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TERMS OF USE FOR WWW.LISTCONSOLE.COM
YOU MUST READ AND AGREE TO THE FOLLOWING TERMS OF USE
BEFORE YOU SIGNUP TO USE THIS WEBSITE SERVICE
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Welcome to the ListConsole.com Service, an online number generator service provided by Acarda Sales Technologies Limited ('Acarda'). These terms of use are intended to explain our obligations as a service provider and your obligations as a customer. Please read them carefully.
These Terms are binding on any use of the Service and apply to you from the time that you first use the signup form for access to the Service. Once you submit the signup form and every time you login to the Service you signify that you agree with these Terms.
Acarda reserves the right to change these terms at any time, effective upon the posting of modified terms onto the website. It is likely the terms of use will change over time. It is your obligation to ensure that you have read, understood and agree to the most recent terms available on the website.
1. Definitions In these Terms of Use:
Agreement means Terms of Use;
Company means Acarda Sales Technologies Limited;
Customer means you the user of the Service, and includes your employees, consultants, representatives and agents;
Intellectual Property Rights means the rights to patents, licenses, trade marks, trade names, inventions, trade secrets, copyrights, and know-how relating to the origin, manufacture, programming, operating and/or servicing of the Service and any enhancements or modifications relating to the same;
Access Fee means the subscription charge for use of the Service for the Subscription Term;
Subscription Term means period of permitted use governed by the plan you purchase. This is either a 31 day period or a 365 day period from the date the subscription plan is activated;
Service means the ListConsole.com internet website or any others operated by the Company or the service accessed by logging into the ListConsole.com internet website;
2. Use of Service
2.1 The Company grants you the right to access and use the Service via the internet with the user roles and access levels according to your subscription plan and for the period of your Subscription Term. This right is non-exclusive and non-transferable and limited by these Terms of Use.
3. Limitations
3.1 The Customer understands and accepts that:
(a) The numbers generated with the Service may not be valid telephone numbers and the Service simply generates numbers in a range set by the Customer. These numbers may be in the format of a telephone number however there is no guarantee that they will be valid or in-service telephone numbers.
(b) The numbers generated with the Service are NOT scrubbed by any Do Not Call lists.
(c) Before using this numbers generated by the Service as telephone numbers for solicitation purposes the Customer should consult with their own counsel to determine the extent, if any, of permissible solicitation activities. There may be laws that impose restrictions on the ability to solicit by telephone. Laws vary from jurisdiction to jurisdiction and a violation of such laws may result in significant penalties and other sanctions.
(d) By using this Service the Customer agrees to comply with laws, and the Customer acknowledge that compliance with such laws may limit your use of the numbers generated by this Service for certain applications, including, but not limited to direct marketing and telemarketing applications.
(e) It is the responsibility of the Customer to ensure numbers used as telephone numbers are not on any Do Not Call lists.
4. Customer's Obligations and Access Fees
4.1 The Customer will ensure that all usernames and passwords required to access the Service are kept secure and confidential.
4.2 The Customer will not, and will ensure that its officers, employees and agents will not, use the Service (or any part of it) for any illegal, unlawful or offensive act.
4.3 The Customer will indemnify the Company against any claims, loss or damage the Company suffers or incurs as a result of any breach of clause 4.2.
4.4 The Customer may use a trial account to generate up to 10 numbers at a time in order to learn if the Service looks beneficial for the Customer to subscribe to. In order to use the full Service features the Customer must purchase an appropriate subscription plan.
4.5 Should the Customer purchase a subscription plan the Customer agrees to not dispute the charge and understands that the Company will under no circumstances refund the Access Fee or any part of the Access Fee.
5. Warranties and Limitation of Liability
5.1 The Company warrants to the Customer that it has full power and authority from the developer, Innovasoft Limited, to provide the Service to the Customer;
5.2 The Customer acknowledges that the provision of, access to, and use of, the Service is on an "as is, where is" basis and at the Customer's own risk.
5.3 The Company does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Service. The Company is not in any way responsible for any such interference or prevention of the Customer's access or use of the Service.
5.4 In no event shall the Company or Innovasoft Limited be liable whether in contract, tort (including negligence) or otherwise, for any special, incidental, indirect, or consequential loss or damage or personal injury whatsoever, however caused (including, without limitation, damages for loss of profits or savings, business interruption, loss of business information, or any other pecuniary loss) arising out of or in connection with this Agreement or the use or inability to use the Service, even if the Company or Innovasoft Limited has been advised of the possibility of such damages.
5.5 In no event will the total liability of the Company or Innovasoft Limited, to the Customer or any other person, arising out of all claims for damages under this Agreement ever exceed the total amount actually paid by the Customer to the Company under this Agreement in the three months prior to the time such liability arises.
5.6 The Customer acknowledges that the Service will be used, or that the Customer will hold out as using, the Service for business purposes and so consumer statutory guarantees do not apply to the Service.
5.7 The Customer agrees 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 Service must be filed within one year after such claim or cause of action arose or be forever barred.
6. Intellectual Property and Confidentiality
6.1 The Customer acknowledges that the Intellectual Property Rights in the Service belong to Innovasoft Limited and that Innovasoft Limited owns all title and copyrights in and to the Service, and any copies of the Service. Copyright laws and international treaty provisions protect the Service.
6.2 The Customer will not reverse engineer, decompile, disassemble, adapt, reproduce, copy or modify the Service.
6.3 The Customer will take all practicable steps to protect the Service against any unauthorised use. The Customer agrees to maintain adequate security measures to safeguard the Service from access or use by any unauthorised person.
6.4 The Customer's obligations under this clause will survive termination of this Agreement.
7. Technical Support
7.1 Technical support is not included as part of the Service however the Company may choose to provide support to the Customer.
7.2 If the Customer requires support for the Service, the Customer may contact the Company's support team via the Service website support and if that is not available by email.
8. General
8.1 The Customer agrees that the Company can collect information about the Customer, use, copy, modify, store and disclose this information as necessary to enable the Company to provide the Service or technical support or any other actions necessary under this Agreement. Subject to any rights the Customer may have under the Privacy Act 1993 (New Zealand), we will not be liable to the Customer, or to anyone else, for the context or confidentiality of any use of our Service.
8.2 The Customer acknowledges that this Agreement is the ListConsole Service Terms of Use and that these may change from time to time. The Customer agrees that the Company may vary or remove existing terms of this Agreement or add new terms to this Agreement. The Customer may ask the Company for a copy of the latest version of the ListConsole Service Terms of Use. The latest version will also be available from the Service website.
8.3 Any notice given under this Agreement will be in writing delivered to the relevant party or sent by post or facsimile transmission or via email at such address, number or email address as may be notified in writing by each party to the other from time to time. Any such notice will be deemed received at the time when the same is handed to or left at the address of the party to be served and if served by post two working days (not being Saturday, Sunday or a public holiday) after the day of posting and if served by fax or email then on the day of dispatch.
8.4 If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in force and effect. If the Company waives any default or breach of this Agreement, this will not constitute a waiver of any other or subsequent default or breach. No waiver will be effective unless made in writing.
8.5 If the Company needs to resort to court proceedings in respect of any breach of this Agreement by the Customer, the parties agree, that the matter will be heard in a district court as chosen by the Company. The Customer agrees to meet any legal expenses the Company incurs on a solicitor/client basis.
8.6 The Customer may not assign or transfer its rights and obligations under this Agreement.
8.7 Neither party will be liable for any delay or failure in the performance of its obligations under this Agreement if such delay or failure is due to a force majeure event, being any cause outside its reasonable control including but not limited to acts of God, natural disaster, riot, malicious damage, fire or acts of any governmental authority. This clause 8.7 does not apply to any obligation to pay money for liabilities incurred prior to the force majeure event.
8.8 If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not effect the validity and enforceability of the remaining provisions of this Agreement. This Agreement is governed by and construed in accordance with the laws of New Zealand and is subject to the exclusive jurisdiction of the Courts of New Zealand.
8.9 This Agreement is the ListConsole.com Service Terms of Use dated 7 June 2009 and supersedes and replaces any earlier dated or undated Agreements for this System.
© Copyright 2009 Acarda Sales Technologies Limited
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