TERMS AND CONDITIONS OF SERVICE
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF SERVICE ("AGREEMENT") CAREFULLY.
BY UTILIZING (1) ANY SERVICE PROVIDED BY COLD CALLING PLUS, INC., A CALIFORNIA CORPORATION OR (2) ANY SERVICES ACCESSIBLE THROUGH WWW.COLDCALLINGPLUS.COM OR WWW.COLDCALLINGPLUSLOGIN.COM OR (3) ANY SERVICE THAT REDIRECTS, RESOLVES, OR FORWARDS TO WWW.COLDCALLINGPLUSLOGIN.COM (herein referred to as "the Service", "Service", or "Services") YOU AND ANY ENTITY CONTROLLED BY OR RELATED TO YOU AND YOUR OFFICERS, DIRECTORS, REPRESENTATIVES, HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, ASSIGNS, AGENTS, ATTORNEYS, EMPLOYEES, AND CONTRACTORS (herein referred to collectively as "Client") ACKNOWLEDGE, UNDERSTAND, AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS DESCRIBED HEREIN.
IF YOU ARE NOT WILLING TO BE BOUND BY THIS AGREEMENT, OR IF YOU ARE NOT OF AGE, OR OTHERWISE UNABLE BY LAW TO BE A PARTY TO THIS AGREMEENT, DO NOT USE THE SERVICE.
Cold Calling Plus, Inc. its owner(s), affiliates, distributors, resellers, and their respective officers, directors, partners, members, managers, agents, employees, suppliers, representatives, shareholders, and each of their successors and assigns (collectively, "Broadcaster") shall not be liable and are not responsible for any loss or damage Client suffers, or any loss or damages suffered by any party through or under Client, as a result of, or related to, the use, misuse, or abuse of the Service including, but not limited to: any indirect, incidental, special, punitive or consequential damages, resulting from or relating in any way to the use of the Service.
Client will be utilizing the Service to deliver pre-recorded messages by telephone. Client is solely responsible for complying with all applicable laws and regulations regarding the use of pre-recorded telephone messages, whether federal, state, local or otherwise. Client should consult with Client's legal counsel for guidance. Client understands and agrees that Client is not looking to Broadcaster for such guidance.
Client agrees to be responsible for (a) the content of information and communications transmitted using the Service, and (b) the use and publication of communications and/or information using the Service. Client understands and agrees that Broadcaster is only an intermediary for the transmission of Client information, that Broadcaster plays a passive role as a conduit for Client, and that Broadcaster neither initiates the transmission of information, selects the receivers of the transmission, nor selects nor modifies the information contained in the transmission.
In no event shall Broadcaster be liable for the fraudulent or illegal use of the Service by Client or by end-users of Client. Client represents and warrants that Service will not be utilized in a manner that results in violation of any law, rule or regulation. Client bears full responsibility for compliance with all state and federal laws regarding the content of the pre-recorded message(s) used. Client warrants that pre-recorded message(s) used will be in compliance with 47 U.S.C. § 227 or warrants exemption from its requirements. Client understands the Telemarketing Sales Rules ("TSR") as provided by the Federal Trade Commission ("FTC"). Client agrees to maintain its own Subscription Account Number ("SAN") with the FTC if necessary. Client represents and warrants that pre-recorded message(s) used and Caller ID displayed will comply with all legal requirements. Client warrants compliance with the FTC's identification requirements and agrees to maintain a Do-Not-Call policy as required by law. Client warrants pre-recorded message(s) used will not result in, or intended to result in the sale or lease of goods or services to any California consumer in violation of California Civil Code §1770. Client warrants compliance with California Business & Professions Code §17511 et seq. or that Client is exempted from its requirements. Client warrants compliance with all requirements prescribed in California Business & Professions Code §17500.3.
Client acknowledges that Broadcaster has no obligation to screen, preview, or monitor the content of pre-recorded message(s) that Client selects to deliver. Broadcaster shall have the right to display scripts and recordings used by Client as examples to other prospective Clients. Client understands some example messages provided or displayed to Client are not for actual use. Clients selecting any example message for actual use do so at their own risk, on their own initiative and are responsible for compliance with all applicable laws, rules and regulations. Broadcaster may at Broadcaster's discretion disclose to a third party any information it deems necessary to satisfy any applicable law, regulation, legal process, governmental request, or in connection with any investigation, inquiry or complaint regarding Client's use of the Service. Client agrees to maintain the confidentiality of their assigned account number and passcode, and further agree take full responsibility for all activities and transactions that occur under Client's assigned account number(s).
Client agrees to indemnify and hold Broadcaster harmless from any and all claims, losses, damages, actions, demands, penalties, judgments, expenses and costs (including any attorney's fees and expenses) arising out of :
(1) The use, misuse, or abuse of the Service by Client
(2) Infringement of any trademark, patent, copyright, or other intellectual property by Client
(3) Any breach of any covenant contained in this agreement
(4) Any misrepresentation, or breach of any of the representations or warranties of Client contained in this agreement
(5) Any claims by parties other than Client who have use of, or access to the Service through Client, including, but not limited to, Client's End Users
(6) Any claims by third parties for libel, invasion of privacy, or violation of any applicable law due to Client's use, misuse, or abuse of the Service
Broadcaster makes no express or implied representations or warranties about the Service and disclaim any implied warranties, including, but not limited to, warranties of title, implied warranties of merchantability, fitness for a particular purpose, legal compliance, accuracy of data, or non-infringement. Broadcaster does not authorize anyone to make any warranties on Broadcaster's behalf, and Client may not rely on any statement of warranty as a warranty by Broadcaster.
Broadcaster does not warrant that the Service performed will meet Client's requirements, or will operate in the manner desired by Client, or that the Service will be free from unauthorized intrusion. Client acknowledges and accepts that communications and transactions conducted online are not secure, that there may be a system failure that limits Client's accessibility to the Service online and that the Service is not guaranteed to be error free. Client understands that any data processing request(s) will be completed only at the time of the request based on the most current data available at the time of processing. Client acknowledges any data transmitted to, or processed by Broadcaster may be lost, corrupted, destroyed, edited, deleted or contain errors. Broadcaster is not responsible for the loss of any Client data. By using the Service, Client agrees to accept all responsibility and risk associated with the use of the Service online and the internet generally. Client acknowledges that Broadcaster has no control over how its underlying telecommunications provider(s) operate. Client agrees that Broadcaster shall not be liable for any loss or damage sustained due to any failure in or breakdown of the communication facilities or computer applications associated with providing the Service, for any delay, interruption, or degradation of the Service. Service may be temporarily refused, limited, interrupted or curtailed due to system capacity limitations, technology migration, upgrades, repairs, relocations, limitations imposed by Broadcaster's underlying providers, or activities necessary for the operation or improvement of Broadcaster's network. Client acknowledges Service does not include any E911 or related emergency dialing features. Client acknowledges that the service is not intended, nor can it be used, as an outbound telephone replacement. Client agrees to maintain standard access to land-line or mobile telephone service with E911/short digit emergency dialing service.
Service is provided on a "as is" and "as available" basis. Client hereby holds Broadcaster harmless in the event calls cannot be effected for any reason. Broadcaster reserves the right to cancel any scheduled campaign at any time. Should a scheduled campaign be cancelled for any reason by Broadcaster, the limit of liability is the refund of any remaining prepaid balance for that particular campaign. Client agrees the total liability under ANY circumstances of Broadcaster in aggregate hereunder shall not exceed $1,000 (One Thousand US Dollars) or the amount actually paid by the Client under this agreement, whichever is less. Should a scheduled campaign be canceled by Client, no refund will be issued. Client understands and acknowledges Service is a non-refundable, non-returnable, non-exchangeable, non-transferrable, prepaid Service. All purchases are final. Unused balances are non-refundable. Clients who manually disable their account or show no activity for over fifteen (15) days without prior written approval from Broadcaster will forfeit any prepaid balance and are subject to immediate account closure. Broadcaster may discontinue furnishing the Service immediately and Client will forfeit any prepaid balance if Broadcaster deems that such action is necessary to prevent or protect against the misuse of the Service. Misuse of the Service includes, but is not limited to; excessive call termination to a single central office in excess of that location's termination capacity; sequential dialing; excessive incomplete calls; violating any applicable law; using a false identity; attempting to mislead others as to the identity of the sender or origin of the message; impersonating any other person or entity; misrepresenting your affiliation with any other person or entity; disrupting, interfering, or harming others' use of the Service
Broadcaster is hereby expressly authorized to debit Client's bank account via check draft, Automated Clearing House ("ACH") or Electronic Funds Transfer ("EFT") for any unpaid balance. Broadcaster is authorized to process any check payment(s) received as an ACH or EFT. Client agrees to inform their representatives and all callers that calls are recorded. Call Duration ("CD") measurements are calculated based on the difference in time between the receipt of each individual call by Broadcasters' underlying telecommunications provider, and termination of that call with Broadcasters' underlying telecommunications provider billed in one minute (60 second) increments.
This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. This agreement shall be deemed to have been entered into in the State of California.
Broadcaster operates this Web Site from within the State of California. This Web Site can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of California, by accessing this Web Site, Client agrees that these terms and Client's use of the Web Site shall be governed in all respect by the internal substantive laws of the State of California, without regard to conflict of laws provisions and shall not be governed by the United Nations Convention on the International Sale of Goods. Broadcaster makes no representation that materials on this Web Site are appropriate or available for use in other locations, and accessing them from territories where the Content is illegal is prohibited. Those who choose to access this Web Site from other locations do so at their own risk and are responsible for compliance with local laws, including laws regarding the transmission of technical data exported from the United States or the country in which the user resides.
Broadcaster and Client agree to resolve any and all disputes and claims arising out of or relating to this Agreement and/or use of the Service via binding arbitration before a single Arbitrator in Los Angeles, California. This arbitration provision is intended to be interpreted broadly to encompass all disputes or claims arising out of, or related to this Agreement or to the use of the Service whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory. All issues are for the Arbitrator to decide, including the scope of this arbitration clause, but the Arbitrator is bound by the terms of this Agreement. The arbitration shall be governed by the Commercial Dispute Resolution Procedures of the American Arbitration Association. ("AAA"), as modified by this Agreement, and shall be administered by the AAA. The AAA rules are available at www.adr.org. By entering into this Agreement Broadcaster and Client are waiving the right to a trial by jury. All hearings conducted as part of the arbitration shall take place in Los Angeles, California. CLIENT AND BROADCASTER MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, and not as a plaintiff, defendant, or class member in any purported class or representative proceeding. Further, Broadcaster and Client agree that the arbitrator may not consolidate proceedings or more than one individual's or entity's claims, and may nor otherwise preside over any form of a representative or class proceeding. With respect to enforcement of this arbitration provision and in the event the parties for any reason do not proceed with arbitration of any disputes, the parties hereto irrevocably and unconditionally consent to and submit to the jurisdiction of the courts located in Los Angeles, California in either the Superior Court of California, County of Los Angeles or the United States District Court, Central District of California.
Any arbitration shall be confidential, and neither Client nor Broadcaster may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, than the remainder shall still be given full force and effect. In all arbitrations, each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration. All parties to this Agreement are waiving certain rights to litigate disputes in court. If for any reason this arbitration clause is deemed unenforceable, illegal, inapplicable or invalid, all parties waive, to the fullest extent allowed by law, (i) any claims to recover punitive or exemplary damages (ii) Any right to pursue any claims on a class or consolidated basis, or in a representative capacity. (iii) the right to a trial by jury.
If any provision of this Agreement is found, by a court or arbitrator of competent jurisdiction, to be unenforceable, illegal, inapplicable, or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Failure of Broadcaster to exercise any right under this agreement shall not constitute a waiver of such right. All Services, pricing, and other charges due are exclusive of all applicable taxes, including value added tax, sales tax, duties, or levies imposed by any authority, government, or government agency, the payment of which shall be the sole responsibility of Client. This Agreement represents the final, complete, entire, and exclusive agreement with regard to the subject matter hereto. This agreement supersedes and merges all prior offers, agreements, promises, understandings, statements, representations, warranties, indemnities, and inducements to the making of this agreement relied upon by either party, whether written or oral. No waiver of any rights under this Agreement, will be effective unless in writing and signed by Broadcaster and Client. Client may not modify or amend this agreement except by a written instrument signed Broadcaster and Client. Any terms purportedly imposed by any purchase order or other document used by Client shall be void and of no effect. Broadcaster reserves the right to change or modify the Terms and Conditions of Service by posting the revised Terms and Conditions of Service on Broadcaster's Campaign Management Site found at http://www.COLDCALLINGPLUSLOGIN.com/FULL-TermsAndConditions.html. Client expressly agrees to such form of notification of changes and modifications and waives any right to receive individual notices of such changes or modifications. Any changes or modification will be effective immediately upon posting of the revisions. Clients' continued use of the Service following Broadcaster's posting of any changes or modifications will constitute acceptance of such changes or modifications by Client. Client understands the necessity of reviewing the Terms and Conditions of Service whenever using the Service in order to determine if any terms or conditions have changed, and to understand the terms and conditions that apply to the use of the Service by Client. Client may not assign or transfer this Agreement without the prior written consent of Broadcaster. Broadcaster may assign this agreement without consent of Client to any affiliated entity, sister company or successor in interest, whether by merger, reorganization, or transfer.
Unless and until Client obtains the prior signed written consent of Broadcaster, Client shall not (i) refer to Client or its affiliates as an authorized representative of Broadcaster in promotional, advertising or other materials; (ii) use Broadcaster's logo, trademarks, service marks, copyrighted materials, or any variations thereof in any of its promotional, advertising, or other materials, (iii) release public announcements referring to Broadcaster or to this agreement without having first obtained prior written consent of Broadcaster. Broadcaster is hereby expressly authorized to publish any Client provided written testimonial. Broadcaster is hereby expressly authorized to use Client’s name, copyrights, service marks, trademarks, logos or any variations thereof in any of its advertising, promotional, instructional, reference, or sales materials.
Broadcaster and Client are, and shall be deemed to be, independent contractors with respect to the subject matter of this Agreement. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party. No agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship is intended or created as a result of this Agreement.
Client agrees that all notices by Broadcaster to Client shall be considered written and properly given if sent to Client via the email address provided by Client at the time of registration and as necessarily updated by Client. Client shall configure its email system to accept correspondence from Broadcaster's network. Client hereby consents to receive notifications in email format and acknowledges that such format shall not affect the enforceability thereof. Notices to Client shall be deemed to have been received by Client on the next business day following the sending thereof. In the event Client wishes to not receive notices electronically, Client shall inform Broadcaster of such desire and Broadcaster shall terminate the Service immediately without further liability. Client agrees that all notices by Client to Broadcaster shall be in writing, sent via United States Postal Service, certified mail return receipt requested, and addressed to: 861 North Norman Place, Second Floor, Los Angeles, California, 90049-1532. Notices to Broadcaster from Client shall be evidenced only by signed return receipt and shall be deemed to have been received when successfully delivered by the United States Postal Service.
All information and materials published, transmitted, or otherwise available on the Cold Calling Plus website or Campaign Management website(s), is the valuable property of Cold Calling Plus, Inc. and its licensors and is protected by copyright and other intellectual property laws and treaties. Cold Calling Plus, Inc. and its licensors own all right, title and interest in and to all content, including all copyright and other intellectual property rights.
All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, arbitration provisions, warranty disclaimers, limitations of liability, governing law and venue provisions. Termination of Client access to and use of Services shall not relieve Client of any obligations arising or accruing prior to such termination or limit any liability which Client may otherwise have to Broadcaster, including without limitation any indemnification obligations contained herein.
ELECTRONIC PAYMENT ACCEPTANCE AND AUTHORIZATION:
Broadcaster is hereby expressly authorized to initiate Electronic Funds Transfers ("EFTs") in varying amounts to the Bank Account and Routing Number ("Bank Account") provided by Client for fees (debit transactions), and refunds (credit transactions). If an error is made, Broadcaster is authorized to correct the entry. EFTs will be made in compliance with the United States Code of Federal Regulations ("CFR") Section E. Client certifies under the penalty of perjury that they have the authority to accept these terms for the Bank Account provided. The individual consenting to this agreement personally guarantees all obligations and EFTs under this agreement.
REQUIRED LEGAL DISCLOSURES AND WAIVERS FOR ELECTRONIC FUNDS TRANSFERS:
(Confidentiality & Privacy Statement) (12 CFR § 205.7(b)(9)) Bank Account information may only be disclosed to third parties : (i) In order to comply with government agency or court order, (ii) In order to verify the existence and condition of the Bank Account, (iii) When necessary to complete, authorize, or confirm EFTs. If Bank Account Holder(s) have questions regarding EFTs by Broadcaster they may call (12 CFR § 205.7(b)(3)) Monday through Friday 9am to 5pm Pacific Standard Time (Contact Information) (12 CFR § 205.7) Toll free at 800-848-8621. (Documentation) (12 CFR § 205.7(b)(6)) Bank Account Holder(s) will be provided with periodic notifications or statements showing transactions. (Consumer Liability)(12 CFR § 205.7) Bank Account Holder(s) within the limitations prescribed by 12 CFR § 205.6 may be liable for unauthorized EFTs. (Right to stop payment) (12 CFR § 205.10(d)) Bank Account Holder(s) voluntarily waive the right to make a stop payment orally, but retain the right to make stop payments in writing by notifying Cold Calling Plus via Certified Mail Return Receipt Requested at least three business days before the scheduled date of a transfer to 861 North Norman Place, Second Floor, Los Angeles, CA 90049. (12 CFR § 205.10(d) (Right to stop payment) This authorization is to remain in full force and effect until revoked in writing via Certified Mail Return Receipt Requested and Cold Calling Plus has had reasonable time to act upon it. (Mailing Address : 861 Norman Place, Second Floor, Los Angeles, CA 90049) (Notice of Varying Amounts)(12 CFR § 205.10(d)(2) by Range) Bank Account Holder(s) retain the right to be given 10 days notice of EFTs which "vary in amount from the previous transfer", but agree only to be given notice of EFTs which exceed three times the average dollar amount of EFTs initiated by Cold Calling Plus.
The individual party to this agreement on behalf of Client represents and warrants that he/she has the full capacity and authority to enter into this agreement on behalf of Client, and that he/she has taken all steps necessary to obtain and achieve said authority. To the extent that such authority is found wanting by a court or arbitrator, he/she agrees to immediately take all steps necessary to obtain and achieve said authority, and that until he/she does so, he/she will remain personally liable for all obligations contained herein. The individual party to this agreement personally guarantees all payments, debts, obligations, and liabilities incurred under this agreement. Client consents to the receipt of pre-recorded calls by Broadcaster for the collection of any unpaid debts, or publication of any message it deems appropriate to Client. Consent to receive pre-recorded calls is not a condition of purchase. Consent to receive pre-recorded calls may be revolked by sending notice to Broadcaster in writing as set forth in this agreement.
In the event that a court or arbitrator should hold that any of the provision, terms, conditions, disclaimers, limitations of liabilities or remedies available as set forth Agreement, or any portions thereof, are unenforceable for any reason, or that any of the Client's remedies under this Agreement fail of their essential purpose, Client expressly agrees that under no circumstances shall Broadcaster total liability to any party for any cause whatsoever and regardless of the form of action, whether in contract or in tort, including negligence or strict liability, in the aggregate, exceed $1,000 (U.S.).