|1. Services: This agreement
covers PhoneConfirm service
and all related products and services by AcrossCommunications, Inc.,
2500 Shadywood Road, Suite 820, Excelsior, Mn 55331 (Seller) to which you (Buyer) subscribe.
2. Eligibility: You are eligible
to subscribe to PhoneConfirm
service if, by acceptance of this agreement,
you truthfully certify that you are not a competitor of Seller.
3. Conditions of Use: Your use of Seller's
services is subject to the following conditions:
(a) you must not cause or allow robots
or other automated processes to act upon or interact with
Seller's systems or user interfaces without prior written
permission from Seller, and
(b) you must not use Seller's services
in a way that causes unreasonable load on Seller's systems
or unwanted load on systems with which you direct Seller's
services to interact.
(c) you must, within 30 days of opening a
new account or prior to expending 100 credits, FAX to
PhoneConfirm.com at 888-794-3554 a signed and dated copy
of the Terms and Conditions and a copy of the front and
back of the credit card used to open the account.
Failure to comply will result in suspension of services.
(d) you must accept full responsibility for
the accuracy of all phone numbers used on your account.
(e) non-use of a PhoneConfirm.com account
for a continuous period of six months or more shall result
in suspension of the account by AcrossCommunications, Inc.
The account and any remaining call credits may be reinstated
by contacting AcrossCommunications customer support. Non-use
is defined by the absence of a user log in and/or no user
call activity for a continuous six month period.
4. Non-Disclosure: Buyer will, through
his use of Services and contact with Seller, become aware
of trade secret information owned by Seller, including but
not limited to the provision, delivery, and methods of operation
of the Services, and of planned enhancements to same and
current and planned marketing of the Services. Buyer agrees
that all such information accessed through Seller's password
protected systems, and through interaction with Seller's
staff and agents, will be held in strict confidence and
afforded all reasonable measures of security.
NOTE: The provisions of this section
shall survive for a period of not less than two years following
expiration or termination of this contract.
5. Late Payments: If any payment
due to Seller under this Agreement is not paid when due,
Buyer agrees to pay Seller interest on the past due amount
on a daily basis from the due date until the date paid at
a rate equal to the lesser of 18% per annum or the maximum
rate allowed by law.
6. Default and Remedies: Buyer will be
in default under this Agreement if there is
(a) Buyer fails to comply with any provision
of this Agreement, or
(b) any representation made by buyer
in this Agreement is or becomes untrue or
If Buyer is in default in any way, Seller may immediately
take any one or more of the following actions for protection:
(a) Declare all unpaid
amounts due and payable;
(b) Terminate this Agreement with respect
to all or any part of the Services
(c) Take any other lawful action Seller
may deem appropriate to enforce Buyer's performance of
this Agreement and/or obtain damages for Buyer's breach.
If Buyer defaults, he agrees to pay costs and reasonable
attorney's fees Seller may incur in enforcing Seller's rights.
If Seller defaults, Buyer's sole remedy will be the refund
of the current month's fees for Services or Products. Any
Products which have not been paid in full will be returned
to AcrossCommunications, Inc, or Buyer will refund Seller's reasonable
attorney's fees to exercise such rights.
7. Certain Other Agreements: Buyer understands
and agrees with Seller as follows:
(a) Buyer will comply with all state
and federal laws, rules, regulation and tariffs regarding
any specific applications and use of the Services.
(b) Sales/use Taxes: Buyer will pay all
sales or use taxes as billed by Seller. Buyer will also
pay all other local, state or federal taxes arising out
of his use of Services (excluding any income taxes), and
Buyer will provide Seller with written proof of payment
(c) Reimbursement: If Buyer fails to
pay any taxes, charges or fees, created by himself, Seller
may at his option, pay the applicable taxes, charges and
fees, and Buyer will reimburse Seller for those payments.
(d) Cancellation and Assignment: Until
paid in full, Buyer may neither cancel this Agreement
nor transfer it. Buyer may neither assign his rights or
duties without Seller's written consent, which Seller
may withhold at Seller's sole discretion. Upon prior notice
to Buyer, Seller may assign or subcontract all or part
of Seller's rights and obligations under the Agreement,
in which event Buyer will look only to Seller's assignee
and not to Seller for any further performance.
(e) Automatic renewal: This Agreement
will automatically renew at the monthly service price
unless Buyer sends Seller written notice that he does
not want it to renew at least fifteen (15) days before
the end of the Agreement's term. Seller may cancel the
automatic renewal term by sending Buyer written notice
that Seller does not want the Agreement to renew, at least
fifteen (15) days before the end of any term of the Agreement.
(f) Buyer agrees that all of Seller's
Services and Products are secondary resources for said
Buyer and that Seller is in no way or under any circumstances
responsible for the results of use of the Services and
Products of Dana Consulting, Inc.
(g) No refunds will be made for any remaining
call credits as the result of an account being cancelled,
terminated or suspended.
8. No Warranties:
We are selling a service provided via multiple public and
private facilities, some of which are not within our control.
Seller does not guarantee the quality or condition of the
Service. Seller does not guarantee your subscribed Services
will be active and available 100% of the time and will not
be held liable for any of losses in the event that there
is a service failure.
SELLER MAKES NO WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE IN CONNECTION WITH THIS CONTRACT.
(a) These terms and conditions are the
complete Agreement between the parties. This Agreement
supersedes all prior agreements, representations or promises
made by Seller's representative that differ in any way
from these terms and conditions.
(b) Any modifications of, or waiver of
rights under, this Agreement must be in writing signed
by the party or parties to be bound by the modification
(c) No provision of any purchase order
or other document which Buyer may issue covering any Equipment
or Services will modify the terms and conditions of the
Agreement: Buyer agrees that any such purchase order or
other document is strictly for purposes of Buyer's internal
(d) Any failure on Seller's part to exercise
Seller's rights, or any delay in exercising Seller's rights,
shall not be deemed to be waiver of those rights, and
waiver of any provision on any occasion shall not be construed
to be a waiver of any other provision or on any other
(e) If more than one Buyer or Guarantor
is named in this Agreement, each shall be jointly and
severally liable for all the provisions of the Buyer and
(f) Any notices required under this Agreement
must be delivered in person or mailed, properly addressed
and with postage prepaid, or via e-mail, to the party
entitled to receive the notice.
(g) This Agreement shall be interpreted
under the laws of the State of Minnesota. Venue for litigating
any dispute under this Agreement shall be in the appropriate
Federal or State court in Hennepin County, Minnesota.
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