Terms of Service
These Surplus List, LLC ("Surplus List") terms of service ("Agreement") constitute a binding contract made by and between Surplus List, LLC ("Surplus List"), and you (the "Subscriber"). Surplus List and Susbcriber herby agree to the following terms and conditions. If you do not agree to all of the terms herein, you are prohibited from making any use of our Leads or Services. This Agreement contains significant limitations on our liability as well as restrictions on your legal rights. You are obligated to read, understand and agree to these terms before you proceed to the use of our services.
1. Non-Exclusive Software Use License
- Upon Subscriber's agreement to these terms and receipt of the required monthly multi-month, yearly, and/or multi-year subscription fees, Subscriber will be entitled to and Surplus List grants Subscriber on a limited, revocable, non-exclusive license to use the lead & skip tracing services which may include blended inbound and outbound calling (with call recording and monitoring), SMS marketing, direct mail, ringless voicemail and email ("the leads" or "the software") described on Surplus List's current website and application, currently located at Surplus List ("the website") and Surplus List App ("the application"). This Agreement shall commence on the date payment is made and continue for one calendar month, after which shall automatically renew for successive one-month renewal terms until terminated by either party. Monthly, multi-month, yearly, and/or multi-year subscription fees are to be paid in advance and are non-refundable, even if the Subscriber cancels mid-month or does not make use of the software. Additional in-app purchases are also available. Subscriber alone is the authorized user of the software and Subscriber may not allow any other person or entity (“Unauthorized Users”) to make any use of the software, Subscribers own authorized sub-users who review and agree to these same terms. Surplus List reserves the right to, at a later time, restrict the maximum number of Subscriber's sub users.. Subscriber must immediately report to Surplus List any use or attempted use of the software by any Unauthorized Users. Subscriber may not, at any time, resell or re-license the software to any Unauthorized User. Upon termination by either party, this license shall immediately terminate and Subscriber shall make no further use of the software. Except as otherwise specifically permitted in this Agreement, Subscriber may not: (a) modify or create any derivative works of any software, service or documentation, including translation or localization (code written to published APIs (application programming interfaces) for the software shall not be deemed derivative works); (b) sublicense or permit simultaneous use of the software by more than one user; (c) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for any software related to the software (except to the extent applicable laws specifically prohibit such restriction); (d) redistribute, encumber, sell, rent, lease, sublicense, use the software in a timesharing or service bureau arrangement, or otherwise transfer rights to any software; (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the software; (f) publish any results of benchmark tests run on any software to a third-party without prior express written consent from Surplus List The software license shall immediately and automatically be suspended if at any time, Subscriber defaults under its obligations under this Agreement or for nonpayment. Surplus List also reserves the right to terminate Subscriber's account at any time in its sole discretion for any or no reason whatsoever.
2. Limited Account
- During the term of this agreement and while Subscriber is in full compliance with these terms and with its payment obligations, Subscriber's license shall allow Subscriber generally our skip tracing, lead service and the related features listed on the website. The website is browser-based and includes reasonable, limited tech support and training as available. Surplus List cannot guarantee the reliability of its third-party providers/suppliers related to the domains, or that the hosting services shall be available at all times or free from isolated errors. Reasonable hosting downtime may occur, including without limitation for provider outages, system upgrades, maintenance, repairs, and acts of God/nature. Surplus List assumes no legal responsibility or liability for the Subscriber's use of the domain. Subscriber must operate in full compliance with all laws and regulations and must not use the assigned domain for any other purpose not contemplated herein. Subscriber understands that if Surplus List receives a court order, subpoena, civil investigative demand or other legal notice that Surplus List deems in its discretion to be valid, Surplus List may be required (or elect in its discretion) to produce information related to Subscriber, and/or suspend or terminate the hosting. Surplus List may suspend or terminate the hosting at any time in the event it reasonably believes Subscriber has violated the law, or subjected Surplus List to unreasonable legal exposure.
- Further, Surplus List does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its website or otherwise relating to such materials or on any sites linked to this site.
- In no event shall Surplus List or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption) arising out of the use or inability to use the materials on this website, even if Surplus List or a Surplus List authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.
4. Record Retention
- Surplus List will assume no obligation to maintain records related to the Subscriber's campaign or this agreement.
5. Liquidated Damages
- In the event that you violate paragraph 3 by (1) sub-licensing your rights to a third party; (2) permitting, intentionally or negligently, a third party to gain access to your login credentials; (3) engaging in any type of data mining or web scraping as described in paragraph 3; (4) selling any of the data that you access or receive through the Site; or (5) otherwise allowing a third party to benefit from your subscription or use of the Site, you acknowledge that our calculation of damages will be as follows and agree to pay these amounts as liquidated damages:
- $5,000 per third party user who accesses your account
- $2 per data record obtained in violation of these Terms
- $2 per data record sold by you
- $2 per data record obtained by a third party as a result of your violation of these Terms.
6. Refunds and Cancellation Policy
- Subscriber's monthly, multi-month, yearly, and/or multi-year subscription fees payment obligations, in-app purchases and any other fees associated with the services provided by Surplus List are non-refundable. No refunds shall be issued for partial use or non-use of the Service(s) provided to the Subscriber.
7. Governing Law
- Surplus List is merely a passive technology provider and common carrier. Subscriber is required to use the software in full compliance with all applicable laws and regulations, including without limitation, all state, federal and international: (1) Do-Not-Call ("DNC") registry prohibitions; (2) licensing and bonding requirements; (3) consumer cancellation rights; (4) mandatory disclosures; (5) cell phone restrictions; (6) text messaging restrictions; (7) opt-out rules; (8) call recording laws; (9) record retention requirements; and (10) direct mail rules and best practices; (11) CANSPAM Act and related email rules; and (12) all other applicable laws and regulations. All Surplus List offers are void where prohibited by law. Surplus List does not assume responsibility for ensuring that Subscriber's campaigns meet applicable legal requirements. Surplus List will not assume any liability if the Subscriber is ever held guilty or liable for any law violation. Notwithstanding the foregoing, Subscriber acknowledges that Surplus List has and is taking active steps to ensure the compliance of its customers, including by having Subscriber agree to these terms. We cannot guarantee that you have the legal right to contact individuals using the contact information provided by us—it is the Subscribers' sole obligation to ensure that they have proper consent or other legal exemption.
8. Legal Relationship
- By this Agreement, no partnership, joint venture, independent contractor, or ownership relationship is formed beyond that of a product Subscriber and Seller, and that of a software licensor and licensee. By agreeing to our Terms of Service as a whole, you also are signing a strict Confidentiality Agreement for use of the service, this agreement can be found here: Confidentiality Agreement
9. Choice of Law
- This Agreement shall be governed by and construed according to the laws of the State of California, without giving effect to normal choice-of-law and conflict-of-law principles. Except for a suit by Surplus List to collect the purchase price or other fees owed by Subscriber pursuant to the Agreement, the parties agree that a party asserting any claim or dispute regarding this Agreement shall file and litigate such claim/dispute only in a court in California.
- Subscriber shall assume, pay, indemnify, hold harmless, and reimburse Surplus List and its owners, employees, agents, affiliates, contractors, successors and assigns for any and all liabilities, damages, claims, suits, settlements, judgments, costs, and expenses (including reasonable attorney's fees and court costs) directly or indirectly incurred by Surplus List to the extent the same are related in any way to Subscriber's use of the software or which are primarily attributable to the negligence or intentional acts or omissions by Subscriber, Subscriber's owners, officers, employees, agents and representatives, including any authorized or unauthorized users. Notwithstanding the foregoing, nothing contained herein shall release Surplus List from any liability for its own gross negligence, except as allowed by law.
11. Limitation of Liability
- Neither party shall be liable for any consequential, incidental, special, or indirect damages (including, but not limited to, loss of profits, goodwill, use, data, or other intangible items) even if the other party has been advised of the possibility of such damages or losses. With respect to any other damages, Surplus List's liability hereunder shall in no event exceed an amount equal to the amount actually paid by Subscriber to Surplus List in the month prior to a claim being made, regardless of the basis for the claim. Subscriber understands that this is a significant limitation on Subscriber's right to sue Surplus List and Subscriber should not proceed if Subscriber does not agree. Surplus List shall not be bound by any typographical or other error or misprint in its marketing materials or online purchase websites, so long as Surplus List provides prompt notice of any such error and corrects the same
12. Intellectual Property
- "Surplus List" and all related trade and service marks are and shall remain the exclusive intellectual property of Surplus List and Subscriber specifically acknowledge that this Agreement does not confer upon the other party any interest in or right to use any trademark or service mark of the other party or its affiliates, unless the party wishing to use a trademark or service mark receives the prior written consent of the owning party, which the owning party may grant or withhold in its sole discretion. Subscriber acknowledges that the software is protected by state, federal, and international copyright laws and treaties, and Subscriber hereby prospectively waives any challenges to the existence, ownership and enforceability of the same.
- Except as otherwise provided herein, THE SERVICES AND LICENSE ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL Surplus List OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF Surplus List HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Surplus List cannot be responsible if Subscriber makes changes, misuses, or tampers with the software or hardware after Subscriber receives them. Any installation of other software or changes by Subscriber may void the warranty; any tech support required because of virus contamination will be at Subscriber's expense at the rate of up to $300 per hour. This warranty and the obligations and liabilities of Surplus List are in lieu of, and Subscriber waives, all other warranties, guarantees, conditions, or liabilities, expressed or implied, arising by law or otherwise, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, and further including without limitation consequential damages, whether or not caused by Surplus List's negligence. This warranty shall not be extended, altered, or varied except by a written agreement signed by Surplus List and Subscriber. Surplus List is not responsible for any failure of a DNC or wireless list provider to deliver its data accurately, completely, or in a timely way. Surplus List is not responsible for damages resulting from improper or incomplete use by Subscriber of Surplus List's products and services.
14. Technical Support
- Technical support is generally available (subject to reasonable downtime) Monday through Saturday during regular business hours. These times are subject to change based upon our evolving business practices, as well as unforeseen events out of our control. Surplus List will make every reasonable effort to resolve questions and problems on a timely basis, within the times listed above; however, Surplus List may not always be able to resolve every problem, nor respond to every call immediately. Surplus List and Subscriber each agree to pay for their own long-distance calls placed to the other party for any assistance.
15. Data Backups
- The subscriber is responsible for making frequent backups of his or her system to protect against any loss of valuable data. Surplus List cannot be responsible for the loss of data for any reason whatsoever.
- The subscriber is responsible for paying all fees and applicable taxes associated with the monthly, multi-month, yearly, and/or multi-year subscription. If Subscriber's payment method fails or the account is past due, Surplus List may collect fees owed using other payment methods on file, and add a service fee of $50 per month overdue. If at any time Subscriber defaults under this agreement for non-payment or otherwise, the software license shall immediately and automatically terminate until such time as Subscriber's account is current.
17. Fee Changes
- www.surpluslist.com or www.app.surpluslist.com, in its sole discretion and at any time, may modify the Pricing/Subscription.. Any Pricing/Subscription fee change will become effective at the end of the then-current Billing Cycle. www.surpluslist.com or www.app.surpluslist.com will provide you with a reasonable prior notice of any change in Subscription fees to give you an opportunity to terminate your Subscription before such change becomes effective. Your continued use of the Service after the Subscription fee change comes into effect constitutes your agreement to pay the modified Subscription fee amount.
18. Terms Modification
- Surplus List may revise these terms of service for its website at any time without notice. By using this website you are agreeing to be bound by the then current version of these terms of service.