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User Agreement
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Terms Of Use TellBlast, LLC ("TellBlast") is providing users ("User") with access to its telephone messaging services and web site, (the "TellBlast Service"), subject to the terms and conditions of this User Agreement (the "Terms of Use"). Any new features, changes, updates or improvements of the TellBlast Service, and the availability of new TellBlast services, shall be subject to the terms of this User Agreement unless explicitly stated otherwise. 1. YOUR ACCEPTANCE OF THIS USER AGREEMENT Please read the User Agreement carefully before using or registering for the TellBlast Service. By using or registering for the TellBlast Service, you agree to be bound by the terms and conditions set forth. If you do not wish to be bound by these terms and conditions, you may not access or use the TellBlast Service. 2. MODIFICATION OF TERMS We reserve the right to modify and restate the terms and conditions of the User Agreement, and modification(s) shall be effective immediately upon being posted on the TellBlast.com web site. Unless explicitly stated otherwise, any new features that augment or enhance the current TellBlast Service, including the release of new TellBlast properties, shall be subject to the User Agreement. You understand and agree that the TellBlast Service is provided "AS-IS" and that TellBlast assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store or deliver any User communications or personalized information. You are responsible for reviewing these terms and conditions regularly. Your continued use of the TellBlast Service shall be deemed to be your conclusive acceptance of all modifications to the User Agreement. 3. PRIVACY POLICY By using or registering for the TellBlast Service you acknowledge that you have read and accept the TellBlast Privacy Statement. Before using or registering for the TellBlast Service, please carefully read the TellBlast Privacy Statement. A link to the TellBlast Privacy Statement is on the bottom of each page of TellBlast.com. 4. REMOVE PHONE NUMBER If members of your group do not wish to receive messages, they may visit our website and click 'Block My Number' on the home page of the web site. Alternatively, you may notify TellBlast of your request for the removal of a telephone number from a calling list by calling 877-TELLBLAST and following the instructions provided. 5. REGISTRATION INFORMATION You agree, as a condition of your use of the TellBlast Service, to provide TellBlast with accurate and complete information when registering for or using the TellBlast Service, and to update and maintain such information. TellBlast has the right to suspend, restrict or terminate your use of the TellBlast Service and to refuse any future use of all or portions of the TellBlast Service if TellBlast has reason to believe that you have failed to comply with these requirements. 6. MINIMUM AGE If you are under the age of eighteen, you are prohibited from using or registering for the TellBlast Service. By using or registering for the TellBlast Service, you warrant to TellBlast that you are above the age of eighteen. In addition, parents of children under the age of 18 should be aware that the TellBlast Service is designed to appeal to a broad audience. Accordingly, as a parent or legal guardian, it is your responsibility to determine whether any portion of the TellBlast Service is inappropriate for your child. 7. TELEPHONE CHARGES Access to the TellBlast service is achieved by dialing a toll-free number within any of the contiguous forty eight (48) states of the United States. TellBlast Communications is not responsible for any charges that you may incur from dialing outside of the United States or any other connection charges that you may incur when calling the TellBlast toll-free phone number, e.g., cellular, mobile, or pay phones. Please note that TellBlast delivers messages anywhere within the contiguous forty eight (48) states of the United States. Messages CANNOT be delivered to Alaska or Hawaii. 8. ACCOUNT SECURITY When you are registered, you will establish a TellBlast ID and a PIN. You are responsible for protecting the confidentiality of your TellBlast ID and PIN, and you are fully responsible for all activities that occur under your TellBlast ID. You agree: (a) to exit from your account when you conclude each session, and (b) to immediately notify TellBlast of any loss, compromise or unauthorized use of your TellBlast ID and PIN or any other breach of security. You may notify TellBlast by sending an e-mail to security@TellBlast.com. TellBlast will not be liable for any loss or damage of any kind resulting from either the authorized or unauthorized use of your TellBlast ID and PIN. 9. CONSENT TO RECORD YOUR VOICE INPUTS You agree and consent that TellBlast may record oral or voice communications, utterances, conversations or commands, made by you during the use of the TellBlast Service. By using the TellBlast Service, you expressly consent and grant to TellBlast the right to record and use these recordings. If you do not authorize TellBlast to make or use these recordings, you may not use the TellBlast Service. TellBlast is under no obligation to monitor any recordings for accuracy, completeness, or quality. User understands that recordings may or may not resemble that which User intends to record and that TellBlast is under no obligation to ensure that recordings will successfully represent that which User intends to record. User agrees that all recordings become part of the Content (hereinafter defined) of the TellBlast Service. 10. RESTRICTION AND MODIFICATION OF SERVICE You agree that TellBlast may limit your use of the TellBlast Service, including without limitation the frequency and duration for which you may access the TellBlast Service, and that TellBlast has no responsibility or liability for any unavailability or limitation on use of the TellBlast Service. In addition, TellBlast reserves the right at any time to limit: access to, modify, change or discontinue the TellBlast Service, or any part thereof, with or without notice. You agree that TellBlast shall not be liable to you or to any third party for any modification, suspension or discontinuance of the TellBlast Service. You acknowledge and agree that TellBlast may establish general practices and limits, which may not be published, concerning the use of the TellBlast Service, including without limitation the maximum time that messages will be retained, the maximum number of messages that may be sent from or received by an account on the TellBlast Service, the length of message sent and the maximum number of times, and the maximum duration for which you may access the Service, in a given period of time. You agree that TellBlast has no responsibility or liability for the deletion or failure to store any messages and other communications maintained or transmitted by the TellBlast Service. You acknowledge that TellBlast reserves the right to terminate any inactive or dormant account(s). You agree and TellBlast reserves the right to change these general practices and limits at any time, in our sole discretion, with or without notice. 11. YOUR CONDUCT As a condition of your use of the TellBlast Service, you agree and warrant to TellBlast that you will not use the TellBlast Service for any purpose that is unlawful or prohibited by the User Agreement. You may not use the TellBlast Service in any manner that could damage, impair, disable or overburden the TellBlast Service, interfere in any way with TellBlast's rights, interfere in any way with any other user's use and enjoyment of the TellBlast Service, or otherwise infringe on any person's rights. Specifically, you agree and warrant to TellBlast that: - You will not use, or attempt to use, the TellBlast Service to convey any information that may be considered unlawful, harassing, libelous, abusive, threatening, obscene, hateful, offensive, harmful, vulgar, distasteful, defamatory, indecent, objectionable, or invasive of another person's privacy or proprietary rights. - You will follow the letter and spirit of the terms of the User Agreement and all applicable laws; - You will not use, or attempt to use, the TellBlast Service in connection with any junk messages, spamming, advertising or messages that are duplicative, unsolicited, or promotional in nature; - You will not send, or attempt to send, messages to emergency lines, to any health care facility or similar establishment, to numbers assigned to radio common carrier services or to any service for which the called party is charged for the call; - You will not transmit, or attempt to transmit, any material that may infringe the contractual, fiduciary, intellectual property rights, or other rights of third parties, including trademark, copyright or the right of publicity; - You will not impersonate, or attempt to impersonate, any other person, falsify contact information, misrepresent a relationship with any person or entity, including misrepresenting a relationship with TellBlast, or otherwise attempt to mislead others as to the identity of the sender or the origin of a message; - You will not resell, or attempt to resell, the use of the TellBlast Service without express, prior written consent/permission from TellBlast; - You will not collect, or attempt to collect, or store information about the TellBlast Service or other users, including contact information, without their consent; - You will not interfere, or attempt to interfere, with or disrupt connections to the TellBlast Service or violate the regulations, policies or procedures of such connections; - You will not attempt to gain unauthorized access to the TellBlast Service, other accounts, computer systems or networks connected to the Service. - You will not attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password/PIN mining or any other means. - You agree and TellBlast retains the right, at its sole discretion, to determine whether or not User's conduct is consistent with the letter and spirit of the User Agreement. TellBlast may immediately terminate User's TellBlast account if User's conduct is found to be inconsistent with this User Agreement. 12. NO SPAM AND CONSENT TO DAMAGES TellBlast will immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited messaging activities. Activities such as sending spam or other unsolicited messages can cause harm to TellBlast (and our customer base) in numerous ways including, but not limited to, damaging the TellBlast brand name, damaging our reputation for delivering relevant messages, damaging our reputation for privacy, damaging our ability to attract and retain customers, and damaging other consumer, customer and business goals, activities, or relationships. TellBlast retains sole responsibility and discretion for calculating losses; because these and other damages are often difficult to quantify, if actual damages cannot be reasonably calculated by TellBlast; then you agree to pay TellBlast liquidated damages of $5.00 for each piece of spam or unsolicited message transmitted from or otherwise connected with your TellBlast account; otherwise, you agree to pay TellBlast's actual damages, to the extent such actual damages can be reasonably calculated by TellBlast. 13. COMPLIANCE WITH FEDERAL AND STATE REGULATIONS User agrees to comply with the rules and regulations with specific regard to the Federal Trade Commission and the Federal Communications Commission National Do Not Call Registry rules and regulations and individual State Do Not Call Lists rules and regulations along with any other similar laws that may be applicable to User's use of the TellBlast Service. User agrees not to violate these, or any other applicable Federal or State laws and represents and warrants that subscribers use of the TellBlast Service will not cause TellBlast to violate these or similar laws. User agrees to comply with the anti-solicitation provisions of the Federal Telephone Consumer Protection Act of 1991, and any amendments thereto, at 47 U.S.C. § 227, the Federal Communications Commission's implementing regulations, at 47 CFR § 64.1200 et seq., and any other similar laws. User agrees not to violate these, or any other applicable anti-solicitation laws, and represents and warrants that its use of the TellBlast Service will not cause TellBlast to violate these or other similar laws. User agrees that it is the sole responsibility of User to abide by any laws defined by the State or Federal Government in which TellBlast Services will be applicable. User understands and agrees that TellBlast will not be held responsible for damages to the User or any third party incurred due to User's failure to abide by State and/or Federal laws. Please refer to the Telephone Consumer Protection Act of 1991. You may visit the Federal Communications Commission Web site at http://www.fcc.gov and the Federal Trade Commission Web site at http://www.ftc.gov. Please refer to the appropriate State Attorney Generals office or other applicable offices for telemarketing rules and or regulations pertaining to your intended application and use of the TellBlast Service. 14. NO RESPONSIBILITY FOR CONTENT As part of the TellBlast Service, TellBlast may offer User access to communications, media and commerce services. TellBlast does not guarantee the accuracy, integrity, quality or appropriateness of any messages, communications, information, data, text, music, sound, or other materials ("Content"), whether publicly posted or privately transmitted through the TellBlast Service. You acknowledge that the TellBlast Service simply acts as a passive conduit for the distribution and transmission of information. You acknowledge that TellBlast has no obligation to screen, preview, or monitor such Content. By using the TellBlast Service, you agree that it is solely YOUR RESPONSIBILITY to evaluate the accuracy, usefulness, completeness, or appropriateness of any Content that you send, receive, access, post, or otherwise transmit through the TellBlast Service, including Content that may be offensive, indecent or objectionable. Under no circumstances will TellBlast be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content sent, accessed, posted or otherwise transmitted via the TellBlast Service. 15. DISCLOSURE TellBlast may make identifiable information available to our employees and third parties with whom we contract. In addition, TellBlast may provide aggregate statistics, unique identifiers, demographic, and other anonymous information about our users to advertisers, Service Providers (hereinafter defined), and other third parties. You acknowledge and agree that TellBlast may make such uses of information you provide or TellBlast collects. While TellBlast is committed to protect your privacy, TellBlast does not guarantee that your communications, contact information and other identifiable information will never be disclosed. You acknowledge and agree that TellBlast may disclose any information or Content as described herein, or if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to: (a) comply with any legal process; (b) respond to claims of a violation of the rights of third parties; or (c) protect the rights, property, or safety of TellBlast, its users or the public. TellBlast does not accept any responsibility for accidental or inadvertent disclosure, unauthorized access or other disclosure as required by law or described herein. As we continue to develop our business, we might sell our company or buy other companies or assets. In such transactions, customer information generally is one of the transferred business assets. Also, in the event that TellBlast, or substantially all of its assets are acquired, you consent to the transfer of your information as one of the transferred assets. 16. SERVICE FEES AND CHARGES The basic account fees ("Service Fees") shall be provided at the rates set out in the TellBlast pricing plan at the time of subscription, plus applicable taxes, fees, and surcharges. TellBlast may modify subscription Service Fees at renewal periods. 17. SUBSCRIPTION BILLING Service Fees for subscription users of the TellBlast Service will be automatically charged on the first day of each month to the credit or debit card on file for User. If for any reason payment is not effected through User's credit or debit card and payment becomes past due, TellBlast will assess a late payment charge of 1.5% per month, or 18% annually (or the highest amount allowed by law, whichever is lower) on the amount due. The total amount of the late payment, and the late charge, shall be due and payable immediately. User is responsible for any fees, including attorney and collection fees that TellBlast may incur in its efforts to collect any Service Fees, surcharges and late payment charges owing from the User. Additionally, TellBlast reserves the right to immediately and without notice terminate the account of any User with a past due balance. TellBlast reserves the right to change the billing process upon providing the Subscriber with 30 days notice in writing or via email. Unlimited Usage on Subscription Accounts: You agree and TellBlast retains the right, at its sole discretion, to determine whether or not User is abusing the unlimited usage privilege on a subscription account. If TellBlast determines that an account is abusing the unlimited usage privilege, TellBlast may restrict or terminate that account. As a guideline only, a user that creates broadcasts that result in more calls per day than the maximum number of recipients in their subscription plan will be considered in abuse of the unlimited usage privilege. Abuse may be addressed by contacting the group leader to warn of excessive usage. TellBlast reserves the right to charge an additional 10 cents ($.10) per call for any excessive calls, as determined at the sole discretion of TellBlast. 18. FREE TRIALS TellBlast may permit User to use the TellBlast Service on a free trial basis. During this time, User will not incur any charges or fees for use of the service. After the expiration of your free trial, you will have the option to purchase a TellBlast messaging package or subscription as described on the TellBlast web-site. TellBlast reserves the right to terminate the account of any free trial User at any time. 19. TERM AND TERMINATION TellBlast Service subscriptions shall automatically renew on a monthly basis at the rate indicated on the pricing plans page of the TellBlast.com website. Users may discontinue their subscription at any time by logging in to the website and selecting "Cancel my Subscription", or by sending an email to accountSupport@TellBlast.com. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-MONTH SUBSCRIPTION PERIODS. Users that have no past due balance and have paid for the current month will be able to complete broadcasts on their canceled account until their paid subscription ends. TellBlast per-call service plans may expire after one hundred eighty (180) days of inactivity or upon exhaustion of the messages. Inactivity is defined to mean that User has neither purchased an additional per-call plan, nor initiated a broadcast. TellBlast per-call service plans are non-refundable. 20. LIABILITY DISCLAIMER YOU AGREE THAT: A. IF YOU USE THE TELLBLAST SERVICE, YOU DO SO AT YOUR OWN AND SOLE RISK. THE TELLBLAST SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TELLBLAST EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN THE EVENT OF A CRITICAL EMERGENCY, REGULAR TELLBLAST.COM MESSAGING SERVICES MAY TEMPORARILY BE PRE-EMPTED TO PROVIDE SERVICE TO CLIENTS WITH EMERGENCY-RELATED NEEDS. B. TELLBLAST DOES NOT WARRANT THAT (i) THE TELLBLAST SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE TELLBLAST SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE TELLBLAST SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE TELLBLAST SERVICE WILL MEET YOUR EXPECTATIONS, (v) ANY INFORMATION YOU PROVIDE OR TELLBLAST COLLECTS WILL NOT BE DISCLOSED, OR (vi) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED. YOU ARE ESPECIALLY ADVISED NOT TO USE OR RELY ON THE TELLBLAST SERVICE AND INFORMATION OR ANY OTHER PROGRAM, INFORMATION OR SERVICE WHATSOEVER RELATED THERETO FOR "CONTENT SENSITIVE" OR "MISSION CRITICAL" APPLICATIONS AND USE. "CONTENT SENSITIVE" SHALL MEAN ANY INFORMATION OR DATA YOU DO NOT WISH TO BE ACCESSIBLE TO OTHER USERS. "MISSION CRITICAL" APPLICATIONS AND USE SHALL MEAN APPLICATIONS AND USE THAT MAY RESULT IN DAMAGE. C. IF YOU ACCESS OR TRANSMIT ANY CONTENT THROUGH THE USE OF THE TELLBLAST SERVICE, YOU DO SO AT YOUR OWN DISCRETION AND YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOU IN CONNECTION WITH SUCH ACTIONS. D. NO DATA, INFORMATION OR ADVICE OBTAINED BY YOU IN ORAL OR WRITTEN FORM FROM TELLBLAST OR THROUGH OR FROM THE TELLBLAST SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. 21. LIMITATION OF LIABILITY YOU EXPRESSLY AGREE THAT TELLBLAST SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF TELLBLAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR INABILITY TO USE THE TELLBLAST SERVICE; (ii) THE COST OF ANY SUBSTITUTE GOODS AND SERVICES PURCHASED TO REPLACE ANY GOODS OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF ANY INFORMATION OBTAINED FROM OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE TELLBLAST SERVICE; (iii) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR INFORMATION OR MESSAGES; (iv) STATEMENTS OR CONDUCT OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY ON THE TELLBLAST SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE TELLBLAST SERVICE. 22. INDEMNIFICATION You agree to indemnify, defend and hold harmless TellBlast, its officers, directors, owners, employees, agents, other Service Providers, vendors or customers from and against all losses, liabilities, expenses, damages and costs, including reasonable attorneys' fees resulting from any violation of the User Agreement by you or any harm you may cause to anyone. You agree and we reserve the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. 23. PROPRIETARY RIGHTS You acknowledge and agree that the TellBlast Service and any necessary software used in connection with the TellBlast Service and Service Providers contain proprietary and confidential information that are protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the TellBlast Service or other users is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You may not, and agree not to, modify, reformat, copy, display, distribute, transmit, publish, license, create derivative works from, transfer or sell any information, products or services obtained from the TellBlast Service, except as set forth herein. TellBlast, the TellBlast logo and other TellBlast logos, product and service names may be trademarks, service marks or other intellectual property of TellBlast (the " TellBlast Marks"). You agree not to display or use the TellBlast Marks in any manner without the prior, express written permission of TellBlast. 24. NOTICE You agree that TellBlast may communicate any notices to you, including notices of changes to the User Agreement, through email, regular mail or by posting of those notices on the TellBlast.com web site or through the TellBlast Service. 25. ENTIRE AGREEMENT The User Agreement governs your use of the TellBlast Service. This User Agreement, your pricing plan, and your payment agreement constitute the entire agreement between you and TellBlast. They supersede any prior agreements between you and TellBlast. Additional terms and conditions may apply when you use the services of Service Providers and others. These additional terms will not reduce, diminish, or eliminate any rights TellBlast possesses with respect to this User Agreement. 26. GOVERNING LAW AND ARBITRATION The User Agreement and the relationship between you and TellBlast shall be governed by the laws of the State of Nevada without regard to its conflict of law provisions. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the TellBlast Service or to the terms of this User Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. You agree to submit any dispute with TellBlast exclusively to final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The location of any arbitration shall be in the city of Washington, D.C. You agree any arbitrator shall not have the authority to award punitive damages. You agree to be bound by any ruling in such arbitration proceeding and that such ruling shall be enforceable in any court of competent jurisdiction. 27. MISCELLANEOUS Any failure by TellBlast to exercise any rights or enforce any of the terms of this User Agreement shall not constitute a waiver of such rights or terms. If any portion of the User Agreement is found by an arbitrator or a court of competent jurisdiction to be invalid, the arbitrator or court should nevertheless give effect to the parties' intentions expressed herein. All other provisions of the User Agreement remain in full force and effect.
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