Terms and Conditions for Telemarketer Subscription
"Telemarketer"
Means a person or organization that conducts telemarketing either on its own behalf or on behalf of one or more other persons or organizations.
"Client of a Telemarketer"
Means a person or organization that has engaged a telemarketer to conduct telemarketing on its behalf.
"Query Subscription"
Allows a telemarketer to check up to 100 phone numbers at a given time to see if they are on the National DNCL. Query subscriptions are "pay as you go" and are deemed to end once the query session is concluded.
"Download Subscription"
Allows a telemarketer to download a list a of phone numbers that are registered on the National DNCL. Depending on your business needs, you may purchase the entire list for Canada or individual area codes. Download subscriptions are available in periods of 1, 3, 6, or 12 months.
Who is required to subscribe to the National DNCL?
- Clients of Telemarketers or Telemarketers who make unsolicited telemarketing calls on their own behalf, and whose calls are not exempt under the National DNCL Rules;
- Clients of Telemarketers on whose behalf unsolicited telemarketing calls are made and whose calls are not exempt under the National DNCL Rules; and
- Organizations providing services to the telemarketing industry, such as scrubbing, requiring their own access to the National DNCL.
All Subscribers, further to the National DNCL Rules Part II Section 10, "shall not sell, rent, lease, publish or otherwise disclose, whether, for consideration or not, the National DNCL or any portion thereof to any person outside of its organization, including any affiliate."
Who is not required to subscribe to the National DNCL?
- Telemarketers who make unsolicited telemarketing calls only on behalf of clients;
- Telemarketers who make unsolicited telemarketing calls on their own behalf and whose calls are exempt under the National DNCL Rules; and
- Clients of Telemarketers on whose behalf unsolicited telemarketing calls are made and whose calls are exempt under the National DNCL Rules.
National Do Not Call List Terms and Conditions
In Telecom Decision CRTC 2008-6-1, Delegation of the Commission’s investigative powers with regard to Unsolicited Telecommunications Rules complaints (Decision 2008-6-1), and Telecom Decision CRTC 2007-48, Unsolicited Telecommunications Rules framework and the National Do Not Call List (Decisions 2007-48), the Canadian Radio-television and Telecommunications Commission ("CRTC") established a comprehensive framework governing unsolicited telecommunications received by consumers, including a number of rules (collectively the "Unsolicited Telecommunications Rules"), and the appointment of a National DNCL operator (the "National DNCL Operator"). The Unsolicited Telecommunications Rules include the National Do Not Call List (DNCL) Rules (the "National DNCL Rules"), the Telemarketing Rules, and the Automatic Dialing-Announcing Device Rules. The Unsolicited Telecommunications Rules, as amended from time to time, can be found on the CRTC’s website at http://www.crtc.gc.ca.
The National DNCL Rules require each Pay Per Query Subscriber or Download Subscriber (each a "Subscriber") to subscribe to, and obtain from, the National Do Not Call List Operator all relevant Canadian telecommunications numbers registered on the National Do Not Call List (" National DNCL Data") prior to initiating any telemarketing telecommunications to consumers.
Acknowledgement
As a condition of receiving the Services (as such term is defined below) Subscriber hereby acknowledges and agrees as follows:
- National Do Not Call List Rules : Subscriber hereby acknowledges, represents and warrants that it has read, considered and understands the National DNCL Rules and shall act and govern itself in accordance therewith (including without limitation the implementation of a proper records retention policy). The CRTC may amend the National DNCL Rules from time to time and such amendment shall be effective from the date it is deemed effective by the CRTC, with or without any express notice to Subscriber. The National DNCL Operator shall not be required to inform or otherwise notify Subscriber of any amendment or change enacted or implemented by the CRTC to the National DNCL Rules.
- Provision of the Services : The National DNCL Operator shall provide those services identified by Subscriber (the "Services") from the services offered by the National DNCL Operator and identified as available to Subscribers through the prescribed selection process ("Service Selection Process ") on the terms and conditions set out herein and in accordance with the National DNCL Rules. For greater certainty the National DNCL Operator reserves the right to make use of third party providers in order to deliver the Services, which may include the utilization of third party providers' web-sites.
- Fees and Taxes : Subscriber shall pay to the National DNCL Operator the fees applicable to the Services, based on the service option(s) selected as part of the Service Selection Process (the "Fees"), together with all taxes, including all sales, goods and services, value-added and similar taxes levied or assessed by any taxing authority ("Taxes") applicable to the provision of the Services by the National DNCL Operator. Fees paid by the Subscriber for the use of the Services are non-refundable. The Subscriber hereby acknowledges that the National DNCL Operator may use, from time to time, services from third party suppliers in order to process payments of the Fees and therefore agrees to be subject to certain terms and conditions which may be specific to the provision of services by such third party suppliers.
- Changes to Terms and Conditions (including Fees) : The National DNCL Operator may change, from time to time, the terms and conditions applicable to the Services, including the Fees, and Subscriber’s continued use of the Services shall be deemed to be, and constitute, Subscriber’s acceptance of such changes or new terms.
- Sufficient Knowledge : Subscriber has adequate and sufficient knowledge, experience and technical skills to make use and benefit from the Services.
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Termination or Unavailability of the Services : The National DNCL Operator shall be entitled to terminate the Services or otherwise decline providing the Services to a Subscriber under the following conditions:
- Subscriber is in breach of any provision set forth herein (including any of the payment obligations);
- the National DNCL Operator would have to incur unusual expenses which the Subscriber will not pay;
- Subscriber owes amounts to the National DNCL Operator with respect to the Services;
- Subscriber ceases for any reason to carry on business; or
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when ordered to do so by the CRTC or its delegate.
The National DNCL Operator, or its suppliers, assumes no liability whatsoever for any claims, damages, losses or expenses arising out of or otherwise relating to the unavailability of any of the Services or the decision of the National DNCL Operator not to provide any of the Services in accordance with the terms and conditions set out herein.
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Responsibilities of Subscribers : In addition to any other obligations set forth herein or in the National DNCL Rules, the Subscriber shall not:
- use the Services in a manner that is inconsistent with the terms and conditions set forth herein and the National DNCL Rules, including any rules the CRTC has established or may establish from time to time;
- use or attempt to use the Services for any unlawful purposes;
- obtain or attempt to obtain unauthorized access to the Services or any part thereof;
- tamper with, alter or otherwise rearrange the Services;
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use or abuse the Services, or permit or assist others to do so in any manner that interferes with:
- the Services or the provision of them; or
- access to the Services by other Subscribers, including the introduction of virus, malicious computer code or any harmful component;
- use or abuse the Services, or permit or assist others to do so for any purpose or in any manner that directly or indirectly violates the terms and conditions set out herein, applicable laws or any third party rights; and
- use or attempt to use the Services for any purpose for which it was not intended.
- Proprietary Rights to the Services : The National DNCL Operator and its suppliers possess all right, title and interest in and to the Services and the underlying systems or service components thereto ("Service Elements"), and Subscriber hereby acknowledges that being granted access to or use of the Services shall not provide any right, title or interest to the Service Elements.
- National DNCL Data : All National DNCL Data and title and right therein shall be the exclusive property of the CRTC.
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Privacy and Data Protection:
- "Applicable Privacy Laws" means the Personal Information Protection and Electronic Documents Act (Canada), as amended or supplemented from time to time, and any similar Canadian federal or provincial legislation now in force or that may in the future come into force governing the protection of personal information.
- "Consumer Personal Information" means all information, including the National DNCL Data, shared by the National DNCL Operator, its suppliers or the CRTC with the Subscriber where such information has been collected by the National DNCL Operator, its suppliers or the CRTC as part of the process implemented by the National DNCL Operator to enable consumers to register their telecommunications numbers on the National Do Not Call List.
- The Subscriber hereby agrees to make use of the Consumer Personal Information in accordance with the Applicable Privacy Laws.
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Without limiting the obligations of Subscriber under the Applicable Privacy Laws, the Subscriber hereby agrees:
- so long as the Subscriber remains in possession or custody of Consumer Personal Information, use appropriate physical, organizational and technological security measures to protect such Consumer Personal Information against loss, theft and unauthorized access, disclosure, copying, use, or modification;
- promptly, after becoming aware of same, inform the National DNCL Operator of: (i) any loss, theft or accidental or unauthorized access, disclosure, copying, use, or modification of such Consumer Personal Information; and (ii) any disclosures made or proposed to be made that are required by law;
- in disposing of Consumer Personal Information, make use of appropriate physical, organizational and technological security measures to protect such Consumer Personal Information against loss, theft and unauthorized access, disclosure, copying, use, or modification; and
- on reasonable notice and during normal business hours, permit the National DNCL Operator, the CRTC or their respective designees to inspect any Consumer Personal Information in the custody or possession of the Subscriber and to audit the Subscriber’s compliance with its obligations described in this Section 10, including, without limitation, the security measures used to protect Consumer Personal Information; permit the National DNCL Operator, the CRTC or their respective designees to enter onto the Subscriber’s premises for such purposes; and otherwise promptly and properly respond to all reasonable inquiries from the National DNCL Operator, the CRTC or their respective designees with respect to the Subscriber’s handling of Consumer Personal Information or the Subscriber’s compliance with this Section 10.
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Confidential Information:
- "Confidential Information" means any data, documentation or other information of a proprietary or confidential nature of the National DNCL Operator, its suppliers or the CRTC (including National DNCL Data), or which is treated as confidential by the National DNCL Operator, its suppliers or the CRTC, whether or not identified as being confidential or proprietary, which is disclosed or made available to the Subscriber in connection with the performance of this Agreement. For greater certainty, Confidential Information shall not include any data, documentation or other information which is: (i) known to the Subscriber prior to receipt thereof from the National DNCL Operator, its suppliers or the CRTC; or (ii) available to the Subscriber on a non-confidential basis from a source other than National DNCL Operator, the CRTC or a third party providing services to the National DNCL Operator, if that source or its source is not in breach of any obligations of confidentiality to the National DNCL Operator, one of its suppliers, or the CRTC.
- The Subscriber agrees to take such care to protect the confidentiality of the National DNCL Operator, its suppliers and CRTC Confidential Information as would be taken by a reasonable party to protect its own confidential information from disclosure and, except as required by law, or as permitted by determinations made by the CRTC pursuant to the Telecommunications Act, or as required to carry out its obligations or receive the Services under this Agreement, the Subscriber agrees not to use or disclose the National DNCL Operator, its suppliers or CRTC Confidential Information without the National DNCL Operator’s or CRTC’s prior written consent, as applicable.
- The Subscriber is responsible for the safekeeping and for establishing proper security and confidential processes in order to protect and avoid inappropriate use of any secured access codes or other identifiers specific to the Subscriber (collectively the "Access Codes") in order to access the National DNCL Data or benefit from the Services. The Subscriber shall be responsible (including without limitation the payment of all applicable Fees) for the utilization of its Access Codes, regardless of whether or not such utilization was authorized by the Subscriber. The Subscriber hereby acknowledges that the National DNCL Operator and the CRTC deny any and all liabilities with respect to improper utilization of Subscriber’s Access Codes and have not put in place any mechanism or process in order to ascertain whether or not the utilization of Subscriber’s Access Codes has been properly authorized by the Subscriber.
- Disclaimer of Warranty: THE SUBSCRIBER ACKNOWLEDGES THAT NEITHER THE NATIONAL DNCL OPERATOR, ITS SUPPLIERS OR THE CRTC WARRANTS (I) UNINTERRUPTED OR ERROR-FREE SERVICES, OR (II) THE CONTENT, AVAILABILITY, ACCURACY OR ANY OTHER ASPECT OF ANY INFORMATION INCLUDING ALL DATA, FILES AND ALL OTHER INFORMATION OR CONTENT IN ANY FORM, ACCESSIBLE OR MADE AVAILABLE TO OR BY THE SUBSCRIBER THROUGH THE USE OF THE SERVICES. IN ADDITION, THE SUBSCRIBER ACKNOWLEDGES THAT NEITHER THE NATIONAL DNCL OPERATOR, ITS SUPPLIERS OR THE CRTC MAKES REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING STATUTORILY, FROM A COURSE OF PERFORMANCE OR DEALING, TRADE USAGE OR OTHERWISE WITH RESPECT TO THE SERVICES.
- Liability for Direct Damages : THE NATIONAL DNCL OPERATOR’S, ITS SUPPLIERS’ OR THE CRTC’S, TOTAL CUMULATIVE LIABILITY FOR DAMAGES, EXPENSES, COSTS, LIABILITY OR LOSSES (COLLECTIVELY, "DAMAGES") ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY OF THE SERVICES, WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF THE NATIONAL DNCL OPERATOR OR ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, IS LIMITED TO DIRECT, ACTUAL, PROVABLE DAMAGES AND WILL IN NO EVENT EXCEED THE LESSER OF AN AMOUNT EQUAL TO $100.00 AND ONE MONTH WORTH OF SERVICES SUBSCRIBED TO BY THE SUBSCRIBER.
- No Liability for Certain Damages : THE NATIONAL DNCL OPERATOR, ANY OF ITS SUPPLIERS OR THE CRTC IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF SERVICES (INCLUDING LOST PROFITS, ANTICIPATED OR LOST REVENUE, LOSS OF DATA, LOSS OF USE OF ANY INFORMATION SYSTEM, FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS, OR ANY THIRD PARTY CLAIM), WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF THE NATIONAL DNCL OPERATOR, ITS SUPPLIERS OR THE CRTC HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
- Fundamental Breach : THE LIMITATIONS SET FORTH IN SECTIONS 13 AND 14 HEREOF SHALL APPLY EVEN IF THERE IS A BREACH OF CONDITION, A BREACH OF AN ESSENTIAL OR FUNDAMENTAL TERM OR A FUNDAMENTAL BREACH HEREUNDER.
- Limitations Fair and Reasonable : SUBSCRIBER EXPRESSLY AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY SET OUT HEREIN ARE FAIR AND REASONABLE IN THE COMMERCIAL CIRCUMSTANCES OF THIS AGREEMENT AND THAT THE NATIONAL DNCL OPERATOR WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE INCLUSION OF THE LIMITATIONS SET OUT IN SECTIONS 13 AND 14 HEREIN.
- Force Majeure : If there is a default or delay in the National DNCL Operator’s performance of its obligations hereunder and the default or delay is caused by circumstances beyond the reasonable control of the National DNCL Operator including fire, flood, earthquake, elements of nature, acts of God, epidemic, explosion, power failure, war, terrorism, revolution, civil commotion, acts of public enemies, law, order, regulation, ordinance or requirement of any government or its representative or legal body having jurisdiction, or labour unrest such as strikes, slowdowns, picketing or boycotts, then the National DNCL Operator shall not be liable for that default or delay, and shall be excused from further performance of the affected obligations on a day-by-day basis, if the National DNCL Operator uses commercially reasonable efforts to expeditiously remove the causes of such default or delay in its performance.
- Entire Agreement : The terms and conditions set forth herein represent the entire agreement between Subscriber and the National DNCL Operator with respect to the subject matter hereof, and supersedes all prior agreements, understandings, commitments, undertakings, representations, negotiations and discussions on the subject matter, whether written or oral.
- Governing Law : The terms and conditions set out herein shall be governed by and interpreted according to the laws in force in the Province in Canada where the Subscriber’s main place of business is situated, and the laws of Canada that apply in that Province (without regard to any conflicts of law rules that might apply the laws of any other jurisdiction). If that place of business is not in a Province of Canada, then this Agreement shall be governed by and interpreted according to the laws in force in the Province of Ontario and the laws of Canada that apply in Ontario. Each of the Parties hereby irrevocably consents and agrees to submit to the exclusive jurisdiction of the courts of the applicable Province in respect of all matters arising out of or in connection with this Agreement except CRTC regulatory matters. For CRTC regulatory matters the parties attorn to the exclusive jurisdiction of the federal courts or tribunals of Canada.
- Survival : The following Sections shall survive termination: Sections 3, 7, 9, 11, 13, 14, 15, 19 and this Section 20.
- Date Modified: