Terms and Conditions
This AGREEMENT is between S2L International, Inc. (hereinafter referred to as “S2L”) located at 434 West Cedar Street, 4th Floor, San Diego, CA 92101 and the person or entity accepting this Agreement on the terms contained herein (hereinafter referred to as “Client”).
In the event that there is a change in name or address of S2L or the Client, the other party will be notified in writing as soon as possible of such change. Whereas: The Client has requested S2L to provide the S2L Automated Lead Response Management System (the “Services or System”); S2L has agreed to provide the Services on the terms and conditions hereinafter set out; NOW THEREFORE IN CONSIDERATION of the Mutual Covenants and Agreements hereinafter contained the Parties hereto agree as follows:
S2L PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CLIENT ACCEPTS AND COMPLIES WITH THEM. BY ACCEPTING THESE TERMS AND CONDITIONS, CLIENT (A) ACCEPTS THIS AGREEMENT AND AGREES THAT CLIENT IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) CLIENT IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT]; AND (II) IF CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, THE PERSON ACCEPTING THIS AGREEMENT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS. IF CLIENT DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, S2L WILL NOT AND DOES NOT LICENSE THE SERVICES TO CLIENT AND CLIENT MUST NOT USE THE SERVICES.
1. LICENSE GRANT AND SCOPE
Subject to and conditioned upon Client’s payment of fees, Client’s strict compliance with all terms and conditions set forth in this Agreement, S2L hereby grants to Client a non-exclusive, non- transferable, non-sublicensable, limited license during the Term to use the Services.
2. SERVICE AND SUPPORT
Subject to the terms and conditions of this Agreement, S2L will use reasonable efforts to provide the Services and to provide Client with support services, through electronic mail or telephone, in accordance with S2L’s standard practice. Client shall be responsible for obtaining and maintaining any computer and phone equipment (and the like) and ancillary systems needed to use the Services (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords and files, and for all uses of Client account or the Equipment. S2L has no obligation to provide support services if Client is in breach under this Agreement or if Client has modified the Services without prior authorization of S2L.S2L reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to maintain or enhance the quality of Services, the competitive strength of the Services, or the Services’ cost efficiency or performance, or to comply with applicable law.
The installation (“Installation”) shall be defined as the preparation and set up of the S2L’s Automated Lead Response Management System for use in a production environment. The date in which the System has been installed is the installation date (“Installation Date”). The period of time between the Agreement Close Date and the Installation Date for a System purchased shall be known as the installation period (“Installation Period”) and shall not exceed forty-five (45) calendar days. At S2L discretion, any Installation Period that exceeds forty- five (45) calendar days due to client’s inability to respond to S2L requests for information or changes may result in the commencement of billing for the Service regardless of Installation status, provided written notice has been given to client (which may be sent by email).
4. TERM AND TERMINATION
The term of this Agreement (“Term”) is month to month.Either party shall have the option to terminate this entire Agreement, or to cancel any Service(s) purchased under this Agreement, by providing the other party with thirty (30) days written notice (which can be by electronic mail) of its intent to so terminate. Client will pay in full for the Services up to and including the last day on which the Services are provided. Otherwise, the Agreement, including any modifications or revisions to it, shall continue in full force and effect until sixty (60) days after such written notice of termination is received by S2L. In addition to any other remedies they may have, either party may provide thirty (30) days’ written notice of breach by the other party, provided the notice sets forth the breach. The breaching party will have ten (10) days to cure the breach. If the breach or any portion thereof is not timely cured, the Agreement will terminate at the end of the thirty (30) day period. However, the non- breaching party has the option to waive the breach or any portion thereof, by providing written notice of the waiver fifteen (15) days prior to the expiration of the thirty (30) day period. Upon any termination, S2L will maintain Client’s archived data for up to thirty (30) days, and, upon request, will deliver such archived data to Client in a mutually agreed upon format (at Client’s expense); thereafter, S2L may, but is not obligated to, delete archived data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
5. SUSPENSION OF SERVICES
S2L may suspend, terminate or otherwise deny Client’s access to or use of all or any part of the Services without incurring any resulting obligation or liability, if: (a) S2L receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires S2L to do so; or (b) S2L believes, in its reasonable discretion, that: (i) Client has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Client has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of S2L’s other rights or remedies, whether at law, in equity or under this Agreement.
6. PAYMENT OF FEES
For the most up-to-date pricing, please go to http://www.speak2leads.com. We reserve the right to modify the prices charged for the Plans, or to add or remove any Plans from the Site at any time without prior notice to you. Price quotes provided to you prior to any price modification shall be honored.
S2L offers Plans for lead response-related services. All Plans are billed on the last day of the month for all lead-related fees incurred during the month or any part thereof (the “Billing Cycle”).
For all Plans, Client will pay a fee of $1.50 per lead. If Client does not process a minimum of 100 (one-hundred) leads during the Billing Cycle, there will be a minimum fee of $150.00 due for that particular Billing Cycle. These prices are only applicable to outbound calls from the United States and Canada. Different rates may apply to outbound calls from other countries or to particular area codes within other countries.
Client acknowledges that the fees for services are billed in arrears every 30 days for usage. S2L reserves the right to change the Fees or applicable charges and to institute new charges and fees upon thirty (30) days prior notice to Client (which may be sent by email). S2L may choose to bill through an invoice or credit card. When billing by credit card, the charges will be applied on or about the 5th of the following month. When billing by invoice full payment for invoices issued in any given month must be received by S2L twenty (20) days after issue date of the invoice, or the Services may be terminated. If invoice is not paid within a 5 day grace period after the due date, Client’s credit card will be charged for amount due. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Client shall be responsible for all taxes associated with Services other than U.S. taxes based on S2L’s net income. S2L or its agents may, with fifteen (15) days’ notice, audit Client’s records to verify Client’s compliance with the payment provisions of this Agreement. Client shall promptly remedy any underpayments, and if an audit indicates an underpayment of five percent (5%) or more of any amounts due hereunder or other non- monetary noncompliance, Client will promptly reimburse S2L for the reasonable cost of the audit. Such rights will remain in effect through a period ending one year from the termination of this Agreement. In the event of non payment, S2L reserves the right to suspend and/or terminate service without notice. Upon reinstatement of service, a $50.00 re-activation fee will be applied to account.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law. Notwithstanding the foregoing, S2L may (i) collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance, and (ii) list Client as a Client of the Services in S2L’s marketing materials. However, as to any of Client’s Clients or clients, S2L shall not do any of the following: (i) identify any of them in any marketing materials, (ii) disclose their identity to any third party, (iii) disclose their relationship with Client to any third party, (iv) use or allow any third party to use or access information that is available through S2L’s services, operations, accounts, records or archived data; or (v) solicit them directly or indirectly for any Services that are the subject matter of this Agreement or for any other service that S2L may provide, during the duration of this Agreement and for a period of one (1) year following the termination of this Agreement. Client agrees that if S2L is served with any subpoena or civil investigative demand requesting information about Client, S2L may, without any notice to Client, promptly disclose the requested information in an attempt to fully comply with the demand; S2L shall have no obligation to object to said demand.
8. COLLECTION AND USE OF INFORMATION
Notwithstanding anything contained herein to the contrary, Client acknowledges that S2L may collect and store information regarding use of the Services and about equipment on which the Services are installed or provided or through which it otherwise is accessed and used, though: (i) the provision of maintenance and support services and (ii) through security measures included within the Services. Client agrees that S2L may use such information for any purpose related to any use of the Services by Client or on Client’s equipment, including but not limited to improving the performance of the Services, verifying Client’s compliance with this Agreement, and enforcing S2L’s rights in the Services.
S2L will employ security measures in accordance with applicable industry practice. Client has and will retain sole responsibility for: (a) all Client data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Client in connection with the Services; (c) Client’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks; (d) the security and use of Client’s access credentials; and (e) all access to and use of the Services by or through Client Systems, with or without Client’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. Client shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Client data.
10. INTELLECTUAL PROPERTY RIGHTS
Client acknowledges and agrees that the Services are provided under license, and not sold, to Client. Client does not acquire any ownership interest in the Services, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. S2L reserves and shall retain its entire right, title, and interest in and to the Services and all Intellectual Property Rights arising out of or relating to the Services, except as expressly granted to Client in this Agreement.
11. RESTRICTIONS AND RESPONSIBILITIES
Client will not (and will not allow any third party to), directly or indirectly: reverse engineer, decompile or disassemble the Services or any software, documentation or data related to the Services (collectively, “Software”); modify or create derivative works based on the Services or any Software; or copy (except for archival purposes), lease, distribute or otherwise transfer rights to the Services or any Software; or remove any proprietary notices or labels. To the greatest extent allowable under the law, Client hereby agrees to indemnify and hold harmless S2L, along with its owners, officers, directors, members, employees, agents, affiliates and contractors, from and against any claims, suits, damages, losses, liabilities, fines, judgments, settlements and expenses (including without limitation all court costs, witness fees and attorneys’ fees) arising from or in connection with any actual or alleged violation of the law or of the terms of this Agreement by Client or related in any way to Client’s use of Services. Although S2L has no obligation to monitor the content provided by Client or Client’s use of the Services, S2L may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
12. WARRANTY AND DISCLAIMER
Client is required to use the Services in full compliance with all applicable laws and regulations, including without limitation, all state, federal and international: (1) Do-Not-Call list prohibitions; (2) telemarketer licensing and bonding requirements; (3) consumer cancellation rights; (4) mandatory disclosures; (5) cell phone restrictions; (6) auto dialer and pre-recorded message restrictions; and (7) internal DNC/opt-out rules; By making any use of the Services, Client expressly warrants that Client is and shall continue to act in full compliance with the law. All S2L offers are void where prohibited by law. Client agrees that Client has read and understands the FTC’s Telemarketing Sales Rule (“TSR”) and the FCC’s Telephone Consumer Protection Act (“TCPA”), and all other applicable laws and regulations. Client should review these rules with Client’s own legal counsel to ensure that Client understands and is fully compliant. Unless otherwise agreed to in writing by the parties, S2L does not assume responsibility for ensuring that Client’s marketing campaigns meet applicable legal requirements. S2L will not assume any liability if Client is ever held guilty or liable for any law violation. S2L shall use reasonable commercial efforts consistent with prevailing industry standards to maintain the Systems in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance or because of other causes beyond S2L’s reasonable control, but S2L shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, S2L DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, REGARDING THE LEVEL OF IMPRESSIONS OF OR CALLS ON ANY ADVERTISEMENT OR PROMOTIONS, THE TIMING OR PLACEMENT OF DELIVERY OF SUCH IMPRESSIONS AND/OR CALLS, OR THE AMOUNT OF ANY REVENUE TO BE EARNED BY CLIENT UNDER THIS AGREEMENT. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” THE SERVICES ARE PROVIDED TO CLIENT “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, S2L EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, S2L PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, COMPLY WITH ANY APPLICABLE LAW, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
13. LIMITATION ON LIABILITY
IN NO EVENT WILL S2L BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SERVICES; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT S2L WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL S2L’S COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO S2L PURSUANT TO THIS AGREEMENT FOR THE PRIOR TWELVE (12) MONTHS OF THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM.
Client shall indemnify, defend and hold harmless S2L and its officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee in connection with any action by a third party that arises out of or relates to any: (a)Client data, including any collection Client’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or (c) negligence or more culpable act or omission (including recklessness or willful misconduct) by Client in connection with this Agreement.
15. SAN NUMBERS
Client acknowledges that in certain settings, sellers and telemarketers may be required to purchase their own Subscription Account Number (“SAN”) from the FCC, including all area codes into which they call or transmit messages. Therefore, Client agrees that if required by law, Client will obtain Client’s own SAN and purchase all applicable area codes. Client also agrees to purchase and scrub against any applicable state DNC list, if required by law. S2L cannot and shall not maintain any SAN number for Client or obtain one on Client’s behalf.
16. TCPA, DNC & SAFE HARBOR
Unless otherwise agreed to in writing by the parties, S2L is not responsible for ensuring that the numbers called by S2L are not on any applicable state or federal DNC list or that Client’s use of the numbers will be in compliance with the TCPA. Client agrees to create and enforce its own internal TCPA, safe harbor and do not call policies and procedures in full compliance with the law. Federal regulations provide for a limited “safe harbor” defense to certain Do-Not-Call (“DNC”) violations.
NO LEGAL, FINANCIAL OR TAX ADVICE PROVIDED
No financial, legal, or tax advice or counsel is given, or shall be deemed to have been given by S2L or its affiliates and contractors, or by the Services.
17. GOVERNMENT MATTERS
Client may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto in violation of any applicable restrictions, laws or regulations. If at any time S2L’s right to provide the Services to Client is impaired or regulated by any governmental or quasi-governmental entity, including, without limitation, the Federal Trade Commission or the Federal Communications Commission, S2L shall have the right to terminate this Agreement automatically upon written notice and to cause Client to remove or withdraw any advertising material containing S2L Service. S2L shall have no liability or obligation to Client of any kind arising out of such a termination.
18. DISPUTE RESOLUTION AND CLASS ACTION WAIVER
If a dispute arises, the parties will try in good faith to settle it through mediation conducted by a mediator to be mutually selected. The parties will share the costs of the mediator equally. Each party will cooperate fully and fairly with the mediator and will attempt to reach a mutually satisfactory compromise to the dispute. If the dispute is not resolved within 30 days after it is referred to the mediator, it will be submitted to final and binding arbitration before the American Arbitration Association to be held in San Diego, California before a single arbitrator, in accordance with the then-current Commercial Arbitration Rules and the Federal Arbitration Act, as modified by the terms and conditions contained in this paragraph. This agreement to arbitrate is freely negotiated between Contractor and Client and is mutually entered into between the parties. Each party fully understands and agrees that they are giving up certain rights otherwise afforded to them by civil court actions, including but not limited to the right to a jury trial. Any arbitration under this Agreement will take place on an individual basis and class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(i) This Agreement is governed by and construed in accordance with the internal laws of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the county of San Diego, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding; (ii) S2L will not be responsible or liable to Client, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Client equipment, loss and destruction of property, or any other circumstances or causes beyond S2L’s reasonable control; (iii) This Agreement, together with any amendments or addenda agreed upon by the parties in writing, constitutes the sole and entire agreement between S2L and client with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter; (iv) Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without S2L’s prior written consent, which consent will not be unreasonably withheld; (v) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. 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. Except as otherwise set forth in this Agreement, 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; (vi) 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.
Changes to Terms
S2L reserves the right, in its sole discretion, to change the Terms under which
www.speak2leads.com is offered. The most current version of the Terms will supersede all
previous versions. S2L encourages you to periodically review the Terms to stay informed of our
S2L welcomes your questions or comments regarding the Terms:
S2L International, Inc.
434 W Cedar St. 4th FL
San Diego, California 92101
Effective as of February 7, 2018