Member Agreement
 
This agreement is for the PhoneEncounters Site and Telephony Services is made by and between PhoneEncounters.com (“PhoneEncounters”) and you (“Client”).

In consideration of the mutual covenants herein contained and intending to be legally bound by the provisions of this Agreement, the parties agree as follows:

1. Definitions
"Agreement" means this PhoneEncounters Telephony Site and Service Agreement and all exhibits and attachments hereto.

"Client" means the entity that accepts these terms and conditions.

“PhoneEncounters” means PhoneEncounters.com and stakeholders.

"Authorized Agent" means an individual authorized by Client to act as the legal representative of the Client for all matters pertaining to this Agreement.

"Provider" means those who create listings and provide services to Clients via the PhoneEncounters Telephony Site.

2. Eligibility
The Site and Telephony Services are available only to persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. You shall not use the Site or become a Client if you are located or reside in a country in which use or participation is prohibited by law, decree, regulation, treaty or administrative act or is prohibited from entering into trade relations with the United States or its citizens. Such countries include, without limitation, Afghanistan, Burma, Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, Syria and Yugoslavia

3. Client Obligations
Client will not permit their password or PIN number for the Service to be used or known to any other party. Client is not permitted to post or transmit anything via the Service which is illegal, racist, threatening, or derogatory to other Clients or to the Service. Client acknowledges that calls made with the service may be monitored and/or recorded for quality and compliance with the agreement. Client agrees that credit deposited to their account is non-refundable.

Failure to follow these rules may result in withheld funds and/or termination of the Client/Provider account.

4. The Site is only a venue for listings.
PhoneEncounters acts only as an interface to facilitate communications initiated between Clients and Providers. As a Client or Provider, you are not an employee, agent or contractor of PhoneEncounters, and you shall not represent that you are any of the foregoing. You are solely responsible for all equipment necessary to access and use the Site and Service, and for reporting and payment of all taxes associated with fees transferred to you by PhoneEncounters.

5. Client Information
Client is responsible for providing information which is timely, complete, truthful, and not misleading. Client must provide a valid, working e-mail address and telephone number on enrollment. Client will notify PhoneEncounters of any changes of ownership, regulatory actions or financial conditions that could materially affect PhoneEncounters’ rights under this Agreement. Client authorizes PhoneEncounters, directly or through third parties, to make any inquiries we consider necessary to validate your account. These inquiries may include conducting credit check and/or ordering a credit report. Further, it is understood that such inquires may require the release of Client's personal information to said third parties for identity verification.

6. Authority
Each party represents and warrants that it has the legal capacity and authority to enter into and perform its obligations under this Agreement and that those obligations shall be binding without the approval of any other person or entity. Each person signing this Agreement on behalf of a party represents and warrants that they have the legal capacity and authority to sign this Agreement on behalf of that party.

7. Confidentiality
PhoneEncounters Services and all information and documentation relating thereto, including the terms and conditions and prices of fees associated with this Agreement, shall be held in confidence by Client and may not be used by Client (other than for the furtherance of the purposes of the Agreement) nor disclosed to third parties without PhoneEncounters’ prior written consent. Notwithstanding anything in this Agreement to the contrary, either party may disclose to third parties the fact that Client is using PhoneEncounters' services. Client recognizes that the services and documentation thereof contain the valuable, confidential and trade secret information of PhoneEncounters.

8. Billing
Pay-per-minute services are billed at a per-minute rate. All billing is in US Dollars.

9. Limitations of Liability
PHONEENCOUNTERS ASSUMES NO LIABILITY FOR DISRUPTIONS OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, VANDALISM, THEFT, PHONE SERVICE OUTAGES, INTERNET DISRUPTIONS, EXTREME OR SEVERE WEATHER CONDITIONS OR ANY OTHER CAUSES IN THE NATURE OF "ACTS OF GOD" OR FORCE MAJEURE. PHONEENCOUNTERS SHALL NOT BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING ANY LOSS OF PROFIT, REVENUE, SOFTWARE OR DATA, EVEN IF PHONEENCOUNTERS IS ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN ANY OTHER CASE(S), CLIENT AGREES THAT IT SHALL NOT BE ENTITLED TO RECOVER DAMAGES FROM PHONEENCOUNTERS WHICH EXCEED THE SUM OF THE SERVICE FEES PAID TO PHONEENCOUNTERS UNDER THIS AGREEMENT FOR THE ONE MONTH PRIOR TO THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES.

10. Disclaimer of Warranties
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, PHONEENCOUNTERS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY PHONEENCOUNTERS SERVICES, RELATED PRODUCTS, SOFTWARE OR DOCUMENTATION. PHONEENCOUNTERS SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES; INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

11. Indemnification
Client agrees to indemnify and hold harmless PhoneEncounters, its employees, officers, agents, and directors from any and all fines, penalties, losses, claims, expenses (including attorney fees and allocable costs of in-house counsel), or other liabilities resulting from or in connection with this Agreement. PhoneEncounters assumes no liability of Client for failure to comply with this Agreement and any results caused by the acts, omissions or negligence of Client, sub-contractor or an agent of Client or an employee of any one to them, including, but not limited to, claims of third parties arising out of or resulting from or in connection with Client's products or services, messages, programs, caller contracts, promotions, advertising, infringement or any claim for libel or slander or for violation of copyright, trademark or other intellectual property rights. If you are a California resident, you waive your rights under California Civil Code §1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations waive their rights under analogous laws, statutes or regulations.

12 Non-Exclusivity
Client and Provider acknowledge and agree that the arrangements provided for herein are nonexclusive, and nothing in the Agreement shall be construed as precluding PhoneEncounters, Client or Provider from entering into similar arrangements with any other party.

13. Termination
PhoneEncounters reserves the right to modify or terminate the Service at any time. PhoneEncounters may terminate your account at any time without notice.

14. Default
In the event Client defaults in any provision or fails to perform pursuant to this Agreement, PhoneEncounters shall be entitled to damages, costs and attorney's fees from Client.

15. Invalid or Non-enforceable Provisions
The invalidity or unenforceability of any provision of this Agreement, as so determined by a court of competent jurisdiction, shall not affect the other provisions hereof, and in any such occasion this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.

16. Governing Law
This Agreement and the legal relations between the parties hereto shall be governed in all respects, including validity, interpretation, performance and effect, shall be settled by binding arbitration in accordance with the consumer commercial arbitration rules of the American Arbitration Association. The arbritration shall be conducted in Anaheim, CA, and any award may be entered in any court having jurisdiction thereof. The arbritrators ruling shall be final and unappealable. Client, hereby expressly and irrevocably waive any claim or defense in any such action or proceeding based on any alleged lack of personal jurisdiction, improper venue or forum non convenient or similar theory.

17. Captions
The captions in this Agreement are for convenience only and shall not be used in interpreting, construing, performing or enforcing this Agreement, except that the section entitled "Payment" shall be used to construe the manner in which PhoneEncounters is to receive its fees.

18. Amendments and Modifications of Agreement
PhoneEncounters may amend this Agreement to take into account changes in law or regulations or industry mandates and to accommodate changes imposed on PhoneEncounters, and to make other changes deemed necessary by PhoneEncounters, provided that such changes do not materially alter the ongoing obligations of the parties, by sending Client a specimen of the changed Agreement, or making a specimen of the changed agreement available upon a web page located on the World Wide Web. Unless Client rejects the changed Agreement and terminates this Agreement by notice to PhoneEncounters in writing within fifteen (15) days after PhoneEncounters sends the changed Agreement, or makes said changed agreement available on the World Wide Web, the changed Agreement shall replace this Agreement and be in full force and effect.

19. Survival of Claims
Any claim against PhoneEncounters must be made within thirty (30) days of the event of the claim.

20. Entire Agreement
By accepting this Agreement, the Client or Client's authorized representative acknowledges that Client has read, understood, and accepted this Agreement, that this Agreement contains the entire agreement of the parties and that no other agreements, instruments or writings are in effect, and that Client assumes all obligations under this Agreement pertaining to the web sites described in this Agreement and its schedules.

21. Notices
Any and all notices to PhoneEncounters, or other communications under or with respect to this Agreement, shall be delivered via e-mail to: legal@phoneencounters.com.

22. Transfer and Assignment
Client may not sell, assign or transfer any of its rights or obligations under this Agreement without the prior written consent of PhoneEncounters.

23. Survival of Obligations
The rights and obligations of the parties hereunder which by their nature would continue beyond the termination or cancellation of this Agreement (including, without limitation, those relating to confidentiality, payment of charges and limitations of liability) shall survive any termination or cancellation of this Agreement.

24. Acceptance
By clicking "I Agree", "I Accept"; or by using or attempting to use the Service; Client agrees that Client has read, understands, and agrees to abide by this Agreement, and any documents incorporated by reference, and Client agrees that Client intends to form a legally binding contract; and that this Agreement constitutes "a writing signed by Client" under any applicable law or regulation. If you do not accept this Agreement in its entirety without modification, you may not use the Site or Service. Any rights not expressly granted herein are reserved by PhoneEncounters.