Terms of Use- ConstantPLAN™

Introduction to ConstantPLAN Terms of Use

These “Terms of Use” (sometimes referred to as ConstantPLAN, LLC dba ConstantPLAN, a Wyoming limited liability company, (“ConstantPLAN,” “we,” or “us”). You are a customer (or a “Member, “or will become a Member if you agree to our Terms of Use by clicking below, or use ConstantPLAN services). The “Term” is the time during which you use or enroll in our Services such as sending out emails and other content. If an individual purports, and has the legal authority, to sign these Terms of Use electronically on behalf of an employer or client, “you” refers to the employer or client. If not, “you” refers to the individual signing hereon. You are responsible for assuring that all the terms and conditions of this Agreement are complied with. By clicking the button to join ConstantPLAN, you will be agreeing to the terms of this Agreement. Furthermore, after typing in your username, or other indication of your identity, you confirm to us that typing is such indication of identity constitutes your “signing” of this Agreement for all purposes under applicable law. Any individual clicking the button on behalf of another individual or entity, listed as the Member above, does hereby represent and warrant that such agreement is being made with full authority.

 

Responsible Use

Customer agrees to familiarize him or herself with the legalities of any campaigns run through the ConstantPLAN services.   While not comprehensive, below are websites that the customer agrees to be familiar with rules and regulations, and Customer agrees to not violate any rules or regulations listed, nor any similar laws that may govern federal, state or local rules and regulations.

Federal Trade Commission, LINK: http://www.ftc.gov
Federal Communications Commission, LINK: http://www.fcc.gov
DoNotCall Registry Info, LINK: http://www.donotcall.gov

  • Customer agrees to familiarize themselves with any additional International, Federal, State, or local laws governing your dialing, emailing, content regulation, or relevant materials.
  • Customer agrees to place *ANY* individual requesting DNC status, on Customer’s accounts DNC list, immediately.
  • Customer agrees to provide legal contact information in any outbound campaign within the initial greeting message, on email messages, and anywhere required by law or ConstantPLAN policy.
  • Customer agrees to schedule campaigns responsibly.
  • Customer agrees not to send any calls, sms messages, or emails to life-line services, such as hospital emergency services, fire, police, 911, or utility related telephone numbers, as part of any service provided by or maintained by ConstantPLAN.  Customer acknowledges that these services are for public benefit and welfare, and as such, no emergency service will be included in any responsible marketing campaign.
  • Customer agrees to not send any sales outbound broadcasts to recipients that have not consented to receiving such a broadcast.
  • Customer agrees to use DNC / opt-out features made available to you via ConstantPLAN.
  • Customer agrees to consult with an attorney before prior use of any data for which customer is unfamiliar, or if legalities of dialing remain unclear to Customer.

 

WARNINGS OF LEGAL CONSEQUENCES:

Warning: If you engage in certain conduct, such as violating laws that regulate sending out and the content of bulk email, try to take advantage of us in violation of our Terms of Use by taking such actions as using our servers to benefit another service or organization outside of the scope of agreed upon ConstantPLAN services, or failing to pay an amount you owe us, we will be entitled to collect from you the higher of a pre-set amount or a multiple of your charges for one year on an annualized basis (which is a reasonable pre-estimate of the actual damages we would likely suffer from such conduct) plus attorney fees.  In exchange for services we expect our customers to act with integrity and follow our rules in order to help us maintain our reputation as having customers who only send bulk email to people who have consented to receiving them or with whom they have had a relationship from earlier selling or licensing (or negotiating to sell or license) a product or service and to not otherwise abuse our system.

 

COMPLIANCE WITH FEDERAL, STATE AND LOCAL REGULATIONS

  • Subscriber shall be fully and solely liable for any prerecorded audio, voice transmissions, text messages, email, and content sent through the Service and fully responsible for compliance with applicable law. Subscriber acknowledges that ConstantPLAN has no involvement in the acquisition or development of Subscribers call list(s) or control over the content of any transmission or the destination such transmission will be sent nor will ConstantPLAN be liable for such content.
  • Subscriber is fully and solely responsible to be aware of, understand, and comply with all of the rules and regulations applicable to Subscriber’s use of ConstantPLAN Service including but not limited to Federal Trade Commission rules and regulations, Federal Communication Commission rules and regulations, National Do Not Call Registry rules and regulations and individual state Do Not Call rules and any applicable individual state or local regulations, Controlling the Assault of Non-Solicited Pornography and Marketing Act, along with any other federal, state, or local laws that may be applicable to Subscribers use of ConstantPLAN Service. Subscriber agrees not to violate these, or any other federal, state, or local law and represents and warrants that Subscribers use of ConstantPLAN will not cause ConstantPLAN to violate these or other similar laws.
  • Subscriber understands that the Federal Trade Commission Telemarketing Sales Rule prohibits the transmission of pre-recorded phone calls that are part of a plan, program or campaign which is conducted to induce the purchase of goods or services or charitable contributions. The Federal Trade Commission Telemarketing Sales Rule provides that calls may be permissible provided calls are placed only to consumers who have provided their prior expressed signed written consent to receive such calls. Use of ConstantPLAN Service for the delivery or transmission of pre-recorded phone calls that are part of a plan, program or campaign which is conducted to induce the purchase of goods or services or charitable contributions not in compliance with applicable law is strictly prohibited. Notwithstanding the language contained in this paragraph calls initiated and placed by the Subscriber specifically to consumers who have provided the Subscriber with their prior expressed signed written consent to receive such calls as provided by the Federal Trade Commission Telemarketing Sales Rule at 16 CFR Part 310 and any amendments thereof shall not be deemed prohibited. Subscriber understands that compliance with federal, state and local law is solely the responsibility of the Subscriber.
  • Subscriber understands and agrees that if Subscribers use of ConstantPLAN Service includes initiating or receiving telephone calls to or from customers or donors then Subscriber shall comply with all applicable federal, state and local laws including but not limited to laws pertaining to telemarketing.
  • Subscriber is fully and solely responsible to be aware of, understand, and comply with the anti-solicitation provisions of the Federal Telephone Consumer Protection Act of 1991, and any amendments thereto, at 47 U.S.C. § 227, the Federal Communications Commission implementing regulations, at 47 CFR § 64.1200 et seq., the Federal Trade Commission’s Telemarketing Sales Rule at 16 CFR Part 310 and any amendments and any similar laws, the Controlling the Assault of Non-Solicited Pornography and Marketing Act and any other similar laws. Subscriber agrees not to violate these, or any other applicable federal, state, or local anti-solicitation laws, and represents and warrants that its use of ConstantPLAN Service will not cause ConstantPLAN to violate these or other similar laws.
  • Subscriber agrees that it is the sole responsibility of the Subscriber to abide by any laws defined by the State or Federal Government in which Services will be applicable. Subscriber understands and agrees that ConstantPLAN will not be held responsible for damages to the Subscriber or any third party incurred due to Subscriber’s failure to abide by state and/or federal laws and will seek indemnification from Subscriber for damages it sustains from Subscriber’s breach of this provision as per Section 8 of this document. Please refer to the Telephone Consumer Protection Act of 1991, the Telemarketing Sales Rule, the Controlling the Assault of Non-Solicited Pornography and Marketing Act. You may visit the Federal Communications Commission website athttp://www.fcc.gov and the Federal Trade Commission website at http://www.ftc.gov and or refer to the appropriate State Attorney General’s office or other applicable offices for rules and or regulations pertaining to your intended application and use of the Service.
  • Subscriber agrees to not use any pornographic, hateful, or otherwise offensive material in any form, including but not limited to: audio, visual, electronic, while in term with ConstantPLAN for any service provided by, or associated with ConstantPLAN.

 

 

1. Who We Are: “ConstantPLAN” is a trade name of ConstantPLAN, LLC, a Wyoming limited liability company, that owns and operates the website with the URL: http://www.constantplan.com (the “website”).

2. Purpose: The purpose of these Terms of Use (this “Agreement”) is to set forth the terms and conditions under which you are permitted to use our marketing services, phone services, voicemail/electronic message creation system, distribution and management system, content creation, social media services, registry services, and any other offered business services (the “Services” or “services”).

3. Changes: We reserve the right to change any of the terms of this Agreement by posting the revised Terms of Use on our website and/or by sending an email to the last email address you have given to us. Unless the Term is terminated within ten (10) days, this new Agreement will be effective immediately with respect to any continued or new use of the Services.

4. Eligibility: We require that any Member be at least eighteen (18) years of age. By using the Services, you represent and warrant that you are at least eighteen (18) years of age and that your use of the Services does not violate any applicable law or regulation. Your account will be suspended, deleted, or closed, based on ConstantPLAN judgment, if we have reason to believe that you are under eighteen (18) years of age.

5. Charges And Payments:
Monthly Plans

5.1 Our charges for monthly plans are posted on our Website and may be changed from time-to-time. Payments are due for the full month for which any part of the month is included in the “Term.” Payments are due for any month on the same date, or the closest date in that month, to the date of the month you signed up with us and made your first monthly payment (the “Pay Date”). For any month for which you have already paid, for which you increase your services, or add content or anything else that will cause you to go to another pricing level, except as otherwise provided in this Agreement, you will be required to pay at the higher level on or before the Pay Date for the following month. If the Term ends before such payment is due, you will still be required to make one payment at the higher level.

5.2 As long as you are a Member or have an outstanding balance with us, you agree to at all times provide us with valid credit card information and authorize us to deduct the monthly charges against such credit card and to replace the information for any credit card that expires with information on a different valid credit card. Any individual using a credit card represents and warrants that he or she is authorized to use such credit card.
Refunds

5.3 We are required to provide a refund only if we terminate our Services to you without cause before the end of a month for which you have paid. There is no other circumstance in which you will be entitled to a refund from us. We may, at our sole discretion, offer refunds in other situations subject to any Member seeking such refund applying for the refund in accordance with the requirements we post on the website, which may be changed from time to time.

6. Term, Termination and Removal: Either party may terminate the Term of this Agreement at any time for any reason by providing Notice to the other party. We may suspend our Services to you at any time with or without cause. We will refund a pro rata portion of your monthly prepayment if we terminate you without cause. We will not refund and/or reimburse you in such manner, if there is cause, such as your using our system to send phone calls, sms messages, bulk emails, appointment reminders to people with whom your relationship does not meet the requirements listed below.   Once terminated, we may remove any of your electronic newsletters or other emails and related data and files from our Website and any other storage.

7. Account and Password: You are responsible for maintaining the confidentiality of any account name and password. You are solely responsible for uses of any account provided to you, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of any account of yours.

8. Proprietary Rights Owned by Us : You acknowledge that we, or our suppliers, own all proprietary rights in the Website and the software used to provide the Services, including, but not limited to, any patents, trademarks, service marks and copyrights.

9. Proprietary Rights Owned by You: You represent and warrant to us that you will not add or upload any content to the Website to create an electronic newsletter, or promote products, or services for any other purpose unless you are the owner of all proprietary rights in that content (or have been given a valid license from the owner of the proprietary rights in such content) and have obtained releases for all related privacy and publicity rights.

10. General Rules: You agree to the following:

  • You will not incorporate into your pre-recorded messages, sms, or email messages any text, photos, graphics or other content that is not created by you, not provided by us for you to incorporate into your email , sms, or pre-recorded messages or you are not otherwise permitted to use.
  • You will not post on the Website, including in any Pre-recorded messages, sms, or email messages created or sent using our Services, any misleading or incorrect name, address, email address, subject line or any other misleading or incorrect information.
  • You will not publish any material that contains sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful.
  • You will not share your password.
  • You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Website.
  • You will not include in any Pre-recorded, sms, or email messages any material, including, but not limited to, text and graphics, the inclusion of which is in violation of any other party’s rights, including, but not limited to, copyrights and privacy and publicity rights.
  • You will not set up multiple accounts for any individual, organization or entity or in order to send substantially similar content.
  • You will not import or incorporate into any lists, emails, phone numbers, or uploads to our servers any of the following information: Social Security Numbers, passwords, security credentials, or sensitive personal information of any kind.

11. Anti-Spam and Abuse Related Rules: You agree to the following:

  • Definition of SPAM: We have adopted the definition of Spam set forth on the Spamhaus website athttp://www.spamhaus.org/definition.html The first line of the Spamhaus definition reads:
  • The word “Spam” as applied to Email means Unsolicited Bulk Email (“UBE”).
  • It is a concern to us if you use ConstantPLAN to send any unsolicited email, sms, or pre-recorded messages to anyone with whom you have no relationship. It is much more of a concern, and more likely to cause our system to be blocked by various ISP’s, and warrant further action from FTC or FCC regulators, to send an unsolicited sms, email, or pre-recorded messages to an entire list of people you don’t know.
  • Permission Lists Only: You may use ConstantPLAN only to send Emails to individuals and entities that either:
    • Possibility 1 – Consent Obtained
    • A. gave or give you written (including electronic) permission to send Emails to them, without subsequently withdrawing such permission and either:
    • Consent Given Recently gave you the permission within the prior 12 months; or
    • Consent Given More Than One Year Earlier you sent them a promotional email, which was not objected to, within the prior 12 months; or
    • Possibility 2 – Sold or Negotiated to Sell Product or Service
    • B. gave or give you their name and email address in connection with their purchase, or negotiations to purchase, a product or service from you, have not opted out from receiving your emails and either:
    • Recent Sale or Negotiation such sale or negotiations occurred within the previous 12 months; or
    • Sale or Negotiation Occurred More than One Year Earlier you sent them a promotional email, which was not objected to, within the prior 12 months.
  • If you send Emails to a list, and you get an unusual amount of SPAM complaints (more than 1 out of 1,000), ISPs will begin blocking future emails from your company. They will also request, or demand, that ConstantPLAN shut down your account. If you do not have proof that each recipient on your list has opted-in to receive your emails, or otherwise meets the above requirements, don’t import them into ConstantPLAN.

12. Requirements: You agree that you will use:

  • No purchased lists (no matter how expensive).
  • No rented lists (even if they “opted in”).
  • No 3rd party lists whatsoever.
  • No outside unsubscribe processes.

13. You should only use ConstantPLAN to send newsletters, updates and promotions to people who specifically requested email from you, or otherwise meet the requirements of 11 above.

14. ConstantPLAN does reserve the right to refuse service or to terminate accounts for any user, and to change eligibility requirements at any time, in its sole discretion.

15. Fees, Refunds and Account Suspensions. You agree:  ConstantPLAN reserves the right to change our fees at any time by posting a new fee structure to our Website and/or sending you a notification of the change by email.

  • If a user violates any of the terms of this Agreement, we reserve the right to cancel accounts, or bar access to accounts, without refund.
  • If we are unable to process your credit card order, we will attempt to contact you by email and we will suspend usage of your account until your payment can be processed.  We may also attempt to contact you via phone if we are unable to process your credit card.  This is provided as a courtesy.  Customer should keep credit card information current.
  • You agree to pay for all emails, sms messages and voice messages you send from your account, even if messages are blocked by any third party (we have no control over your recipients’ email servers or carrier providers ISP availability, personal spam filter settings, etc).

16. Avoiding Spam Related Problems – It’s in our best interest to keep our system clean, because our reputation and deliverability depends on it. So here’s what we do:

  • Right to Review All SMS, Voice Messaging and Email Campaigns
  • We, including our employees and independent contractors, are permitted to copy and transmit copies of the content from your SMS, Voice Messaging and Email campaigns to develop algorithms, heuristics and computer programs (“Tools”) to help us more efficiently spot problem accounts and to use such Tools, together with personal viewing by employees and or independent contractors, to uncover Members who violate either these Terms of Use or applicable law.

17. Reporting Abuse – We take abuse reports seriously at ConstantPLAN. If you’ve received spam that you think came from a ConstantPLAN user, we want to hear about it. Please report the fact that you received spam from what appears to be a ConstantPLAN user to us by using this email address: info@constantplan.com

18. No Warranties: to the maximum extent permitted by law, the material on this website and the services (including all content, software, functions, services, materials and information made available herein or accessed by means hereof) are provided as is, without warranties of any kind, either express or implied, including but not limited to, warranties of merchantability and fitness for a particular purpose.

19. Limitation of Liability: to the maximum extent permitted by law, you assume full responsibility and risk of loss resulting from your use of the website and the services including any downloads from the website. Under no circumstances shall we or any of our employees or representatives be liable for any indirect, punitive, special or consequential damages even if we or any of our employees or representatives have been advised of the possibility of such damages. our total liability in any event is limited to the amount, if any, actually paid by you for use of the website and the services for the one month period ending on the date a claim is made and you hereby release us and our employees and representatives from any and all obligations, liabilities and claims in excess of this limitation.

20. Indemnity: You agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses (including, but not limited to, attorney fees) resulting from any claims not permitted under this Agreement due to a “Limitation of Liability” or other provision, that you assert, or may assert, based on or relating to your use, or the use of any individual using your password, of this Website or the Services. You further agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses resulting from claims of third parties, including, but not limited to, attorney fees, that result in whole or in part from allegations of conduct by you that, if true, would constitute a violation by you, or any individual using your password, of any of the terms of this Agreement.

21. Abusive Conduct and Liquidated Damages: The parties agree that we may recover liquidated damages, in lieu of any other damages that may have been recoverable, for certain types of breaches of these Terms of Use, which we refer to as “Abusive Conduct.” Liquidated damages are being made available for specified situations in which proving the actual damages would likely be impossible. The liquidated damages are being set at a reasonable pre-estimate of the damages that would be incurred as a result of the particular type of breach. The particular type of breaches that constitute Abusive Conduct, and the liquidated damages for each type are as follows:
Abusive Conduct: (a) violations of provisions of this Agreement to avoid ConstantPLAN being viewed as a source of spam such as sending Emails, SMS messages and pre-recorded messages to people who have not consented to receiving bulk emails, SMS messages or pre-recorded messages from you in the immediately preceding 12 months and to whom you are not otherwise authorized to send Emails, SMS messages or pre-recorded messages under 11 above; sending Emails SMS messages or pre-recorded messages offering the types of products or services set forth in 11 above; or sending pre-recorded messages, SMS messages or email messages that include false or misleading headings or other content or otherwise violate anti-SPAM laws or Robo Dialing Laws.  Liquidated Damages: Five times the total of our then current monthly charge rate over a period of 1 year (i.e. 5 times 12 times our monthly charges), but not less than $900.
Abusive Conduct: (b) violations of provisions of this Agreement designed to protect ConstantPLAN from its users taking actions to use ConstantPLAN resources in a way not permitted hereunder such as using our Services to host images other than for Emails and SMS messages you send out using the Services such as for your website; or sending out any Pre-recorded messages or SMS messages or Email messages created using the Services, other than via the Services. Liquidated Damages: Four times the total of our then current monthly charges over a period of 1 year (i.e. 4 times 12 times our monthly charges), but not less than $720.

22. Attorney Fees: In the event we file an action against you claiming you breached this Agreement and seeking to recover liquidated damage and/or other relief, and we prevail, we shall be entitled to recover reasonable attorney’s fees in addition to any damages or other relief which we may be awarded.

23. Disclaimers: We disclaim and are not responsible for the behavior of any advertisers, linked websites or other users.

24. U.S. Export Controls: The software that supports the Services (the “Software”) is further subject to United States export controls. None of the Software may be downloaded or otherwise exported or re-exported in violation of United States export laws. Downloading or using any of the Software is at your sole risk.

25. Restricted Rights: Notice to U.S. Government End Users. The Software, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. § 227.7202, as applicable, consistent with 48 C.F.R. § 12.212 or 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable. The Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Published and Unpublished rights are reserved under the copyright laws of the United States. Manufacturer is ConstantPLAN, LLC located at 690 U.S. 89 HWY #200, Jackson, WY 83001.

26. Reporting Violation : If you become aware that any other person is violating any of the terms and conditions of this Website, please notify us immediately. If you believe that any person has posted material in violation of any copyrights that you may have, you may notify us in writing at info@constantplan.com. If you believe that any user of this Website has posted materials in violation of any other rights that you may have, you may notify us for consideration of removal, at the judgment and discretion of ConstantPLAN.

27. Assignments: You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity at our discretion.

28. Compliance With Law: In using the Services, you agree that you will comply with all applicable laws.

29. Applicable Law and Jurisdiction: This Agreement will be governed by the laws of the State of Wyoming. Except as otherwise provided in this Section below, each of the parties does hereby agree that any dispute related to this Agreement, any other agreement between the parties, the Privacy Policy or the Services, will be decided by the state and federal courts located in Teton County, Wyoming, and agrees that that party is subject to the jurisdiction of such courts in such locality. If, under applicable law relating to the selection of venue in Wyoming, a case may not be brought in a court located in Teton County the case may be filed in a state or federal court of competent jurisdiction located in the State of Wyoming where the case may be brought.

30.1 Force Majeure : We shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, then current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or overloading or slow-downs over the internet or any third party internet service providers.

30.2 Survivability: The ownership and proprietary rights provisions set forth in this Agreement, and any other provisions that by their sense and context the parties intend to have survive, shall survive the termination of this Agreement for any reason.

30.3 Severability: The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.

30.4 Interpretation: The fact of authorship by or at the behest of a party shall not affect the construction or interpretation of this Agreement.

30.5 Amendments: No amendment or other change of this Agreement shall be effective except as either expressly permitted under these Terms of Use or agreed to in writing between the parties. Notwithstanding the foregoing, additional terms may be required for certain features of the Service (the “Additional Terms.”) The Additional Terms shall be considered incorporated into this Agreement at the time the feature is activated by you. Where there is a conflict between these Terms and the Additional Terms the Additional Terms shall control.

30.6 Privacy Policy: You agree that we may access, collect, use and disclose your information as set forth in our Privacy Policy. In this regard the terms of the Privacy Policy are to be treated as if they were added to and part of this Agreement and shall be binding on all parties hereto.

30.7 Further Actions: You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.

30.8 Notification of Security Breach : In the event of a security breach that may affect you, or individuals listed on one or more of your SMS, pre-recorded messaging or Email distribution lists (each a “List”), we will notify you of the breach and provide a description. In the event we reasonably determine, and notify you, that it is necessary for all or part of such information to be forwarded on to individuals on one or more of your Lists, you will promptly forward such information to the individuals on such List or Lists.

30.9 Amendments: No amendment or other change of this Agreement shall be effective unless and until the revised Agreement is posted by us on the Website.

30.10 Notices: Any notice to you will be effective when sent to the last email or physical address you have given us or posted on our Website. Any notice to us will be effective when delivered and with confirmation of receipt at our physical address which is made available and current on the website.

30.11 No Changes in Agreement at Request of Member.

30.12 Entire Agreement: The terms of the Privacy Policy posted on this Website are incorporated by reference herein. This Agreement, including such policy which is incorporated by reference herein, embody the entire agreement and understanding of the parties, and supersedes all prior agreements, representations and understandings between the parties hereto, relating to the subject matter hereof.