TERMS AND CONDITIONS OF SERVICE
This agreement, including addendums, (collectively referred to as the
"Agreement") is between you ("Customer" or "You" or "Member") and the
undersigned ("Us" or "We"). Read the following terms and conditions before
using or installing any software services (the "Software") accompanied by
this Agreement.
BY CREATING AN ACCOUNT, SIGNING UP FOR SERVICE OR ACCESSING OR USING ANY
PART OF THE SOFTWARE, MEMBER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY
ALL THE TERMS OF THIS AGREEMENT.
1. LICENSE AGREEMENT
We grant to the Customer a non-exclusive license to use the Software,
subject to the terms of this Agreement, for a term of three years from the
date of this Agreement. We may modify this Agreement at any time without
notice and Customer shall periodically review this Agreement and any other
terms and conditions posted at this Web site at a rate not less than once
monthly. Member shall not participate in the Software, open, use or reuse
the Software, enter the Web site, or the Member's area, if the Customer does
not fully understand, agree to, become a party to, and abide by, without
exception, all rules, regulations and terms and conditions contained herein
and as such rules, regulations and terms and conditions may change from
time-to-time. The term of this Agreement will be automatically extended for
three years from the date you receive or access any Software upgrades or
subsequent Software versions.
2. LICENSE RESTRICTIONS
You may not:
(a) permit other individual(s) to use the Software unless such other
individual(s) agree to accept the terms of this Agreement;
(b) modify, translate, reverse engineer, decompile, disassemble or create
derivative works based upon the Software;
(c) copy the Software;
(d) rent, lease, transfer, sublicense or otherwise transfer rights to the
Software;
(e) remove any proprietary notices or labels on the Software, including the
code underlying the Software; or
(f) use the Software for any reason other than your private use. Commercial
use is expressly prohibited.
3. LIMITATIONS ON USE
You agree that you will use the Software in a manner that complies with all
applicable laws in the jurisdictions in which you use the Software. We
assume no responsibility for the actions by you, the Customer. You
acknowledge that if we are unable to determine where its Software is being
used, that we may rely upon your representation and express acceptance of
this restriction by clicking where indicated.
We are not responsible for claims for losses or damages resulting from any
use under any condition. Using the software on this site is at the sole
option, discretion and risk of the Customer. You are also responsible for
maintaining the secrecy and security of their account passwords and other
personal security information. We are not responsible for the unauthorized
use of your, the Customer's account or any losses that may result, of such
unauthorized use.
4. LIMITED WARRANTY
We do not warrant that your use of the Software will be uninterrupted or
that the operation of the Software will be error-free or secure. We warrant
to the Customer that the Software will operate for purposes of normal use
for a period thirty (30) days from the date of this Agreement. In the event
that this warranty is breached, our only obligation under this Agreement and
Customer's sole remedy is, at our option, to (a) have us replace your
Software with new Software supplied by us; or (b) terminate this Agreement.
5. LIMITATION OF LIABILITY
The Software is provided "AS IS." THERE ARE NO WARRANTIES OF ANY KIND AS TO
THE SOFTWARE'S IMPLIED MERCHANTABILITY OR TO FITNESS FOR A PARTICULAR
PURPOSE, EVEN IF WE HAVE BEEN ADVISED OF THAT PURPOSE. WE WILL NOT BE LIABLE
FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF
THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF WE HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. This Agreement will not be governed by the
United Nations Convention of Contracts for the International Sale of Goods,
the application of which is expressly excluded.
6. HOLD HARMLESS AND REMEDY
You agree to hold harmless, indemnify and defend us, our officers,
directors, employees and contractors, licensors and licensee from and
against any losses, damages, fines and expenses (including attorneys' fees
and costs) resulting from your violation of any of the terms of this
Agreement.
7. YOUR REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant to us as follows:
A. You have read and you understand this Agreement.
B. The execution, delivery and performance by you of this Agreement and the
consummation by you of the transactions contemplated hereby will not, with
or without the giving of notice, the lapse of time or both, conflict with or
violate:
(i) any provision of law, rule or regulation to which you are subject; (ii)
any order, judgment or decree applicable to you or binding upon your assets
or properties; or (iii) any agreement or other instrument applicable to you
or binding upon your assets or properties.
8. SEVERABILITY
If any provision of this Agreement is found by a court of competent
jurisdiction to be invalid or unenforceable, such invalidity or
unenforceability will not invalidate or render unenforceable any other part
of this Agreement, but the Agreement will be construed as not containing the
particular provision or provisions held to be invalid or unenforceable.
9. HOW TO JOIN
We charge a fee for membership service. Upon payment of the fee and at the
discretion of the paid Member, that Member will receive the ability to
schedule a telephone call once per day to the communication device
designated by them.
10. REFUNDS
YOUR MEMBERSHIP FEES ARE PAYABLE MONTHLY IN ADVANCE AND ARE NOT REFUNDABLE
IN WHOLE OR IN PART FOR ANY REASON. Prepaid memberships, if applicable, such
as annual, semi-annual or quarterly memberships may be cancelled and refunds
will be issued in a prorated manner on a monthly basis.
11. SERVICES BILLING & CANCELLATION OF SERVICE
1) By completing the membership registration and signing up for the service,
you authorize us to charge applicable recurring membership fees to your
designated credit card. Monthly members are billed on a calendar-month cycle,
which begins upon your sign up (or at the end of a limited free trial period,
if applicable to a promotion that you joined through, as discussed further
in Section 11.6) and ends one calendar month thereafter (each a "Member Month").
The date you are billed is the same date each month. That date was determined
by the date the account was first billed. If that day of the month does not exist
in a subsequent month, then the payment will be made on the first day of the
following month and will stay permanently on that day. (For example,
if a Member started his Membership on January 31, then his next payment date
would be March 1 and then April 1, etc.) If you have signed up for an annual,
semi-annual, or quarterly membership plan, you are billed one time at the
beginning of each applicable billing period.
2) If you do not cancel before the end of the period, we will automatically
renew your membership plan at the end of the period and you will be billed
according to the plan you are currently on. For greater certainty, IF YOU DO
NOT USE THE SERVICE, THE OBLIGATION REMAINS TO PAY THE MEMBERSHIP FEE UNTIL
YOU CANCEL.
3) If you cancel your account after signing up or a Membership renewal for a
service, no refund for unused time or activity on such service will be made.
IF YOU WOULD LIKE TO CANCEL YOUR SERVICE, please log into your account and
click SUBSCRIPTION DETAILS from the left hand navigation. Then choose the
CANCEL SUBSCRIPTION button on the page and follow the simple instructions to
cancel your account online. You can cancel your membership anytime.
4) You are responsible for reviewing the terms and conditions section of
obtain timely notice of such changes. Continued use of the Service of thirty
(30) days after posting of the changes means that you accept such changes.
If you decide that any change is unacceptable, you may cancel your membership.
5) We reserve the right to change the fees or billing methods at any time.
Notice of any change will be posted at least thirty (30) days in advance of
the change. You are responsible for reviewing the billing requirements to
obtain timely notice of such changes. Continued use by you of the Service
thirty (30) days after posting of the changes constitutes acceptance of such
changes. If you decide to cancel your membership, which you can do at
anytime up to five (5) days before the next billing period without being
billed for the next period, we will not refund any fees accrued to your
Account before you canceled. We will not prorate fees for any membership.
6) Credit card authorizations for free trial offers by Thee Calling. You
must provide credit card information to register for all free trial offers
to Thee Calling. By signing up for a free trial offer, you agree that we may
obtain a pre-authorization of up to the selected billing terms. Some
financial institutions may perceive these requested amounts as actual
pending charges. While not actual charges, we are not responsible for any
results, such as an overdraft fee, that may occur to your account because of
pending charges. If you accept a free trial, we will bill your Account when
the free trial expires, unless you cancel your free trial before that time.
You are responsible for any Internet service provider, telephone, wireless
and other connection fees that you may incur when using the site, even when
we offer a free trial. Trial memberships may not be transferred at any time
to any other user. Trial memberships are limited to one per person.
12. ACCOUNT IDENTIFIERS
1) Secrecy Obligation.
Once you have selected and been allocated a unique username and password
("Identifiers"), it is your responsibility to keep these Identifiers secure
and confidential. Some or all of these Identifiers are required to access
certain areas of the Site. In the event that you are concerned that they are
no longer secure and confidential, you should immediately notify us by
sending an e-mail to support@theecalling.com whereupon new Identifiers may
be selected and allocated and any future transactions under the previous
Identifiers may be voided, at our sole discretion Without limiting the
foregoing, any transactions made and accepted on the Site where your
Identifiers have been used (and where you have not previously notified us as
provided herein) will be treated as valid.
2) No Transfer.
Your account is not transferable. Under no circumstances, shall you allow or
permit any other person or third party, to use or re-use your account or
your Identifiers in such a way that may breach the standards or laws in any
Jurisdiction where you are located and/or are a resident, or where such
other person is located and/or is a resident.
3) You Are Responsible.
You agree to be solely responsible for all use of the Site through the use
of any of your Identifiers (except where you have notified us as provided
above) and you agree to indemnify and hold us harmless, along with our
parent company, affiliates, managers, agents and directors, licensors and
licensee for any and all claims, losses, liability, damages and costs
(including attorneys' fees and expenses) arising from such use.
13. SITE USE
1) Services May Change or End.
We reserve the right, in its sole discretion, at any time and without notice
to you, to add, alter or discontinue services offered on the Site without
creating any obligation to you.
2) You Must Obey Guidelines and Rules.
When using the services on the Site, you agree that you are subject to any
guidelines, policies or rules applicable to such services, which may be
posted from time to time. All such guidelines, policies or rules are hereby
incorporated by reference into these terms. You fully accept that all
computer instructions and responses sent over the Internet to and from us
and/or through use of software will be binding on you. Your commercial use
of the Site is strictly forbidden.
3) Telecom and Access Fees.
You are solely responsible for obtaining access to the Site and that access
may involve third party fees, including without limitation, Internet service
provider, telephone, cable or airtime fees. You are solely responsible for
those fees, including those fees associated with the display or delivery of
this service or advertisements. In addition, you must provide and are solely
responsible for all equipment necessary to access the Site.
6) Behavior & Responsibility.
1. You agree not to reproduce, duplicate, copy, sell, resell or exploit any
portion of any Site or use of any portion of the Site for any commercial
purposes.
2. You shall not register multiple accounts.
3. You agree that we are not liable for any loss caused by any unauthorized
use of your credit card by a third party.
4. Any attempt to defraud us through the use of credit cards or any other
form of payment, regardless of the outcome, or any failure by you to honor
charges or requests for payment will result in immediate termination of your
account and civil and/or criminal prosecution.
5. You agree that we are not, and shall not be, responsible for any damage,
loss, or injury resulting from hacking, tampering, or other unauthorized
access or use of the site or your account.
6. You, as the holder of your account, are solely responsible for all
obligations and are entitled to all benefits there from, and may not allow
any other person to access your account,, accept any winnings, or
participate in any services using your account information. Your account is
not transferable to any other person. By registering and/or participating in
any services offered on the Site, you agree to indemnify, defend, and hold
us harmless from or for any claims, liability, damages, and/or costs
(including attorneys' fees) arising from any use of your account by any
person.
7. You agree to never transmit data, conversation, or any other information
that may be (i) be defamatory or offensive, (ii) slanderous, (iii) rude,
(iv) infringe the rights of any third party, (v) provide information
regarding the Web site or Software, or (vi) deemed generally unacceptable
behavior in our sole discretion.
7) Computer Errors.
You acknowledge that full freedom from errors and incompleteness is
impossible to achieve with respect to computer software and web sites. If
you become aware that the software contains any error, or is incomplete, you
shall immediately notify us by e-mail at support@theecalling.com. You agree
to refrain from taking any advantage whatsoever of that error or
incompleteness and we reserve the right to recover any such advantage that
you do gain from such error or incompleteness, as well as all associated
costs, damages and expenses in making such recovery.
8) Verification.
Whenever we request additional verification, proof or documentation from
you, including without limitation a copy of your passport, driver's license
or utility bill, such materials must be sent by facsimile, mail or such
other means of communication specified buys. Such materials will become our
property and will not be returned to you.
14. THIRD PARTY WEBSITES
1) Other Sites Are Not Our Responsibility.
This Site may link you to other websites, which websites may contain
information or material that some people may find objectionable. These other
websites are not under our direct control and you acknowledge that we are
not responsible for the accuracy, copyright and trade mark compliance,
legality, decency or any other aspect of the content of such websites. You
further acknowledge and agree that we shall not be responsible or liable,
directly or indirectly, for any damage or loss caused or alleged to be
caused by or in connection with use of or reliance on any such third party
content, goods or services available on or through any such website.
2) Future Marketing.
You hereby acknowledge and agree that we and/or our affiliates, licensors
and licensee may market products and services to you in the future.
15. PROPRIETARY RIGHTS
1) Intellectual Property.
You acknowledge and agree that all content and materials available on this
Site are protected by copyrights, trademarks, service marks, patents, trade
secrets or other proprietary rights and laws. Designated trademarks, service
marks and brands are the property of their respective owners. Reproduction,
copying, or redistribution for commercial purposes of any materials or
design elements on this Site is strictly prohibited without the express
written permission of the respective owner. Except as expressly authorized
in writing , you agree not to sell, license, rent, modify, distribute, copy,
reproduce, transmit, publicly display, publicly perform, publish, adapt,
edit or create derivative works from such materials or content.
Notwithstanding the above, you may print or download one copy of the
materials or content on this Site on any single computer t any given time
for your personal, non-commercial use, provided you keep intact all
copyright and other proprietary notices. Use of the content or materials for
any purpose not expressly permitted in these terms is strictly prohibited.
2) License. You are hereby granted a personal, non-transferable and
non-exclusive right and license to use any necessary software used in
connection with its services on any single computer at any given time,
provided that you do not (and do not allow any third party to) copy, modify,
create a derivative work of, reverse engineer, decompile, reverse assemble
or otherwise attempt to discover any source code, sell, assign, sublicense,
grant a security interest in or otherwise transfer any right in the
software. You agree not to modify the software in any manner or form, or to
use modified versions of the software, including, without limitation, for
the purpose of obtaining unauthorized access to the Site. You agree not to
access the Site by any means other than through the interface that is
provided by us for use in accessing the Site.
16. NO WARRANTY
1) YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. ALL MATERIALS, INFORMATION,
SOFTWARE, PRODUCTS AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THIS SITE
("MATERIALS") ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE. THE
MATERIALS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, WE ON BEHALF OF OUR SELVES AND OUR LICENSORS
DO NOT WARRANT THAT THE MATERIALS ARE ACCURATE, RELIABLE OR CORRECT; THAT
THE SITE WILL MEET YOUR REQUIREMENTS; THAT THE SITE WILL BE AVAILABLE AT ANY
PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR
ERRORS WILL BE CORRECTED; OR THAT THE MATERIALS ARE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS. ANY MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH
THE USE OF THE SITE ARE DOWNLOADED AND/OR USED AT YOUR OWN RISK AND YOU WILL
BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA
THAT RESULTS FROM SUCH USE.
2) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU
THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN
THE TERMS.
3) WE DO NOT WARRANT ANY CLIENT SOFTWARE YOU MAY DOWNLOAD OR USE FROM THE
SITE OR FROM RELATED SITES. ALL MATERIALS, INFORMATION, CLIENT SOFTWARE,
PRODUCTS AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THIS SITE ("CLIENT
MATERIALS") ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE. THE CLIENT
MATERIALS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, ON BEHALF OF OURSELVES AND OUR LICENSORS DO
NOT WARRANT THAT THE CLIENT MATERIALS ARE ACCURATE, RELIABLE OR CORRECT;
THAT THE SITE WILL MEET YOUR REQUIREMENTS; THAT THE CLIENT MATERIALS OR SITE
WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR
SECURE; THAT ANY DEFECTS OR ERRORS IN THE CLIENT MATERIALS WILL BE
CORRECTED; OR THAT THE CLIENT MATERIALS ARE FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS. ANY CLIENT MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH
THE USE OF THE SITE ARE DOWNLOADED AND/OR USED AT YOUR OWN RISK AND YOU WILL
BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA
THAT RESULTS FROM SUCH USE.
17. LIMITATION OF LIABILITY
IN NO EVENT SHALL WE OR OUR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT,
PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE,
DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY
TO USE, THIS SITE, INCLUDING UNAUTHORIZED ACCESS TO OR ALTERATIONS TO YOUR
TRANSMISSIONS OF DATA. UNDER NO CIRCUMSTANCES WILL WE OR OUR LICENSOR BE
RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING
OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SITE OR YOUR ACCOUNT OR THE
INFORMATION CONTAINED THEREIN. THIS LIMITATION OF LIABILITY SECTION APPLIES
WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT
LIABILITY, OR ANY OTHER BASIS, EVEN IF WE OR OUR LICENSOR HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE.
18. SOLE REMEDY
IN ANY EVENT, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY LIABILITY RELATING TO
OR ARISING OUT OF THE SERVICE OR THIS AGREEMENT, REGARDLESS OF THE FORM IN
WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, SHALL BE FOR YOU TO
DISCONTINUE YOUR USE OF THE SERVICE AND TERMINATE THIS AGREEMENT.
19. INDEMNITY
You agree to defend, indemnify and hold harmless ourselves , our
subsidiaries, agents, managers, and other affiliated companies, and their
employees, contractors, agents, officers and directors, and our licensors
from all liabilities, actions, claims and expenses, including legal fees,
asserted by any third party, governmental body or governmental agency,
arising out of or relating to: (a) this agreement; (b) your use of the Site,
including any data or work transmitted or received by you or any service
provider; (c) your connection to the Site; (d) your violation of this
agreement; or (e) your violation of any rights of a third party or service
provider.
Members are reminded to print all transaction data, payment methods and
these Terms in order to avoid misunderstandings at a later time.
Revision Date: February 9, 2011