TERMS AND CONDITIONS OF SERVICE ####THE PERSON WHO HAS REGISTERED FOR THIS SERVICE (THE "SUBSCRIBER" OR "YOU") MUST CAREFULLY READ ALL OF THE TERMS OF THIS AGREEMENT BEFORE SIGNING UP FOR THIS SERVICE. CLICKING THE "TERMS OF SERVICE" BUTTON ON THE REGISTRATION PAGE INDICATES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. ####ANY QUESTIONS CONCERNING THIS AGREEMENT SHOULD BE REFERRED TO support@phoneburner.com####1. Agreement. ####This Agreement (the "Agreement") specifies the Terms and Conditions for access to and use of PhoneBurner® (the ''Site'') and describes the terms and conditions applicable to Your access of and use of the Site. ####2. Overview and Subscription. ####By registering for and/or using the Site, You may access and use the PhoneBurner application for the purpose of enabling You to use its live rapid-dialing system to telephone Your contacts (the "Service"). By accepting this Agreement, You wish to subscribe to and participate in the Site and use the Service.####The Site operates and manages the Service to assist Subscribers with various telecommunication systems and methods. All Users must read this agreement carefully and agree to all of the terms and conditions herein before registering and using the Service. ####3. Privacy. ####Your visit to our site is also governed by our Privacy Policy. Please review our Privacy Policy at www.phoneburner.com. ####The Site reserves the right, and You authorize us, to use and assign all information regarding use of the Site by You and all information provided by You in any manner consistent with our Privacy Policy. The Site may use information collected by it, including technical or diagnostic information, your suggestions or feedback, to maintain, improve, and enhance the Service.####The Site has no control over, and is not responsible for, the privacy of any content that You have shared with others so always use caution when giving out any personally identifiable information.####4. Proprietary Rights and Ownership. ####(a) The Service is owned, trademarked and copyrighted by PhoneBurner, Inc., and is protected by United States copyright, trademark and other proprietary laws. Through use of the Service, You may have access to information, communications, software, photos, text, video, graphics, music, sound, images, and other materials owned, trademarked or copyrighted by PhoneBurner, Inc. (“Content”). You do not have any ownership interest in the Content, the Service, or improvements and modifications to the Service. Nothing in this Agreement shall be construed to transfer any of the Site’s proprietary or intellectual property rights to You. ####(b) Except to the extent permitted by law, You may not modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile, or otherwise attempt to decipher any code in connection with the Service and/or any other aspect of PhoneBurner’s technology. ####5. Confidential Information.####(a) Through use of the Service, You may have access to certain information that is confidential and proprietary to the Site (“Confidential Information”). You agree to protect all Confidential Information by using a reasonable degree of care to prevent the unauthorized use, dissemination, or publication of the Confidential Information.####(b) You agree that a breach of the confidentiality provisions of this Agreement will breach the security of the Service and would cause irreparable harm to the Site for which no adequate remedy at law exists. You therefore agree that in addition to any other remedies available, the Site shall be entitled to injunctive relief to enforce the terms of this Agreement.####6. Method of Acceptance. ####You agree that by clicking the “Terms of Service'' button on the registration page and registering for the Service, You are accepting the terms and conditions in this Agreement for use of the Service. ####7. License. ####(a) The Site hereby grants, and You hereby accept, a nontransferable, non-exclusive, worldwide, license to use the Service, subject to the conditions and for the period specified herein. ####(b) You agree to use the Service for Your sole and exclusive personal benefit. ####(c) You agree not to sublicense, assign, or transfer the Service except as expressly provided herein, and agree that any attempt to do so in any way other than expressly provided herein shall be null and void. ####(d) All other use of the Content, as defined in Paragraph 4, above, including but not limited to, modification, publication, transmission, participation in the transfer or sale of, reproduction, creation of derivative works from, distribution, performance, display, incorporation into another Web site, mirroring the Service, or in any other way exploiting any of the Content, in whole or in part, is prohibited without first obtaining the Site's written consent. ####8. Registration for Service. ####(a) To use the Service, you must register by providing the Site with current, complete and accurate information as prompted by the registration process. You are responsible for updating such registration data as necessary. You shall provide the Site with accurate, complete and updated registration information. You shall not knowingly provide inaccurate information with the intent to create a false identity. ####(b) You also agree not to provide false or misleading information in the administrative panel of the software or Your web site. This includes, but is not limited to, providing a false e-mail address in the FROM: field on outgoing emails.####(c) As part of the registration process, You will choose a password and site ID. You are entirely responsible for maintaining the confidentiality of Your password and account. Furthermore, You are solely responsible for any and all activities that occur under Your account. ####(d) You agree that the Site is a neutral host of the Service and has no responsibility or liability in relation to any representations You may make as part of Your use of the Service.####(e) You agree that the Site may rely on any data, notice, instruction or request furnished to the Site by You, which is reasonably believed by the Site to be genuine and to have been sent or presented by a person reasonably believed by the Site to be authorized to act on Your behalf. ####(f) You shall notify the Site immediately at support@phoneburner.com of any known or suspected unauthorized uses of Your account, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of Your password. The Site shall not be liable for any loss that You may incur as a result of a third party using Your password or account, either with or without Your knowledge. You may be held liable for losses incurred by the Site and/or another party due to a third party using Your account or password.####(g) Any fraudulent, abusive or otherwise illegal activity may be grounds for termination by the Site and referral to the appropriate law enforcement agencies. ####(h) You acknowledge and agree that You will promptly notify the Site if You are aware of any person who, in Your good faith opinion, is or is intending to take unfair advantage of the Service provided by the Site. ####(i) The Site reserves the right to send email to You for the purposes of informing You of applicable offers, changes or additions to the Service or any related products and services. ####(j) The Site’s use of any information provided by You, including, without limitation, registration data and/or payment information, is set forth in the Site’s current privacy policy.####9. User Conduct. ####(a) The Site retains the right, at its sole discretion, to determine whether a User's conduct is consistent with the letter and spirit of the Terms and Conditions of Service and may terminate Service if a User's conduct is found to be inconsistent with said Terms and Conditions of Service. ####(b) Any unauthorized use of the Service, or the resale of the Services, is expressly prohibited. You agree to abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under Your account or password, including the content of Your transmissions through the Service. By way of example, and not as a limitation, You agree not to: ####(i) Use the Service in connection with chain letters, junk email, pyramid schemes, illegal or unethical testimonials, cross soliciting, money games, spamming or any duplicative or unsolicited messages (commercial or otherwise); ####(ii) Harvest or otherwise collect information about others, including without limitation phone numbers and/or email addresses, without their consent; ####(iii) Create a false identity or forged email, or otherwise attempt to mislead others as to the identity of the user or the origin of the message; ####(iv) Transmit through the Service unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature; ####(v) Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity; ####(vi) Libel, defame or slander any person, or infringe upon any person's privacy rights; ####(vii) Transmit any material that contains viruses, Trojan horses, worms, time bombs, cancel bots, or any other harmful or deleterious programs; ####(viii) Violate any U.S. law regarding the transmission of technical data or software exported from the United States through the Service; ####(ix) Interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks; ####(x) Attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means; ####(xi) Interfere with another’s use and enjoyment of the Service or another entity's use and enjoyment of similar services; ####(xii) Transmit unsolicited commercial email or “spam,” as defined in the “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003” (the “CAN-SPAM Act”) (15 U.S.C. §7701), illegally create or collect e-mail addresses, deceptively use e-mail relays or transmissions, or otherwise violate the CAN-SPAM;####(xiii) Engage in conduct in violation of the Federal Trade Commission’s (“FTC”) Telemarketing Sales Rule (“TSR”), codified as 16 C.F.R. Part 310, the Federal Communications Commission’s (“FCC”) Telephone Consumer Protection Act of 1991, as amended (“TCPA”), codified as Title 47 of the U.S. Code §227, and all other applicable federal and state laws, regulations and rules relating to telemarketing; or####(xiv) Engage in any other activity that the Site believes could subject it to criminal liability or civil penalty or judgment. ####(c) In addition to Your general obligation to comply with applicable laws, and not in limitation thereof, You warrant and represent that you have read or otherwise become familiar with the Federal Trade Commission’s (“FTC”) Telemarketing Sales Rule (“TSR”), codified as 16 C.F.R. Part 310, the Federal Communications Commission’s (“FCC”) Telephone Consumer Protection Act of 1991, as amended (“TCPA”), codified as Title 47 of the U.S. Code §227, and all other applicable federal and state laws, regulations and rules relating to telemarketing, prior to Your use of the Site (for more information visit http://www.ftc.gov or http://www.fcc.gov). You hereby agree to become, and remain sufficiently familiar with those regulations in order to ensure compliance with their terms. ####(d) The Site does not take any responsibility for monitoring any usage of the Service. It is Your responsibility to ensure that all usage of the Site complies with these Terms and Conditions. ####10. Forbidden Content.####(a) You agree that You will not host, post, or promote ANY website that advocates, encourages, endorses, or makes possible any form whatsoever of: pornography, gambling, pyramid schemes, illegal or false testimonials, or any type of business opportunity or program that is unethical, illegal, or otherwise objectionable. You agree that You will not post or promote any copyrighted materials not your own. You agree that You will not post or promote any material that is pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate. Affiliates are prohibited from transmitting on or through any of the Site’s services, any material that is, in the Site’s sole discretion, unlawful, obscene, threatening, abusive, libelous, or hateful, or that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national, or international law. Affiliates are prohibited from making any income claims or illegal product claims of any sort. Such action WILL RESULT in the immediate termination of Your account without refund. Any service interruptions as a result of Subscriber’s spamming will be billed to the Subscriber at $500.00 per hour, with a minimum $1,000.00 billing for cleanup. Subscriber will also be in violation of the Sites’ Terms and Conditions and may be subject to legal action.####(b) Should the Site discover that Your site or Your communications promote programs of this type in any form this will constitute grounds for immediate suspension or termination of Your Site, and the loss of Your entire lead database.####11. Payments. ####(a) The Site reserves the right at any time to charge fees for access to the Service or the Service as a whole or in party. In the event that the Site so elects, it shall post a notice at an appropriate location on its website. ####(b) If You order or purchase any type of fee-based account or additional fee-based service from the Site, You authorize the Site to utilize its merchant account provider to charge Your account provided during the purchase/enrollment process. You authorize the Site to charge Your account a monthly subscription fee. ####(c) It is Your responsibility to keep Your payment information accurate and current with the Site. If a monthly payment cannot be processed, You will be given a minimum of six (6) business days’ notice to rectify the situation and make the payment. Failure to rectify the situation within six (6) business days will lead to a cancellation of the account as described below. ####(d) If You contact the Site directly with a specific request for cancellation and refund, including substantial justification for the refund, the Site, in its discretion, may issue a full refund of Your first month's payment. No refunds are allowed for annual fee charge or any signup fee, including the shipment of physical goods. If You have concerns about the use of the Service, You must sign up with the monthly fee option. Should the Site, in its discretion, make a refund outside of these conditions, the refund will not include a refund for the cost of physical goods delivered. In addition, if the Site, in its discretion, makes a refund for an annual payment, then the refund will be prorated to deduct the highest monthly fee paid by any customer for the months in which the annual service was used. ####12. Submitting/Importing Information.####(a) You represent to the Site that any and all emails You upload into the system are "Opt in" and contacts that have specifically requested information from You. You also represent than any content You upload to the Service is solely owned by You or provided by You with the express authority of the owners, does not infringe upon any other individual's or organization's rights (including, without limitation, copyright, trademark or intellectual property rights).####(b) By submitting Content, Data or Leads to any "Public Area" (e.g. public chat rooms, bulletin boards, auto responder, etc.), You automatically grant to the Site a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, sell, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content, Data, or Leads (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed for the full term of any rights that may exist in such Content.##(c) Although the Site provides industry standard encryption to protect certain personal information which is transmitted, You understand that Your uploads and transmissions may be intercepted and used, and that all the risk associated therewith is solely Yours. You shall not upload to, or distribute or otherwise publish through the Service any Content, which is libelous, defamatory, obscene, pornographic, abusive, or otherwise violates any law. As the Site does not and cannot review every message created by You, You shall remain solely responsible for the content of Your messages.##(d) The Site reserves the right to disclose information about sales and usage generated by the Service in forms that do not reveal Your personal identity.##(e) By using the Site in conjunction with SalesForce, You agree that the Site will access and modify Your SalesForce records. You agree that all risk associated therewith is Yours, including, without limitation, the risk that Your account information may be damaged, altered, deleted, or changed in a way You have not anticipated or expected. You agree that the Site has no responsibility or liability for any such risk arising out of the use of the Site in conjunction with SalesForce.####(f) You understand that the Site is integrated with and relies on the continued functionality of SalesForce. You further understand that the Sites does not control SalesForce and You agree that the Site is not liable for any problems related to or arising out of the use of the Site created or caused by SalesForce.####13. Idea Submissions.####The Site welcomes specific comments regarding the Service. If You send us creative suggestions, ideas, notes, drawings, concepts or other information (collectively "Information"), the Information shall be deemed, and shall remain, the property of the Site. None of the Information shall be subject to any obligation of confidentiality on the part of the Site and the Site shall not be liable or owe any compensation for any use or disclosure of the Information.####14. Trademarks. ####PhoneBurner®, and others are either trademarks or registered trademarks of PhoneBurner, Inc. Other product and company names mentioned on this Site may be trademarks of their respective owners.####15. Compliance with Laws. ####You agree to comply with all applicable laws regarding Your use of the Service. You further agree that information provided by You is truthful and accurate to the best of Your knowledge. ####16. Indemnification. ####(a) You agree to indemnify the Site and hold the Site harmless from any and all liability, losses, or damages the Site may suffer as a result of claims, actions, demands, costs, or judgments against it arising from or related to this Agreement or Your use of the Service, or ####(b) In the event of any asserted claim, the Site shall provide You reasonably timely written notice of same, and thereafter You shall at Your own expense defend, protect and save harmless the Site against said claim or any loss or liability hereunder. ####(c) In the further event You shall fail to so defend and/or indemnify and save harmless, then in such instance the Site shall have full rights to defend, pay or settle said claim on its behalf without notice to You and with full rights to recourse against You for all fees, costs, expenses and payments made or agreed to be paid to discharge said claim. ####(d) Upon default, You further agree to pay all reasonable attorneys’ fees necessary to enforce this Agreement. ####(e) The indemnity obligations shall be unlimited as to amount or duration. ####(f) The indemnity obligations shall be binding upon and inure to the benefit of the parties, their successors, assigns and personal representatives. ####17. Relationship of Parties. ####You and the Site are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You agree that are not entitled to the rights or benefits that may be afforded to the Site’s employees and that You are solely responsible for all income taxes or other applicable taxes arising out of or related to the Service. ####18. Limitation of Liability; No Warranty; Limitation of Damages. ####(a) YOU EXPRESSLY AGREE THAT USE OF THE SERVICE PROVIDED BY THE SITE IS AT YOUR SOLE RISK.####(b) THE SITE SHALL HAVE NO LIABILITY OF ANY KIND FOR ANY DAMAGES OR LOSS ARISING AS A CONSEQUENCE OF DOWNTIME OR UNAVAILABILITY, INCLUDING, WITHOUT LIMITATION, ANY DOWNTIME OR UNAVAILABILITY ARISING OUT OF THE DOWNTIME OR UNAVAILAIBILTY OF SALFESFORCE. #### (c) IN NO EVENT SHALL THE SITE'S LIABILITY RELATED TO ANY OF THE SERVICES PERFORMED UNDER THIS AGREEMENT, EXCEED THE TOTAL FEES PAID BY YOU FOR THE SUCH SERVICES. THE SITE SHALL NOT IN ANY EVENT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF THE SITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, OR ANY OTHER LEGAL OR EQUITABLE GROUNDS. ####(d) THE SITE, ITS AGENTS, AFFILIATES, LICENSORS OR THE LIKE, DO NOT REPRESENT OR WARRANT, EXPRESSLY OR IMPLIEDLY, THAT THEIR SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THEIR SERVICES OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THEIR SERVICES, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT. ####(e) THE SITE, ITS OFFICERS, AGENTS, OR ANYONE ELSE INVOLVED IN PROVIDING SERVICES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE SERVICES; OR FOR ANY DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO PROVIDER'S RECORDS, PROGRAMS, OR SERVICES. ####(f) THE SITE WILL EXERCISE NO CONTROL OVER THE CONTENT OF THE INFORMATION PASSING THROUGH THE SITE'S NETWORK EXCEPT THOSE CONTROLS EXPRESSLY PROVIDED HEREIN. ####(g) THE SITE MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, FOR THE SERVICES IT IS PROVIDING. THE SITE ALSO DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT MAY BE SUFFERED BY YOU, INCLUDING LOSS OF DATA RESULTING FROM DELAYS OR NON-DELIVERIES. ####19. The Site reserves the right, and You authorize the Site, to use and assign all information regarding site uses by You, and all information provided by You, in any manner consistent with the Site’s Privacy Policy.####20. Copyrights and Copyright Agent. ####If You believe Your work has been copied in a way that constitutes copyright infringement, please provide a notice containing all of the following information to our Copyright Agent: ####(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; ####(b) A description of the copyrighted work that You claim has been infringed; ####(c) A description of where the material that You claim is infringing is located on the Site; ####(d) Your address, telephone number, and email address; ####(e) A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and ####(f) A statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf. ####Our Copyright Agent for Notice of claims of copyright infringement on the Site is PhoneBurner, Inc., and can be reached as follows: ####By Mail: 1968 S. Coast Hwy, Suite 1800 ##Laguna Beach, CA 92651####By email: support@phoneburner.com ####21. Applicable Law. ####You agree that the laws of the State of California without regard to conflicts of law's provisions will govern these Terms and Condition of Use and any dispute that may arise between You and the Site or its affiliates. ####22. Severability. ####If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. ####23. Termination. ####The Site may terminate this Agreement at any time, with or without notice, for any reason. Upon termination, You shall no longer be entitled to use the Service and the licenses granted hereunder shall terminate, but the terms of this Agreement will otherwise remain in effect.####24. Captions and Headings. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement.####25. Contact Information. ####HOW TO CONTACT US: ####PhoneBurner®##888 276 0932##support@phoneburner.com##www.phoneburner.com
