EXHIBIT 10.13.1
TELEBLOCK(R) SERVICE AGREEMENT
THIS TELEBLOCK(R) SERVICE AGREEMENT ("Agreement") is made and entered into by
and between Telephone Blocking Services Corp., a New York Corporation ("TBSC"),
and the entity or entities identified on Appendix A, annexed hereto
("Customer"), (TBSC and Customer each a "Party" and collectively the "Parties"),
is effective as of December 30, 2004 ("Effective Date.")
I. INTRODUCTION.
A. Customer desires to offer the TeleBlock(R) Service to its clients that
engage in telephonic solicitation ("Clients").
B. TBSC desires to make the TeleBlock(R) Service available to Customer for
use by Customer's Clients.
C. In consideration of the foregoing and the obligations described
hereunder, the parties agree as follows:
II. SCOPE OF SERVICES.
A. TELEBLOCK(R) SERVICE. Subject to the terms hereof, TBSC agrees to make
the TeleBlock(R) Service available to Customer for use by Customer's
Clients. The TeleBlock(R) Service is described generally in the
TeleBlock(R) Service Description attached hereto as Appendix B (the
"Service Description") and is more fully described in the User Guide (see
Section II.D, below).
B. LICENSE. Subject to the terms hereof, TBSC grants to Customer the
following limited, personal, non-exclusive, non-transferable (except as
specifically set forth herein) licenses with respect to the TeleBlock(R)
Service: (i) to resell and market the TeleBlock(R) Service to its Clients
within the United States and (ii) to use the trademarks (as specified in
Section X, below) which relate to the TeleBlock(R) Service solely in
connection with Customer's marketing activities under this Agreement.
C. TECHNICAL SUPPORT. All information relating to the technical support
that TBSC shall provide with respect to the TeleBlock(R) Service and the
procedures that Customer shall follow in order to obtain such technical
support, including, without limitation, procedures for initiating a
trouble ticket and means of contacting TBSC or its Affiliates technical
personnel are set forth in the User Guide. In the event of an outage or
failure of TeleBlock(R) Service, Customer and TBSC shall follow the
procedures and protocols outlined in the User Guide.
D. USER GUIDE. TBSC shall establish a User Guide which among other
information will set forth the procedures necessary for proper use of the
TeleBlock(R) Service. Customer and TBSC agree to follow the User Guide.
TBSC reserves the right to make any change to the User Guide provided that
such change does not materially change the terms and conditions of this
Agreement. In the event TBSC materially changes the User Guide, TBSC shall
provide Customer with advance written notice of the changes no less than
thirty (30) days prior to the effective date of the changes. If there
exists any conflict between the User Guide and any term of this Agreement,
this Agreement shall control.
Page 1 of 14
III. INITIATING THE TELEBLOCK(R) SERVICE.
A. ESTABLISH VPN. Customer shall, at its sole expense, establish VPN
connectivity via a TBSC authorized VPN provider to establish connectivity
to the TeleBlock(R) Service. The query to be performed must conform to the
client side specifications defined in the User Guide. Customer understands
and agrees that in order for TBSC to provide the TeleBlock(R) Service as
contemplated herein, Customer is solely responsible for establishing and
maintaining connectivity with this VPN connection.
B. SERVICE ORDERS. Each time Customer desires to activate the TeleBlock(R)
Service, add/delete ANI information, trunk groups, or client ID, or
otherwise modify or update the TeleBlock(R)Service on behalf of a Client,
Customer shall provide to TBSC the order form specified in the User Guide,
which shall be completed and signed by each such Client. Customer
understands that any order for the TeleBlock(R) Service will be subject to
TBSC's acceptance of such order, which shall not be unreasonably withheld.
C. AVAILABILITY. Subject to the terms and conditions herein, TBSC shall
use its commercially reasonable effort to begin providing the TeleBlock(R)
Service to a Client within five (5) business days of TBSC's receipt of
Customer's submission of an order form on behalf of such Client.
IV. CUSTOMER OBLIGATIONS.
A. EQUIPMENT. Customer shall provide and maintain certain equipment that
is necessary for a Client to access the TeleBlock(R) Service.
B. TESTING. Customer shall comply with all testing procedures related to
the TeleBlock(R) Service as specified by TBSC.
C. MARKETING. Customer shall familiarize its sales employees with the
characteristics, price, performance, and availability of the TeleBlock(R)
Service. Subject to the terms hereof (including without limitation Section
X, herein): i) Customer shall use its commercially reasonable efforts to
market the TeleBlock(R) Service to its Clients within the United States,
and ii) Customer shall assist in maintaining the brand recognition of the
TeleBlock(R) Service by using "TeleBlock(R)" as the service name and in
service-related literature. Customer may make full use of any brochures,
sales literature, and other materials related to the TeleBlock(R) Service
that may be provided to Customer by TBSC.
D. CLIENT PROBLEMS. After making a good faith effort to resolve Client
problems with the TeleBlock(R) Service, Customer shall report all such
problems with the TeleBlock(R) Service to TBSC and TBSC shall provide
troubleshooting and response pursuant to Section II.C herein.
E. EXCLUSIVITY. Customer shall not, during the term of this Agreement,
contract with a direct competitor of TBSC to provide the services
reflected herein or similar service. (A "direct competitor," for purposes
of this Agreement, is a company offering Do Not Call blocking services or
access to state and federal Do Not Call databases for list scrubbing
purposes.)
Page 2 of 14
F. BILLING AND COLLECTION. Customer shall be responsible for all billing
and collection matters related to Customer's Clients use of the
TeleBlock(R) Service. The compensation due to TBSC pursuant to this
Agreement shall be payable by Customer regardless of any billing and
collection issues that exist between Customer and its Clients.
V. BILLING AND PAYMENT
A. TIME. TBSC shall invoice Customer monthly for any previously unbilled
services. The billing period for any month (or portion thereof), including
the billing cutoff period, shall be selected by TBSC. Payment to TBSC for
invoices issued to Customer shall be due within fifteen (15) days of
Customer's receipt thereof. Beginning the day after the due date of the
invoice, interest shall be due and payable by Customer to TBSC at the rate
of one and one-half percent (1.5%) per month or the highest allowed by
law, whichever is less, on any portion of the invoice which has not been
paid. Payments are applied to the oldest outstanding amounts first.
B. BILLING. TBSC shall invoice Customer as described above for each of the
charges set forth in this Agreement.
C. PAYMENT. All payments made under this Agreement shall be made in U.S.
dollars.
VI. DISPUTES
A. PAYMENT. If there is any dispute associated with billing, Customer
shall make payment in accordance with the billing invoice as submitted to
Customer. Customer shall have the right to dispute any amount so invoiced
and paid and must notify TBSC in writing of its dispute within one hundred
twenty (120) calendar days of the receipt of such invoice or the dispute
shall be waived. A notification of disputed charges plus any Customer
documentation supporting Customer's claim shall be sent to TBSC at the
address as set forth in this Agreement.
B. ADJUSTMENTS. Any adjustments relating to a disputed amount shall be
reflected on the invoice issued by TBSC for the billing period after
resolution. If the dispute, in whole or in part, ultimately is resolved in
favor of the Customer, TBSC shall return to Customer any amount by which
Customer has overpaid, together with interest from the date overpayment
was received by TBSC, calculated as described in Section V.A, above.
C. INFORMAL RESOLUTION. The parties agree that they shall attempt to
resolve any dispute regarding any right, obligation, duty or liability
arising out of the provisions of this Agreement through informal
discussions or negotiations prior to resorting to formal dispute
resolution procedures contained in Section VI.D, below. If, at any time
following the commencement of any such discussions or negotiations, either
party determines such discussions or negotiations are not likely to result
in a reasonable resolution of the dispute, it may send to the other party
a signed and dated written statement of the issues or problems being
discussed or negotiated ("Dispute Statement.") If the dispute has not been
resolved within sixty (60) days after the date of the Dispute Statement,
either party shall have the right to serve a written demand for
arbitration upon the other and thereby commence binding arbitration in
accordance with
Page 3 of 14
the provisions set forth below. The mailing of the Dispute Statement and
the passage of the sixty (60) days from the date of the mailing of such
Dispute Statement shall be conditions precedent to the commencement of any
arbitration proceedings hereunder.
D. BINDING ARBITRATION.
a. Within five (5) working days of delivery of a demand, each
party shall designate an arbitrator. The two designated
arbitrators shall then select a third arbitrator to complete
the full arbitration panel within twenty (20) working days, or
as otherwise agreed.
b. The arbitration panel shall commence hearing within sixty (60)
days of the selection of the panel. The scope of document
production and the enforcement of document requests may be
ordered by the arbitrators to the extent economical and
reasonable. All discovery requests shall be subject to the
proprietary rights of the Parties, and the arbitrators shall
adopt procedures to protect such rights. Except where contrary
to the provisions set forth in this Agreement, the rules of
the American Arbitration Association ("AAA") shall be applied;
provided, however, that the arbitration need not be conducted
under the auspices of the AAA, in which event the fee schedule
of the AAA shall not apply.
c. If an action is commenced to seek a determination or enforce
any of the provisions of this Agreement with any court or
regulatory authority of competent jurisdiction, including
without limitation, an arbitration proceeding as contemplated
under this Subsection V.D, the prevailing Party shall, in
addition to its other remedies, be entitled to recover
reasonable attorney's fees, arbitration fees and court costs,
including such fees and costs on appeal, from the other Party.
d. Unless otherwise agreed in writing, the Parties shall continue
to provide service under this Agreement, and honor all
commitments under this Agreement during the course of dispute
resolution pursuant to this Section.
E. TIME LIMITATIONS. The provisions of this Section VI shall survive the
termination of this Agreement. The commencement of formal dispute
resolution procedures (i.e., the delivery of the Dispute Statement), or
any other action in law or equity arising out of this Agreement, may not
occur more than two (2) years after the event giving rise to dispute has
occurred.
VII. COMPENSATION.
As compensation for the services to be provided by TBSC pursuant to this
Agreement, Customer agrees to pay TBSC as set forth in Appendix C attached
hereto.
VIII. TERM AND TERMINATION.
The initial term of this Agreement shall begin on the Effective Date and
shall continue in full force and effect for a period of two (2) years
("Initial Term"). At the expiration of the Initial Term this Agreement
will extend for successive one (1) year terms ("Renewal Term"), unless
either party, with or without cause, provides written notice to the other
Page 4 of 14
party at least ninety (90) days prior to the start of any such Renewal
Term indicating that it does not desire such Renewal Term to become
effective. Provided, however, TBSC may terminate this Agreement at any
time upon delivery of written termination notice at least ninety (90) days
prior to TBSC's intended termination date, and Customer may terminate this
Agreement in accordance with the provisions of Appendix C, Section D.
IX. PROTECTION OF PROPRIETARY RIGHTS.
A. IDENTIFICATION OF PROPRIETARY INFORMATION. Each Party may make
available or otherwise disclose to the other Party during the negotiation
or performance of this Agreement certain business information, including
information that is proprietary to itself or to a third party. Except as
otherwise stated herein, all such information shall be considered the
confidential and proprietary information of the Party disclosing such
information ("Disclosing Party") if, when disclosed in writing, it is
clearly marked as confidential and/or proprietary, and if, when disclosed
orally, it is clearly identified at the time of disclosure as being
confidential and/or proprietary ("Proprietary Information"). For the
purposes of this Agreement, "Receiving Party" shall mean the Party and its
Related Parties to whom Proprietary Information is disclosed under
Subsection IX.C herein.
B. EXCLUSIONS. Notwithstanding anything to the contrary in this Section
IX, Proprietary Information shall not include information that the
Receiving Party can demonstrate: (i) was known to the Receiving Party
prior to disclosure by the Disclosing Party as evidenced by documentation
that was in existence prior to any disclosure by the Disclosing Party to
the Receiving Party and that is free from any obligation to keep it
confidential; (ii) was independently developed by the Receiving Party
without reference to or knowledge of the Disclosing Party's Proprietary
Information as evidenced by documentation; (iii) is within the public
domain through no action on the part of the Receiving Party as evidenced
by documentation; (iv) was received from a third party who was under no
obligation to keep such information confidential; or (v) was authorized in
writing by the Disclosing Party for release prior to such release.
C. PERMITTED USES. Neither Party shall use the Proprietary Information of
the other Party, except as reasonably necessary for its performance, or
enforcement of its rights, under this Agreement. Neither Party shall
disclose the Proprietary Information of the other Party, except to its
directors, officers, employees, agents, consultants and attorneys, and
those of its subsidiary and parent entities who have a need to know such
Proprietary Information for performance of this Agreement, as the case may
be, and who have agreed to maintain the confidentiality of such
Proprietary Information as provided herein ("Related Parties").
D. RETURN OF PROPRIETARY INFORMATION. The Disclosing Party may request, at
any time, that the Receiving Party return or destroy the tangible copies
and erase from its computer systems ("Eliminate(d)") the Proprietary
Information of the Disclosing Party, unless such Proprietary Information
is critical for the Receiving Party to perform its obligations under this
Agreement. Such request shall describe with reasonable particularity the
Proprietary Information to be Eliminated. Within fifteen (15) days of
receipt of such a request, the Receiving Party shall either Eliminate the
Information described in the request, or, if required by law or regulation
to retain copies of such Proprietary Information, notify the Disclosing
Party of and comply with such
Page 5 of 14
requirement. Notwithstanding the foregoing three (3) sentences, the
Receiving Party (i) may retain a single copy of the Disclosing Party's
Proprietary Information in the custody of its legal counsel, and (ii)
shall not be required to return or destroy, but shall protect from
unauthorized use or disclosure, those portions of the Disclosing Party's
Proprietary Information commingled with archived records that would be
difficult to extract.
E. DISCOVERY. If a demand under legal or regulatory authority of competent
jurisdiction or a requirement of law for the discovery or disclosure of
Proprietary Information is made known to the Receiving Party, the
Receiving Party shall give the Disclosing Party notice of the demand or
requirement prior to disclosing the Proprietary Information and shall,
upon the request and at the expense of the Disclosing Party, cooperate in
any efforts by the Disclosing Party to seek reasonable arrangements to
protect the confidential and proprietary nature of such Proprietary
Information.
F. DURATION OF OBLIGATIONS. The obligations described in this Section IX
shall continue during the Term of this Agreement, and survive the
termination of this Agreement for a period of three (3) years, except for
that Proprietary Information marked "Sensitive Proprietary Information,"
for which the obligations of this Section IX shall continue during the
term of this Agreement and survive the termination of this Agreement in
perpetuity.
G. INJUNCTIVE RELIEF. Both Parties agree that a breach of any of the
obligations set forth in this Section IX may irreparably damage and create
undue hardships for the other Party. Therefore, the non-breaching Party
shall be entitled to seek immediate court ordered injunctive relief to
stop any apparent breach of this Section IX, such remedy being in addition
to any other remedies available to such non-breaching Party.
H. Customer acknowledges that pursuant to this Agreement the TeleBlock(R)
Service is provided on a service-bureau basis and, therefore, except as
expressly stated herein, no right, title or interest in or to the
TeleBlock(R) Service or any related intellectual property is transferred
or licensed. TBSC and its Affiliates retain all title, patent, copyright
and other intellectual property right that they have to the TeleBlock(R)
Service, and all associated databases, servers, protocols, specifications,
templates, documents, rules, methodologies, software, programming, and
devices that comprise the system developed by TBSC to perform the services
described herein. Any software developed by TBSC or any of its Affiliates
incidental to the performance of the TeleBlock(R) Service shall be owned
exclusively by TBSC and/or such Affiliates, and may be used only by or for
the benefit of TBSC and/or its Affiliates, except with TBSC's express
written permission to the contrary. The parties agree to execute any and
all necessary documentation to perfect the ownership rights of TBSC and/or
its Affiliates in any such software.
I. TBSC acknowledges that pursuant to this Agreement no right, title or
interest in or to any of Customer's network, systems, devices and the
like, or any related intellectual property, is transferred or licensed.
Notwithstanding the foregoing, Customer agrees to make available to TBSC
its systems, software, network, devices and the like to the extent
necessary for TBSC to provide the TeleBlock(R) Service as contemplated by
this Agreement.
Page `
J. Data generated or collected by TBSC and/or its Affiliates through
operation of the TeleBlock(R) Service is referred to as the "Control
Data", PROVIDED THAT Control Data shall not include any information deemed
"Customer Information" as such term is hereinafter defined. As between the
parties hereto, all Control Data shall be owned exclusively by TBSC and/or
its Affiliates. All access to or use of any of the Control Data except and
to the extent expressly authorized by TBSC is prohibited. Any unauthorized
access or use by or through Customer or its Clients voids all
representations and warranties, implied or express, by TBSC, and relieves
TBSC from any responsibility, performance or the like in connection
therewith. Notwithstanding anything in this Agreement, nothing herein
shall give TBSC any ownership or use rights (i) in the proprietary network
information of Customer's Clients that may be provided or made available
to TBSC in connection with its provision of the TeleBlock(R) Services to
Customer and its Clients; or (ii) any Customer proprietary or confidential
information (including without limitation customer lists, usage
information or financial or pricing information) (collectively (i) and
(ii) are hereinafter referred to as the "Customer Information"). TBSC
agrees that it is only permitted to use the Customer Information for the
sole purpose of providing services to Customer and Customer's Clients and
that TBSC shall in no event share any such information with any other
reseller or other customer of TBSC or use such Customer Information to
market any products or services of TBSC to Customer's Clients.
K. Customer shall not modify or expand any warranties or representations,
if any, that may be made or implied to Customer herein to cover Customer's
Clients, or assume or create any obligations on TBSC or its Affiliates'
behalf.
L. Customer acknowledges that its Clients may access certain database
information, including without limitation do-not-call ("DNC") list
information, via the TeleBlock(R) Service. Customer acknowledges and
agrees that the content, validity, completeness, or accuracy of such
information as provided to TBSC and/or its Affiliates is not the
responsibility of TBSC and/or its Affiliates. TBSC AND ITS AFFILIATES MAKE
NO REPRESENTATION OR WARRANTY OF ANY KIND REGARDING THE CONTENT, VALIDITY,
COMPLETENESS, OR ACCURACY OF SUCH INFORMATION AS PROVIDED TO TBSC AND
HEREBY DISCLAIMS ANY LIABILITY IN CONNECTION THEREWITH.
M. Customer acknowledges and agrees that any use of the TeleBlock(R)
Service in violation of the terms of this Agreement may cause TBSC serious
financial loss. Accordingly, in the event of any unauthorized use,
Customer agrees that TBSC shall have the right to obtain injunctive or
other equitable relief without the posting of any bond. Such remedies
shall not be deemed to be the exclusive remedies for a breach by Customer
of this paragraph but shall be in addition to all other remedies available
at law or equity.
X. TRADEMARKS
A. TBSC and its Affiliate Call Compliance, Inc. hereby grant to Customer a
limited, non-exclusive royalty-free right and sublicense to use the
trademarks shown within the User Guide established pursuant to Section
II.D, above (collectively, the "Trademarks",) Such use by Customer shall
be within the United States and only in the form and in accordance with
the specifications and standards contained in the User Guide. In addition,
such use by Customer shall only be to the extent necessary for Customer to
Page 7 of 14
market, advertise, and promote the service contemplated herein within the
United States to authorized prospective Clients. The foregoing license
shall automatically and immediately terminate upon the expiration or
termination of this Agreement.
B. Title to, ownership and license and sublicense rights of all Trademarks
and all Intellectual Property Rights thereto, and all other Intellectual
Property Rights of TBSC and its Affiliate Call Compliance, Inc. shall
remain entirely with TBSC and Call Compliance, Inc., and use of such
Trademarks shall be in conformance with applicable trademark usage
policies established by TBSC and Call Compliance, Inc. and provided to
Customer via the User Guide. Customer shall take no action that is
inconsistent with the ownership rights and benefits (including goodwill)
accruing from use of such Trademarks, all of which shall inure to the
benefit of TBSC and its Affiliate Call Compliance, Inc.
C. Customer hereby grants to TBSC and its Affiliate Call Compliance, Inc.
a limited, non-exclusive, royalty-free right and license to use Customer
trademarks shown on Appendix D (the "Customer Trademarks") within the
United States only in the form provided to TBSC on Appendix D and only to
the extent necessary for TBSC and/or Call Compliance, Inc. to market,
advertise, and promote the service contemplated herein within the United
States. The foregoing license shall automatically and immediately
terminate upon the expiration or termination of this Agreement.
D. Title to and ownership of all Customer Trademarks and all Intellectual
Property Rights thereto and all other Intellectual Property Rights of
Customer shall remain entirely with Customer and use of such Customer
Trademarks shall be in conforrnance with applicable trademark usage
policies established by Customer and provided to TBSC and Call Compliance,
Inc. in writing from time to time. TBSC and/or Call Compliance, Inc. shall
take no action that is inconsistent with the ownership rights and benefits
(including goodwill) accruing from use of such Customer Trademarks, all of
which shall inure to the benefit of Customer.
E. Each Party (including, for purposes of this section X, Call Compliance,
Inc.) may from time to time request, for quality control purposes,
representative samples of materials incorporating/displaying its
respective Trademarks or proprietary rights notices that are distributed
or intended for distribution hereunder. If any Party determines, in its
sole discretion, that any of the foregoing does not meet such Party's
trademark usage policies or procedures or is inconsistent with the rights
granted in this Agreement, then such Party shall have the right to require
that such deficiencies be cured prior to distribution or use of such
materials. If such deficiencies are not cured prior to distribution, such
Party reserves the right to withdraw the other Party's permission to use
such Party's Trademarks upon written notice to the other Party. In
addition, each Party shall promptly notify the other Party if such Party
reasonably believes that a third party is infringing upon one or more of
the other Party's Trademarks.
F. Each Party shall maintain the quality of services sold under the other
Party's Trademarks at at least the same level as maintained by the other
Party, and the other Party shall have the right to monitor such Party's
use of the marks and quality of services sold.
Page 8 of 14
XI. REPRESENTATIONS
Each of TBSC and Customer represents to the other as follows:
A. Each is a corporation duly organized, validly existing, and in good
standing under the laws of its jurisdiction of incorporation with all
requisite corporate power, authority, and legal right to own its property
and conduct its business as now conducted and as contemplated under this
Agreement.
B. Each is duly qualified to do business in each jurisdiction in which the
nature of its properties or its business requires such qualification and
in which the failure to so qualify would materially adversely affect its
business or financial condition.
C. The execution, delivery, and performance by each of this Agreement and
the performance by each of its obligations hereunder (i) are within their
respective power and authority; (ii) has been duly authorized by all
necessary action on the part of their respective governing bodies; (iii)
will not contravene any provision of law or regulation, or any writ or
decree of any court or governmental instrumentality or their respective
jurisdictions of incorporation or other agreement of either, and (iv) will
not conflict with or result in a breach of or default under (with or
without notice or lapse of time), any contract, agreement, indenture,
mortgage, deed of trust, lease, or other instrument to which either Party
is bound or any of their respective assets are subject.
D. This Agreement has been duly executed and delivered by each Party and
constitutes the valid, legal and binding obligation of each Party,
enforceable in accordance with its terms.
E. As of the Effective Date, no approval or consent of, or filing with,
any governmental authority is required to be obtained or effected by
either Party in connection with its execution, delivery, and performance
of this Agreement.
F. As of the Effective Date, there is no pending or, to its knowledge,
threatened action, suit or proceeding or investigation before any court,
board of arbitration or arbitrator, governmental body, agency,
instrumentality or official against or affecting either Party, the outcome
of which, if adversely determined, would have a material adverse effect on
the ability of either Party to fully perform its obligations under this
Agreement.
G. Neither Party is a party to any agreement or instrument or subject to
any restriction having a materially adverse effect on its ability to
perform its obligations under this Agreement.
H. As of the Effective Date, neither Party is in default under any
applicable order, writ, injunction, or decree of any court, governmental
department, board or agency or instrumentality of any arbitrator.
I. Each Party has obtained or shall obtain in respect of this Agreement
and the transactions contemplated hereby, on or prior to the Effective
Date hereof, all governmental permissions, rights, licenses and permits,
if any, to carry out the transactions contemplated thereby. Neither Party
has received notice of any violation of any applicable law, regulation,
order or requirement which would have a materially
Page 9 of 14
adverse effect on the transactions contemplated by this Agreement, and
which has not been complied with or corrected in all material respects.
J. Both parties agree to deliver TeleBlock(R) Service to Customer's
Clients in accordance with generally acceptable industry standards.
K. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH
RESPECT TO THE SERVICE, THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE
THEREOF.
XII. INDEMNITY
A. Except as otherwise stated herein, each Party (the "Indemnifying
Party") will defend, indemnify and hold harmless the other Party (the
"Indemnified Party") from and against any loss, cost, claim, liability,
damage, and expense (including reasonable attorney's fees) brought or
claimed by third parties (collectively, "Claims"), arising out of
negligence or misconduct or omission or breach of this Agreement, by the
Indemnifying Party, its employees, agents, or contractors in the
performance or nonperformance of this Agreement. The Indemnified Party
shall notify the Indemnifying Party promptly in writing of any Claims for
which the Indemnified Party alleges that the Indemnifying Party is
responsible under this Section XII and tender the defense of such Claims
to the Indemnifying Party. The Indemnified Party shall cooperate in every
reasonable manner with the defense or settlement of such Claims at the
Indemnifying Party's expense. The Indemnifying Party shall not be liable
under this Section XII for settlements by the Indemnified Party of any
Claims unless the Indemnifying Party has approved the settlement in
advance or unless the defense of such Claims has been tendered to the
Indemnifying Party in writing and the Indemnifying Party has failed to
promptly undertake the defense.
B. Each Party (the "Indemnifying Party") will defend, indemnify and hold
harmless the other Party (the "Indemnified Party") from any Claims which
are brought against the Indemnified Party alleging that the Indemnifying
Party's trademarks infringe the Intellectual Property Rights of a third
party.
C. Either Party may, at its own election and expense, conduct its own
defense of any portion of the Claims against it, which would otherwise be
indemnified by the other Party hereunder.
XIII. LIMITATION OF LIABILITY
EXCEPT AS PROVIDED IN SECTION XII, HEREINABOVE, NEITHER PARTY SHALL HAVE
ANY LIABILITY TO THE OTHER PARTY WITH RESPECT TO THIS AGREEMENT FOR ANY
LOST INCOME OR PROFITS OR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL
OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF IT HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES AND IN NO EVENT WHATSOEVER SHALL TBSC's
AND ITS AFFILIATES AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT
AND/OR IN ANY WAY RELATING TO THE SERVICES CONTEMPLATED HEREIN EXCEED TEN
THOUSAND DOLLARS ($10,000).
Page 10 of 14
XIV. TERMINATION OF AGREEMENTS
Customer shall terminate any and all agreements it has with Clients for
provision of the services contemplated herein prior to or upon termination
of this Agreement.
XV. WAIVER
The waiver of a breach of any of the terms hereof or of any default
hereunder shall not be deemed a waiver of any subsequent breach or
default, whether of the same or similar nature, and shall not in any way
affect the other terms thereof. No waiver or modification hereof shall be
valid or binding unless in writing and signed by the Parties.
XVI. GENERAL PROVISIONS
A. NOTICE. All notices, demands and statements to be given under this
Agreement will be made in writing and shall be deemed given three
(3) days after deposit thereof in the U.S. Mail, postage prepaid,
and addressed as follows:
If to TBSC:
Telephone Blocking Services Corp.
Attention: Xxxxxxx Xxxxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy, which shall not constitute notice, to:
Call Compliance, Inc.
Attention: Xxxxxx Xxxxxxxxxxx, Esq.
00 Xxxxx Xxxx
Xxxx Xxxx, XX 00000
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
If to Customer:
Sales Lead Management
Attention: Xxxxx Xxxxx
000 Xxxxxxxx Xxxx - 000 X
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 393-0159
B. A change of address for the giving of notice shall be made in the same
manner as the giving of notice.
C. Any copy of a notice sent by facsimile transmissions shall be followed
by a hard copy thereof sent in the manner set forth above.
Page 11 of 14
D. ASSIGNMENT. Customer may not assign its rights or obligations under
this Agreement, in whole or in part, by operation of law or otherwise,
without the prior express written consent of TBSC. Any purported
assignment in violation of this Subsection shall be null and void.
E. CONFORMITY TO LAWS, RULES, REGULATIONS AND ORDERS. Notwithstanding any
other provision of this Agreement, each Party agrees to perform all of its
obligations and undertakings prescribed in this Agreement in compliance
with all applicable laws, orders, rules and regulations that may affect
the matters covered by this Agreement.
F. CONSTRUCTION. This Agreement is the product of negotiation among the
Parties and their respective counsel. This Agreement shall be interpreted
fairly in accordance with its terms and conditions and without any strict
construction in favor of any Party. Any ambiguity shall not be interpreted
against the drafting party.
G. ENTIRE AGREEMENT. This Agreement, together with any attachments or
appendices hereto, embodies the entire understanding and agreement between
the Parties. There are no representations, agreements, arrangements or
understandings, oral or written, between the Parties hereto relating to
the subject matter of this Agreement, which are not fully expressed
herein. No change, modification, extension, termination or waiver of this
Agreement, or any of the provisions herein, shall be valid unless made in
writing and signed by duly authorized representatives of the Parties.
H. CONFLICT. If there is a conflict between the main body of this
Agreement and the Appendices attached hereto, the main body will prevail.
If there is a conflict between this Agreement and any other agreement
between TBSC and/or its Affiliates and Customer, this Agreement will
prevail.
I. GOVERNING LAW. This Agreement shall be construed, interpreted and the
rights of the Parties determined in accordance with the laws of the State
of New York, without regard to the conflict of law principles thereof.
J. VENUE. Any judicial proceeding brought with respect to this Agreement
must be brought in the state or federal courts sitting in New York City,
New York and by execution and delivery of this Agreement, each signatory
hereto (i) hereby submits to and accepts, generally and unconditionally,
the exclusive jurisdiction of such courts and any related appellate court,
and irrevocably agrees to be bound by any judgment rendered thereby in
connection with this Agreement and (ii) irrevocably waives any objection
it may now or hereafter have as to the venue of any such suit, action or
proceeding brought in such a court or that such court is an inconvenient
forum.
K. HEADINGS. The titles of the Sections and Subsections in this Agreement
are inserted merely for convenience and identification and are not to be
used in the interpretation or construction of this Agreement.
L. NO AGENCY. Nothing contained in this Agreement shall be construed as
making either Party the partner, joint venturer, agent, or
employer/employee of the other. Neither Party shall have the authority to
make any statements, representations, or commitments of any kind, or to
take or omit to take any action, which shall be binding on the other,
except and unless as expressly and explicitly provided for herein or
expressly and explicitly authorized in writing by the Party to be bound.
Page 12 of 14
M. COUNTERPARTS. For the convenience of the Parties, copies of this
Agreement may be executed in two or more counterparts and signature pages
exchanged by facsimile. The Parties intend that counterpart copies signed
and exchanged as provided in the preceding sentence shall be fully binding
as an original handwritten executed copy hereof and all of such copies
together shall constitute one instrument.
N. PUBLICITY. Any press release issued by a Party describing this
Agreement or otherwise referencing the Parties to this Agreement shall be
subject to the prior written approval of the other Party, which approval
shall not be unreasonably withheld or delayed.
O. SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions hereof, and shall not invalidate or
render unenforceable such provision in any other jurisdiction. In the
event any provision or portion in this Agreement is held to be
unenforceable or invalid by a court of competent jurisdiction, the
validity and enforceability of the remaining portion of any such provision
and/or the remaining provisions of this Agreement shall not be affected
thereby.
P. FORCE MAJEURE. Except for an obligation to make a payment, neither
Party shall be deemed in default of this Agreement to the extent that
performance of its obligations or attempts to cure any breach are delayed,
restricted or prevented by reason of any act of God, fire, natural
disaster, governmental regulations, terrorism, disease or other causes
arising out of a state of national emergency or war ("Force Majeure
Event"), provided that such Party gives the other Party written notice
thereof promptly and uses commercially reasonable efforts to cure the
delay and such Party so informs the other in writing of such causes and
its desire to be released. In the event that any Force Majeure Event
prevents either party from carrying out its obligations under this
Agreement for a period of more than thirty (30) days, the other Party may
terminate this Agreement upon thirty (30) days written notice without
liability therefore.
Q. AMENDMENTS. This Agreement may be amended only by an instrument in
writing signed by an authorized representative of each Party subsequent to
the Effective Date of this Agreement.
R. SURVIVAL. Any termination of this Agreement shall not discharge either
party from any right, duty, obligation or liability that arose or occurred
prior to the effective date of such termination. Without limitation,
Sections V, VI, IX, XII, XIII, XIV, XV, and XVI shall survive any
termination of this Agreement.
S. INCORPORATION BY REFERENCE. Appendix A, B, C, and D attached hereto are
respectively by each and every reference thereto incorporated herein by
reference.
T. THIRD PARTY VENDORS. TBSC may use any third party provider(s) it deems
necessary in the provision of the TeleBlock(R) Service. For the purposes
of this Agreement the term "Affiliates" shall mean Illuminet, Inc. and its
affiliate Call Compliance Inc. Illuminet and Call Compliance Inc. are
third party vendors of various services provided hereunder and shall be
deemed third party beneficiaries with respect to Section XIII, herein.
Page 13 of 14
IN WITNESS WHEREOF, this Agreement has been executed for and on behalf of each
party by and through its authorized representative to be effective the date
specified for each Customer identified on Appendix A, annexed hereto, (the
"Effective Date").
Each party represents and warrants that it has not altered this Agreement in any
manner other than as agreed to in writing by the parties or as an
inter-delineation initialed by both parties.
The signatories to this Agreement hereby warrant and represent that they have
the authority to execute this Agreement on behalf of the entity or entities for
which they sign.
This Agreement does not bind or obligate TBSC in any manner unless duly executed
by an authorized representative of TBSC.
TELEPHONE BLOCKING SERVICES CORP. SALES LEAD MANAGEMENT
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxx Xxxxx
-------------------------- ---------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxx Xxxxx
Title: Secretary Title: President
CALL COMPLIANCE, INC.
Solely with respect to Section X of this Agreement
By: /s/ Xxxx Xxxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxxx
Title: Chairman
Page 14 of 14
APPENDIX A
TO THE
TELEBLOCK(R) SERVICE AGREEMENT
PARTICIPATING CUSTOMER(S)
-------------------------------------------------------------------
COMPLETE LEGAL NAME OF PARTICIPATING CUSTOMER(S) (TBSC COMPLETES)
EFFECTIVE DATE
-------------------------------------------------------------------
-------------------------------------------------------------------
SALES LEAD MANAGEMENT, INC.
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
Page 1 of 1
APPENDIX B
TO
THE TELEBLOCK(R) SERVICE AGREEMENT
TELEBLOCK(R) SERVICE DESCRIPTION
Pursuant to continuous participation by Customer and its participating Clients,
the TeleBlock(R) Service (as diagrammed below) makes it possible for Customer's
Clients to subject their outbound telemarketing calls to a screening and
blocking process that occurs on an IP network level. This patented process
requires the aggregation of do-not-call list data from numerous sources and the
deployment of this data via the TeleBlock(R)(R) platform, a Service Control
Point (SCP) that resides on the IP network. The process begins when a query
message is sent from the Customer's system to the TBSC VPN network. The TBSC VPN
network carries the query message to the TeleBlock(R)(R) platform, where the
screening process takes place to determine if the call should be completed or
blocked. Thereafter, the appropriate query message is sent to Customer's
equipment for further processing.
[IMAGE OMITTED]
There are several participants involved in the provisioning process, and each
play an important role in ensuring the outbound telemarketing calls made by a
Customer's Client are screened against the appropriate do-not-call list(s). The
participants, and their respective responsibilities in the provisioning process,
are as follows:
(1) TBSC. TBSC and/or TBSC through its Affiliates shall have the following
responsibilities:
A. Host and manage the TeleBlock(R) platform.
B. Ensure that the do-not-call list data, which is designated by
Customer's Client, is deployed in the TeleBlock(R) platform. This
responsibility includes ensuring that the
--------------------------------------------------------------------------------
Page 1 of 2
appropriate "in-house" and "allow" do-not-call list data, as provided by
the Client, is uploaded to the TeleBlock(R) platform as well.
C. Provide Customer's Client with secure, 24X7 access to the
TeleBlock(R)(R) web-based administrative interface, and update this
software as necessary.
D. Segregate and back-up any proprietary, in-house do-not-call list data,
as provided by the Client, and ensure that access to such data is
restricted from any access by another TeleBlock(R) user or third party
(i.e., no proprietary in-house is shared with any entity other than the
originating entity).
E. To the extent reasonable and practicable, customize the TeleBlock(R)
platform when requested by the Client (e.g., development of an IVR system
for routing of blocked calls).
F. Provide help-desk services for Customer and Customer's Client.
2. CUSTOMER. Customer shall have the following responsibilities:
A. Provide access to TeleBlock(R) Service to its Clients subject to the
terms of its independent agreement with Customer's subscriber.
B. Provide the necessary query to the TeleBlock(R)(R) do-not-call list
database residing on the TBSC VPN network.
C. Provide all information necessary for TBSC and its Affiliates to manage
the provision of the TeleBlock(R) Service to its Clients.
D. Work with TBSC in resolving any issues regarding access to the
TeleBlock(R) Service.
E. Maintain a redundant VPN connection.
3. CUSTOMER'S CLIENT. Customer's participating Client shall have the
following responsibilities:
A. Designate which federal, state, wireless, in-house, and/or third party
do-not-call lists are to be used by the TeleBlock(R) Service in the
screening/blocking process, via the TeleBlock(R) web based administrative
interface.
B. Maintain all proper do-not-call list registrations, as mandated by the
various regulatory agencies.
C. Maintain, pursuant to Federal law, an in-house list of persons who
request that no further calls be made to them. These lists, in order to be
made available via TeleBlock(R)(R) platform, must be uploaded to TBSC (or
its designated Affiliate) by the Client via the TeleBlock(R) web-based
administrative interface,
D. Keep TBSC informed of any changes to its client services that impact
the provisioning of the TeleBlock(R) Service.
E. Comply with the terms and conditions set forth on the order form.
Additional detail regarding the features and functionality of the TeleBiock(R)
Service may be found in the User Guide.
# # #
--------------------------------------------------------------------------------
Page 2 of 2
APPENDIX C
TO THE
TELEBLOCK(R) SERVICE AGREEMENT
COMPENSATION SCHEDULE
A. ORIGINATING POINT CODE FEES
1. SETUP FEES $250 per Originating IP Address
2. DISCONNECT FEES $250 per Originating IP Address
B. Standard Query Fees. Customer shall pay TBSC, each month, the amount
determined by multiplying the total number of Queries launched to the
TeleBlock(R) Service by Customer or its Clients in such month times $0,0035. For
the purposes of this Agreement, the term "Query" shall mean a database
transaction whereby an IP message is sent from Customer's equipment to the
TeleBlock(R) Service.
C. Volume Incentive Pricing (VIP) Program. Subject to the terms herein, if a
Customer's Client qualifies to participate in the VIP program (in accordance
with the below), TBSC will charge Customer $0.0025 per Query for each Query made
to the TeleBlock(R) Service by such VIP qualified Client, instead of the
standard Query fee of $0.0035.
1. QUALIFIED CLIENTS: The VIP program applies only to Customer's
"Qualified Clients" who either.
i. Currently utilize the TeleBlock(R) Service and who have made
one million (1,000,000) or more Queries to the TeleBlock(R)
Service per month, on average, over the three (3) most recent
calendar months, or party thereof if using TeleBlock(R) for a
lesser period (an "Existing Qualified Client"), or;
ii. Who intend to subscribe to the TeleBlock(R) Service and who
can provide reasonable demonstrable evidence, satisfactory
[ILLEGIBLE] TBSC, that it will make one million (1,000,000) or
more Queries to the TeleBlock(R) Service per month, on
average, over every three (3) consecutive calendar month
period, excluding the first month service (a "New Qualified
Client")
2. RULES:
i. Customer must register its Qualified Clients in the VIP
Program with TBSC online at XXXXXXXX@XXXXXXXXX.XXX. When
registering a Qualified Client, Customer must include, among
other requested information, the applicable BTN/Auths and
Customer's sales representative name/contact information.
ii. New Qualified Clients must be registered prior to their first
use of the TeleBlock(R) Service in order to receive the VIP
Program's discounted pricing. For Existing Qualified Clients,
the VIP Program's discounted pricing will take effect at the
beginning of the next billing cycle following registration.
--------------------------------------------------------------------------------
Page 1 of 2
iii. Qualified Clients are eligible for the VIP Program's
discounted pricing if and for so long as they maintain the
volume requirements specified above. If any Qualified Client
falls below these requirements, TBSC and/or its affiliate Call
Compliance, Inc. will notify Customer and the discounted
pricing for that Client shall revert back to the standard
pricing at the end of the calendar month in which such notice
was sent.
iv. Customer can not charge Qualified Clients who are enrolled in
the VIP Program more than $0.003 per Query of the TeleBlock(R)
Service.
v. Customer's Qualified Clients registered in the VIP Program and
any queries of the TeleBlock(R) Service associated with such
Qualified Clients will not be eligible for any other discount
schedule or pricing promotion.
D. Price Changes. TBSC reserves the right to change prices for services provided
by TBSC and/or its Affiliates hereunder as necessary to account for
considerations of increased expenses, competition, and market conditions. Such
changes as necessary will be announced to Customer at least ninety (90) days
prior to the effective date of the price change. If such a change represents an
increase in any of the prices previously in effect for any of the services
covered by this Agreement, then a special termination option will exist for
Customer. Customer may notify TBSC at any time between receipt of the price
change notification and its effective date that Customer desire to terminate the
affected service one hundred eighty (180) days after such notification by
Customer to TBSC. Having given such notification of termination, Customer will
be exempt from the price changes through the termination date, but if Customer
subsequently renounces its intent to terminate, and this is acceptable to TBSC,
then the price change will be retroactive to its original effective date and
Customer will be billed for the underpayment, including interest calculated as
described in Section V.A of the Agreement to which this Appendix is attached,
calculated from the due date of each respective billing period since the
increase.
--------------------------------------------------------------------------------
Page 2 of 2
APPENDIX D
TO THE
TELEBLOCK(R) SERVICE AGREEMENT
CUSTOMER TRADEMARKS
[SLM LOGO]
--------------------------------------------------------------------------------
Page 1 of 1
