Telesmart Terms and Conditions
1. Agreement. "Agreement" shall mean this Standard Service
Agreement when executed by "Customer" and upon its acceptance by The
TeleSmart Corporation or its subsidiaries and affiliates ("TeleSmart").
Acceptance of this Agreement by TeleSmart shall entitle Customer to
access any services generally made available to customers ("Service"),
subject to the terms and conditions stated herein and also the other
terms, conditions and restrictions which TeleSmart shall publish from
time to time respecting the Service.
2. Service. As a third-party provider of information,
TeleSmart reserves the right to add or withdraw databases and modify or
otherwise change the Service (including features) without notice as
necessary. In addition, TeleSmart reserves the right to change any and
all Service rates and other prices or the terms and conditions of this
Agreement respecting the Service at any time and all such changes shall
be effective immediately when published by TeleSmart unless this
Agreement is modified by a fixed-term rider in which case changes to
the terms and conditions shall not be effective until the expiration or
renewal of said rider. TeleSmart agrees it will use its best efforts to
provide notice to Customer in advance of or concurrent with the
effective date of such changes.
3. Database-Specific Terms & Conditions. Customer agrees
to abide by database-specific terms and conditions set by the
information provider, as revised from time to time, as if same were
fully included herein. Database-specific terms and conditions are
available in the online documentation for each database, via the
TeleSmart website, and/or product-specific websites.
4. Customer Warranties. Customer represents and warrants to
TeleSmart that there exists, at the commencement of this Agreement and
for all periods thereunder: no legal reason that TeleSmart should deny
Services to Customer; that Customer is of legal majority age (i.e., 18
years of age or older in most jurisdictions); and that Customer's use
of Services is not for any illegal or injurious purpose or purposes.
Customer represents and warrants that Customer will not intercept or
attempt to intercept the communications of others using the Services or
to delete materials of TeleSmart or of others using the Services or to
corrupt or interfere with the Services in any respect or to falsify the
origin of Customer's communications. Further, Customer represents and
warrants to TeleSmart Customer's strict compliance with all state and
federal laws applicable to the information obtained via the Services.
5. Indemnity. Customer agrees to indemnify and hold
TeleSmart, its officers, employees and its suppliers harmless from and
against any loss, claim, demand, expense (including attorney's fees),
or liability of whatever nature or kind of Customer or of third parties
arising out of the use of Service or materials provided hereunder;
provided however, that such obligations shall not apply where the loss,
claim, demand, expense, or liability arises from TeleSmart's
infringement of the intellectual rights of third parties. For purposes
of this provision, TeleSmart shall include parent, subsidiary, and
affiliate companies.
6. Data and Service. THE DATA AND SERVICES FURNISHED
HEREUNDER ARE FURNISHED "AS IS." TELESMART AND ITS INFORMATION
PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE OR MERCHANTABILITY, NOR ARE ANY SUCH WARRANTIES TO
BE IMPLIED WITH RESPECT TO THE DATA OR SERVICES FURNISHED. TELESMART
AND ITS INFORMATION PROVIDERS ASSUME NO RESPONSIBILITY WITH RESPECT TO
CUSTOMER OR ITS EMPLOYEES, CLIENTS, OR CUSTOMERS USE THEREOF. TELESMART
AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, NOR SHALL THEY BE
LIABLE FOR EXEMPLARY DAMAGES OR "LOST PROFITS" OR "EXPENSES." IN NO
EVENT SHALL TELESMART OR ITS SUPPLIERS LIABILITY TO CUSTOMER FOR
DAMAGES, REGARDLESS OF CAUSE OR FORM OF ACTION, EXCEED THE VALUE OF THE
ORDER FOR ONE MONTH PRECEDING THE INCIDENT GIVING RISE TO SUCH DAMAGES.
7. Data. Customer may not use any data or documentation
received from the Service except as expressly provided in this
Agreement and except as permitted by U.S. copyright law, which law
shall govern the use of all data and documentation received from
Service. Customer agrees, for itself and for any party acting by or
through Customer: (i) To allow its password(s) and any documentation,
or data received from the Service, to be used only by Customer's (a)
employees, agents or contractors, (a) is referred to as the "Approved
User-Base"); (ii) Not to transfer, by any means whatsoever, any data or
documentation received from the Service (or copies thereof), to any
person, organization or institution outside the Approved User-Base and
to prohibit any member of the Approved User-Base from doing so; (iii)
Not to sell, exchange, barter, or transfer, rent, lease, loan, resell
for profit, distribute or in any other manner commercially exploit any
data or documentation received from the Service, except for use as part
of the ordinary attorney-client, and only as such use may be permitted
by state and federal law. Exceptions to these conditions, where
requested in writing by Customer, may be granted by TeleSmart, where
applicable, at their sole discretion. In some cases, TeleSmart
documentation includes advance permission for copying or other use by
Customer of data output.
Except as authorized pursuant to Service commands (e.g., TeleSmart
ERASM) under no circumstances may Customer, or any party acting by or
through Customer, copy or transmit data received from Service in
machine-readable form, or retain such data in machine-readable form
other than temporarily for purposes of making a single human-readable
copy thereof, except as may be expressly authorized in advance by the
information provider.
8. Passwords. All terms and conditions of this Agreement are
applicable to all passwords issued under this Agreement and,
accordingly, Customer agrees to assume sole responsibility: for
compliance with the Agreement; for all charges incurred for each and
every password issued under this Agreement; and for maintaining the
security respecting the passwords issued.
Customer shall be entitled to receive one (1) password to the
Service. Additional passwords may be provided to the Customer upon
written request by Customer's authorized representative, subject to
TeleSmart's policies for additional passwords then in effect.
Unless expressly approved in writing by TeleSmart in advance, a
password is valid for use only in the country to which it is issued.
In any event where Customer allows others to use the password or,
with the prior written consent of TeleSmart, as may be required,
provides search output to others, Customer assumes sole responsibility
to ensure that all provisions of this Agreement are agreed upon and
complied with by such others.
In the event of loss or theft of a password, it is Customer's
responsibility to notify TeleSmart immediately, in writing and Customer
shall be relieved of liability for charges incurred on such password
subsequent to TeleSmart's receipt of such notice.
9. Invoicing/Payment. Customer will be invoiced via the
Internet by (1) email; and/or (2) fax; and/or (3) direct mail; and/or
(4) secure login; then-current Price List rates for products and
services. TeleSmart's published prices are exclusive of sales, use,
excise, or other similar taxes; Customer will be invoiced for any
applicable taxes on the sale of services and/or products. Customer must
pay all fees by direct Debit/Credit via secure login.
Invoicing will be monthly with payment due before service is
rendered by estimating monthly usage. That estimate will be credited to
your account and used throughout the month. If Customer exceeds 85% of
credit, Customer account will be charged estimate again and account
credit added to Customer account.
In the event TeleSmart bills directly to your clients all delinquent
accounts will be charged back to Customer after 30 days of unpaid
invoice.
Undisputed accounts not paid shall be deemed delinquent after 30
days and are subject to interest charges of eighteen percent (18%) per
annum on the unpaid balance (or the maximum rate allowed by law, if
such rate is less than 18%). TeleSmart reserves the right to suspend
Service to a delinquent account without prior notice. Customer
authorizes TeleSmart to send notice of delinquent account status by
means of the most expedient method available as determined by
TeleSmart. Should Customer be delinquent in the payment of any
invoices, Customer shall be liable for all costs of collection incurred
by TeleSmart, including without limitation collection agency fees and
reasonable attorney's fees, as well as court costs.
Any invoice not disputed within 60 days of invoice billing cycle will
be deemed accepted by customer. Customer must notify TeleSmart within the
sixty (60) days of the date of the invoice on which the disputed charge
occurs. All invoiced charges shall be deemed to be correct and
indisputable sixty (60) days after the date of the invoice on which
they appear.
We store and process your personal information on our computers in the US and elsewhere in the world where our facilities are located, and we protect it by maintaining physical, electronic and procedural safeguards in compliance with applicable US federal and state regulations. We use computer safeguards such as firewalls and data encryption, we enforce physical access controls to our buildings and files, and we authorize access to personal information only for those employees who require it to fulfill their job responsibilities.
10. Use of Purchase Order. If Customer uses a Purchase Order
form in conjunction with this Agreement, then Customer agrees that the
following statement is automatically made part of the Customer's
Purchase Order: "The terms and conditions set forth in the TeleSmart
Service Agreement are made a part of Customer's purchase order and are
in lieu of all terms and conditions, express or implied, in such
purchase order."
11. Termination of Agreement. This Agreement is an open order
that remains in effect until terminated by either party. Customer will
provide written notice to TeleSmart in order to terminate this
agreement. Upon termination, TeleSmart will remove Customer data stored
on the Service (including without limitation SearchSaves and TeleSmart
Alert profiles). TeleSmart reserves the right to suspend or refuse the
provision of Service for any reason whatsoever, with or without cause,
and without prior notice.
12. Law. This Agreement shall be construed and interpreted
solely in accordance with the laws of the State of Oregon, United
States of America, without application of its conflict of laws
provisions. Should any term and condition be declared illegal or
otherwise unenforceable, it shall be severed from the remainder of this
Agreement without affecting the legality or enforceability of the
remaining portions. TeleSmart's remedies set forth herein are not
exclusive and are in addition to any and all other remedies available
at law or in equity, none of which shall be deemed as waived by virtue
of TeleSmart's exercise of any other remedy. Except solely for actions
by TeleSmart to collect for charges incurred by the Customer which have
not been paid, neither party may bring an action regardless of form,
arising out of the transactions under this Agreement more than three
(1) year after the cause of action has accrued. If action be instituted
on this Agreement, the prevailing party shall be entitled to recover
costs and reasonable attorney's fees. Customer agrees that any breach
of its obligations under this Agreement with respect to the restriction
on Customer's use of the data or documentation received from the
Service will cause TeleSmart irreparable injury for which there are
inadequate remedies at law, and therefore TeleSmart will be entitled to
equitable relief in addition to all other remedies provided by this
Agreement or available at law.
13. Concepts and materials. Any ideas, concepts or materials
submitted to TeleSmart by the Customer regarding the Service become
TeleSmart's property to exploit or to not exploit as TeleSmart solely
deems appropriate without necessity for remuneration or attribution to
Customer.
14. Registration. Customer agrees to promptly register this
Agreement if required, and to obtain any necessary governmental
approval(s) as may be required by the laws or regulations of any
country for which a password is issued to Customer. Customer is
responsible for demonstrating to TeleSmart's satisfaction that all such
required registrations and approvals have been obtained.
15. Force Majeure. TeleSmart and its information providers
shall not be liable or deemed to be in default for any delays or
failure in performance or interruption of Service resulting directly or
indirectly from any cause or circumstance.
16. Assignment. This Agreement is not assignable or
transferable by Customer and any attempted assignment or transfer shall
be null and void and of no force or effect. TeleSmart may assign this
Agreement and/or payments due without requirement for Customer's
permission or approval.
17. U.S. Government. If Customer is a unit or agency of the United States government, then the provisions of the U.S. Government Rider shall apply.
18. Final Agreement. This Agreement (including any
revisions), including Price Lists, Database-specific Terms and
Conditions, and Riders and other amendments, constitute the entire
agreement between the parties. This Agreement may only be modified in
writing by TeleSmart, and Customer shall be notified in accordance with
Section 2.
Revised November -2004
CallReportingTM Standard Terms and Conditions
TeleSmart ("Provider") controls the usage in North America of the
Assigned Telephone Number(s). Provider hereby grants to User a license
to use the Assigned Telephone Number(s), unless USER has requested
RespOrg of numbers from existing accounts, subject to the terms,
conditions and limitations set forth in this Usage Agreement.
1. MONTHLY PHONE BILLS: The USER shall pay a Phone
Line Access Fee and per minutes (or portion of minute) charges as
detailed in current pricing schedule each month for incoming calls,
plus programming fee to setup account, billed directly to USER's
credit/debit card.
2. DUE AT TIME OF ACTIVATION: 1) First month's
(prorated if applicable) line access fee, 2) Last months line access
fee and 3) One-time programming fee (if applicable).
3. TEST SYSTEM: USER agrees to test
Call Reporting application before placing an ad or undertaking
expenditure. The USER further understands that TeleSmart is not
responsible or liable for routing errors. It is important that USER
tests routing upon all changes to confirm routing is correct.
4. LIABILITY: The PROVIDER shall not be responsible
for any direct or indirect damage (including loss of profits or
expenditure) caused by the USER'S use of the Assigned Telephone
Number(s). USER agrees to save and hold harmless PROVIDER from any and
all liability resulting from the use of the Assigned Telephone
Number(s). PROVIDER shall not be responsible for any
interruption of service caused by any reason whatsoever whether or not
subject to the control of the PROVIDER. PROVIDER liability to USER is
limited to and shall not exceed one months line access
fee. USER agrees to indemnify, defend and hold PROVIDER harmless from
and against any liability, claims, complaints, costs (including
attorneys fees and costs) and expenses arising out of USER's misuse,
unlawful activity or abuse of the Telephone Reporting Service provided
hereunder. IF A SERVICE PROBLEM OCCURS PROVIDER SHOULD BE NOTIFIED
IMMEDIATLY AT 1-800-835-3762.
5. ASSIGNMENT: The USER shall not assign, sublet or
sub-license any interest in this agreement of the Assigned Telephone
Number(s) without Provider's prior written consent.
6. OWNERSHIP: All legal rights and ownership of the
Assigned Telephone Number(s) shall belong to the PROVIDER. USER
acknowledges that PROVIDER is in complete control of the Assigned
Telephone Number(s). While this Agreement is in effect User shall have
an exclusive license to use the Assigned Telephone Number(s). Upon
termination of this Agreement all legal rights and ownership of
Assigned Telephone Number(s) will remain with PROVIDER.
7. CANCELLATION: If USER is not totally satisfied USER
may cancel this agreement by calling 1-800-835-3762 and request
cancellation. PROVIDER may, at any time, cancel this Agreement in its
sole discretion upon written notice to USER.
8. ENTIRE AGREEMENT: The parties agree that any
dispute arising between them out of our relating to this Agreement, or
breach thereof, which dispute cannot be resolved amicably, shall be
settled by arbitration administered by The American Arbitration
Association in Portland, Oregon under its commercial arbitration rules,
and not by a court of law, except that PROVIDER may use the courts for
the sole purpose of collecting any unpaid bill; in such case, any
counterclaim by USER shall result in the entire controversy being
transferred to arbitration. The parties further agree to be bound by
the decision of the arbitrator and that a judgment on the award
rendered by the arbitrator, which award may include administrative fees
and costs, may be entered in any court having jurisdiction hereof. This
agreement constitutes the entire agreement between the two parties.
Revised November - 2004
SmartECRTM Standard Terms and Conditions
(Smart Enhanced Call Routing)
TeleSmart ("Provider") provides SmartECRTM (Smart Enhanced Call Routing) features and functionality.
1. MONTHLY PHONE BILLS: The USER shall pay a
Application Access Fee and per minutes (or portion of minute) charges
as detailed in current pricing schedule each month for incoming calls,
plus programming fee to setup account, billed directly to USER's
credit/debit card.
2. DUE AT TIME OF ACTIVATION: 1) First month's
(prorated if applicable) application access fee, 2) Last months
application access fee and 3) One-time programming fee (if applicable).
3. TEST SYSTEM: USER agrees to test
SmartECRTM application before placing an ad or undertaking expenditure.
The USER further understands that TeleSmart is not responsible or
liable for routing errors. It is important that USER tests routing upon
all changes to confirm routing is correct.
4. LIABILITY: The PROVIDER shall not be responsible
for any direct or indirect damage (including loss of profits or
expenditure) caused by the USER'S use of the SmartECRTM application. USER agrees to save and hold harmless PROVIDER from any and all liability resulting from the use of the SmartECRTM application. PROVIDER shall not
be responsible for any interruption of service caused by any reason
whatsoever whether or not subject to the control of the PROVIDER.
PROVIDER liability to USER is limited to and shall not
exceed one months line access fee. USER agrees to indemnify, defend and
hold PROVIDER harmless from and against any liability, claims,
complaints, costs (including attorneys fees and costs) and expenses
arising out of USER's misuse, unlawful activity or abuse of the SmartECRTM Service provided hereunder. IF A SERVICE PROBLEM OCCURS PROVIDER SHOULD BE NOTIFIED IMMEDIATLY AT 1-800-835-3762.
5. CANCELLATION: If USER is not totally satisfied USER
may cancel this agreement by calling 1-800-835-3762 and request
cancellation unless otherwise detailed by a service term (time
commitment) agreement. PROVIDER may, at any time, cancel this Agreement
in its sole discretion upon written notice to USER.
6. ENTIRE AGREEMENT: The parties agree that any
dispute arising between them out of our relating to this Agreement, or
breach thereof, which dispute cannot be resolved amicably, shall be
settled by arbitration administered by The American Arbitration
Association in Portland, Oregon under its commercial arbitration rules,
and not by a court of law, except that PROVIDER may use the courts for
the sole purpose of collecting any unpaid bill; in such case, any
counterclaim by USER shall result in the entire controversy being
transferred to arbitration. The parties further agree to be bound by
the decision of the arbitrator and that a judgment on the award
rendered by the arbitrator, which award may include administrative fees
and costs, may be entered in any court having jurisdiction hereof. This
agreement constitutes the entire agreement between the two parties.
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