Important ‑ Read Carefully
By clicking on “Create Account” button or by signing or e‑signing you agree to be legally bound by this Contactability.com ® Terms of Service (the “Agreement”).
This Agreement is made by and between Contactability.com, LLC (“Service Provider” or “Contactability.com”), which owns and operates a Lead Qualification Program; and you, the Company who wishes to use Contactability.com (“User”, “Agent”, “Broker”).
The Terms of this Agreement may be revised from time to time by Contactability.com. User acknowledges that it is User’s responsibility to periodically review this Agreement for any changes. User’s continued use of the Contactability.com website shall serve as User’s acceptance of the applicable terms set forth in this Agreement, including any changes hereto.
Obligations Regarding Services
Service Provider shall receive a copy of User’s leads with information concerning consumers who request rate quotes (“Leads”) through integrations with User’s lead vendors or other mutually agreeable method for delivering leads into Contactability.com, all in accordance with this Agreement and the terms and conditions set forth on the Contactability.com sites.
User shall deliver lists of direct mail Leads for follow-up campaigns scrubbed against National and State DNC databases. Such Leads and any and all information provided with such Leads, including, but not limited to, any personal and contact information regarding such Leads, shall be referred to herein as “Consumer Information”. Service Provider shall maintain confidentiality of such Consumer Information in accordance with all Data Laws.
Service Provider will exercise all due care with respect to all Consumer Information and the collection, handling, delivery, processing and transmission thereof, including, without limitation, with respect to confidentiality and security and any consent or authorization necessary to use such information as contemplated hereby. User’s leads, lead lists, and other information that are associated with a particular account using the service are the property of the holder of that account. Service Provider will comply with all applicable Privacy Laws with respect to their possession and use of any Consumer Information (including, without limitation, the use, unauthorized access, confidentiality and security of Consumer Information (and procedures related to the foregoing)) and all applicable laws regarding email marketing and telemarketing activities.
For each Lead successfully accepted by Contactability.com system, Service Provider will perform the following actions. Pursuant to this Agreement, Service Provider shall (i) attempt to contact each Lead up to 10 times via call center representatives; (ii) once connected to the consumer, verify the consumer’s interest in transferring to User’s dedicated line for purposes of obtaining a rate quote; (iii) warm transfer qualified consumers to User’s dedicated phone number; (iv) provide disposition reporting on every dial attempt made; (v) exercise all due care with respect to such Lead and the collection, handling, delivery, processing and transmission thereof; and (vi) maintain appropriate physical and technical measures to protect such Lead against accidental loss or unauthorized access or destruction.
User shall (i) have available representatives available to pick up inbound calls from Service Provider; (ii) protect all Leads and Lead Information at all times from any wrongful use or disclosure; and (iii) comply with any and all federal, state, local and industry laws, rules, regulations or requirements, including, without limitation, any licensing requirements of the state or states in which the User does business.
Payment Terms: User shall pre-fund their Contactability.com account in the amount of $99.00 which will be applied towards their total monthly invoice. Service Provider shall invoice User monthly for Leads processed by Contactability.com pursuant to this Agreement during the preceding month, in an amount determined in accordance with the fee schedule on displayed Contactability.com and User Portal. User’s credit card will be billed for such amount within 5 days from the date such invoice was sent. All payments required to be made by User to Service Provider pursuant to this Section 3 shall be made by credit card.
Leads are deemed to be delivered to Contactability.com once they are loaded into the User’s account on Contactability.com website or receive a success message at the time of post attempt according to the delivery specifications provided by Service Provider. Service Provider shall not be responsible for (i) any third party lead management or agency management software delivery problems; or (ii) any malfunction or other problems with the email or other notice sent by User’s Lead Vendors.
User agrees that it is responsible for notifying its Lead Vendors and facilitating lead delivery integrations with Contactability.com in accordance with delivery specifications. Non-cooperation by User’s Lead Vendors may result in termination of services.
Termination by User. User must provide Service Provider no less than fifteen (15) business days’ written notice that User wishes to terminate this Agreement. Such written notice shall be given by User in accordance with Service Provider’s reasonable established practice to receive and process such notices.
Termination by Service Provider. Service Provider reserves the right to terminate this Agreement for any or no reason without prior notice.
Final Invoice. Upon termination of this Agreement (i) Service Provider shall prepare and distribute to User a final invoice for all accrued but unpaid fees due to Service Provider as of the date of termination (the “Final Invoice”); (ii) User shall remit the amount of such Final Invoice to Service Provider within 5 days from the date the Final Invoice was sent by Service Provider (the “Due Date”), and (iii) a $30 per day collection fee will be charged to User for every day that the account is not paid in full beginning on the day immediately following the Due Date. In the event User has a positive account balance as of the date of termination, User acknowledges and agrees that such positive balance may be applied towards the purchase of other services from Service Provider, however under no circumstances will such positive balance be refunded to User. In addition, if User does not timely pay any amounts due to Service Provider hereunder, or is determined to have breached any of the covenants or any other provisions of this Agreement, User agrees to pay all expenses and costs, including attorneys' fees, incurred by Service Provider in any proceeding to enforce the covenants or any other provision of this Agreement, including any action for damages or other monetary relief.
Scope of Use
Subject to the terms and conditions of this Agreement, including, without limitation, User’s payment of all applicable fees, Service Provider hereby grants to User a limited, non‑exclusive, royalty-free license, solely during the term of this Agreement, to access and use the Contactability.com sites remotely over the Internet, solely for User’s internal business purposes in connection with its use of the referral services provided by Service Provider under this Agreement and solely using the username and password provided to User by Service Provider. User may not assign, transfer or sub-license the license granted hereunder without Service Provider’s prior written consent. In no event shall User use any trademark, trade name, other use or exploitation of the Contactability.com Sites or any content, code, service mark, icon, logo or other indicator of Service Provider without Service Provider’s advance express written permission.
Service Provider owns, solely and exclusively, all right, title and interest in and to Contactability.com Sites, including, but not limited to, (i) all of the content, code, information, data and other materials thereon, including, but not limited to all copyright, trademark, trade name, service mark, patent, trade secret, database and other intellectual property and proprietary rights inherent therein or appurtenant thereto (the “Website Materials”), and (ii) the design and organization of such Website Materials.
Disclaimers: USER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED HEREUNDER “AS IS” WITH NO WARRANTY WHATSOEVER AND THAT ITS USE OF THE SERVICES IS AT ITS OWN RISK. NEITHER CONTACTABILITY.COM NOR ITS AFFILIATES, LICENSORS OR SUPPLIERS MAKE, AND USER DOES NOT RECEIVE, ANY WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. CONTACTABILITY.COM AND ITS AFFILIATES, LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON‑INFRINGEMENT. CONTACTABILITY.COM IS NOT INVOLVED IN THE ACTUAL TRANSACTIONS BETWEEN USERS AND LEADS. AS A RESULT, CONTACTABILITY.COM HAS NO CONTROL OVER THE QUALITY, SAFETY OR LEGALITY OF APPLICATION DATA SUBMITTED BY LEADS OR THE TRUTH OR ACCURACY THEREOF. BECAUSE USER AUTHENTICATION ON THE INTERNET IS DIFFICULT, CONTACTABILITY.COM CANNOT AND DOES NOT CONFIRM THAT LEADS ARE WHO THEY CLAIM TO BE.
Limitation of Liability: IN NO EVENT SHALL CONTACTABILITY.COM, ITS AFFILIATES, OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS OR EMPLOYEES BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST REVENUE, LOST PROFITS OR ANTICIPATED BUSINESS (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT, THE SUBJECT MATTER HEREOF OR THE CONTACTABILITY.COM SITES OR SERVICES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM INFORMATION PROVIDED BY, TO OR THROUGH CONTACTABILITY.COM, OR ANY OTHER DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, TORT (INCLUDING NEGLIGENCE), CONTRACT (INCLUDING BREACH) OR OTHERWISE. THE AGGREGATE LIABILITY OF CONTACTABILITY.COM, ITS AFFILIATES, OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS AND EMPLOYEES, FOR ANY OTHER DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SUBJECT MATTER HEREOF, OR THE CONTACTABILITY.COM SITES OR SERVICES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY SHALL NOT EXCEED THE AMOUNTS RECEIVED BY CONTACTABILITY.COM FROM USER PURSUANT TO THIS AGREEMENT DURING THE CALENDAR QUARTER DURING WHICH SUCH CLAIM(S) ACCRUED.
User agrees to indemnify Service Provider against, and agrees to defend and hold Service Provider and its respective affiliates, associates, successors and assigns (the “Service Provider Indemnified Parties”) harmless from and against all liability, loss, cost or expense, including reasonable attorneys’ fees, expenses and costs of litigation (hereinafter referred to collectively as “Damages”), which any Service Provider Indemnified Party may sustain by reason of any of the following: (i) any claim by a Lead arising out of a dispute by and between such Lead and User; (ii) User’s use or misuse of an Contactability.com Site; (iii) the performance by User of its obligations under this Agreement; (iv) any breach of or inaccuracy of any representation or warranty of User in this Agreement; or (v) any breach of or failure by User to perform any covenant or obligation of Affiliate set out in this Agreement.
In the event Service Provider wishes to make a claim for indemnification under this Section, Service Provider (the “Asserting Party”) must notify User (the “Defending Party”) of the nature and basis of such claim for indemnification in writing and in reasonable detail as soon as reasonably practicable after becoming aware of the events giving rise to the claim; provided that the failure of the Asserting Party to promptly give notice shall not relieve the Defending Party of its obligations except to the extent, if any, that the Defending Party shall have been prejudiced thereby.
If the Defending Party does not object in writing to such indemnification claim within 30 days of receiving notice thereof (60 days if the Defending Party is outside of the United States), the Asserting Party shall be entitled to recover from the Defending Party the amount of such claim; if the Defending Party agrees that it has an indemnification obligation but asserts that it is obligated to pay only a lesser amount, the Asserting Party shall nevertheless be entitled to recover from the Defending Party the lesser amount, without prejudice to the Asserting Party’s claim for the difference.
If the Defending Party objects in writing to such indemnification claim within 30 days of receiving notice thereof (60 days if the Defending Party is outside of the United States), the validity of the indemnification claim and the extent of the Defending Party’s liability therefor, shall be determined by a court of appropriate jurisdiction.
If such claim relates to a claim, suit, litigation, or other action by a third party against the Asserting Party or any fixed or contingent liability to a third party (a “Third Party Claim”), the Defending Party shall have the right to assume and control the defense of such Third Party Claim at its own expense, provided, however, the Asserting Party shall have the right to reasonably participate in the defense of the Third Party Claim at its own expense with counsel selected by the Asserting Party. Participation in such defense shall not be deemed an admission of liability as against any such third party. The Defending Party shall have the right to settle any Third Party Claim with the prior written consent of the Asserting Party, which will not be unreasonably withheld.
Notice: All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to Service Provider at the address set forth above and to User at the address set forth on the signature page hereto (or at such other address for a party as shall be specified in a notice given in accordance with this Section e).
Further Assurances: Each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated hereby.
Cooperation: The parties shall cooperate and work expeditiously to resolve any accounting discrepancies, technology issues, integration issues or other concerns that arise under this Agreement.
Relationship of the Parties: The parties are independent contractors, and nothing in this Agreement will create any other relationship between the parties including, but not limited to, any partnership, joint venture, franchise, sales representative, or employment relationship, or the relationship between principle and User.
Headings: The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Severability: If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Amendment and Modifications: This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.
Waiver: No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Assignment: User may not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of Service Provider.
Successors and Assigns: This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
No Third-Party Beneficiaries: This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Choice of Law: All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Ohio.
Any dispute, controversy or claim arising out of, relating to, or in connection with, this Agreement or any breach, termination or validity thereof (a “Dispute”) shall be finally settled by arbitration. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect at the time of the arbitration, except as they may be modified herein or by mutual agreement of the parties. The seat of the arbitration shall be Columbus, Ohio.
The arbitration shall be conducted by three arbitrators. The party initiating arbitration (the “Claimant”) shall appoint its arbitrator in its request for arbitration (a “Request”). The other party (the “Respondent”) shall appoint its arbitrator within 30 days of receipt of the Request and shall notify the Claimant of such appointment in writing. If the Respondent fails to appoint an arbitrator within such 30 day period, the arbitrator named in the Request shall decide the Dispute as the sole arbitrator. Otherwise, the two arbitrators appointed by the parties shall appoint a third arbitrator within 30 days after the Respondent has notified the Claimant of the appointment of the Respondent's arbitrator. When the arbitrators appointed by the parties have appointed a third arbitrator and the third arbitrator has accepted the appointment, the two arbitrators shall promptly notify the parties of such appointment. If the two arbitrators appointed by the parties fail or are unable to appoint a third arbitrator or to notify the parties of such appointment, then the third arbitrator shall be appointed by the President of the American Arbitration Association which shall promptly notify the parties of the appointment of the third arbitrator. The third arbitrator shall act as chairman of the panel.
The arbitration award shall be in writing and shall be final and binding on the parties. Judgment upon award may be entered by any court having jurisdiction thereof or having jurisdiction over the parties or their assets.
Counterpart Execution: This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
309 S. 4th Street, Suite 412
Columbus, OH 43215