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
"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.
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
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.
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.
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
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.
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.
PhoneEncounters reserves the right to modify or terminate the Service
at any time. PhoneEncounters may terminate your account at any time without
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
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.
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.
Any and all notices to PhoneEncounters, or other communications under
or with respect to this Agreement, shall be delivered via e-mail to: email@example.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.
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.