DISDISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
Your use of CallingMart.com Web Site constitutes your agreement to and acceptance of the additional terms and conditions, which are available at: http://www.CallingMart.com
Unless the context clearly requires otherwise, as used in this Disclaimer and Limitation of Liability, the name "," standing alone (as opposed to being used as a modifier in a phrase such as "CallingMart.com Web Site") shall be construed to include all of the following entities and persons: CallingMart.com, its parents, its subsidiaries, its members, its partners, its joint ventures, its affiliates, its suppliers, its licensors, its licensees, its contractors, their respective agents and employees, and all their respective heirs, successors, and assigns.
Disclaimer of Warranties
Your use of CallingMart.com Web site and any components of CallingMart.com Web Site are at your sole risk, and you voluntarily assume that risk. CallingMart.com Web Site and all of its components are provided on an "AS IS," "AS AVAILABLE" basis without warranties of any kind, either express or implied, unless such warranties are legally incapable of exclusion and provided by the manufacturer or service provider or carrier.
CallingMart.com hereby disclaims all WARRANTIES OF TITLE, NONINFRINGEMENT, IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE or any warranties arising from course of dealing or usage of trade.
No advice or information given by CallingMart.com shall create a warranty of any kind. CallingMart.com does not warrant that the service will be uninterrupted or error-free or that any information, software, or other material accessible on the service is free of viruses, cancelbots, worms, logic bombs, trojan horses, or other harmful contents or components.
CallingMart.com is not responsible for the contents of any Web site to which CallingMart.com Web Site links, or any link contained in a linked site, or any changes or updates to such sites. is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by CallingMart.com of the site to which CallingMart.com Web Site links, nor shall any link create any express or implied warranty binding on CallingMart.com
The merchandise, products or services (collectively, the "merchandise") offered for purchase through CallingMart.com Web Site are provided by third parties who are not under the direction or control of CallingMart.com Nor does CallingMart.com either expressly or impliedly claim to be an authorized dealer or representative of any of the individuals, companies, or organizations (collectively referred to as "vendors") who are offering or promoting merchandise through the site. CallingMart.com neither represents nor warrants nor endorses the accuracy or reliability of any information or advertisements uploaded, displayed, or distributed through CallingMart.com Web site. CallingMart.com in no way either expressly or impliedly takes responsibility for the quality of any merchandise available for purchase through CallingMart.com Web Site.
CallingMart.com further disclaims all warranties on the merchandise, either express or implied, including but not limited to the IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON- INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
Limitation of Liability
CallingMart.com's entire liability and your exclusive remedy with respect to use of CallingMart.com Web Site and any components of CallingMart.com Web Site, as well as CallingMart.com's liability to you for breach of the General Terms of Service are limited solely to the amounts you have paid to CallingMart.com Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states, CallingMart.com's liability is limited to the extent permitted by law.
In no event shall CallingMart.com be held liable for costs or procurement of substitute goods or services, lost profits, lost data, business interruption, attorneys' fees or any direct, indirect, special, punitive, incidental, exemplary or consequential damages, or any kind of damages whatsoever, even if CallingMart.com has been advised of the possibility of such damages, whether in an action under contract, negligence, tort or any other legal or equitable theory of recovery, arising out of or in connection with the use, inability to use or performance of the information, merchandise, and materials available from CallingMart.com Web Site, or any part thereof, or your reliance on or use of information, services, or merchandise provided on or through CallingMart.com web site, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, any failure of performance, computer virus, communication line failure, theft, destruction, or unauthorized access to, alteration of, or use of your account, whether for breach of contract, negligence or under any other cause of action. In the event CallingMart.com is found liable under any circumstance under the terms of this agreement, CallingMart.com's liability shall be limited to the liability as stated in this disclaimer.
If any portion of this disclaimer and limitation of liability is found by a court of competent jurisdiction to be unconscionable, inapplicable or void, only that portion of this disclaimer and limitation of liability will be stricken and the remaining portions shall be valid and binding.
Other Applicable CallingMart.com Web Pages
General Terms and Conditions
THE FOLLOWING DOCUMENT IS A CONTRACT - LEGALLY BINDING AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE YOU USE THE SERVICES PROVIDED BY THIS WEB SITE AND BEFORE YOU AGREE TO PURCHASE ANY PRODUCTS FROM THIS WEB SITE. BY USING THIS WEB SITE OR BY AGREEING TO PURCHASE ANY PRODUCTS FROM THIS WEB SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS STATED BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT USE THIS WEB SITE AND SHOULD EXIT IT IMMEDIATELY.
CallingMart, (hereinafter referred to as "CallingMart.com") is a Delaware corporation with the legal address of 2711 Centerville Road, Suite 400, Wilmington, DE 19808
"CUSTOMER," "YOU," and "YOUR" refer to:
the natural person using this Web site, regardless of whether he or she is acting is his or her individual capacity, or as the agent for any other natural person or business entity; and
the natural person who is the principal of any electronic agent(s) using this Web site, regardless of the number of layers of electronic agency that may exist between the natural person principal and the electronic agent(s) using this Web site.
In this Agreement, CallingMart.com and YOU may sometimes be referred to collectively as the "PARTIES." Where this Agreement uses the term "PARTIES," it intends both YOU and CallingMart.com
3. Intent to Enter Agreement to Purchase Prepaid Telephone Calling Services.
CallingMart.com desires to provide Prepaid Wireless and Long Distance Calling Cards Web Site and YOU desire to use CallingMart.com Web Site, provided by CallingMart.com, subject to the terms and conditions of this Agreement, as CallingMart.com may amend or revise this Agreement from time to time, to purchase prepaid telephone calling services from third-party telephone carriers (hereinafter referred to as "carriers").
In consideration of CallingMart.com's providing access to and use of CallingMart.com Web Site to YOU, YOUR payment of and promises to pay fees to CallingMart.com, and YOUR promises to abide by the terms and conditions of this Agreement, as CallingMart.com may amend or revise this Agreement from time to time, and in consideration of all the mutual covenants and promises made in this Agreement, the PARTIES hereby agree as follows:
5. General Terms and Conditions.
Service to Be Provided by CallingMart.com to CUSTOMER.
CallingMart.com Web Site is provided to YOU (the "CUSTOMER") by CallingMart.com, subject to the terms and conditions of this Agreement.
You may access the Agreement while you are connected to the Internet by going to the page on the World Wide Web at CallingMart.com.
This Agreement comprises the entire agreement between YOU (the CUSTOMER) and CallingMart.com, and supersedes any prior or previous agreements between YOU, the CUSTOMER, and CallingMart.com, with respect to the subject matter of this Agreement; provided, however, that YOU shall be subject to any additional terms and conditions of which CallingMart.com notifies you from time to time and that may apply when YOU are using any content, software, products, or services of any kind or nature, of any third party, including, but not limited to carriers.
Revisions to this Agreement.
YOU may not revise any of the terms of this Agreement without express prior authorization and written agreement signed by a duly authorized Officer or Manager of CallingMart.com
CallingMart.com serves a variety of customers, retailers, and distributors, and cannot negotiate separate contracts with each of its customers. CallingMart.com is able to offer competitive pricing and billing by using standard Terms of Service contracts for all of its customers.
CallingMart.com reserves the right to, and may, revise this Agreement at any time, and such revisions shall become effective thirty (30) days after CallingMart.com posts the revised Agreement for public viewing. The revisions to the Agreement shall include notice of the date of posting the most recent revision to the Agreement.
YOU agree to read the revisions to this Agreement periodically and preferably, at least once every thirty- (30) days to become aware of such revisions to this Agreement.
YOUR continued use of CallingMart.com Web site more than thirty (30) days after CallingMart.com posts revisions to this Agreement, as described above, shall be conclusively deemed YOUR assent to the additional terms and conditions made part of this Agreement by such revisions.
If any such revised or additional terms and conditions are unacceptable to YOU, or if YOU do not agree to and do not wish to be legally bound by such revised or additional terms and conditions, you may terminate this Agreement as provided in Section 13 below.
6. Account Information.
Services CallingMart.com Will Provide to CUSTOMER.
CallingMart.com grants YOU a limited, non-exclusive, and nontransferable license to use CallingMart.com Web Site and its various components to purchase prepaid telephone services from third-party carriers or to refer third parties to CallingMart.com Web Site for the sole purpose of purchasing such services. This license is subject to the restriction, that, except to the extent expressly permitted by law, YOU may not translate, reverse engineer or reverse compile or de-compile, disassemble or make derivative works from the software residing at or used to operate CallingMart.com Web Site (hereinafter referred to as the "CallingMart.com Software"). YOU may not modify CallingMart.com Software in any manner or form, or use it in any way which is not expressly authorized by CallingMart.com, other than to access CallingMart.com Web site, as authorized by this Agreement, including, without limitation, for the purpose of obtaining unauthorized access to CallingMart.com's service or data (also known as "hacking"). YOU agree to abide by the United States and other applicable export control laws and regulations and not to transfer, by electronic transmission or otherwise, any information, including CallingMart.com Software in either source, object, or executable form, which is subject to restrictions under such laws to a national or destination restricted under such laws without first obtaining and then complying with any requisite government authorization or licensing requirements and without first providing CallingMart.com with a certified copy of said license or written government authorization, evincing compliance with all applicable export control laws and regulations.
Subject to all the terms and conditions of this Agreement and all applicable laws, YOU may access, for YOUR sole use, CallingMart.com's proprietary content offered at CallingMart.com Web site and accessible through CallingMart.com's home page on the World Wide Web.
CallingMart.com will provide YOU with such customer and technical support related to YOUR use of CallingMart.com Web Site, at no additional charge, subject to the restrictions posted on the Customer Support area of CallingMart.com Web Site.
Warranties and Representations of CUSTOMER.
YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD.
YOU represent and warrant that YOU are a citizen or a lawful resident of the United States of America or of Canada.
YOU acknowledge that YOU will receive a user name and a password to access the services provided by CallingMart.com at CallingMart.com Web Site.
Upon YOUR initial access to CallingMart.com Web Site, YOU will select a unique password. YOU are solely responsible for maintaining the confidentiality of YOUR password and are liable for any harm resulting from disclosing or allowing disclosure of any password or from use by any person of YOUR password to gain access to YOUR accounts.
Therefore, for security purposes, CallingMart.com recommends that YOU change YOUR password regularly.
Upon YOUR registration with CallingMart.com Web Site, YOU must choose a unique user name to identify YOU to CallingMart.com Web Site. CallingMart.com expects YOU to be reasonable and responsible in selecting a user name. Vulgar or otherwise offensive user names may offend other persons and are unacceptable. YOU may not select or use a user name that is the real name of another person, or a user name that violates a trademark right, copyright, or any other proprietary right, or which CallingMart.com deems in its sole discretion to be vulgar or otherwise offensive. CallingMart.com reserves the
YOU understand that YOUR password is confidential and is intended solely for YOUR use and for no other person's use.
YOU understand that CallingMart.com will rely on YOUR agreement to keep YOUR password secret and confidential and that YOU will not reveal YOUR password to any other person or entity, except as required by law.
YOU understand that disclosure of YOUR password to any other person or entity, except as required by law, could cause irreparable damages to CallingMart.com, including, but not limited to compromise of CallingMart.com's confidential and proprietary business information and trade secrets, compromise of the integrity of the information and communications of CallingMart.com's other customers, interruption of CallingMart.com's services, lost profits to CallingMart.com, and damages to CallingMart.com's business reputation and goodwill.
YOU understand and agree that disclosure of YOUR password to any other person or entity, except as required by law, is a MATERIAL BREACH of this Agreement, and MAY VIOLATE LOCAL, STATE, and FEDERAL LAW.
In the event that YOU disclose YOUR password to any other person or entity, YOU shall and hereby do forever agree to defend, hold harmless, and indemnify CallingMart.com from any harm or damages whatsoever resulting directly or indirectly from YOUR disclosure of YOUR password to any other person or entity.
YOU understand and agree that YOU shall be entirely liable for all activities conducted through use of YOUR password, whether any third person or entity may also be liable for such activities.
Information YOU Provide to CallingMart.com
YOU agree to provide CallingMart.com with accurate, complete, and updated registration information, and failure to do so shall constitute a breach of this Agreement and unauthorized access to CallingMart.com's service, and may result in immediate termination of YOUR account and subject YOU to civil and/or criminal liability. YOU further acknowledge that it is a Federal and State criminal offense to purchase any product from CallingMart.com by fraudulent means.
7. Charges, Fees, and Payment.
Rates and Billing Methods; Subject to Change with Notice.The rates and charges for telephone card products available from CallingMart.com, as well as the methods of payment shall be those posted on CallingMart.com Web Site, as amended or revised from time to time.
If YOUR chosen payment method for CallingMart.com 's service is by credit or debit or prepaid card , and CallingMart.com has not received payment from the card issuer or its agents, YOU agree to pay all amounts due upon demand by CallingMart.com
YOUR card issuer's agreement governs YOUR use of YOUR designated payment card in connection with CallingMart.com Web Site, and YOU must refer to such agreement and not this Agreement with respect to YOUR rights and duties as a cardholder.
Upon written request, CallingMart.com will provide YOU with a written statement of charges. Unless YOU notify CallingMart.com of any discrepancies within ninety (90) days after they first appear on the written account statement, they will be deemed acceptable by YOU for all purposes, including resolution of inquiries made by YOUR card issuer or bank.
YOU release CallingMart.com from all liabilities and claim of loss resulting from any error or discrepancy that is not reported to CallingMart.com within 90 days of its publication to YOUR account.
YOUR Responsibility for Charges.
YOU shall be responsible for all charges resulting from YOUR use of CallingMart.com Web Site and the use of CallingMart.com Web Site by any other person who uses your user name and password, regardless of whether YOU have actually authorized such charges.
If YOU misplace YOUR user name or password or both, or suspect that someone else may be using them without YOUR authorization, YOU agree that YOU will notify CallingMart.com immediately. Failure to notify CallingMart.com may result in YOUR being liable for unauthorized charges.
Failure to Make Timely Payment.
CallingMart.com reserves the right to suspend or terminate YOUR account and YOUR access to CallingMart.com Web Site for any amounts past due. Amounts past due include, but are not limited to denied charges and dishonored checks.
Termination of YOUR account and/or YOUR access to CallingMart.com Web Site shall not relieve YOU from the obligation to satisfy outstanding invoices and to pay to CallingMart.com all amounts YOU owe to CallingMart.com pursuant to this Agreement, or otherwise.
In the event CallingMart.com utilizes an attorney at law to collect any unpaid amounts from YOU, YOU shall be responsible for the payment of all of CallingMart.com's attorneys' fees and costs, in addition to any penalties allowed under applicable law, in the collection of those sums.
All Sales Final; Refunds or Credits from Carriers.
YOU agree that CallingMart.com acts merely as a distributor of prepaid telephone products for third-party telephone carriers.
ALL SALES FROM CallingMart.com WEB SITE ARE FINAL, WITH RESPECT TO CallingMart.com
CallingMart.com will not issue any refunds, credits, adjustments, or replacement of telephone virtual cards, personal identification numbers (PINs) or other products and services offered at CallingMart.coms website unless otherwise described in the return policy web page on http://www.CallingMart.com/ReturnPolicy.aspx.
Even if CallingMart.com shall, at its sole discretion, make any limited exceptions to its "all sales final" policy as described in this Agreement, CallingMart.com shall not waive any rights it has to enforce said policy in all other cases and at all other times, to the fullest extent provided in this Agreement and allowed under applicable law.
The various carriers whose prepaid telephone and long-distance products CallingMart.com makes available to you through CallingMart.com Web Site may provide refunds, credits, or adjustments to YOU under certain circumstances. By YOUR use of CallingMart.com Web Site, YOU agree that you will contact the appropriate carriers regarding their policies concerning refunds, credits, or adjustments. YOU further agree that YOU will release, hold harmless, defend, and indemnify CallingMart.com, its parents, subsidiaries, affiliates, partners, members, joint ventures, all their respective employees and agents, and all their successors and assigns from any liability for any carrier's failure to adjust or resolve any claim YOU may have against said carrier.
Limitations on Use of CallingMart.com Web Site
In any given 24-hour period, the number of purchases and the aggregate monetary value of the purchases YOU may make from CallingMart.com Web Site is limited. YOU agree that CallingMart.com reserves the right to change these limits at any time without notice and that CallingMart.com shall not be liable to YOU in any manner, for any reason, under any legal theory as a result of changing such limits. YOU further agree that YOU will not exceed or attempt to exceed these limits.
8. Intellectual Property Rights.
CallingMart.com's Intellectual Property Rights.
All Content CallingMart.com provides on any and all of its pages on the World Wide Web, any and all files, software, and databases CallingMart.com uses to operate CallingMart.com Web Site, and any and all files CallingMart.com makes available to YOU for use, viewing, browsing, or downloading, are protected by copyright pursuant to U.S. law, international conventions, and other copyright laws as individual works, and as a collective work and/or compilation, and CallingMart.com claims and owns a copyright in the selection, coordination, arrangement and enhancement of such Content.
YOU agree not to modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided below), create derivative works from, distribute, perform, display, create collective works or compilations including, or in any way exploit, any of the Content, in whole or in part; provided that if CallingMart.com applies no specific restrictions directly or indirectly in relation to a particular item of Content, YOU may make a reasonable and limited number of copies of such item, including copyrighted material, provided that
YOU make and use the said copies solely for YOUR personal and non-commercial use;
YOU ensure that any notices contained in the Content such as all copyright, trademark, service mark, patent, and other proprietary rights notices are reproduced in an unmodified form in all such copies; and
YOU refrain from transferring such Content to any other person, entity, computer, computer network, or other device, without the prior express written consent of CallingMart.com
YOU agree to comply with all the terms and conditions of CallingMart.com's Copyright Notice and Policy, as amended or revised from time to time, and available online at: http://www.CallingMart.com/privacy.cfm.
Intellectual Property Rights of Third Parties.
Third persons not parties to this Agreement shall retain all rights they have to intellectual property rights to Content they own and which they enjoy by law. YOU agree not to infringe upon any such rights and agree to defend, hold harmless, and indemnify CallingMart.com from any infringement YOU cause to the rights of any third party in any intellectual property rights that may result from YOUR use of CallingMart.com Web Site.
9. YOUR Duties Under this Agreement.
Compliance with Agreement.
YOU agree to abide by and perform all the terms and conditions of this Agreement at all times.
Compliance with Applicable Laws.
YOU agree to abide by and to follow all applicable laws in using CallingMart.com Web Site and, to the extent allowed by law, YOU agree to defend, hold harmless, and indemnify CallingMart.com from any damages caused by YOUR violation of any applicable laws.
YOU acknowledge that access to or use of CallingMart.com Web Site may not be legal in certain countries. If YOU access or use CallingMart.com Web Site outside the United States of America, YOU do so at YOUR own risk and are responsible for compliance with the laws of the jurisdiction in which or from which YOU access or use CallingMart.com Web Site. />
YOU may not use CallingMart.com Web site or any products or services you purchase by way of CallingMart.com Web Site for any unlawful purpose.
CallingMart.com reserves the right to discontinue furnishing service or to limit the use of CallingMart.com Web Site necessitated by conditions beyond its control; or if YOU use CallingMart.com Web site or any products or services you purchase by way of CallingMart.com Web Site in violation or attempted violation of the law.
RefrRefraining from Certain Activities.
YOU further agree that YOU will not do or attempt to do any of the following activities in connection with YOUR use of CallingMart.com Web Site or otherwise:
Violate the security of CallingMart.com Web Site or any other computer network, or crack passwords or security encryption codes; />
Transfer or store illegal material including that deemed threatening or obscene, or engage in any kind of illegal activity;
Impersonate any person living or dead, organization, business, or other entity, or use any name or communicate under any false name that YOU are not authorized to use;
Solicit other CallingMart.com customers, retailers, or distributors to become customers of other companies or services directly competing with CallingMart.com; or
Violate any of the rules, regulations and policies of those networks, computer systems, telecommunications carriers, or Internet service providers that YOU use to access CallingMart.com Web Site.
No No Multiple Accounts Without Prior Permission
Unless YOU obtain prior written permission from CallingMart.com, YOU shall not register for, apply for, or otherwise obtain multiple accounts or means of accessing CallingMart.com Web Site. YOU agree that if YOU register for, apply for, or otherwise obtain multiple accounts or means of accessing CallingMart.com Web Site without obtaining prior written permission from CallingMart.com, CallingMart.com may immediately terminate all of YOUR accounts without notice to YOU.
Once YOUR account with CallingMart.com or YOUR access to CallingMart.com Web Site has been terminated, for any reason, YOU shall pay in full any delinquent, past due, or unpaid accounts and shall resolve all issues in dispute with CallingMart.com before YOU may register for, apply for, or otherwise obtain a new account to use CallingMart.com Web Site. />
IncrIncreasing Network Usage and Traffic.
YOU agree not cause or attempt to cause traffic levels to CallingMart.com's Web Site and related servers and networks, or other networks to rise without reason or for any malicious purpose, by any means, including, but not limited to, transmitting large files to email, ftp, or other servers for malicious purposes, "mailbombing," transmissions intended to raise the cost of another network provider's access through excessive traffic levels, or repeatedly sending the same content to CallingMart.com for the purpose of harassment.
YOU agree that YOU shall not engage in any spamming at any time, and to abide by CallingMart.com's NO SPAM POLICY, available for your review at: http://www.CallingMart.com/privacy.aspx.
Attempting to Circumvent or Bypass System Security Measures.
YOU agree not to obstruct or attempt to obstruct the systems identification procedures or to forge communications of any form.
YOU agree not to attempt to cause, or actually cause, any disruption of service on CallingMart.com Web Site or any other network or any server housing CallingMart.com Web Site, including but not limited to malicious traffic generation, attempted or actual violation of any security system in place on the Internet and its resources, or any unauthorized access to any computer or resource on the Internet. />
YOU agree not to abuse or attempt to abuse the system and resources of CallingMart.com Web Site in any manner.
YOU agree not to violate or attempt to violate the security of the authentication and accounting procedures of CallingMart.com Web Site.
YOU agree not to attempt to or actually undermine, hinder, damage, or disrupt the hardware, software, or security of CallingMart.com Web Site or any of its various components.
10. 10. Disclaimer of Warranties.
CallingMart.com Web Site www.CallingMart.com.
YOU EXPRESSLY AGREE THAT YOUR USE OF CallingMart.com WEB SITE AND ANY COMPONENTS OF CallingMart.com WEB SITE ARE AT YOUR SOLE RISK, AND THAT YOU VOLUNTARILY ASSUME THAT RISK. CallingMart.com WEB SITE AND ALL OF ITS COMPONENTS ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. />
CallingMart.com's ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO USE OF CallingMart.com WEB SITE AND ANY COMPONENTS OF CallingMart.com WEB SITE, AS WELL AS CallingMart.com's LIABILITY TO YOU FOR BREACH OF THIS AGREEMENT ARE LIMITED SOLELY TO THE AMOUNTS YOU HAVE PAID TO CallingMart.com BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, CallingMart.com's LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
CallingMart.com WEB SITE AND ALL OF THE COMPONENTS OF CallingMart.com WEB SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT, IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
NO ADVICE OR INFORMATION GIVEN BY CallingMart.com, ITS PARENTS, ITS SUBSIDIARIES, ITS MEMBERS, ITS PARTNERS, ITS JOINT VENTURERS, ITS AFFILIATES, ITS SUPPLIERS, ITS LICENSORS, ITS CONTRACTORS, OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY OF ANY KIND. NEITHER CallingMart.com NOR ITS PARENTS, ITS SUBSIDIARIES, ITS MEMBERS, ITS PARTNERS, ITS JOINT VENTURERS, ITS AFFILIATES, ITS SUPPLIERS, ITS LICENSORS, ITS CONTRACTORS, OR THEIR RESPECTIVE EMPLOYEES WARRANTS THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE ON THE SERVICE IS FREE OF VIRUSES, CANCELBOTS, WORMS, LOGIC BOMBS, TROJAN HORSES, OR OTHER HARMFUL CONTENTS OR COMPONENTS.
SpecSpecific Information Available on CallingMart.com Website.
CallingMart.com AND/OR ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED ON CallingMart.com WEB SITE AND ITS SERVER FOR ANY PURPOSE. ALL SUCH DOCUMENTS AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.
CallingMart.com AND/OR ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT. />
THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED ON CallingMart.com WEB SITE AND ITS SERVER COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. CallingMart.com AND/OR ITS RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE PRODUCT(S) AND/OR THE PROGRAM(S) DESCRIBED HEREIN AT ANY TIME.
LinkLinks to Third Party Web Sites.
SOME OF THE LINKS ON CallingMart.com WEB SITE WILL LET YOU LEAVE CallingMart.com WEB SITE. THE LINKED SITES ARE NOT UNDER THE CONTROL OF CallingMart.com AND CallingMart.com IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY LINKED SITE OR ANY LINK CONTAINED IN A LINKED SITE, OR ANY CHANGES OR UPDATES TO SUCH SITES.
CallingMart.com IS PROVIDING THESE LINKS TO YOU ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK DOES NOT IMPLY ENDORSEMENT BY CallingMart.com OF THE SITE TO WHICH CallingMart.com WEB SITE LINKS, NOR SHALL ANY LINK CREATE ANY EXPRESS OR IMPLIED WARRANTY BINDING ON CallingMart.com />
ProdProducts Available from CallingMart.com Web Site.
CallingMart.com is pleased that YOU have decided to purchase products offered by vendors and carriers on CallingMart.com Web Site. To ensure that YOU are aware of YOUR rights related to purchasing products offered by vendors and carriers on CallingMart.com Web Site, CallingMart.com has created the following disclaimers which are binding and material terms of this Agreement. YOUR ordering any products on CallingMart.com Web Site constitutes YOUR agreement to the following disclaimers.
YOUR PURCHASE OF ANY PRODUCTS THROUGH CallingMart.com WEB SITE INDICATES YOUR ACCEPTANCE THE TERMS STATED HEREIN. PLEASE REMEMBER THAT ALL OF THE RULES STATED IN THIS AGREEMENT APPLY TO THE PURCHASE OF ANY PRODUCTS THROUGH CallingMart.com WEB SITE. />
THE MERCHANDISE, PRODUCTS OR SERVICES (COLLECTIVELY, THE "MERCHANDISE") OFFERED FOR PURCHASE THROUGH CallingMart.com WEB SITE ARE PROVIDED BY THIRD PARTIES WHO ARE NOT AFFILIATED WITH OR UNDER THE DIRECTION OR CONTROL OF CallingMart.com NOR DOES CallingMart.com EITHER EXPRESSLY OR IMPLIEDLY CLAIM TO BE AN AUTHORIZED DEALER OR REPRESENTATIVE OF ANY OF THE INDIVIDUALS, COMPANIES, OR ORGANIZATIONS (COLLECTIVELY REFERRED TO AS "VENDORS") WHO ARE OFFERING OR PROMOTING MERCHANDISE THROUGH THE SITE. CallingMart.com NEITHER REPRESENTS NOR WARRANTS NOR ENDORSES THE ACCURACY OR RELIABILITY OF ANY INFORMATION OR ADVERTISEMENTS UPLOADED, DISPLAYED, OR DISTRIBUTED THROUGH CallingMart.com WEB SITE. CallingMart.com IN NO WAY EITHER EXPRESSLY OR IMPLIEDLY TAKES RESPONSIBILITY FOR THE QUALITY OF ANY MERCHANDISE AVAILABLE FOR PURCHASE THROUGH CallingMart.com WEB SITE.
CallingMart.com FURTHER DISCLAIMS ALL WARRANTIES ON THE MERCHANDISE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
THE VENDORS SELLING THE MERCHANDISE THROUGH CallingMart.com WEB SITE ARE SOLELY RESPONSIBLE FOR THE REPRESENTATIONS REGARDING THE MERCHANDISE ADVERTISED ON CallingMart.com WEB SITE. IN NO EVENT SHALL CallingMart.com, ITS PARENTS, ITS SUBSIDIARIES, ITS MEMBERS, ITS PARTNERS, ITS JOINT VENTURERS, ITS AFFILIATES, ITS SUPPLIERS, ITS LICENSORS, ITS CONTRACTORS, OR THEIR RESPECTIVE EMPLOYEES BE HELD LIABLE FOR COSTS OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, ATTORNEYS' FEES OR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY KIND OF DAMAGES WHATSOEVER, EVEN IF CallingMart.com OR ANY OF THE OTHER PERSONS OR ENTITIES IDENTIFIED IN THIS PARAGRAPH HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY OF RECOVERY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE OR PERFORMANCE OF THE INFORMATION, MERCHANDISE, AND MATERIALS AVAILABLE FROM CallingMart.com WEB SITE.
By YOUR agreeing to this disclaimer, YOU are indicating that YOU will not for any reason take any legal action against CallingMart.com, its parents, its subsidiaries, its members, its partners, its joint ventures, its affiliates, its suppliers, its licensors, its contractors, or their respective agents or employees with respect to any matter covered by the aforementioned disclaimers.
Disputes between YOU and any vendor mentioned in CallingMart.com Web Site should be addressed to and taken up with the particular vendor, carrier and/or service provider and not with CallingMart.com
Furthermore, YOUR acceptance of this disclosure also indicates to CallingMart.com that YOU will in no way use CallingMart.com as a mediator or witness in any disputes between YOU and any vendor.
Further, you are also agreeing that if any portion of this disclaimer is found by a court of competent jurisdiction to be unconscionable, inapplicable or void, only that portion of this disclaimer will be stricken and the remaining portions shall be valid and binding.
THE FOREGOING WARRANTIES SET FORTH ARE EXCLUSIVE AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED.
11. 11. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL CallingMart.com, ITS PARENTS, ITS SUBSIDIARIES, ITS MEMBERS, ITS PARTNERS, ITS JOINT VENTURERS, ITS AFFILIATES, ITS SUPPLIERS, ITS LICENSORS, ITS CONTRACTORS OR THEIR RESPECTIVE AGENTS OR EMPLOYEES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM YOUR USE OF OR INABILITY TO USE CallingMart.com WEB SITE OR ANY OF THE COMPONENTS OF CallingMart.com WEB SITE, OR ANY PART THEREOF, OR YOUR RELIANCE ON OR USE OF INFORMATION, SERVICES, OR MERCHANDISE PROVIDED ON OR THROUGH CallingMart.com WEB SITE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, ANY FAILURE OF PERFORMANCE, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF YOUR ACCOUNT, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION. IN THE EVENT CallingMart.com IS FOUND LIABLE UNDER ANY CIRCUMSTANCE UNDER THE TERMS OF THIS AGREEMENT, CallingMart.com's LIABILITY SHALL BE LIMITED TO THE LIABILITY AS STATED IN THIS AGREEMENT.
12. Indemnification of CallingMart.com by CUSTOMER.
Upon request of CallingMart.com, YOU agree to defend, indemnify, and hold harmless CallingMart.com, its parents, its subsidiaries, its members, its partners, its joint ventures, its affiliates, its suppliers, its licensors, its licensees, its agents, its contractors, or their respective agents and employees, and all their respective successors and assigns from all liabilities, claims, losses, judgments, damages, and expenses, including, without limitation, attorney's fees and costs of litigation, arising from breach of this Agreement by use of, or in connection with, the transmission by or through YOUR account of any content or communications.
CallingMart.com reserves the right, at its own expense and at its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by YOU hereunder, and in such event, YOU shall have no further obligation to provide indemnification for such matter. />
YOU shall promptly notify CallingMart.com in writing of any claim arising or potentially arising under this indemnity.
13. 13. Termination of Agreement.
Either YOU or CallingMart.com may terminate this Agreement at any time. YOUR sole right with respect to any dissatisfaction with any term of this Agreement, as revised or amended from time to time, or CallingMart.com's performance of this Agreement is to terminate this Agreement by notifying CallingMart.com in writing.
14. Alternative Dispute Resolution.
Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order or preliminary injunction to preserve the status quo ante bellum or prevent irreparable harm pending the selection and confirmation of a panel of arbitrators, any dispute arising under this Agreement shall be resolved through a negotiation/mediation/ arbitration approach.
YOU and CallingMart.com agree first to try to resolve the dispute informally between ourselves through good-faith negotiations. If it proves impossible to reach a mutually satisfactory solution to the dispute by negotiation, then YOU and CallingMart.com agree to use mediation as described below. />
YOU and CallingMart.com agree to try to resolve the dispute informally and in good faith with the help of a mutually agreed-upon mediator. The mediator shall have such qualifications and experience as YOU and CallingMart.com shall agree upon.
If YOU and CallingMart.com cannot agree upon the choice of a mediator, then YOU shall submit to CallingMart.com the names of three qualified candidates acceptable to CallingMart.com to mediate the dispute between us and CallingMart.com shall select as mediator one of those three candidates whose names YOU have submitted to CallingMart.com
Alternatively, if YOU cannot submit to CallingMart.com the names of three qualified candidates to serve as a mediator, then CallingMart.com shall submit to YOU the names of three qualified candidates acceptable to CallingMart.com to mediate the dispute between us and YOU shall select as mediator one of those three candidates whose names CallingMart.com has submitted to YOU.
The mediation shall be conducted in good faith and on such terms and conditions as the mediator, YOU, and CallingMart.com shall agree.
YOU and CallingMart.com shall each pay the mediator one half of the fee for the mediator's services, regardless of the outcome of the mediation.
If it proves impossible to arrive at a mutually satisfactory solution through mediation, YOU and CallingMart.com agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association.
The arbitration may be conducted by one impartial arbitrator by mutual agreement or by three arbitrators if YOU and CallingMart.com are unable to agree on a single arbitrator within 30 days of first demand for arbitration. All arbitrators are to be selected from a panel provided by the American Arbitration Association. The chair of the arbitration panel shall be an attorney at law, and the other arbitrators shall have a background or training either in computer or Internet law, computer software, or Internet telecommunications technology, the marketing of computer software products, or electronic commerce conducted via the Internet.
Upon request of either YOU or CallingMart.com, the arbitrators shall have the authority to permit discovery to the extent they deem appropriate.
A court reporter shall record the arbitration hearing and the reporter's transcript shall be the official transcript of the proceeding.
The arbitrators shall have no power to add or detract from the agreements of YOU and CallingMart.com and may not make any ruling or award that does not conform to the terms and conditions of this Agreement.
The arbitrators shall have the authority to grant injunctive relief in a form substantially similar to that, which would otherwise be granted by a court of law or equity.
The arbitrators shall have no authority to award punitive damages or any other damages not measured by the prevailing party's actual damages.
Any damages awarded shall conform to the terms and conditions of this Agreement.
The arbitrators shall specify in writing the basis for any damage award and the types of damages awarded.
The decision of the arbitrators shall be final and binding on the parties and may be entered and enforced in any court of competent jurisdiction by either YOU or CallingMart.com
The prevailing party in the arbitration proceedings shall be awarded reasonable attorney fees, expert witness costs and expenses, and all other costs and expenses incurred directly or indirectly in connection with the proceedings, unless the arbitrators shall, for good cause, determine otherwise.
15. 15. Consent to Jurisdiction; Venue.
Venue for mediation, arbitration, or litigation of any dispute, controversy, or claim arising out of, in connection with, or in relation to this Agreement, or the breach thereof shall be proper only in a venue determined by CallingMart.com
16. Choice of Law.
For all purposes, this Agreement shall be deemed to have been made within the State of Delaware. This Agreement shall be governed by the laws of the United States of America and the laws of the State of Delaware, without regard to Delaware's choice of law and conflicts of law rules, and CallingMart.com
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT ("UCITA") OR ANY SUCCESSOR MODEL ACT THAT IS SUBSTANTIALLY SIMILAR TO THE APPROVED DRAFT OF UCITA APPROVED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS (NCCUSL) ON OR ABOUT AUGUST 4, 1999, OR ANY STATE LAW THAT IS SUBSTANTIALLY SIMILAR TO THE AFOREMENTIONED MODEL UCITA OR SUCCESSOR LAWS, SHALL APPLY TO ANY TRANSACTION OR ANY PART OF ANY TRANSACTION ARISING UNDER THIS AGREEMENT, REGARDLESS OF ANY STATE IN WHICH UCITA MAY HAVE BEEN ENACTED AT THE TIME SUCH TRANSACTION OR ANY PART OF SUCH TRANSACTION PURSUANT TO THIS AGREEMENT SHALL HAVE OCCURRED. />
17. 17. Force Majeure.
CallingMart.com shall not be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, magnetic interference, interruptions of electrical power or other utility service, unavailability of any telecommunications service or connection to any telecommunications service, or any cause beyond the reasonable control of CallingMart.com
18. Non-transferability of Right to Use Service.
The rights to use CallingMart.com Web Site and YOUR account are not transferable. Accounts and access to CallingMart.com Web Site are for YOUR sole use. YOU shall be responsible for the confidentiality of YOUR password. Loaning YOUR account, user name, or password to other persons is expressly prohibited.
Violation of those terms shall constitute theft of CallingMart.com's service and property and may be prosecuted under civil and criminal law.
19. Notices Pursuant to this Agreement.
YOU agree to notify CallingMart.com if YOU move or otherwise change YOUR postal or email address or phone number, and to list a truthful name, postal address, e- mail address, and telephone number on all forms YOU supply to CallingMart.com
YOU may notify CallingMart.com by regular first class mail or by email at [email protected]
CallingMart.com will notify YOU by email at the most current email address YOU have provided to CallingMart.com of any notices CallingMart.com is required to provide to YOU under this Agreement. YOU are solely responsible for ensuring that CallingMart.com has YOUR most current email address, and CallingMart.com shall not be responsible for any lost, misdirected, bounced, forwarded, or undeliverable email CallingMart.com sends to the most current email address YOU have provided to CallingMart.com
20. Severability of Terms of this Agreement.
In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect.
21. No Waiver of Provisions of this Agreement.
CallingMart.com's failure to insist upon or enforce strict performance of any provisions of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between YOU and CallingMart.com nor any trade practice shall act to modify any provision of this Agreement.
22. No Oral Modification of this Agreement.
This Agreement may not be modified orally. This Agreement may be modified only by a written instrument signed by YOU and a duly authorized Officer or Manager of CallingMart.com If email is used for the writing, the signatures shall be electronic digital signatures that are publicly registered with a duly authorized certification authority in the jurisdiction in which CallingMart.com operates its business.
23. Limitation of Actions Arising Under this Agreement.
All disputes arising under this Agreement shall be resolved subject to the Alternative Dispute Resolution provisions of this Agreement. Any cause of action or dispute YOU may have with respect to CallingMart.com's performance or alleged non-performance of this Agreement must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is forever barred. For purposes of the Alternative Dispute Resolution provisions of this Agreement, the commencement to which this paragraph refers is the date on which YOU notify CallingMart.com in writing of a dispute.
24. Attorney's Fees and Costs in Litigation.
In any action between CallingMart.com and YOU to enforce any of the terms of this Agreement, CallingMart.com shall be entitled to recover expenses from YOU, including, but not limited to, reasonable attorney's fees.