policy and A2P 10DLC registration requirements. Email sent through your Instantly account is subject to Instantly's terms. AI features send prompts that include prospect details and message text to Anthropic under your own account and Anthropic's terms. AI output can be inaccurate or incomplete. Review it before you rely on it or send it, and never use it to produce prerecorded or synthetic voice calls.

7. Acceptable use

You must follow the Acceptable Use Policy. In addition, you will not, and will not help anyone else to:

• Access another customer's workspace or bypass authentication, role permissions, usage limits or the Service's compliance guardrails.
• Probe, scan or test the security of the Service without our written permission, or interfere with its operation.
• Copy, modify, reverse engineer or create derivative works of the Service, except as the law expressly allows.
• Resell, sublicense, white-label or provide the Service to third parties without a separate written agreement with Modern Apex.
• Upload malicious code, or information you do not have the right to use.

8. Fees, billing, trials and cancellation

Current pricing is shown on the pricing page. During the assisted beta, Modern Apex confirms your plan, price and billing schedule with you before paid access begins, and bills you directly, currently by QuickBooks invoice. Paid access starts after payment is verified. Viewing the tour or requesting access does not authorize any payment. If you agree to recurring billing, it continues under that billing arrangement until it is cancelled.

Charges from Third-Party Services are separate from our fees. Fees do not include taxes unless your Order says so, and you are responsible for applicable taxes other than taxes on our income. We may suspend paid features while an amount is overdue.

We may change our prices for future billing periods by giving the workspace owner at least 30 days' notice by email. A price change does not apply to a period you have already paid for.

We may offer a free trial for a limited period shown in the workspace. A trial does not turn into a paid plan by itself. When it ends, paid features stop until a paid plan is active. Trials are provided as is.

Refund terms, if any, are stated in your Order. Unless your Order or applicable law says otherwise, fees are non-refundable and there are no refunds or credits for partial billing periods. Contact us promptly about any billing error.

To cancel, request cancellation from workspace billing settings or email us. The request is recorded for review. It does not by itself stop a QuickBooks recurring invoice or payment schedule. We confirm the effective date after the actual schedule is stopped, so keep that confirmation with your billing records. Paid features remain available through the recorded paid-through period.

9. Your data

“Customer Data” means the information you and your users submit to or create in the Service, including prospect records, CSV imports, notes, call outcomes, follow-ups, messages and do-not-contact entries. As between you and Modern Apex, you own Customer Data. Content from Third-Party Services, such as Google Maps content, remains subject to that provider's terms.

You represent that you have every right, notice and consent needed to collect, import and use Customer Data, including prospect information from any source, and to let us process it under these Terms. Do not put payment card numbers, bank account numbers, government identification numbers, health information or other sensitive personal information into prospect records, notes or AI prompts.

You grant Modern Apex a non-exclusive, worldwide, royalty-free license to host, copy, process, transmit and display Customer Data only as needed to provide, maintain, secure and support the Service, to prevent misuse, to enforce these Terms and to comply with law. We do not sell Customer Data or use it for advertising. For personal information about prospects in Customer Data, we act as your service provider and process it on your instructions. You are responsible for any notices to, and requests from, those people. If we receive a request about your data, we may forward it to you.

We may use information about how the Service is used, such as feature usage, performance and error information, to operate, secure and improve the Service.

You can export prospect records as a CSV file. Export remains available to authenticated accounts after trial or paid access ends, subject to account security restrictions. Deleting a workspace or account is a separate request from cancellation. We may keep do-not-contact entries needed to keep honoring opt outs, and records we need for billing, security, backups or legal obligations.

We use reasonable safeguards designed to protect Customer Data, but no system is perfectly secure. You are responsible for your users' credentials, devices and connected accounts.

10. Our service and your license

Modern Apex and its licensors own the Service, including its software, designs, scripts, templates, documentation and brand. Subject to these Terms and payment of applicable fees, we grant you a limited, non-exclusive, non-transferable, non-sublicensable and revocable right to use the Service, and to install and use the Banana Dialer Companion extension with it, for your internal business purposes during your trial or paid period. All rights not expressly granted are reserved.

If you give us feedback or suggestions, we may use them without restriction or payment to you.

11. Suspension and termination

You may stop using the Service at any time and cancel as described in section 8.

We may suspend all or part of the Service immediately, including calling, messaging or a connected integration, if we reasonably believe that you or your users have violated these Terms, the Acceptable Use Policy or the law; if we receive a complaint, carrier or provider notice, regulator inquiry or legal demand about your outreach; if your use creates a security, legal or reputational risk for us, our providers or others; if an amount is overdue; or if a law or a provider such as Google requires it. Where appropriate, we will tell you why and restore access once the issue is resolved.

Either party may end this agreement if the other materially breaches it and does not cure the breach within 15 days after written notice. We may end it immediately for a serious or repeated violation of the Acceptable Use Policy or any unlawful use. We may discontinue the Service or the beta by giving at least 30 days' notice, and if we do so for reasons other than your breach, we will refund prepaid fees for the unused part of your paid period.

When this agreement ends, your right to use the Service ends. Unless we ended it for unlawful use or a violation of the Acceptable Use Policy, or the law prohibits it, we will give you a reasonable opportunity to export your prospect records. Sections 5, 6 (as to your obligations), 8 (as to amounts owed), 9, 10 (ownership and feedback) and 12 through 18, and any other terms that by their nature should survive, survive the end of this agreement.

12. Disclaimer of warranties

13. Limitation of liability

These limits apply even if a remedy fails of its essential purpose, and they reflect an allocation of risk that is part of the basis of our pricing.

14. Your indemnity

You will defend, indemnify and hold harmless Modern Apex and its members, managers, officers, employees, contractors and agents from and against any claim, demand, lawsuit, arbitration, investigation or proceeding brought by a third party, including a call, text or email recipient, a putative class, a carrier or provider, or a government authority, and all resulting losses, damages, fines, penalties, settlements, costs and reasonable attorneys' fees, to the extent arising out of or relating to:

• Your or your users' calls, texts, emails and other communications, including claims under the TCPA, the Telemarketing Sales Rule, do not call rules, state telemarketing, texting, recording and email laws and CAN-SPAM.
• Customer Data, including your right to collect, import and use it.
• Your or your users' use of Third-Party Services, including any breach of their terms.
• Your or your users' breach of these Terms or the Acceptable Use Policy, or violation of any law or third-party right.

We will notify you of a claim promptly. A delay in notice relieves you of your obligations only to the extent the delay prejudices your defense. You will control the defense with counsel reasonably acceptable to us, and we may take part with our own counsel at our own expense. You may not settle a claim in a way that imposes any obligation or admission on Modern Apex without our prior written consent.

15. Governing law and venue

These Terms are governed by the laws of the State of Michigan, without regard to its conflict of laws rules. The Federal Arbitration Act governs section 16. Subject to section 16, any dispute arising out of or relating to these Terms or the Service will be brought only in the state courts located in the Michigan county where Modern Apex has its principal place of business, or in the United States District Court for the district that includes that county, and each party consents to personal jurisdiction and venue there.

16. Arbitration and class action waiver

Please read this section carefully. It requires disputes to be resolved by individual arbitration and limits your ability to bring or join a class action.

Informal resolution first

Before starting an arbitration, the party with a dispute will send the other a written notice describing the dispute and the relief requested: to us at nick@modernapexstrategies.com, and to you at the email address of your workspace owner. Both parties will try in good faith to resolve the dispute for 30 days after the notice is sent.

Binding individual arbitration

If the dispute is not resolved, it will be decided by binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules then in effect, before a single arbitrator. If the AAA is unable or unwilling to administer the arbitration, the parties will agree on a substitute administrator, or a court will appoint one. The arbitration will take place in the Michigan county where Modern Apex has its principal place of business, or by videoconference if the arbitrator allows. Fees are allocated under the AAA rules, and each party bears its own attorneys' fees unless the arbitrator awards them under applicable law or these Terms. Judgment on the award may be entered in any court with jurisdiction. Except as stated in the class action waiver below, the arbitrator decides all questions about the scope, interpretation, applicability and enforceability of this section.

Exceptions

Either party may bring an individual claim in small claims court if it qualifies. Either party may ask a court for temporary or injunctive relief to protect its intellectual property, to stop unauthorized access to the Service or to stop unlawful use of the Service, without first arbitrating.

Class action waiver

30-day right to opt out

You may opt out of this arbitration agreement by emailing nick@modernapexstrategies.com within 30 days after you first accept these Terms. If you accepted an earlier version of our terms that did not include this section, you have 30 days after you first accept this version. Include your name, your business name, your workspace and a clear statement that you opt out of arbitration. Opting out does not affect any other part of these Terms, including sections 15 and 17. If we later make a material change to this section, you may reject that change by emailing us within 30 days after it takes effect.

17. Changes to these terms

We may update these Terms. We will post the updated Terms with a new “Last updated” date. For a material change, we will notify the workspace owner by email or in the Service at least 30 days before it takes effect, except that a change required by law or by a provider, or a change for a new feature, may take effect sooner. Continuing to use the Service after a change takes effect means you accept it. If you do not agree, stop using the Service and cancel. A change does not apply to a dispute that arose before it took effect. A change to the price or terms of a paid Order is handled through that Order and section 8.

18. General terms

These Terms, the Acceptable Use Policy and any Order are the entire agreement between you and Modern Apex about the Service and replace any earlier agreement on the same subject. If any provision is found unenforceable, it will be enforced to the maximum extent possible and the rest of these Terms remain in effect. A failure to enforce a provision is not a waiver. You may not assign these Terms without our prior written consent. We may assign them to an affiliate or in connection with a merger, acquisition or sale of assets. Neither party is liable for a delay or failure caused by events beyond its reasonable control, except for payment obligations. The parties are independent contractors, and there are no third-party beneficiaries of these Terms. “Including” means including without limitation.

We may send notices to the email address of your workspace owner or within the Service. You agree to receive communications from us electronically. Notices to us must be sent to the address below.

19. Contact

Modern Apex Strategies LLC operates Banana Dialer. For questions about these Terms, notices, an arbitration opt out, beta access, billing or cancellation, email nick@modernapexstrategies.com.