TotalAttorneys.com Sales & Marketing Automation Services End User License AgreementLast Update: October 7, 2013
- License; Modifications. TA grants Customer a non-transferable, non-exclusive, revocable, limited license to access and use the Services functionality, including email drip marketing campaigns (“Emails”), the Web Marketing Widgets (“Widgets”), and/or LeadNotifier (collectively, “Services Tools”), during the Term solely for use in marketing Customer’s law practice. TA may change, update or modify, suspend, release new versions of, discontinue any aspect of, including, without limitation, the availability of any Services or Services Tools feature, database or content, hours of availability, or equipment needed to access the Services or Services Tools, or create new modules for the Services or Services Tools, each of which may be included within the license described above. Customer hereby acknowledges that TA may, in its sole discretion, outsource and/or subcontract certain functions in providing the Services and Services Tools. TA shall not be liable for any actions of any such third party. Customer may use the Services and Services Tools only while Customer is a participant in TA’s Services. In any case, Customer’s participation may be suspended or terminated at any time by TA for any reason.
Emails. Customer authorizes TA to send the Emails on Customer’s behalf. It is solely Customer’s responsibility to review the content of any Emails before use and Customer may modify the content of the emails as Customer sees fit. TA shall bear no responsibility for any modifications made to the emails by Customer.
Widget. Customer may create custom widgets using the Services Tools to post on Customer’s website(s) for lead notification/contact/web marketing services.
LeadNotifier. Customer is responsible for providing the equipment and services, if any, and configuring the same correctly, as necessary for Customer’s access to Lead Notifier. TA is not responsible for any telephone or internet connection charges, surcharges, taxes, or other amounts incurred in accessing Lead Notifier, for which Customer accepts all responsibility. If TA specifies any particular system requirements, software,hardware, or services specifications for use of the Lead Notifier, Customer will be responsible to provide the same or to cease to use Lead Notifier.
- Fees: Customer shall pay the monthly fee as agreed upon by the parties. TA shall be entitled to immediately terminate/suspend Customer’s access to the Services at any time in the event Customer a) fails to pay any fees due to TA for any Services provided by TA to Customer or b) otherwise breaches/threatens breach of any its obligations. TA may also terminate this Agreement immediately upon notice of Customer’s bankruptcy or insolvency.
PLEASE NOTE- If Customer utilizes other TA services, Customer specifically agrees that Customer shall pay for all Leads in accordance with the Marketing General Terms of Service Agreement that Customer has entered into with TA and/or its affiliated entities for marketing services, regardless of whether the Services or any of the Services Tools become unavailable or Service is interrupted or discontinued. TA strongly recommends that Customer continues to use other independent means to verify receipt of Leads.
- Ownership; Use. The software, hardware, and other technologies which TA uses to deliver the Services and Services Tools contain confidential and proprietary information, trade secrets, and other property rights, and all rights to the Services and Services Tools, including without limitation all patents (registered or unregistered), trade secrets (including diagrams, drawings, processes, production methods, information, data, computer software, and formulas), copyrights (whether registered or unregistered), domain names and subdomains, end-user and consumer information, work product resulting from custom implementation services, and contract rights, including all derivative works thereof, shall remain exclusively with TA or its applicable licensors. Customer shall not directly or indirectly copy or reproduce all or any part of the Services, Software or the Website, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. Customer shall use the Services solely for its intended purposes and shall not use the Services for the benefit of any third party except as specifically contemplated under this Agreement. Customer may not modify, create derivative works or, redistribute, sell, decompile, reverse engineer, or disassemble the Services or Services Tools otherwise attempt to deduce the source code, design, or data transmission characteristics the Services or Services Tools. Customer will not use the Services or Services Tools to post, transmit, convey, submit, distribute, store or destroy any information: (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) that is defamatory, obscene or trade libelous; (d) that contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) that is false, misleading or inaccurate in any way; (f) to target for solicitation any TA customers for purposes of providing any competitive product; or (g) in violation of the any acceptable use policy or other policy posted at the Website or otherwise made available to Customer from time to time.
Customer agrees to indemnify TA for any claim or liability, and all resulting costs, damages, and expenses (including reasonable attorney’s fees and expenses) for any violation of this Section by Customer. Customer additionally shall not directly or indirectly copy or reproduce all or any part of the Services or Services Tools, including the Emails and Widgets, in any form including, but not limited to, the copying of presentation, style or organization, for use other than as contemplated under this Agreement. All rights in the Services not expressly granted herein are reserved by TA.
Customer will not use the Emails to post, transmit, convey, submit, or distribute any information: (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) that is defamatory, obscene or trade libelous; (d) that contains any viruses, Trojan horses, worms, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) that is false, misleading or inaccurate in any way; or (f) in violation of the any acceptable use policy or other policy posted at the Website or otherwise made available to Customer from time to time.
Term and Termination. The initial term of this Agreement will be for 30 calendar days (the “Initial Term”), beginning on the Effective Date. Thereafter, this Agreement shall continue until either party provides written notice of termination (collectively, the “Term”). Any payments made hereunder prior to notice of termination shall be non-refundable. TA shall also be entitled to immediately terminate/suspend Customer’s access to the Services at any time in the event Customer fails to pay any fees due or otherwise breaches/threatens breach of any its obligations. Upon termination, Customer’s access to/ use of the Services and the return of Customer’s data shall be governed by the terms of this Agreement.
FOR TRIAL PERIOD CUSTOMERS:
- a. Certain Customers shall be entitled to use the Services on a trial basis as specified on the web site and/or email marketing promotion when Customer initially agrees to the use of the Services. A Customer who uses the Services on a free trial basis shall be bound by the Agreement.
- b. Customer shall have a finite time period to use the Services on a trial basis. Once the trial period has expired, the Customer shall be subject to the payment terms outlined in this section and shall pay for the Services according to the price communicated in their TotalAttorneys.com account settings or price stated by Total Attorneys.
- c. After the trial period has expired, Customer may choose to purchase the Sales & Marketing Automation subscription pricing plan (the “Sales & Marketing Automation Subscription Plan”).
- d. The Sales & Marketing Automation Subscription Plan offers the Customer the described Services based on a flat monthly fee described in the Total Attorneys’ Price List after Customer logs in or a price list provided/emailed by Total Attorneys.
- e. The Services must be paid in advance prior to Customer’s usage of such Services. Access to the Services shall be enabled once Customer remits payment. Access to the Services shall be disabled should Customer become delinquent in paying the monthly subscription fees. If Customer is on a monthly subscription plan, Customer’s credit card will be charged on the first day of each subsequent month following the initial month of subscription. If Customer is on a prepaid subscription plan, the plan will automatically renew under the same term as the previous plan and Customer’s credit card will be charged on the first day following the expiration of the previous plan. If Total Attorneys modifies its pricing structure, Total Attorneys will use reasonable efforts to notify Customer prior to automatically renewing a prepaid plan.
- f. The price list for the Services is posted on TotalAttorneys.com after a Customer logs in to their account and is also available upon request. Prices may change at any time at Total Attorneys’ sole discretion. Customer is responsible for understanding what current prices are in effect at all times. Total Attorneys will use reasonable efforts to notify Customer of any changes to the price list prior to such changes taking effect.
- Confidentiality. Each party agrees to treat all information as confidential and not to use or disclose such confidential information except as necessary to perform under this Agreement. All of Customer’s data entered into the Services is confidential and shall not be used or released for any purpose other than as contemplated hereunder or required by law, including disclosure of information to proper authorities when we have a good-faith belief that such action is necessary to comply with applicable laws, valid legal process, a court order, a current judicial proceeding, or to protect our rights or property.
- Service Availability. Customer is solely responsible, at its sole cost and expense, for providing and maintaining all equipment and connections necessary to access the Internet, the Website and/or the Services. While it is TA’s objective to make the Services accessible at all times, the Website, Services, and/or Services Tools may be unavailable from time to time for any reason including, without limitation, routine maintenance. In addition, various portions of the Website or Services may operate slowly from time to time. Customer understands and acknowledges that access to the Website and/or the Services may be interrupted, suspended or terminated from time to time. In particular, and not in limitation of the foregoing, TA shall not be liable in any way for any delay in responding to an inquiry or question forwarded by Customer or the effects any delay or unavailability may have on Customer. CUSTOMER AGREES THAT TA SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE WEBSITE AND/OR SERVICES AND THAT CUSTOMER SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE WEBSITE AND/OR SERVICES.
- No Legal Advice. TA will not under any circumstance provide any legal advice or be deemed to be providing any legal advice or legal services in connection with the Services or any other services, and will limit its role in this regard to performing ministerial, administrative tasks. Neither TA, nor any third party service provider with which TA works in providing the Services, is a licensed attorney, and as such, neither TA nor any such service provider is authorized or qualified to provide legal advice or otherwise practice law anywhere in the United States. Customer is fully and solely responsible for reviewing, modifying (as necessary) and ultimately approving all materials provided to Customer in connection with the Services or any other services.
- LeadNotifier Not for Use in any Emergency Situations: Lead Notifier is intended for general business and organizational use and may not have the capacity to deliver messages of an emergency nature on an immediate basis. Accordingly, TA strongly recommends that alternative methods, specifically intended for mission critical or emergency services usage, be used to deliver emergency messages of any urgent, public safety or similar nature. Customer agrees that TA has no liability to Customer arising out of or related to any such use and indemnifies TA for any claim or liability, and all resulting costs, damages, and expenses (including reasonable attorney’s fees and expenses) arising out of Customer’s use of Lead Notifier for such purposes.
- Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TA DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND SERVICES TOOLS. TA IS NOT RESPONSIBLE FOR ANY (I) ELECTRONIC COMMUNICATIONS AND/OR CUSTOMER DATA WHICH ARE DELAYED, LOST, ALTERED, INTERCEPTED OR STORED DURING THE TRANSMISSION OF ANY DATA WHATSOEVER ACROSS NETWORKS NOT OWNED AND/OR OPERATED BY TA, INCLUDING, BUT NOT LIMITED TO, THE INTERNET AND CUSTOMER’S LOCAL NETWORK, (II) LOSS OR DELETION OF ANY OF CUSTOMER’S DATA WITHIN THE SERVICES, OR (III) ANY DAMAGES, LOSS OF DATA OR SECURITY BREACHES WHICH OCCUR AS A RESULT OF OR IN CONNECTION WITH ANY E-MAIL OR OTHER COMMUNICATIONS INITIATED WITHIN THE SERVICES. TA MAKES NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES AND SERVICES TOOLS. THE 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 NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EACH OF WHICH IS HEREBY DISCLAIMED). CUSTOMER IS SOLELY RESPONSIBLE FOR THE BACKUP OF ANY DATA WHICH CUSTOMER MAY REQUIRE BE STORED IN RESPECT OF THE SERVICES. TA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF SERVICES IS BORNE BY CUSTOMER. WHILE TA MAKES REASONABLE EFFORTS TO APPRISE ITSELF OF APPLICABLE LAWS AND REGULATIONS, TA MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE LEGALITY OR ACCURACY OF THE INFORMATION AND MATERIALS AVAILABLE THROUGH THE SERVICES. TA DOES NOT WARRANT THAT THE SERVICES OR SERVICES TOOLS ARE COMPLIANT WITH APPLICABLE LAWS AND RULES IN ALL 50 STATES AND IT IS SOLELY CUSTOMER’S OBLIGATION TO VERIFY THAT THIS PRODUCT IS IN COMPLIANCE WITH THE APPLICABLE LAWS AND RULES OF CUSTOMER’S JURISDICTION. CUSTOMER ASSUMES THE SOLE RISK OF MAKING USE AND/OR RELYING ON THE INFORMATION, SERVICES, PROGRAMS, AND MATERIALS AVAILABLE THROUGH THE SERVICES. TA SPECIFICALLY DISCLAIMS AND ANY ALL LIABILITY ARISING FROM CUSTOMER’S USE OF THE SERVICES AND SERVICES TOOLS, INCLUDING BUT NOT LIMITED TO, LIABILITY ARISING FROM SMS COMMUNICATIONS/TEXT MESSAGING, THE CAN-SPAM ACT, THE TELEPHONE CONSUMER PROTECTION ACT (TCPA) AND THE NATIONAL DO NOT CALL REGISTRY, AND ATTORNEY SOLICITATION RULES, AND CUSTOMER HEREBY IRREVOCABLY WAIVES ANY CLAIMS AGAINST TA WITH RESPECT THERETO.
SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO PORTIONS OF THIS DISCLAIMER MAY NOT APPLY TO CUSTOMER AND CUSTOMER MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION. Further, TA disclaims any responsibility for the accuracy, content, or availability of information available through the Services and Services Tools, and TA shall not be held responsible for the accuracy, legality, or decency of material contained in third-party sites or through third-party services (including any service or content reached through the Services), and Customer hereby irrevocably waives any claim against TA with respect thereto.
- Credit Card Security. LEAD NOTIFIER DOES NOT COMPLY WITH ANY LEVEL OF CREDIT CARD SECURITY OR PCI (PAYMENT CARD INDUSTRY) STANDARDS AND MAY NOT OTHERWISE BE ENCRYPTED OR HACKER-PROOF. TA STRONGLY DISCOURAGES USING LEAD NOTIFIER TO COLLECT CREDIT CARD OR OTHER PERSONAL OR FINANCIAL INFORMATION. TA EXPRESSLY DISCLAIMS ANY, AND CUSTOMER AGREES TA HAS NO LIABILITY FOR ANY CLAIMS OR DAMAGES RESULTING FROM FAILURE TO COMPLY WITH ANY DATA SECURITY STANDARDS PERTAINING TO CUSTOMER’S USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY CREDIT CARD SECURITY/PCI COMPLIANCE STANDARDS. CUSTOMER HEREBY INDEMNIFIES, DEFENDS AND HOLDS HARMLESS TA FROM ANY SUCH CLAIMS OR RELATED CLAIMS, WHETHER BY CUSTOMER, A THIRD PARTY, A GOVERNMENTAL AUTHORITY, OR NY PAYMENT CARD PROVIDERS.
- Security. We maintain industry standard security methods and practices to protect our customers, including high levels of encryption on our web servers, network, and firewalls, and are constantly working to enhance and improve all security measures. Our suite offers top of the line 256-bit SSL encryption with SAS 70 Type II Certification. Our servers are in a secure datacenter consisting of the following: Type II SSAE 16 SOC 1 Audit Reports; Dual-factor authentication via biometric scanners and proximity badges; Visitor screening; On-site security guards 24/7; Tailgate-preventing mantrap; Comprehensive CCTV video surveillance of facility interior, exterior, and roof surveillance videos archived for a minimum of 45 days; Routine data center walk-throughs by datacenter and security staff; Isolated shipping and receiving areas.
- Return of Data. TA shall be entitled to immediately terminate/suspend Customer’s access to the Services at any time in the event Customer fails to pay any fees due or otherwise breaches/threatens breach of any its obligations. Upon termination and Customer’s payment of all fees due and owing, Customer can submit a request to TA for return of Customer’s data at any time during the 6 months following the termination date and TA shall return Customer’s data within 30 business days of such request. All data shall be returned in Excel format and any documents shall be returned in their original format. In the event of Customer’s death, incapacity, or other unavailability, Customer’s data shall be returned to a successor designated in writing by Customer to TA. If Customer has not designated a successor for return of Customer’s data, TA shall contact Customer’s state bar(s) and TA shall provide 30 days’ notice to Customer and Customer’s state bar(s) before deletion of Customer’s data.
- Information Sharing. Upon receiving a legal request to turn over data related to Customer’s account, TA will make every effort to contact Customer first to provide notice of the request and deadline for delivery. TA will comply as required by all current federal and state laws while also keeping our client abreast of any information that directly affects access and confidentiality of their law office data.
- Intellectual Property. All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party. Customer shall be the sole owner of its name and all data it enters into the Services. TA is the sole owner of all intellectual property rights associated with the name “Total Attorneys,” the Website and the Services. All suggestions, recommendations, fixes or other communications from Customer to TA regarding the Services or the Website shall, upon submission to TA, be owned solely by TA. Any applicable supplier(s) of any third party software included in the Services shall own all intellectual property rights to such third party software as agreed upon between such third party and TA.
- Third Party Applications. TA may feature third party products and services and/or provide access to other third party applications or services, such as synchronization with other applications and document management systems, through TotalAttorneys.com and other third party applications. TA makes no representations with respect to, nor does it guarantee or endorse, the quality, non-infringement, accuracy, completeness, timeliness, or reliability of such third-party materials, programs, products, applications and services or any other materials, programs, products, applications and services which such third-party materials, products, applications and services may access. Customer’s correspondence or any other dealings with third parties found through the Website are solely between Customer and such third party. TA assumes no responsibility and expressly disclaims responsibility and liability for the operation or support of such third party applications and/or services, and those applications are governed by the terms and conditions for use as set by their respective providers. TA SHALL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF CUSTOMER’S USE OF ANY THIRD-PARTY APPLICATIONS AND/OR SERVICES, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Miscellaneous: A) Venue: The rights and obligations of the parties shall be governed by the laws of the State of Illinois, without reference to conflict of law principles, and all disputes arising under or in connection with this Agreement shall be governed by the internal laws of the State of Illinois and shall be brought and tried in federal or state courts located within the County of Cook, State of Illinois, and the parties hereby consent to submit to the personal jurisdiction of such courts. B) Indemnification: The parties agree to defend, indemnify, and hold harmless the other party and its affiliates, from any and all claims, controversies, causes of action, demands, attorneys’ fees/costs and liabilities related to or arising out of any breach of this Agreement, and in the case of Customer, Customer’s access to and use of the Services and any actual or alleged malpractice or breach of duty in the course of its representation of its clients. Customer will also indemnify and defend TA against any malpractice or other claim initiated by any Customer client and any violation of applicable law by Customer. C) Limitation of Liability: TA SHALL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNATIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN NO EVENT SHALL TA’S TOTAL LIABILITY TO CUSTOMER FOR ANY CLAIM EXCEED $100. D) Amendment: No amendment to this Agreement shall be effective unless in writing and either (a) signed by both parties or (b) posted by TA at the Website (in which case such amendment shall be binding on both parties 10 days from the date of posting, unless such changes are addressing new functions for the Services or changes made for legal reasons, in which case such changes will be effective immediately). Customer may terminate this Agreement by providing 30 days’ notice to TA within 10 days of the posting of any modification to this Agreement, in which case Customer shall remain subject to the version of this Agreement prior to modification. E) Notice. All notices shall be in writing provided to customer and posted by TA on the Website. F) Assignment: TA may assign this Agreement, without the consent of Customer, Customer may not sell, transfer or otherwise assign its rights under this Agreement without TA’s written approval. G) Relationship: The relationship between the parties under this Agreement is that of independent contractors. H) Non-Solicitation. Customer hereby agrees that it shall not, for 2 years following the term of this Agreement, hire or engage any of TA’s (or any affiliate’s) employees or independent contractors or otherwise interfere with TA’s relationship with any of its employees or independent contractors. I) Force Majeure. TA shall not be liable to Customer for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, labor disturbance, interruption of or delay in transportation, unavailability of third party services, failure of third party software or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services. J) Liquidated Damages/Injunctive Relief. Customer is permitted to use the Services to manage Customer’s sales, marketing and law practices (a “Permissible Use”). Customer is not permitted to use the Services for any other reason other than a Permissible Use as described above. Impermissible Uses shall include, but are not limited to, (i) using the Services in order to solicit, hire, engage or otherwise work with the employees or affiliates of TA or the attorneys or law firms who are customers of TA, to interfere or attempt to interfere in the relationship between TA and such employees, affiliates, attorneys, or law firms, (ii) copying or reproducing the Services or the Website, or reverse engineering, decompiling, disassembling or otherwise attempting to derive source code or trade secrets from the Software, or (iii) for any other purpose other than described herein (each, an “Impermissible Use”). If Customer does engage in such conduct, the resulting damage will be hard to quantify as a dollar amount and thus Customer hereby agrees to pay TA liquidated damages in the amount of $10,000 for each Impermissible Use. Customer further agrees that this liquidated damages provision reasonably approximates actual costs, losses, and expenses that would be incurred by TA due to any such Impermissible Use. Customer also agrees that violation of this Agreement could cause irreparable harm to TA for which monetary damages may be difficult to ascertain. Customer therefore agrees that TA will have the right, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement.