This data terms of use agreement (“Agreement”) is made and entered into by and between SCSD Holdings LLC (“ListAbility”), located at 1222 SE 47th St., Cape Coral, FL 33904, and Client, for the sale of certain consumer or business contact lead data (“Data”) from ListAbility to Client. The data attributes will normally include the lead’s postal addresses, phone number(s) and/or e-mail address(es). ListAbility offers to sell its Data only under the following terms, which Client accepts when Client either executes the below document, electronically signs the same online, or makes any use of the Data.

Terms

  1. Compliance with Law. Client’s calling, email or other contacting campaigns are Client’s own campaigns and Client has the sole responsibility to ensure its legal compliance; ListAbility is merely a passive lead service provider. Client is required to use the Data in full compliance with all applicable laws and regulations, including without limitation, all state, federal and international: (a) telemarketing laws; (b) Do-Not-Call (“DNC”) list prohibitions; (c) licensing and bonding requirements; (d) consumer cancellation rights; (e) wireless calling restrictions; (f) restrictions on the use of automatic telephone dialing systems and pre-recorded messages; (g) opt-out rules; (h) mandatory disclosures (i) intellectual property rights and restrictions; (j) CAN-SPAM Act; the (k) Gramm-Leach-Bliley Act; the (l) Fair Credit Reporting Act; and (m) other product or industry regulations. By making any use of the Products, Client expressly warrants to ListAbility that Client is and shall continue to act in full compliance with the law. All ListAbility 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. ListAbility does not assume responsibility for ensuring that Client’s marketing campaigns meet applicable legal requirements. ListAbility will not assume any liability if Client is ever held guilty or liable for any law violation. Notwithstanding the foregoing, Client acknowledges that ListAbility has and is taking active steps to ensure the compliance of its customers, including by having Client agree to these terms and otherwise. If ListAbility discovers evidence demonstrating that Client has violated the law, ListAbility may suspend or terminate the Client’s use of the Products immediately without providing any refund.
  2. Cell Phones. Client understands that the TCPA prohibits certain types of calls and messages to cell phones and agrees not to use the Data to market to cell phones except as allowed by law. Client assumes all risks if Client elects to contact cell phones. Client will not engage in any SMS/text marketing, except as allowed by law. Client understands that ListAbility assumes no responsibility to identify or remove/suppress wireless numbers from its data.
  3. SAN Numbers & DNC. Client acknowledges that certain sellers and telemarketers may be required to purchase their own Subscription Account Number (“SAN”) to access the National DNC registry, including all area codes into which they call or transmit messages. Client agrees to obtain a SAN number and all applicable area codes, unless exempt. Client agrees to purchase and scrub against any applicable state or federal DNC list, unless exempt. Client shall refrain from marketing to any consumer who has opted-out by asking not to receive future marketing from Client. Client (not ListAbility) shall be responsible for maintaining and enforcing an internal DNC list of leads who have opted out of Client’s marketing.
  4. Call Abandonment Rate/Drop Rate. Regarding any abandoned (dropped) calls, Client understands and agrees to ensure that it does not drop more calls than allowed by law.
  5. No Legal, Financial or Tax Advice No financial, legal, or tax advice or counsel is given, or shall be deemed to have been given by ListAbility or its affiliates and contractors, or by the Products.
  6. Payments & Refunds Except when required by law, ListAbility shall be under no obligation to issue refunds under any All fees are non-refundable.
    • Payment: You agree to pay ListAbility a fee in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and Fees charged are nonrefundable. In the case of subscription products, the subscription term shall be effective for the agreed upon period, after which the subscription term shall automatically renew for the specified renewal period (if any) at the then current subscription price.
    • Recurring Billing: Your acceptance of these terms constitutes your authorization to ListAbility to automatically charge the credit/debit card provided by you, and in the case of subscription products, to continue charging the credit/debit card at the agreed-upon intervals during the term of the
    • Pay as you go credits: Any amount you add as credits to your ListAbility account, must be used towards data, append or hygiene services available through ListAbility ListAbility shall be under no obligation to issue refund any unused credits.
  7. Indemnification. Client shall assume, pay, indemnify, hold harmless and reimburse ListAbility and its owners, employees, agents, affiliates, contractors, successors and assigns for any and all liabilities, damages, claims, suits, settlements, judgments, investigations, costs, and expenses (including reasonable attorney’s fees and court costs) directly or indirectly incurred by ListAbility to the extent the same are related in any way to this Agreement or to Client’s use of the Data. Upon receipt of any demand or claim by ListAbility related to Client, ListAbility may elect to turn the defense and resolution of such claim over to Client who shall bear all costs and expenses and shall promptly investigate and settle or otherwise resolve any such claim to ListAbility’ full satisfaction. Alternatively, ListAbility may elect to defend any such claim on its own and then to obtain reimbursement from Client. In either case, ListAbility and Client shall cooperate and share necessary information in any such defense. Client realizes that ListAbility may be required by law to provide certain information about Client if ListAbility receives a subpoena from a court or regulator with competent jurisdiction, or otherwise determines in its sole discretion that it needs to releases Client information in order to protect the legal interests of ListAbility.
  8. Limitation of Liability. Neither party shall be liable for any consequential, incidental, special or indirect damages (including, but not limited to, loss of profits, goodwill, use, data, or other intangible items) even if the other party has been advised of the possibility of such damages or losses. ListAbility is not responsible for any failure of a third-party list provider to deliver its data accurately, completely or in a timely way, ListAbility is not responsible for damages resulting from improper or incomplete use by Client of ListAbility’ products and services. With respect to any other damages, ListAbility’ liability hereunder shall in no event exceed an amount equal to the amount actually paid by Client to ListAbility in the month prior to a claim being made, regardless of the basis for the claim. Client understands that this is a significant limitation on Client right to sue ListAbility and Client should not proceed if Client does not agree. ListAbility shall not be bound by any typographical or other error or misprint in its marketing materials or online purchase websites, so long as ListAbility provides prompt notice of any such error and corrects the same, upon discovery.
  9. Warranties. Except as otherwise provided herein, THE SERVICES AND DATA ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL LISTABILITY OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS, EVEN IF ListAbility HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  10. Intellectual Property. “ListAbility,” “SCSD Holdings LLC,” and all related trade and service marks are and shall remain the exclusive intellectual property of ListAbility. ListAbility and Client specifically acknowledge that this Agreement does not confer upon the other party any interest in or right to use any trademark or service mark of the other party or its affiliates, unless the party wishing to use a trademark or service mark receives the prior written consent of the owning party, which the owning party may grant or withhold in its sole discretion. Client acknowledges that the Products are protected by state, federal and international copyright laws and treaties and Client hereby prospectively waives any challenges to the existence, ownership and enforceability the same. Except as otherwise specifically permitted in this Agreement, Client may not: (a) modify or create any derivative works of any Products, service or documentation, including translation or localization (code written to published APIs (application programming interfaces) for the Products shall not be deemed derivative works); (b) sublicense or permit simultaneous use of the Products by more than one user; (c) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for any software related to the Products (except to the extent applicable laws specifically prohibit such restriction); (d) redistribute, encumber, sell, rent, lease, sublicense, use the Products in a timesharing or service bureau arrangement, or otherwise transfer rights to any Products; (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Products; (f) publish any results regarding the Products to a third party without prior express written consent from ListAbility; or (g) attempt to create or sell any systems similar to the proprietary systems of ListAbility.
  11. Choice of Law & Venue. This Agreement shall be governed by and construed according to the laws of the State of Florida, without giving effect to normal choice-of-law and conflict-of-law principles. The parties agree that the State and Federal courts in Florida shall have exclusive jurisdiction and venue over any legal dispute between the parties. The parties consent to such jurisdiction at this time. The prevailing party in any legal dispute between the parties shall be entitled to their reasonable attorney’s fees and court costs.
  12. Other Important Disclaimers. ListAbility does not warrant that its Data can be received and integrated in every environment. It is the Client’s responsibility to obtain the necessary computer equipment and software to operate the Data. It is the Client’s responsibility to become aware of the cost and availability of all telephone, software and electrical requirements. Client is responsible for any business and miscellaneous expenses necessary to use the Data, including telephone service, internet connectivity, computers, etc. ListAbility will not be liable for these expenses for any reason. Even though Client’s system may be designed to operate 24 hours a day, Client should be aware that access to the Data may be out of service periodically for backups, maintenance, improvements, or difficulties such as power outages, telephone line problems, hardware/software malfunctions, etc. ListAbility will not be liable for any lost revenue, lost profits, advertising, or additional expenses due to loss of data, hardware/software problems, or for any reason. ListAbility does not make any claims or guarantees that Client will bring in any revenue nor operate any profitable services or businesses by using the Products sold by ListAbility. The suggestions, ideas, and techniques offered by ListAbility are not guaranteed to bring success. The success of the Client and the Data will be affected by many factors, including, but not limited to, Client’s own efforts and competence. Client is responsible for the security of the system and for obtaining property and liability insurance.
  13. Modification of Agreement. The Parties agree that this Agreement may only be modified with the written consent of all Parties.
  14. Non-Waiver. The parties agree that the failure of any party to take an action under this Agreement or the waiver of a breach of this Agreement shall not affect the party’s rights to require performance hereunder or constitute a waiver of any subsequent breach.
  15. Entire Agreement. This Agreement, along with any addendum, schedule or exhibit incorporated by reference, constitutes the entire understanding and agreement of the parties with regard to the subject matter hereof and supersedes all prior and contemporaneous communications, understandings and agreements, either written or oral.
  16. Survival. Any provision of this Agreement, which by its nature, would naturally survive the termination of this Agreement, shall expressly survive any termination, including without limitation, those provisions related to indemnity, compliance with law, intellectual property, non- circumvention and notices.
  17. Non Public Personal Information (“NPPI”). NPPI must always be handled in the manner as prescribed by law. Client acknowledges and understands that it is their responsibility to inform parties to whom they sell, lease, rent, or otherwise convey data to, of herein referred to responsibilities and obligations under applicable law.
  18. Resale. Client agrees and indicates that they will not knowingly convey data provided to the Customer by SCSD Holdings LLC (ListAbility) to any other party who they suspect would use the data in an illegal or improper manner. Furthermore, the Customer agrees to conduct all necessary due diligence to avoid the conveyance of data being provided to the Customer, to any 3rd party who would employ the data in a wrongful, Illegal or improper way.
  19. Security. Client agrees to take whatever security precautions are necessary to ensure that these Terms of Use are not violated. Such precautions include, but are not limited to, the supervision of all persons within the Client’s organization involved in using the data and supervision of all contractors or entities outside the Client’s organization, which come into contact with the data while performing work on behalf of the Client.