BY ACCESSING OR USING ANY PART OF OUR WEBSITES OR SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS OF SERVICE. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS OR USE THIS WEBSITE OR OUR SERVICES. YOU MAY ALSO BE ASKED TO RE-ACCEPT OUR THEN-CURRENT TERMS EVERY TIME YOU MAKE ANY USE OF ANY SERVICE PROVIDED BY US. REGARDLESS, YOU ARE BOUND BY THIS AGREEMENT IF YOU PROCEED TO USE OUR SITE OR SYSTEM IN ANY WAY.
Any questions concerning this agreement should be referred to support@phoneburner.com. We are happy to negotiate alternative terms so long as that takes place before Your use of Our services.
This Terms and Conditions of Service agreement ("TOS" or "Agreement") is a legally binding agreement made by and between PhoneBurner. ("PhoneBurner", "We" or "Us") and You personally and, if You use the Products for business, Your business entity (collectively, "Client" or "You"). These TOS govern Your use of phoneburner.com and all related Web pages, portals and interfaces (collectively, the "Site") and the services We offer on or through the Site, so please read it carefully.
Upon payment of all required fees, and so long as You continue in compliance with this TOS and with the law, You will be granted a limited, revocable, non-exclusive license to access the selected software calling services ("System" or "Services") through the Site until this Agreement is terminated.
Your visit to Our Site and use of Your personal information are also governed by Our Privacy Policy, which is updated at least annually. Please review Our Privacy Policy at https://develop.phoneburner.com/policies/privacy. We will not sell Your information. We reserve the right, and You authorize Us, to use and assign all information regarding Your use of the Site and all information provided by and/or created by You and/or collected by the Site in any manner consistent with Our Privacy Policy. We may use Your information and information collected by the Site, including but not limited to technical or diagnostic information, the content You create for SMS, Email, Click to Present, and Pre Recorded Voicemail, Your call audio and call recordings, and Your suggestions or feedback, in order to provide the Services to You, maintain, improve, and enhance the System , respond to legal requests for information about potentially wrongful use of the System, and to monitor the System for wrongful use, including but not limited to use that may violate Our Acceptable Use Policy. We have no control over, and are not responsible for, the privacy of any content that You have shared with others, so always use caution when providing any personally identifiable information. To the extent allowed by law, You agree to be solely liable for any consequences arising from Your voluntary disclosure of personal information.
The System is owned, trademarked and copyrighted, and is protected by United States copyright, trademark and other state, federal, and international intellectual property laws. Through use of the System, You may have access to information, communications, software, photos, text, video, graphics, music, sound, images, and other materials owned, trademarked or copyrighted by Us ("Content") or Our licensors. You do not have any ownership interest in the Content, the System, or improvements and modifications to the System. Nothing in this Agreement shall be construed to transfer any of the Site's proprietary or intellectual property rights to You. You may not modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile, or otherwise attempt to decipher any code in connection with the System and/or any other aspect of Our technology.
You agree to keep confidential and safeguard, using commercially reasonable means, all of Our information that You may view or obtain through Your use of the Site or System.
(a) To use the System, You must create Your own account by providing the Site with current, complete and accurate information as prompted by the online registration process. You are responsible for updating such registration data as necessary. You shall provide the Site with accurate, complete and updated registration information. You shall not knowingly provide inaccurate information with the intent to create a false identity or mislead Us regarding Your intended use of the System. We are committed to knowing who Our customers are and We reserve the right to request additional, follow-up information as part of Your registration process and/or in order to provide You with Services, even if such questions are not listed on the Site. We may deny, suspend, or terminate Your registration or access should information You provide become suspect.
(b) Upon registration, We will create an account for You and assign You, or allow You to select, a password. You must keep Your password confidential. You will be responsible for all use of Your password, including, without limitation, any use by any unauthorized third party. You must notify Us immediately if You believe Your password may be used by any unauthorized person or entity. For security purposes, We recommend You change Your password often. Under no circumstance should You respond to a request for Your password. Our employees will never ask for Your password in any manner via any means of communication. You must notify Us immediately if You receive such a request.
(c) You agree not to provide false or misleading information to the Site. This includes, but is not limited to, providing a false email address in the FROM: field on outgoing emails. Once You have created an account and registered to use the System, You are responsible for providing Us with updated information on an ongoing basis. It is particularly important to keep the email address associated with Your account current, because although You may be able to log into Your account using an old email address, You will not be able to receive messages from Us about Your account or other matters.
(d) You agree that the Site is a neutral host of the System and has no responsibility or liability in relation to any representations You may make as part of Your use of the System.
(e) You agree that the Site may rely on any data, notice, instruction or request furnished to the Site by You, which is reasonably believed by the Site to be genuine and to have been sent or presented by a person reasonably believed by the Site to be authorized to act on Your behalf.
(f) You shall notify the Site immediately at support@phoneburner.com of any known or suspected unauthorized uses of Your account, or any known or suspected breach of security, including but not limited to loss, theft or unauthorized disclosure of Your password. The Site shall not be liable for any loss that You may incur as a result of a third party using Your password or account, either with or without Your knowledge. You may be held liable for losses incurred by the Site and/or another party due to a third party using Your account or password.
(g) Any fraudulent, abusive, or otherwise illegal activity shall be grounds for denial, suspension, or termination of Your registration and/or access to the System and, if appropriate, referral to relevant law enforcement agencies.
(h) You acknowledge and agree that You will promptly notify Us if You are aware of any person who, in Your good faith opinion, is or is intending to take unfair advantage of the System provided by the Site.
(i) We reserve the right to use any contact information provided by You to communicate with You for the purposes of informing You of applicable offers, changes or additions to the System or Site. We may use manual or automated calls and texts, along with emails and print mail to contact You for the above purposes. No agreement to receive Our marketing is required to make a purchase and You can opt-out of receiving marketing communications at any time by contacting Our support team by telephone or email.
(j) Our use of any information provided by You, including, but not limited to registration data and/or payment information, is more fully set forth in Our privacy policy referenced above.
(k) We are committed to knowing who Our customers are and understanding how they use the System. We reserve the right to audit information You provide and Your use of the System. We may deny, suspend, or terminate Your registration or access to the System and/or any Services should information You provide become suspect.
(i) We reserve the right to use any information provided by You, including information about Your business and Your use of Our service, to deliver Our services and benefits to you in accordance with our Privacy Policy.
By accessing or using any part of Our Site or any of Our Services, You agree that You have read, understand, and agree to comply with this Agreement and shall cause Your customers and end users to comply as well. You agree to indemnify and hold Us harmless from and against all claims, expenses, liabilities, losses, or other damages (including attorneys’ fees and costs) arising in favor of any person, firm, or corporation arising out of or related to violation or alleged violation of this Agreement.
We retain the right, at Our sole discretion, to determine whether Your conduct and use of the Site is consistent with the letter and spirit of this Agreement and may deny, suspend, or terminate Your registration and/or access to the Site and/or the use of any Services if Your conduct is found to be inconsistent with the same.
We reserve the right, at Our sole discretion, to monitor Your traffic patterns and use of the Site to determine if the Site is being used in violation of this Agreement. If We determine, in Our sole discretion, that You are in violation of this Agreement, We may immediately suspend or terminate permission for You to use the Site, any Services, and/or any portion of the Site. We will use commercially reasonable efforts to notify You of Our determination that the Site is being used in violation of this Agreement. In addition, We may investigate incidents that are contrary to this Agreement and provide requested information to third parties who have provided notice to Us stating that they have been harmed by Your failure to abide by any portion of this Agreement. We may bring legal action to enjoin violations and/or collect damages caused by any violation of any part of this Agreement. Any violations or attempted or alleged violations of this Agreement by You (or Your customers or end users, or any third party on behalf of any of the foregoing) and will constitute a material breach of this Agreement.
Any failure or perceived failure by Us to enforce this policy does not amount to a waiver of Our rights and remedies.
(a) Using the Site to send illegal, unwanted, excessive, or abusive calls and messages is prohibited. We retain the right, at our sole discretion, to determine whether Your conduct is consistent with the letter and spirit of this Agreement. We may terminate your access if Your conduct is found to be inconsistent with the same.
(b) Any unauthorized use of the Site, or the resale of the System, is expressly prohibited. You agree to abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under Your account or password, including the content of Your transmissions through the Site or System. Specifically prohibited activities are listed below, and there may be other activities not listed here that violate this Agreement and are therefore prohibited.
(c) You agree to abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under Your account or password, including the content of Your transmissions through the Site or System. By way of example, and not as a limitation, You agree not to:
(d) We have ZERO tolerance for spam. All spam complaints are taken seriously and will be subject to Our policies. All electronic mail messages (email), the primary purpose of which is the commercial advertisement or promotion of a commercial product or service, sent by You through the the System must comply with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the "CAN-SPAM" Act) (15 U.S.C. §7701) and/or, if applicable, Canada's Anti-Spam Law ("CASL"), and/or any other applicable laws in Your jurisdiction concerning the sending of email messages. You must include in all marketing emails (1) Your valid, physical postal address, (2) Your true identity, (3) an accurate subject line, (4) identification that Your message is commercial in nature, and (5) an opt-out method that You honor. In addition, You must comply with all terms of service and email restrictions imposed by Your email provider. Finally, You may not illegally create or collect e-mail addresses, deceptively use email relays or transmissions, or otherwise violate the CAN-SPAM Act or CASL. We reserve the right to determine what constitutes a violation of our Spam Policy.
(e) You are required to use the Site and Services in full compliance with all applicable laws and regulations, including without limitation, all state, federal and international: (a) professional licensing requirements; (b) Do-Not-Call (“DNC”) list prohibitions; (c) telephone solicitor registration and bonding requirements; (d) consumer cancellation rights; (e) wireless calling restrictions; (f) restrictions on the use of automatic telephone dialing systems, and pre-recorded messages, and artificial voice, including voices generated by Artificial Intelligence or AI; (g) opt-out rules; (h) mandatory disclosures (i) intellectual property rights and restrictions; and (j) all call record retention requirements; and (k) all other product and industry regulations. All offers are void where prohibited by law.
By making any use of the Site and Services, You expressly warrants to Us that You are and shall continue to act in full compliance with the law. You agree that You have read and understand the FTC’s Telemarketing Sales Rule (“TSR”), the FCC’s Telephone Consumer Protection Act (“TCPA”), if applicable, the Canadian Radio-television and Telecommunication’s Unsolicited Telecommunications Rules (“UTR”), and all other applicable laws and regulations. You should review these rules with Your own legal counsel to ensure that You understands and are fully compliant. We do not assume responsibility for ensuring that Your marketing campaigns meet applicable legal requirements. We will not assume any liability if You are ever held guilty or liable for any law violation. Notwithstanding the foregoing, You acknowledge that We have and are taking active steps to ensure the compliance of Our customers, including by having You agree to these terms and otherwise. Additional compliance obligations include:
(e) You are required to maintain all records as required by law, including but not limited to record-keeping requirements for telemarketing as set forth by the FTC and the FCC, as applicable. We are not responsible for maintaining Your call and telemarketing records.
(f) We do not take any responsibility for monitoring any usage of the System. It is Your responsibility to ensure that all usage of the System complies with these Terms and Conditions.
(a) We reserve the right at any time to charge fees for access to the Site or the System as a whole or in part. In the event that We so elect, a notice shall be posted at an appropriate location on the Website. Client has no obligation to continue using the System in such case.
(b) If You order or purchase any type of fee-based account or additional fee-based service from the Site, You authorize the Site to utilize its merchant account provider to charge Your account provided during the purchase/enrollment process. You authorize the Site to charge Your account a monthly subscription fee and/or any additional fees for features and service You have enabled. Fees are non-refundable, even in the event of a termination, except in Our sole discretion.
(c) It is Your responsibility to keep Your payment information accurate and current with the Site. If a monthly payment cannot be processed, You will not be able to access Your account until You have paid all outstanding amounts. Failure to rectify the situation within a reasonable amount of time will lead to cancellation of the account as described below. Past due amounts remain due after cancellation and must be paid in full before You can reactivate Your account or register for a new account.
(d) If You contact the Site directly with a specific request for cancellation and refund, including substantial justification for the refund, the Site, in its discretion, may issue a refund of Your current month’s payment. No refunds are allowed for annual fee charge or any signup fee, including the shipment of physical goods. If You have concerns about the use of the System, You must sign up with the monthly fee option. Should the Site, in its discretion, make a refund outside of these conditions, the refund will not include a refund for the cost of physical goods delivered. In addition, if the Site, in its discretion, makes a refund for an annual payment, then the refund will be prorated to deduct the highest monthly fee paid by any customer for the months in which the annual service was used.
(e) System pricing as posted is based on reasonable and ordinary usage as determined by the Site. If Your usage exceeds reasonable and ordinary usage patterns or violates this TOS or this Agreement, We reserve the right at any time to charge You an additional surcharge and/or to modify Your pricing for access to the Site or the System as a whole or in part. In the event that We so elect, We will notify You of the surcharge and/or modified pricing.
(f) All system pricing advertised or otherwise listed on the Site is exclusive of applicable taxes, levies, duties, or other similar amounts imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, which may include by example only sales, use, value-added, consumption, and/or communications taxes (collectively, "Taxes"). You agree to pay and are solely responsible for all such Taxes and/or similar liabilities, however denominated, that may now or hereafter be levied on Your use of the System, and which are chargeable to or recoverable from customers. Taxes may vary based on jurisdiction and the monthly subscription rate. You will have no liability for any taxes based upon Our gross revenue or net income. Should the Site pay or be required to pay Taxes (including any Taxes that were due but not charged or previously collected), You agree that the Site may invoice You or charge Your credit card on file for such payments upon receipt of an invoice and showing of indebtedness to the Site.
(g) If You are exempt from paying certain Taxes, You will provide the necessary exemption information as requested by Us or a valid exemption certificate issued by the appropriate authority. You will be exempt on a going-forward basis once We approve Your exemption request. If the appropriate authority determines, at any time, that You are not exempt from paying any Taxes, You will promptly pay such Taxes to us, plus any applicable interest or penalties.
(a) You represent to Us that any and all email addresses and phone numbers that You upload into the system are for individuals who have opted in or are otherwise legally contactable by You. You also represent that any content You upload to the System is owned by You or provided to You with the express authority of the owners, does not infringe upon any other individual’s or organization’s rights (including, without limitation, copyright, trademark or intellectual property rights).
(b) Although the Site provides industry standard encryption to protect certain personal information which is transmitted, You understand that Your uploads and transmissions may be intercepted and used, and that all the risk associated therewith is solely Yours. You shall not upload to, or distribute or otherwise publish through the System any content that is considered sensitive personally identifiable information, including but not limited to social security numbers, medical information, and credit card numbers, or any content that is considered libelous, defamatory, obscene, pornographic, abusive, or otherwise violates any law. As We do not and cannot review every communication created by You, You shall remain solely responsible for the content of Your communications.
(c) We reserve the right to disclose aggregated and de-identified information about sales and usage generated by the System in forms that do not reveal Your personal identity. This may include but is not limited to aggregated information about calling activity, answer rates, answered call durations, and call outcomes.
(d) If You are using the System in conjunction with an integrated or third-party service such as SalesForce or other integration partners or licensors, You agree that the System may access and modify Your records as held by the integrated or third-party service. You agree that all risk associated therewith is Yours, including, without limitation, the risk that Your account information may be damaged, altered, deleted, or changed in a way You have not anticipated or expected. You agree that the System has no responsibility or liability for any such risk arising out of the use of the System in conjunction with any integrated or third-party service. This paragraph does not apply if You are not using the System in conjunction with an integrated or third-party service.
(e) If You are using the System in conjunction with an integrated or third-party service such as SalesForce or other integration partners or licensors, You understand that the System is integrated with and relies on the continued functionality of such integrated or third-party service. You further understand that the System does not control any integrated or third-party services, and You agree that We are not liable for any problems related to or arising out of the use of the System created or caused by such integrated or third-party service. This paragraph does not apply if You are not using the Site in conjunction with an integrated or third-party service.
We and Our licensors shall use commercially reasonable efforts to ensure the availability of the System and its features to You. Notwithstanding the foregoing, We do not guarantee any uptime, availability, performance, or integrity of the System unless You have an account that also includes a written Service Level Agreement ("SLA"). Any such written SLA excludes any integrated or third-party service unless otherwise agreed to in writing by all parties. We shall not be liable to You for the unavailability of the System or the failure of the System to perform in accordance with its specifications. Nor shall We be liable to You for any unavailability of Our integrated or third-party services or the failure of the integrated or third-party services to perform in accordance with their specifications.
We are not required, regardless of Your account level, to provide any prior notice of planned or unplanned downtime.
We welcome specific comments regarding the System. If You send Us creative suggestions, ideas, notes, drawings, concepts or other information (collectively "Information"), the Information shall be deemed, and shall remain, the property of the Site. None of the Information shall be subject to any obligation of confidentiality on the part of the Site and the Site shall not be liable or owe any compensation for any use or disclosure of the Information.
Our company name, the name of this Site, and other content are either Our intellectual property and trademarks or Our registered trademarks. Other product and company names mentioned on this Site may be trademarks of their respective owners.
No financial, legal, or tax advice or counsel is given, or shall be deemed to have been given by Us or Our affiliates and contractors, or by the System or Services.
Client shall assume, pay, indemnify, hold harmless and reimburse Us and Our owners, employees, agents, affiliates, contractors, successors and assigns for any and all liabilities, damages, claims, suits, settlements, judgments, investigations, including, but not limited to, inquiries from the Industry Traceback Group (“ITG”) or other governmental entities, subpoenas, civil investigative demands, costs, and expenses (including reasonable attorney’s fees and court costs) directly or indirectly incurred by Us to the extent the same are related in any way to this Agreement or to Client’s use of the System or Services. Upon receipt of any demand or claim by Us related to Client, We may elect to turn the defense and resolution of such claim over to Client, who shall then bear all costs and expenses and shall promptly investigate and settle or otherwise resolve any such claim to Our full satisfaction. Alternatively, We may elect to defend any such claim on Our own and then to obtain reimbursement from Client on an ongoing basis or at the conclusion of the matter. In either case, We and Client shall cooperate and share necessary information in any such defense. Client agrees that We may provide certain information about You if We receive a subpoena or similar investigate demand from a court or regulator with competent jurisdiction, including without limitation the ITG. Client agrees to cooperate and assist in Our response in the event We request the same.
Except for the indemnification obligations set forth above, neither party shall be liable for any consequential, incidental, special or indirect damages (including, but not limited to, loss of profits, goodwill, use, data, or other intangible items) even if the other party has been advised of the possibility of such damages or losses. We are not responsible for any failure of a third-party DNC or wireless list provider to deliver its data accurately, completely or in a timely way. We are not responsible for damages resulting from improper or incomplete use by Client of Our Services. With respect to any other damages, Our liability hereunder shall in no event exceed an amount equal to the amount actually paid by Client to Us in the month prior to a claim being made, regardless of the basis for the claim. Client understands that this is a significant limitation on Client right to sue Us and Client should not proceed if Client does not agree. We shall not be bound by any typographical or other error or misprint in its marketing materials or online purchase Websites, so long as We provide prompt notice of any such error and corrects the same, upon discovery. Except as otherwise provided herein, THE SYSTEM AND SERVICES ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL WE OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SYSTEM OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Any content downloaded or otherwise obtained through the use of any integrated or third-party services is downloaded at Your own risk and You shall be solely responsible for any damage to Your computer system or mobile device or loss of data that results from such download or Your use of the integrated or third-party service.
We and Our licensors do not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third-party, including licensors, or any hyperlinked website or service, and We and Our licensors shall not be a party to or in any way monitor any transaction between You and any third-party providers of products or services.
If You believe Your work has been copied in a way that constitutes copyright infringement, please provide a notice containing all of the following information to Our Copyright Agent:
(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
(b) A description of the copyrighted work that You claim has been infringed;
(c) A description of where the material that You claim is infringing is located on the Site;
(d) Your address, telephone number, and email address;
(e) A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) A statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf. Our Copyright Agent is designated to receive notice of claims of copyright infringement on the Site is PhoneBurner, and can be reached as follows:
PhoneBurner
support@phoneburner.com
You agree that the laws of the State of California, without regard to conflicts of law provisions, will govern this Agreement, Your use of the System and any dispute that may arise between You and Us. Any future legal proceeding between the parties shall be brought and heard only in the State and Federal courts of California and You hereby irrevocably consent to the jurisdiction of the same.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
This Agreement shall become effective on the date it is agreed upon by both parties. The initial term of this agreement shall be for one (1) month or such other term as is agreed upon by the parties in writing. The Agreement will then automatically renew, if has not been canceled by either party, for additional 1-month renewal terms or such other terms as agreed upon by the parties in writing. This Agreement may be terminated by either party at any time, for any reason or no reason, on notice to the other or by Client’s ceasing payment of fees. If We determine, in its sole discretion, that Client has or may have breached this Agreement in any way or violated the law with regard to its marketing campaigns or its use of the System or Services, We may immediately suspend or terminate this Agreement.
Any provision of this Agreement, which by its nature, would naturally survive the termination of this Agreement, shall expressly survive any termination, including without limitation, those provisions related to indemnity, compliance with law, intellectual property, non-circumvention and notices.
WE RESERVE THE RIGHT TO MAKE CHANGES TO THESE TERMS AT ANY TIME. YOUR CONTINUED USE OF THE SITE OR SERVICES CONSTITUTES ASSENT TO ANY NEW OR MODIFIED PROVISION OF THIS AGREEMENT THAT MAY BE POSTED ON THE WEB SITE.
HOW TO CONTACT US:
PhoneBurner
support@phoneburner.com
develop.phoneburner.com
This policy is effective Aug 21, 2024