TERMS AND CONDITIONS
1. Definitions.
1.1. “Client” means any consumer who has contracted Outsourcer to work on their Credit Report.
1.2. “Outsourcer” shall mean the company referenced above in the IO, which is requesting the processing services of the company.
1.3. “CRA” means Credit Reporting Agencies (Experian, Equifax and TransUnion).
1.4. “Company” means CreditFirm.net.
1.5. “Company Site” means www.creditfirm.net.
1.6. “IO” means the Insertion Order, which will set forth all details regarding the Outsourcing. The “IO” expressly incorporates all the terms and conditions contained
in this Agreement.
1.7. “Furnisher” means any organization reporting information to the Credit Reporting Agencies.
1.8. “Credit Report” means any report from the CRA’s containing Client’s account/trade-line information.
1.9. “Payment Obligation” means any Client on which Work was completed by Company as set forth in the IO.
1.10. “Service” means the business methods, practices, processes, technologies, network systems, and venue Company uses to complete Work for Client on behalf of Outsourcer.
1.11. “Work” means any processing work completed, including entering client’s personal information and/or credit report information into the portal, reviewing client’s credit reports, creating action plan, or mailing out letters to the credit reporting agencies or furnishers by Company and updating information in the portal based on the Results
1.12. “Results” means any letters mailed out by the CRAs or updated reports provided to company by Outsourcer.
1.13. “Contract” means the credit repair agreement signed by Client who engages Outsourcer to provide Work on credit report. Contract shall include a signed credit repair agreement, limited power of attorney, CROA SEC. 405 Disclosure (9) (Consumer’s Rights under Federal Law), and Notice of Right to Cancel.
1.14. “CROA” means the Credit Repair Organizations Act.
1.15. “Enrollment” meant the Outsorcerer's engagement of Company to initiate work on Client’s behalf.
2. Generation of Clients.
2.1. Company will process files and complete Work for Outsourcer as a defacto “Back Office” and initiate investigations with the CRA’s and Furnishers on behalf on Client.
2.2. Outsourcer agrees to conduct business within the guidelines of the CROA and only in states where licensed to do business in.
2.3. Outsourcer agrees to maintain records of Contract signed by Client and provide Company with Contract upon request.
2.4. Outsourcer will provide access to records as they become available that will allow Company to monitor the clients generated by Company. In the event that no online tracking is available for Company’s use, then Outsourcer agrees to use Company’s reporting system to determine the number of clients enrolled with Company.
2.5. In the event that it is required that Company digitally sign or agree to additional terms when working with Outsourcer, both Outsourcer and Company acknowledge and agree that such agreement is inconsequential and in no way binding, and that it is the result of a technical requirement, which cannot be altered. Therefore, any terms which appear on Outsourcer’s website or promotional content are to be disregarded and deemed noneffective and shall be superseded by this Agreement and the IO.
3. Company Service. Company reserves the right to unilaterally make changes to the Company Service and to these terms at any time. Outsourcer’s continued use of the Service after any such modification and notification thereof shall constitute its explicit consent to such modification.
4. Term, Renewal, and Termination. The term of this Agreement shall continue indefinitely until terminated by one of the parties. Outsourcer may terminate the IO or this Agreement upon ten (10) days’ written notice to Company, and Company may terminate this IO or this Agreement for any reason or for no reason, at any time. In the event of termination of the IO only, this Agreement will continue to govern the relationship between Company and Outsourcer in regards to any other IOs entered into by the parties. Upon termination of this Agreement, for any reason, Outsourcer will immediately discontinue use of the Service.
5. Confidential Information.
5.1. The Parties agree that they may exchange confidential, proprietary information related to Services, including email addresses, trade secrets, know-how and confidential information (collectively “Confidential Information”). Each Party agrees to use the other Party’s Confidential Information solely for the purposes contemplated by the proposed Services, including the IO. Confidential Information shall include the terms and existence of this Agreement and the IO. During the term of the Parties business relationship and at all times after its termination, each Party and its employees and agents shall maintain the confidentiality of the Confidential Information of the other Party and not sell, license, publish, display, distribute, disclose or otherwise make available such Confidential Information to any third party nor use such Confidential Information except as authorized by this Agreement. Neither Party shall disclose any such Confidential Information other than to employees, agents and permitted contractors of such party who reasonably need to know such Confidential Information in connection with the exercise of rights or the performance of obligations under this Agreement without the prior written consent of the other Party. The identity of Company’s service providers, advertisers and business partners and relationships is Company’s Confidential Information and shall be treated in accordance with this section.
5.2. The obligations of the Parties set forth herein shall not apply to any information that: (a) is in the public domain at or after the time it was disclosed by the disclosing Party to the receiving Party through no fault of the receiving Party; (b) was rightfully in the receiving Party’s possession free of any obligation of confidentiality at or after the time it was communicated to by the disclosing Party; (c) is disclosed with the prior written approval of the disclosing Party; (d) is independently developed by the receiving Party without reference to or use of the Confidential Information; (e) is or becomes available to the receiving Party from a person other than the disclosing Party or any of its Representatives who is not bound by an obligation to maintain the confidentiality of such information; (f) is necessary to disclose in order to establish the rights of either Party under this Agreement; or (g) is required to be disclosed pursuant to an order or requirement of a court, administrative agency or governmental body, provided that the receiving Party shall promptly notify the disclosing Party of the facts thereof to enable the disclosing Party to seek a protective order or otherwise prevent or restrict disclosure of such information, and upon request of the disclosing Party, shall reasonably cooperate with the disclosing Party (at the disclosing Party’s sole cost and expense) to obtain such protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or the disclosing Party waives compliance (in whole or in part) with the terms and conditions of this Agreement, the receiving Party shall disclose only that portion of the Confidential Information that is required to be disclosed and shall use all reasonable efforts to ensure that all Confidential Information that is disclosed, shall be accorded confidential treatment.
6. Representations, Warranties and Indemnification.
6.1. Outsourcer warrants and represents at all times that: (a) it has the authority to grant Company the information granted herein; (b) its Client’s credit reports, personal information, and contact information; (c) its products and services do not infringe or violate the patents, copyrights, or any other right of any third party; and (d) its products and services do violate any applicable law or regulation.
6.2. Outsourcer agrees to indemnify, defend and hold harmless Company and its respective subsidiaries, agents, partners, officers, directors and employees from and against any third party’s loss, cost, claim, injury or damage (including reasonable attorneys' fees and costs) resulting from claims or actions arising out of or in connection its representations and warranties and/or Outsourcer’s breach of this Agreement.
7. Payments.
7.1. Company shall bill Outsourcer on a per client monthly basis with a First Work Fee of charged the day of Client’s enrollment with Company. When Outsourcer elects to continue Company’s Services, Outsourcer will be charged a fee at the end of each Service interval, for Work previously and fully rendered. Charges will be processed on or about the same day of each month for each Service interval until Outsourcer elects to suspend or cancel Service.
7.2. Once Outsourcer generates enough Clients, Company may invoice Outsourcer for all Payment Obligations generated under this Agreement. Unless otherwise specified in the IO, Company’s aggregation of billing activity is based on a calendar week (i.e., beginning on Monday of each week and ending on Sunday of each week), and payment for all Payment Obligations that occur within a given calendar week are due no later than seven (7) days after the close of the week. Payment by Outsourcer is not contingent upon receiving Company’s aggregated income report/invoice, and Outsourcer is solely responsible for the timely remittance of its Payment Obligations, regardless of whether Outsourcer has or has not received an invoice from Company. In the event Outsourcer fails to pay within seven (7) days after payment is due, Outsourcer shall incur a 10% late fee plus shall bear interest at the rate of 1.5% per month or the maximum interest rate permitted under applicable law, whichever is less. Outsourcer agrees that if Outsourcer does not pay within seven (7) days after payment is due Company may seek to satisfy Outsourcer’s Payment Obligations and to collect such payment from Outsourcer.
7.3. Unless Outsourcer objects to any Payment Obligation within three (3) business days of the end of the month in which such Payment Obligation was generated, the Payment Obligation shall be final and binding. To the extent, Outsourcer intends to dispute a Payment Obligation, Outsourcer shall provide a written report to Company, within three (3) business days of the end of the month in which such Payment Obligation was generated, identifying, in detail, the discrepancies, between the Payment Obligation and Outsourcer’s evidence. In the event that any Payment Obligation fails to meet the qualifications set forth in the IO, as determined by Company, Company shall reduce the invoice by such rejected Payment Obligations.
7.4. Notwithstanding the foregoing, once the three (3) business days period to dispute a payment obligation has expired, Outsourcer may not withhold payment or any other amount due to Company for any reason, including but not limited to, fraud or other alleged wrongdoing, service quality, late payments, results, credit card refusals, expirations, chargebacks and/or any and all other disputes in connection with Payment Obligations. In no event shall Company be liable for any lost profits, lost revenues or for any indirect, incidental, consequential, special or exemplary damages arising out of or related to any credit card refunds, penalties, fees, chargeback costs and/or the like.7.5. Outsourcer agrees that Outsourcer shall keep, maintain, and preserve complete and accurate records relating to all Clients, Contract, Service, Results, and Work received under this Agreement. Such records shall be available for inspection and audit for up to one (1) year after the termination of this Agreement, shall be maintained at Outsourcer’s principal place of business, and shall be available for inspection and audit by written request of Company during reasonable business hours and upon reasonable notice by Company or its nominees. In the event that the audit results in an understatement of payments due to Company, Outsourcer shall promptly remit such underpayment plus interest at the rate set forth in Sections 7.1 and 7.2 above.
8. Proprietary Rights. Outsourcer agrees that it does not have, nor will it claim, any right, title or interest in the Service, the Company Site or any underlying technology, software, applications, data, methods of doing business or any elements thereof, or any content provided on the Company Site. In addition, Outsourcer acknowledges that all information, data, and reports received from Company as part of the Service are proprietary to and owned by Company. If instructed to do so by Company, Outsourcer will immediately discontinue the use of any such reports or data and any other material owned by Company or the third parties.
9. Privacy. Both parties agree to comply with all applicable privacy laws and regulations which apply to the Client’s generated and Work performed under this Agreement and both parties agree not to use consumer data collected by either party under this Agreement in violation of such privacy laws and regulations.
10. No Warranties/Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND IO, COMPANY MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER CONTAINED IN THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR THAT THE COMPANY SITE OR THE SERVICE WILL MEET OUTSOURCER’S REQUIREMENTS. COMPANY SHALL NOT BE LIABLE FOR ANY WORK, SERVICE OR COMMUNICATION, INCLUDING BUT NOT LIMITED TO THE CONTENT THEREOF, ANY UNAVAILABILITY OR INOPERABILITY OF THE RESULTS, UNAVAILABILITY OR CONSEQUENCES OF ANY WORK, THE COMPANY SITE, OR SERVICES, OR ANY TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION RELATED TO OR ARISING OUT OF THE SERVICES, THE COMPANY SITE OR ANY WORK, RESULT, OR SERVICE. COMPANY PROVIDES THE COMPANY SITE, SYSTEMS, NETWORK, WORK, AND SERVICE “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO OUTSOURCER. THIS WARRANTY GIVES OUTSOURCER SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. IN NO EVENT SHALL COMPANY, ITS SUBSIDIARIES THEIR PAST, PRESENT, AND FUTURE DIRECT AND INDIRECT SUBSIDIARIES, AFFILIATES, PARENT ENTITIES, JOINT VENTURES, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, PRINCIPALS, AGENTS, ATTORNEYS, REPRESENTATIVES, PREDECESSORS, SUCCESSORS AND/OR ASSIGNS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES RESULTING FROM ANY CLAIM ARISING OUT OF, OR RELATED TO, THIS AGREEMENT OR IO AND/OR USE OF THE COMPANY SITE, SERVICE, WORK, OR RESULTS INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE. IN NO EVENT SHALL CLAIMS EXCEED THE TOTAL FEES PAID TO COMPANY IN THE THIRTY (30) DAYS PRECEDING THE DATE SUCH CLAIM OR CAUSE OF ACTION FIRST AROSE NOT TO EXCEED $1,000. THE LIMITATION OF LIABILITY UNDER THIS SECTION WILL BE APPLIED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ANY CLAIM OR CAUSE OF ACTION ARISING UNDER OR OTHERWISE RELATING TO THE IO, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, MUST BE COMMENCED WITHIN SIX MONTHS FROM THE DATE SUCH CLAIM OR CAUSE OF ACTION FIRST AROSE OR ALL CLAIMS WILL BE CONSIDERED UNTIMELY ASSERTED AND WAIVED.
11. Covenant Not to Solicit Employees/Contractors. Each party agrees that during the term of the business relationship under this Agreement and for a period of twelve (12) months immediately thereafter, neither party shall directly or indirectly induce, entice, or otherwise attempt to influence any employee, consultant, agent, or independent contractor of the other party to terminate his or her employment or contract with the other party (for purposes of this paragraph the terms “employee”, “consultant”, “agent”, and “independent contractor” shall include any persons with such status at any time during the six (6) months preceding any prohibited action in question). Each party agrees and acknowledges that any breach of the covenants contained in this Section will cause irreparable injury and damages to the non-breaching party; and that in such event, the breaching party consents to the granting of injunctive relief against any continuing breach in addition to any other remedy available to the non-breaching party.
12. Telemarketing Compliance. Outsourcer covenants and agrees, in pursuing leads and contacts to comply with all applicable telemarketing laws, regulations and rules, including without limitation the Telephone Consumer Protection Act (47 USC § 227), the Telemarketing & Consumer Fraud and Abuse Protection Act (15 USC § 6101 et seq.) and the Telemarketing Sales Rules promulgated by the Federal Trade Commission. Outsourcer shall indemnify, defend and hold the Company harmless from and against any and all losses, damages, fines, liabilities, penalties and claims brought against or assessed to the Company that arise from, relate to or concern Outsourcer’s failure to comply with such telemarketing laws, regulations and rules.
13. Consent. Outsourcer consents to have Company use any of the consumer data collected, to solicit consumer reviews for the benefit of Outsourcer through the use of phone, text, and/or email technology in compliance with all applicable law. Company may use any consumer data owned by Outsourcer, without prior consent to solicit consumers for offers or other promotions.
14. Miscellaneous.
14.1. Relationship Between the Parties. This Agreement does not create an agency, joint venture, partnership, fiduciary relationship, implied or express exclusivity to each other or any similar relationship between the parties that restricts each party from operating its normal business or working with similar companies, competitors or any and all third parties, regardless of the effect it will have on each party. Neither party has the right or authority to act for, or on behalf of, the other party.
14.2. Third Parties. This Agreement is not for the benefit of any third party.
14.3. Notices. Without precluding any other sufficient form of notice, all notices, demands, or other communications under this Agreement shall be deemed given if sent by email to the email addresses specified of the parties as set out in the IO and directed to the attention of the individuals signing the IO on behalf of the parties or to another address or individual specified by the party. Emails shall be deemed delivered five (5) hours after such email is sent during business hours.
14.4. Amendment and Modifications. No supplement, modifications, or amendment of this Agreement by Outsourcer shall be binding unless executed in writing by both parties. The terms and conditions of the IO shall prevail exclusively over any written instrument submitted by Outsourcer even if signed by Company unless that writing expressly amends the IO and disclaims any terms therein. For this Agreement, an amendment to an IO shall include emails between the parties which has been accepted by each party replying with its acceptance. Once accepted, such amendment shall become an amendment to the applicable IO.
14.5. Waiver. Neither Party’s failure to insist on strict performance of any of this Agreement shall be deemed a waiver of any of its rights or remedies, nor shall it relieve the other Party from performing any subsequent obligation strictly in accordance with this Agreement. No waiver shall be limited to terms specifically referred to herein and shall not be deemed a waiver of any other provision or subsequent breach. No waiver shall constitute a continuing waiver unless the writing states otherwise.
14.6. Assignment. This Agreement shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of either Party, whether by merger, sale of assets, or other agreements or operation of law. Outsourcer shall not assign any right or interest under this Agreement or the IO, nor delegate any work or obligation to be performed under this Agreement, without the Company’s prior written consent. Any attempted assignment or delegation in contravention of this provision shall be void and ineffective and shall be deemed to be a material breach hereof.
14.7. Choice of Law and Jurisdiction. This Agreement and the IO shall be governed by, and to be construed in accordance with, the laws of the State of Utah without regard to that state’s conflict of laws provisions. Both parties expressly consent to the exclusive personal jurisdiction and venue for any claim relating to or arising out of this Agreement or the IO in the state and federal courts for Deerfield, IL.
14.8. Specific Enforcement and Attorneys’ Fees. Outsourcer acknowledges that Company will be irreparably injured if any of this Agreement is not specifically enforced. If Outsourcer commits, or in the belief of Company, threatens to commit a breach of any of this Agreement, Company and each of its subsidiaries shall have the right and remedy, in addition to any other remedy that may be available at law or in equity, to have this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to Company and its subsidiaries, and that money damages will not provide an adequate remedy therefore. Such injunction shall be available without the posting of any bond or other security, and you hereby consent to the issuance of such injunction. If this Agreement is breached by Outsourcer, Company will be entitled to recover its legal fees and costs incurred in the enforcement of this Agreement.
14.9. Headings and Inclusiveness of Terms and Pronouns. Headings are for the convenience of reference only and do not alter the rights and obligations of the parties. Wherever from the context it appears appropriate, each term stated in either the singular or the plural shall include the singular and the plural, and pronouns stated in either the masculine, feminine, or neuter shall include the masculine, feminine and neuter.
14.10. Severability. If any of this Agreement are held invalid, such provision shall be restated to reflect, as nearly as possible, the original intention of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in force.
14.11. Integration. This Agreement together with the IO and any attachments thereto, contain the entire understanding of the agreement between the parties and supersedes all prior agreements and understandings between them, oral or written, relating to the subject matter hereof.
14.12. Advice of Counsel. The parties each acknowledge and agree that they have reviewed this Agreement, and every part thereof, that they understand same, that they have had the opportunity to review this Agreement and to consult with their independent counsel as to the terms, and that the terms and conditions hereof adequately and correctly reflect their respective understandings of the subject matter hereof.
14.13. Force Majeure. Neither Party shall be liable to the other for any delay or failure due to: acts of God, war, transportation difficulties, labor strikes, natural disasters, riots, telecommunications or information services infrastructure, hacking, spam, any failure of a computer, server, or software, or acts or omissions of vendors or suppliers beyond the control of the Parties.
14.14. Construction. This Agreement has been mutually drafted and no presumption relating to ambiguities in favor of one interpretation over another due to the identity of the drafting Party shall arise.
14.15. Counterparts. This Agreement and the IO shall become effective upon the execution of the IO by Outsourcer.
Additional Comments
Any future offers that are picked up by CreditFirm.net
will be governed by this Insertion Order and the Terms and Conditions (“Agreement”) incorporated in this
Insertion Order. All changes to this Insertion Order must be made in writing and accepted by both parties.
Acceptance via email will satisfy this requirement. All notifications related to this IO and campaign, including but not limited to, pricing changes, cancellations, creative updates, etc. must be sent to affiliate@creditfirm.net.
