1. INTRODUCTION; ACCEPTANCE OF TERMS
(a) Thank
you for entering into a CheckCall Services Agreement (“Agreement”) with OAC LLC
(“OAC”). As set forth in your
Agreement, OAC offers certain web-based tools and services that assist
businesses in complying with “do-not-call” and/or “no-call” (“DNC”) lists and
rules, which tools are collectively referred to as “CheckCall.” CheckCall, and the services provided by OAC
in connection with CheckCall, are collectively referred to as the “CheckCall
Services.” Persons who have entered
into an Agreement with OAC are sometimes referred to in these TOS as the
“User.”
(b) These Standard
Terms of Service (“TOS”) govern your use of CheckCall and the CheckCall
Services, and also govern your use of the website at which the CheckCall
Services are provided (the “Site”). In
your Agreement, you have agreed to these TOS, as they may be amended, restated
or updated by OAC from time to time.
You can review the most current version of the TOS at any time at: http://checkcall.ocmusa.com/tos/tos.htm
2. Ownership. OAC IS THE SOLE AND EXCLUSIVE OWNER OF ALL RIGHT,
TITLE AND INTEREST, INCLUDING TRADEMARKS, COPYRIGHTS, PATENTS, TRADE NAMES,
TRADE SECRETS AND OTHER INTELLECTUAL PROPERTY RIGHTS IN THE CHECKCALL CONCEPT
AND BUSINESS PLAN, THE SITE AND THE NAME AND SERVICE MARK “CHECKCALL.”
3 User’s
Representations and Warranties. User
represents and warrants to OAC that (a) User has all corporate, company or
other authority required to enter into the Agreement and the individual
executing the Agreement on behalf of User is authorized to do so, (b) User has
all necessary permits and licenses to operate its business as presently
conducted, (c) User is not engaged in whole or in part, directly or indirectly,
in any other type of business that has not been disclosed to and approved by
OAC in writing, and (d) User has reviewed with its legal counsel, is familiar
with, and is and will remain in compliance with all Federal, state or local
laws, rules, regulations or ordinances (including without limitation all
Federal, state and local laws and regulations relating to telephone
solicitation), and all court, administrative and arbitrator’s orders or
judgments (collectively, “Laws”) applicable to its business, its use of the
CheckCall Services, or to telephone solicitation.
4. DNC LISTS. User
has and will maintain the right (through subscription or license agreement or
otherwise) to use all applicable state and Federal DNC or similar lists of
telephone numbers that may not be called, and has and will maintain and update
(using CheckCall or another method), in compliance with Laws, its own list of
persons who do not wish to receive telephone solicitations made by or on behalf
of User. User shall be responsible for
all costs and fees for purchasing DNC or similar lists. User further agrees to provide OAC with
evidence satisfactory to OAC of compliance with the foregoing requirement, as
well as all DNC list login, subscription, renewals, and other information
necessary for OAC to perform the CheckCall Services. OAC’s obligation to perform the CheckCall Services is contingent
upon User complying with the terms of this Section 4 and all other terms and
conditions of these TOS and the Agreement
5. CHANGES TO SITE AND SERVICES. OAC reserves the right at
any time to revise and modify the CheckCall Services and the Site, and to alter
features, specifications, capabilities, functions, and other characteristics of
the same, without notice to or the consent of User. If any such action materially and adversely affects the benefits
User might reasonably be expected to obtain from the CheckCall Services or the
Site, User's sole and exclusive remedy shall be to terminate the Agreement in
accordance with Section 7.
6. Use of Site. In connection with the use of the CheckCall Services and the
Site, User agrees as follows:
(a) The
person designated in your Agreement as the “Authorized Contact” shall have
primary responsibility for communicating with OAC. The Authorized Contact shall have authority to bind User, and OAC
shall be entitled to rely on all information provided by and all requests of
the Authorized Contact. User may change its Authorized Contact by notice to
OAC. Notwithstanding anything to the
contrary in the foregoing, User shall be responsible for all actions and
omissions of all persons (other than OAC) who access the Site with User’s
login(s) and use the CheckCall Services.
(b) OAC
will use reasonable efforts to ensure that all information provided at, or
obtained through, the Site or the CheckCall Services, is accurate. However, OAC DOES NOT GUARANTEE THE ACCURACY
OR COMPLETENESS OF SUCH INFORMATION.
(c) OAC
reserves the right to adopt operating rules and policies of general application
regarding the CheckCall Services, the Site, and the use thereof (which may be
in addition to these TOS), including without limitation policies relating to
telephone solicitation, and further reserves the right to update, amend or
restate the same from time to time, without the consent of User. OAC will
provide User with notice (which may be by e-mail) of such rules and policies
and amendments and restatements thereof.
(d) User
agrees to keep its login(s), password(s) and account number confidential, to
allow no other person to use the same except in the presence of User or its
authorized employees, and to notify OAC promptly if User has any reason to
believe that any third party has unauthorized access to User’s account or has
otherwise gained unauthorized access to the Site. User shall be responsible for any and all use of the CheckCall
Services, the Site or any information uploaded to the Site, occurring under
User’s login(s) or account number.
(e) Upon
OAC’s request, User shall provide OAC with true, accurate and current
information about User and its business, and shall promptly notify User of
material changes in the same.
8. Termination . The term of the Agreement shall be as set
forth in the Agreement and these TOS; provided, however, if User is in default
under the Agreement, these TOS, or any policies or procedures adopted by OAC
pursuant hereto, OAC shall have the immediate right to block or terminate User’s
access to the Site and to suspend the Call Audit Services until User has cured
the default. Termination of this
Agreement shall not affect the parties’ obligations hereunder arising prior to
the effective date of the termination.
9. Legal Compliance. It is the sole responsibility of User to use the CheckCall
Services in accordance with all applicable Laws, including without limitation
Laws relating to telephone solicitation, telemarketing, facsimile advertising,
commercial e-mail and personal data privacy.
User also agrees to comply with OAC’s Telephone Solicitation Policy, as
amended or restated from time to time, which policy is located on the internet
at http://checkcall.ocmusa.com/tos/tsp.htm
User understands and agrees that while
OAC or ITS service providers will perform the CheckCall Services (which include
scrubbing numbers entered by User against DNC and similar lists), OAC does not
and will NOT have ANY liability to User, ITS EMPLOYEES, OWNERS, AGENTS OR
CUSTOMERS ARISING IN ANY WAY FROM ERRORS OR OMISSIONS IN INFORMATION PROVIDED
TO OAC OR ITS SERVICE PROVIDERS, OR FROM ANY calls made to numbers that are on
any such lists.
10. INDEMNIFICATION. User and the individual, if any, executing the Agreement
on behalf of User shall indemnify, hold harmless and defend (with counsel
acceptable to OAC) OAC, its members (and their heirs and representatives),
employees and independent contractors (including any Site hosts), successors
and assigns from and against any and all claims, demands, liabilities, losses,
fines, costs, expenses (including attorney fees at trial, on appeal or in any
bankruptcy proceeding) and damages directly or indirectly arising out of or
related to (a) the failure by User, its employees or agents to punctually
perform their obligations under the Agreement, these TOS or any policies or
procedures adopted by OAC (b) the breach of any representation, warranty or
covenant by User under the Agreement or these TOS, (c) the failure of User, its
employees or agents to comply with any Laws in connection with its business or
the use of the CheckCall Services or the Site, and (d) the use or misuse by
User, its employees or agents of the CheckCall Services or the Site.
11. Disclaimer of Warranties and Liabilities. USER UNDERSTANDS AND AGREES THAT THE
CHECKCALL SERVICES ARE PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. OAC ALSO
MAKES NO REPRESENTATIONS OR WARRANTIES THAT USER’S USE OF THE CHECKCALL
SERVICES PURSUANT TO THE AGREEMENT OR THESE TOS COMPLIES WITH APPLICABLE
FEDERAL, STATE OR LOCAL LAWS (INCLUDING WITHOUT LIMITATION TELEPHONE SOLICITATION
LAWS AND DNC LAWS), AND USER AGREES THAT IT IS USER’S SOLE RESPONSIBILITY TO
DETERMINE SUCH COMPLIANCE. OAC, its members (and their heirs and
representatives), employees and independent contractors (including Site hosts
AND THIRD PARTY SERVICE PROVIDERS), successors, assigns and agents SHALL
NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY
LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF
BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF
ANY CHARACTER, EVEN IF ANY OF SUCH PERSONS IS AWARE OF THE RISK OF SUCH
DAMAGES, OR ANY OTHER LOSSES, DAMAGES OR CLAIMS (INCLUDING ANY CLAIMS ARISING
FROM THE ACTS OR OMISSIONS OF THIRD PARTY SERVICE PROVIDERS), THAT RESULT IN
ANY WAY FROM THE USE OR INABILITY TO USE THE SITE OR THE CHECKCALL SERVICES OR
FROM CLAIMS THAT APPLICABLE.LAWS HAVE BEEN VIOLATED. IF IT IS DETERMINED BY A
COURT OF COMPETENT JURISDICTION THAT ANY PORTION OF THE FOREGOING EXCLUSIONS OF
WARRANTIES AND LIABILITIES IS VOID OR UNENFORCEABLE, OAC’S LIABILITY TO USER
SHALL NOT, FOR ANY REASON, EXCEED THE AMOUNT PAID BY USER TO OAC DURING THE
PREVIOUS ONE-YEAR PERIOD.
12. LATE FEE. If any fee for CheckCall Services remains delinquent 10 days after its invoice due date, User shall be assessed an additional late fee of 5% of the delinquent amount (subject to a minimum of $35) for each month of delinquency, without waiving OAC’s other rights and remedies under the Agreement or these TOS. The above late fees represent OAC’s estimate of its reasonable damages incurred in connection with late payments, and are in addition to OAC’s rights and remedies under Section 7.
13. MODIFICATION OF TOS. OAC shall have right to update, amend or restate these TOS and any policies and procedures relating to the CheckCall Services, without the consent of User and without prior notice to User; provided, however, OAC will use reasonable efforts to give Users 10 days’ prior notice of any such updates, amendments or restatements.
14. Miscellaneous. The provisions of Sections 2, 3, 8, 9, 10, 11 and 14 shall survive
any termination or expiration of the Agreement. No agency relationship, partnership or joint venture is created
nor intended to be created by the Agreement or these TOS or the granting of
certain rights to User hereunder. User
shall not assign the Agreement, these TOS or any of its rights or obligations
thereunder without the prior written consent of OAC, which may be granted,
withheld or conditioned in OAC’s sole and absolute discretion. The Agreement and these TOS shall be binding
upon and shall inure to the benefit of the parties and their respective
permitted successors and assigns. Except as otherwise expressly provided in the
Agreement or these TOS, all notices or other communications required or
permitted hereunder shall be in writing and shall be sent by United States
first-class mail (with postage prepaid), by e-mail, or by facsimile (with a
copy by first-class mail, with postage prepaid) and shall be deemed received
and effective three (3) days after the date of posting, if mailed, upon receipt
of confirmation of successful sending, if sent by e-mail, and upon receipt of
confirmation of successful facsimile transmission, if sent by facsimile. The Agreement and these TOS shall be
governed by and construed under Oregon, USA law (without regard to conflicts of
laws principles), regardless of whether User resides or transacts business with
OAC in Oregon. User hereby agrees that
the Courts of Multnomah County, Oregon, USA or, at OAC's option, the United
States District Court for the District of Oregon, shall have jurisdiction to
hear and determine any disputes between the parties relating to the
Agreement. User further consents in
advance to such jurisdiction and waives any objection it may have based upon
lack of personal jurisdiction, improper venue or forum non conveniens. The
Agreement and these TOS set forth the entire agreement and understanding of the
parties and supersede all prior agreements and understandings relating to the
subject matter hereof. If any provision
of the Agreement or these TOS is held to be invalid, such event shall not
affect, in any respect whatsoever, the validity of the remainder of the
Agreement or these TOS, and the remainder shall be construed without the
invalid provision so as to carry out the intent of the parties to the extent
possible without the invalid provision. OAC’s failure to insist upon or enforce
strict performance of any provision of the Agreement or these TOS shall not be
construed as a waiver of any provision or right, nor shall the course of
conduct between the parties modify any provision of the Agreement or these
TOS. Neither party shall be liable to
the other for any delay or failure in performance under the Agreement or these
TOS resulting directly or indirectly from acts of nature or causes beyond its
reasonable control. If any party hereto brings an action or proceeding for the
declaration of the rights of the parties hereunder, for injunctive relief or
for an alleged breach or default of, or any other action arising out of the
Agreement or these TOS, the prevailing party in any such action shall be
entitled to an award of reasonable attorneys' fees and any court costs incurred
in such action or proceeding (including any bankruptcy case), in addition to
any other damages or relief awarded, regardless of whether such action proceeds
to final judgment.