TCPA Litigator List Agreement for Services Terms and Conditions
- Terms and Conditions
Conditions (“Terms”), together with the attached Order Form, which is incorporated herein by this reference, shall govern the relationship and be considered between ___________ (“Client”) and Blindbid, Inc DBA TCPA Litigator List (TLL) regarding the services (“Services”) that TLL shall provide to Client as set forth in the Order Form. Any aspect of the Services not covered in these Terms shall be set forth in a mutually executed addendum to these Terms addressing the particular selected Services. In the event of a conflict between these Terms addendum shall govern, but only to the extent necessary to address such conflict. In all other respects, relationship of the parties relating to the Services.
- Client Data: The follow provisions shall apply to Services that require Client to provide raw telephone numbers to TLL as required by TLL from Client in order for TLL to provide the selected Services (the “Client Data”)
2.1 Client (or Client’s authorized agents as described in Section 3 hereof) shall deliver the
Client Data by electronic transmission, such as
upload via web browser, email, or ftp, (the “TLL
Site”) applicable databases selected in the Order Form using TLL’s proprietary software and create an output file (“Scrubbed File”) for Client that may be accessible as follows:
(a) Client Uploads Client Data to the TLL Website and is able to view the Scrubbed File
at the TLL Website.
2.2 TLL may change the methond by which Client Data is uploaded and Scrubbed Files are
sent to Client upon notice to and approval by Client, which approval shall not be unreasonably
withheld. All Client Data and Client’s custom lists must be delivered to TLL in a reasonable and
mutually agreed upon standard format. Client acknowledges that only telephone numbers will
be merging and purging against Do Not Call lists
(including any Client internal Do Not Call lists
maintained by TLL).
- Authorized Users and Uploaded Client Data.
3.1 Only Client and Client’s authorized employees and agents working on the Client’s behalf shall be permitted to upload client data for processing by TLL and log in to any of the TLL sites for access to any services provided by TLL.
3.2 The services provided by TLL may only be utilized by the number of users and type of authorized users set as forth in the order form. Client shall be responsible for enabling and maintaining passwords, selecting users qualified to access the TLL site, and distributing passwords to the users. Client and each authorized user shall use their best and commercially reasonable efforts to prevent any third party from obtaining a password, and Client shall inform TLL immediately of any actual and potential unauthorized access.
3.3 Client shall be responsible for maintaining all hardware and software necessary to send
Client Data to TLL and receive Scrubbed Files from TLL, including without limitation, computers, modems, internet service provider contracts providing access to the TLL Website, all
necessary email accounts of Client, and any software necessary to transmit or receive Client
Data and Scrubbed Files.
- Availability, Downtime
4.1 Availability. Access to the TLL site and services shall be available to Client twenty-four (24) hours per day, seven (7) days per week,during the Term of these Terms except for one percent (1%) or less of the time during anycalendarmaintenance and majortime as discussed below in this paragraph 5).
Clientpercent (1%) down-time shall be acceptable for purposes of these Terms and shall not constitute
a breach hereof.
4.2 Scheduled Maintenance. The TLL site and Service may not be available: (i) on a monthly basis for scheduled maintenance on the second Sunday of the month from 12:01 a.m., until 11:59p.m., Savings time (24 hours); and (ii) once per year for a 24 hour period for major maintenance and upgrades. Client will be informed at least 48 hours in advance of any 24 hour system shut- down by email.
- Price and Terms of Payment.
5.1 Fees. Clients shall pay TLL the initial set up fee and total monthly charge for Client’s
selected Services, as set forth in the Order Form. Client shall pay the initial set-up fee, if applicable,
and first monthly fee in advance either by credit card, check, or check draft. Client will also pay TLL
any overage fee as set forth in the Order Form or overage schedule to these Terms. The set-up fee
and all annually paid advance fees are non-refundable.
5.2 Invoices. One month following receipt by TLL
of the initial set-up fee, if applicable, and monthly charge (and each subsequent month
thereafter for the term of these Terms), TLL shall send Client an invoice for the Services to be
provided by TLL for the coming month. Any overage fee or credit due Client as described
under the terms of the Services selected by Client for Services provided in the prior month shall be
charged or credited to Client at the same time as the monthly charge for services that are to be
provided by TLL in the coming month.
5.3 Recurring Payment
The Client’s credit card on file will be charged on a monthly basis until the client terminates his subscription.
5.4 Feesdue regardless of use It is expressly understood by the parties that TLL’s duty pursuant to this agreement is to make the services available to Client during the Term of this Agreement. If Client chooses not to use said services, after TLL has made them available, Client shall nonetheless be liable for all fees described in Section 6.1, regardless of whether Client made use of such Services.
Client’s Right to Use State and Federal Do Not Call Lists
6.1 Compliance with DNC Laws. Client warrants and represents that Client and Client’s customers on behalf of whom Client will submit telephone hereunder have reviewed, understand, and will comply with: (i) the Federal Trade Commission’s amended Telemarketing Sales Rule (16 C.F.R. Part 310); the (ii) the Telephone Consumer Protection Act (“TCPA”) of 1991 (47 C.F.R. §64.1200); and (iii) Commission’s implementing or relating to the TCPA or the National Do Not Call Registry (“DNC Registry”). Client further warrants and represents that it will use data derived from the DNC Registry solely to comply with said rules and otherwise prevent telephone calls to telephone numbers on the DNC Registry.
6.2 Rights to Access. Client warrants and represents that Client has the right to access and process data necessary contained jurisdiction in which telephone numbers that it submits to TLL are located, or in each jurisdiction rom which federal or state Do Not Call list data is obtained from TLL. Client shall not submit any telephone number to TLL or download any DNC Registry Data from TLL until Client has purchased access to the DNC Registry for the area code in which the telephone number is located. TLL shall have no obligation to perform its obligations under these Terms until Client has provided a DNC Registry Subscription Account Number and password for Client and each of Client’s customers on behalf of whom Client will submit telephone numbers to TLL for scrubbing.
6.3 Assignment to TLL. To the extent allowed by law, Client hereby assigns Client’s rights to access and process the data on the DNC Registries to TLL for purposes of allowing TLL to perform its Obligations assignment shall not restrict Client from accessing such lists itself. Client shall immediately notify TLL if Client loses its right to access and process the data contained on the aforementioned DNC Registries. Client shall provide TLL with any information and documentation that TLL deems necessary to prove that Client has obtained the right to access and process data from applicable DNC Registries and TLL shall have no obligation to perform its obligations under these Terms until Client has provided such information and documentation.
- Term and Termination
The initial term of this Agreement shall be (1) month from the date on the order submission (“Initial Term”). Unless otherwise noted on an Order Form, after the Initial Term, provided neither party has terminated, this Agreement shall automatically renew for additional one (1) month terms (each an “Additional Term”). Either party may terminate this Agreement during the Initial Term, or any Additional Term, by providing 30 days written termination notice to the other Party. In the event of termination by either party, Client will be responsible to pay for the fees due hereunder for the final 30 days of the Term. The Initial Term, together with the Additional Terms, shall be considered the “Term.”
- TLL Marks and Property
Any use of the TLL marks is strictly prohibited without express written permission of TLL.
8.1 Restrictions on Use of TLL Property Client does not have the right to use (except as specifically authorized under these Terms), doesnot own, and does not acquire under these Terms: (i) the TLL Services; (ii) the concept of theServices; (iii) the materials developed therewithincluding all software necessary to provide each Service; (iv) any proprietary information of TLL concerning the Services; or (v) any trade secretsof TLL (collectively, “TLL Property”). Without limitation of the foregoing, Client shall not engagein any unfair competition with regard to TLL Property including but not limited to: (i) use of any proprietary information of TLL, (ii) use of any concept developled by TLL and described on the TLL site; or (iii) use of any material provided by the TLL in connection therewith, for any purpose other than as specifically authorized under these Terms. Client may not modify, copy, reproduce, republish, upload, post, transmit, or distribute, in any manner, TLL property, the material on the TLL site, including text, graphics, code and/or software. Additionally, Neither the client nor any of the client’s owners, officers, directors, employees, agents or affiliates shall compete, or intentionally cause or allow for competition, with TLL, including without limitation by selling suppression services or data in any way similar to those sold by TLL.
- Relationship of the Parties
The relationship of the parties shall be that of independent contractors. Nothing contained herein shall constitute a partnership among or joint venture by the parties. Neither party has, nor shall hold itself out as having, any authority to enter into any contract or create any obligation, whether express or implied, on behalf of the other except as expressly provided herein.
- Representations and Warranties.
10.1 Client Representations and Warranties
Client hereby represents and warrants that: (i) it has the right and power to enter into thisAgreement; (ii)its execution and performance of this Agreement will not violate or conflict with any contract, agreementor joint venture to or in which it is a party; (iii) the Client Data will not infringe upon or violate anycopyrights, trademarks rights, patent rights, trade secret rights or any rights of privacy or publicity orother proprietary rights of any third party; and (iv) it shall at all times conduct its business and use the TLL Services in compliance with all Applicable Laws.Client agrees to provide TLL, the from time to time to time during the Term and at TLL’s request,with reasonable assurances and evidence of Client’scompliance with Applicable Laws and any implementing regulations of any such law that are in effect at the time of such request.
10.2 TLL Representations and Warranties
TLL warrants that: (i) it has full power to enter into these terms; (ii) the services will substantially conform to the specifications set forth herein; and (iii) TLL will take reasonablesteps designed to secure its systems and software against unlawful and unauthorized penetration.
10.3 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TLL MAKES NOREPRESENTATIONS OR WARRANTIES AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES (TO THE EXTENT PERMITTED BY LAW) WITH RESPECT TO THE SITE AND THESERVICES PROVIDED BY TLL AS DESCRIBED HEREIN, INCLUDING, WITHOUT LIMITATION, (A)THAT COMMUNICATIONS VIA THE INTERNET ARE SUBJECT TO UNEXPECTED OUTAGES DUETO THE EQUIPMENT FAILURE OR SOFTWARE FAILURE THAT CAN OCCUR AT VAROUS LOCATIONS, AND (B) THE ACCURRACY AND TIMELINESS OF THE TLL SERVICES. CLIENT FURHTER ACKNOWLEDGES THE POTENTIAL FOR ANY INTERNET-BASED SYTEM TO BE PENETRATED UNLAWFULLY FOR THE PURPOSE OF THEFT OR DAMAGE OF MATERIAL. THEWARRANTIES IN THIS SECTION 11 ARE THESOLEWARRANTIES GIVEN BY TLL WITH RESPECT TO THE SERVICES PROVIDED BY TLL UNDER THESE TERMS AND ARE GIVEN IN LIEU OF ALL OTHER RESPECT TO THE SERVICES PROVIDED BY TLL UNDER THESE TERMS AND ARE GIVEN IN LIEUOF ALL OTHER WARRANTIES, EXPRESSED ORIMPLIED,INCLUDING, BUT NOT LIMITED TO, THE IMPLIEDWARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ANY AND ALL OTHER WARRANTIES OR ANY KIND WHATSOEVER ARE EXPRESSED EXCLUDED.
IN CONNECTION WITH CLIENT’S USE OF THE SERVICES AND THE RESULTS THEREOF, TLLADVISES CLIENT AND CLIENT ACKNOWLEDGES ITS RESPONSIBILITY TO SEEK THE ADVICE OFEXPERIENCED LEGAL COUNSEL PRIOR TO USING THE SERVICES AND SCRUBBED FILES.
- Limitation of Liability.
ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH CLIENT IS PAYING TO TLL FOR THE SERVICES DOES NOT INCLUDE ANYCONSIDERATION FOR ASSUMPTION BY TLL OF THE RISK OF CLIENT’S CONSEQUENTIAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH THE SERVICES PROVIDED BY TLL UNDER THESE TERMS EXCEPT AS SPECIFICALLY PROVIDED HEREIN. ACCORDINGLY, CLIENT AGREES THAT TLL SHALL NOT BE RESPONSIBLE TO CLIENT FOR ANY LOSS OF PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARRISING OUT OF THE SERVICES PROVIDED BY TLL UNDER THESE TERMS EXCEPT SPECIFICALLY PROVIDED HEREIN, FURTHER, TLL’S TOTAL LIABLITY TO THE CLIENT SHALL IN NO EVEN EXCEED THE SUBSCRIPTION FEE PAID BY THE CLIENT TO TLL IN THE PRECEDING MONTH.
13.1 Indemnity Obligation. Each of TLL and Client (each a “Party” and/or “Indemnifying Party”) agrees to indemnify, defend and hold harmless each other and its affiliates, directors, officers, employees and agents, members and managers(“indemnified parties”) from and against any and all damages, losses, liabilities judgments, awards, penalties and reasonable expenses, including without limitation, reasonable out-of-pocket attorneys’ fees and costs of defense (together “Losses”) incurred as a result of any claim, demand, proceeding or litigation asserted by a prospective customer, customer or other person arising out of this Agreement or based on a claimed breach or violation of, (a) in the case of the Client, its representations, warranties, duties or obligations to such prospective customer, customer or other person under the contract, or (b) in the case of TLL, TLL’s representations, warranties, duties or obligations of TLL to such prospective customer, customer or other person.
13.2. By agreeing to these terms and conditions, the client is giving in effect his express written consent to be contacted by TLL and its third-party partners by mobile phone, landline, text, fax and email.
- Additional Compliance Solutions
This section shall apply to the Client’s use of TLL’s TCPA Litigator List Download, Phone Scrub, Number Search, and TCPA Litigator List Updates.
14.1 TCPA Litigator List Download is a service provided on the clients account to download the current TCPA Litigator list, which includes the TCPA Litigators’ phone numbers and Do Not Call Complainers.
14.2 Phone Scrub: TLL maintains an online TCPA Litigator phone scrub for Excel and CSV files. The client may upload a list of phone numbers to the phone scrub program in his account. The TPCA Litigator Phone Scrub is designed to identify and remove from the Client’s calling list most of if not all the known telephone numbers associated with prior TCPA plaintiffs.
14.3 Number Search: TLL maintains an online TCPA Litigator number search for single phone number lookups. The Number Search is designed to identify from the Client’s calling list most of if not all the known telephone numbers associated with prior TCPA plaintiffs.
14.4 TCPA Litigator List Updates: There are over 300 TCPA cases filed monthly. TLL adds the new TCPA plaintiffs’ numbers as they are made available. Many professional TCPA litigators register new phone numbers. TLL monitors for newly registered TPCA professional litigators’ phone numbers. TLL updates the site with new phone numbers on a periodic basis several times a month if not daily, TLL adds additional TCPA plaintiffs’ numbers. The client may access the TCPA Litigator List updates from his account.
14.5 Disclaimer: TLL strives to provide an accurate and comprehensive TPCA Litigator list and scrubbing service. Due to the nature of the professional litigators, the TCPA statue and the fact that any one can decide to sue under the TCPA for a single phone call, the actual success of the TCPA Litigator list and scrubbing will vary and depend on a variety of factors, many of which are beyond the control of TLL and its data sources. As such, the TCPA Litigator list and Scrubbing services alone will not recognized all reassigned numbers, numbers assigned to VoIP lines, or numbers used by TCPA plaintiffs. TLL disclaims any warranty, express or implied, as to the TCPA Litigator List and scrubbing services as being 100% accurate or comprehensive or that will in any way prevent the client from being sued by any company or individual. The client agrees to use the TCPA Litigator services in a defensive manner to avoid litigation and not to use the list and scrubbing services in a malicious manner.
15. Notices– Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and shall be sent by United States certified mail and shall be addressed to the person accepting the contract at the address noted on this contract.
- A) The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, expressed or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
- B) This Agreement shall be governed in all respects and construed in accordance with the laws of the state of Colorado, without regard for conflict of laws principles. The parties agree that they will bring any lawsuit based upon this agreement in the El Paso County, Colorado. You consent to the exclusive jurisdiction and the exclusive venue of the State Courts or Federal Courts of the State of Colorado, El Paso County, to resolve any dispute between them related hereto, and the parties waive all rights to contest this exclusive jurisdiction and venue of such Courts. If any provision of this Agreement shall be deemed invalid or unenforceable, this Agreement shall be construed as though such provision does not appear herein and shall be otherwise fully enforceable.
- C) TLL Litigator scrubbing services may be cancelled or delayed due to circumstances beyond either party’s control (such as acts of God, equipment failures, etc.) without penalty to either party.
- D) This contract contains the entire Agreement between the parties hereto and supersedes any prior Agreement between the parties. Any changes to this Agreement must be made in writing and mutually agreed by the parties to this Agreement.
E.) This Agreement may be executed in two or more counterparts each of which shall be deemed an original but all of which together shall constitute one and the same instrument. This Agreement may also be executed through electronic means such as e-mail with electronic signature or by facsimile reproduction.