LISTENPORT ("LISTENPORT", "WE" OR "US")
Effective Date: November 19, 2012
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH LISTENPORT. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
LISTENPORT is a locally focused company that combines expert business surveys with user generated reviews. LISTENPORT Expert is an online webpage that distributes business surveys and where we publish business facts and stories on the background of a professional or a business on one easy to read page. LISTENPORT also maintains a social page where users can become members and critique anything they would like to and using a bookmark can catalogue their reviews and follow and be followed by their friends. Users can upload pictures, share links, comment on them, and link to other social networks. LISTENPORT also allows users to check in at locations, critique, and share their opinions.
By using the Site or Services, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old, that you are using the Site and Services with the consent of your parent or legal guardian and that you have received your parent's or legal guardian's permission to enter into these Terms. Further, you represent, acknowledge and agree that: (a) all registration information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information and keep such information up-to-date; and (c) your use of the Services offered through this Site does not violate any applicable law or regulation. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to these Terms and to fully indemnify and hold harmless LISTENPORT if your child breaches or disaffirms any term or condition of these Terms.
LISTENPORT may terminate these Terms and your use of the Site or Services without notice if LISTENPORT, in its sole discretion, believes that you are either (i) between the ages of 13 and 18 and using the Site and its services without the permission of your parent or (ii) under the age of 13.
General Use Restrictions.
LISTENPORT provides content through this Site and Services. Certain information, documents, products and services provided on and through this Site and Services, including content, logos, graphics and images (together, the "Materials") that are not Submissions (as defined below) are provided to you by LISTENPORT and are the copyrighted and/or trademarked work of LISTENPORT or LISTENPORT's contributors.
LISTENPORT grants you a limited, personal, non-exclusive and non-transferable license to use and to display and to make one copy of the Materials and the Site and Services solely for your personal use. Except for the license set forth in the preceding sentence above, you acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Materials in any manner.
This limited license terminates automatically, without notice to you, if you breach any of these Terms. Upon termination of these limited licenses, you agree to immediately destroy any downloaded or printed Materials. Except as stated herein, you acknowledge that you have no right, title or interest in or to this Site, Services or any Materials.
Using the Site and the Services on the Site
You need not register with LISTENPORT to simply visit and view the Site.
However, in order to access certain password-restricted areas of the Site, to use the Services, and to access the Materials offered on and through the Site and Services, you must register with LISTENPORT for an account or sign-in through a Third Party Web Site (defined below). For example, to add photographs, comment on photographs or create a storyboard, you will need to have a LISTENPORT account or sign in with a Third Party Web Site (as defined below).
Password Restricted Areas of this Site
If you desire to register for an account with LISTENPORT, you must submit the following information through the account registration page on the Site: first name, last name, gender, e-mail address, a password, and other basic information. Once you have you have submitted your account registration information, a LISTENPORT administrator shall have the right to approve or reject the requested registration, in the LISTENPORT administrator's sole discretion. If your account is approved by the LISTENPORT administrator, you will be sent an e-mail confirming your registration. After that, you will be able to log-on to the Site using your password (the "LISTENPORT Password").
Currently, LISTENPORT also provides you with the ability to register for an account on the Site or through our Application using your existing account and log-in credentials through the following Third Party Web Sites (as defined below), which may change from time to time: Facebook and Twitter (each, a "Third Party Site Password"). You are responsible for maintaining the confidentiality of your LISTENPORT Password and any Third Party Site Password, (collectively, "Passwords), and you are responsible for all activities that occur using your Passwords. You agree not to share your Passwords, let anyone else access your Passwords or do anything else that might jeopardize the security of your Passwords. You agree to notify LISTENPORT if any of your Passwords is lost, stolen or disclosed to an unauthorized third party, if there is any unauthorized use of your Passwords on this Site or if you know of any other breach of security in relation to this Site.
By using this Site or Services, you represent and warrant that all the information that you provide when registering for an account and otherwise through the Site or Services is accurate, complete and up to date.
Accuracy. By using this Site or Services, you represent and warrant that all the information that you provide when registering for an account and otherwise through the Site or Services is accurate, complete and up to date.
By registering for an account with LISTENPORT, you become a "Member" with access to certain password-restricted areas of the Site, Services and Materials (a "Membership"). Each Membership and the rights and privileges conferred on a Member is personal and non-transferable.
Many portions of functions of our Site and Services are available at no charge. However, our LISTENPORT Expert service is available only to paying Members (except for free trials, as discussed below). All sales and payments of Membership fees will be in US Dollars. All Membership fees are non-refundable under any circumstances.
The fee that we will charge you for your membership will be the price posted on the Site at www.listenport.com on the date that you register as a Member. LISTENPORT reserves the right to change prices for LISTENPORT Expert membership fees at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
You may pay for any applicable membership fee only with credit and debit card payments (Visa, MasterCard, American Express, and Discover). We will charge your credit or debit card for your first Membership fee on the date that we receive your order for your Membership(or if you sign-up for a Membership that includes a free-trial period, we will charge your credit or debit card for your first Membership fee upon the expiration date of the applicable free-trial period). Once your credit or debit card is charged the first Membership fee. Once your credit or debit card is charged the first membership fee, you will receive a confirmation e-mail notifying you of your ability to access those Membership-only portions of, and Materials on, the Site.
IMPORTANT NOTICE: LISTENPORT WILL AUTOMATICALLY RENEW YOUR MEMBERSHIP ON EITHER EACH YEARLY OR EACH MONTHLY ANNIVERSARY OF THAT DATE THAT THE COMPANY FIRST CHARGES YOUR CREDIT OR DEBIT CARD FOR THE FIRST MEMBERSHIP FEE (DEPENDING UPON THE TERMS OF THE MEMBERSHIP YOU HAVE SUBSCRIBED TO) AND, AS AUTHORIZED BY YOU DURING THE MEMBERSHIP SIGN-UP PROCESS, THE COMPANY WILL CHARGE YOUR CREDIT OR DEBIT CARD WITH THE APPLICABLE MEMBERSHIP FEE AND A CANCELLATION FEE AND ANY SALES OR SIMILAR TAXES THAT MAY BE IMPOSED ON YOUR MEMBERSHIP FEE PAYMENT (UNLESS YOU CANCEL PRIOR TO THE ANNIVERSARY DATE). IF YOU SIGN UP FOR A MEMBERSHIP THAT INCLUDES A FREE-TRIAL PERIOD, UNLESS YOU HAVE CANCELLED YOUR MEMBERSHIP PRIOR TO THE EXPIRATION OF THE FREE-TRIAL PERIOD, AS AUTHORIZED BY YOU DURING THE MEMBERSHIPS SIGN-UP PROCESS, THE COMPANY WILL AUTOMATICALLY CHARGE YOU FOR THE FIRST MEMBERSHIP FEE UPON THE EXPIRATION OF THE FREE-TRIAL PERIOD AND EACH SUBSEQUENT MEMBERSHIP FEE ON THE ANNIVERSARY OF THE DATE OF THE FIRST BILLING. YOU MAY CANCEL YOUR MEMBERSHIP AT ANY TIME BY CONTACTING THE COMPANY AT [INSERT] PROVIDED THAT ANY MEMBERSHIP FEES CHARGED PRIOR TO THE EFFECTIVE DATE FO CANCELLATION WILL NOT BE REFUNDED, IN WHOLE OR IN PART. YOU WILL NOT BE ELIGIBLE FOR A PRO-RATED REFUND OF ANY PORTION OF THE MEMBERSHIP FEES PAID FOR ANY UNUSED DAYS OF THE THEN-CURRENT MEMBERSHIP TERM THE COMPANY REQUIRES A REASONABLE AMOUNT OF TIME TO PROCESS YOUR MEMBERSHIP CANCELLATION REQUEST. IF YOU CANCEL YOUR MEMBERSHIP, YOU WILL ENJOY YOUR MEMBERSHIP BENEFITS UNTIL THE EXPIRATION OF THE THEN-CURRENT MEMBERSHIP TERM FOR WHICH YOU HAVE PAID, AND YOUR MEMBERSHIP BENEFITS WILL EXPIRE AT THE END OF THE THEN-CURRENT MEMBERSHIP TERM.
You will be liable for paying any and all applicable sales and use taxes for the purchase of your membership based on the mailing address that you provide when you register, and you authorize LISTENPORT to charge your credit or debit card for any such applicable taxes.
If you do not pay on time or if LISTENPORT cannot charge your credit card, PayPal or other payment method for any reason, LISTENPORT reserves the right to either suspend or terminate your access to the Site or Service and account and terminate these Terms. You are expressly agreeing that LISTENPORT is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of this Site and Services, and the fees will be billed to your credit card or debit card, and thereafter at regular intervals for the remainder of the term of these Terms. If you cancel your account at any time, you will not receive any refund. If you have a balance due on any account, you agree that LISTENPORT may charge such unpaid fees to your credit or debit card or otherwise bill you for such unpaid fees.
Third Party Content.
Certain information and other content that are not Submissions may be provided by third party licensors and suppliers to LISTENPORT ("Third Party Content"). The Third Party Content is, in each case, the copyrighted and/or trademarked work of the creator/licensor. You agree to only display the Third Party Content on your personal computer or mobile device solely for your personal use. You acknowledge and agree that you have no right to download, cache, reproduce, modify, display (except as set forth in this paragraph), edit, alter or enhance any of the Third Party Content in any manner unless you have permission from the owner of the Third Party Content. THE COMPANY DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH REGARD TO THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Links to Third Party Sites.
You further agree that you will not upload, post or otherwise make available on this Site or the Services any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm resulting from any Submission that you make.
You represent and warrant that: (i) you own all Submissions posted by you on or through this Site or Services, or otherwise have the right to grant the license to LISTENPORT as set forth in this section, and (ii) the posting of your Submissions on or through this Site or Services does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through this Site.
When you provide Submissions you agree that those Submissions shall not be in violation of the "Unauthorized Activities" paragraph below. Those prohibitions do not require LISTENPORT to monitor, police or remove any Submissions or other information submitted by you or any other user.
When using this Site and/or the services, you agree not to, without limitation:
This list of prohibitions provides examples and is not complete or exclusive. LISTENPORT reserves the right to (a) terminate your access to your account, your ability to post to this Site and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that LISTENPORT determines is inappropriate or disruptive to this Site or to any other user of this Site. LISTENPORT may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at LISTENPORT's discretion, LISTENPORT will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
Submissions and unauthorized use of any Materials or Third Party Content contained on the Site or Services may violate certain laws and regulations.
You agree to indemnify and hold LISTENPORT and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys' fees and costs of defense) LISTENPORT or any other indemnified party suffers in relation to, arising from, relating to, or for the purpose of avoiding, any claim or demand from a third party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party. LISTENPORT reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with LISTENPORT in asserting any available defenses.
LISTENPORT is a trademark of LISTENPORT in the United States. Other trademarks, names and logos on this Site are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on the Site and Services, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of LISTENPORT TM, 2012 LISTENPORT. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
Intellectual Property Infringement.
LISTENPORT respects the intellectual property rights of others, and we ask you to do the same. LISTENPORT may, in appropriate circumstances and at our discretion, terminate service and/or access to the Site and Services for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site or Services, please provide LISTENPORT's designated agent the following information:
LISTENPORT's agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:
LISTENPORT43300-116 Southern Walk Plaza, 810 Ashburn, VA 20148, privacy@LISTENPORT.com.
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Disclaimer of Warranties.
Your use of the Site and Services is at your own risk. Neither the Materials nor Submissions have not been verified or authenticated in whole or in part by LISTENPORT, and they may include inaccuracies or typographical or other errors. LISTENPORT does not warrant the accuracy of timeliness of the Materials Submissions. LISTENPORT has no liability for any errors or omissions in the Materials Submissions, whether provided by LISTENPORT or our licensors.
LISTENPORT, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITE, THE SERVICES, ANY MATERIALS SUBMISSIONS, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE OR SERVICE, INCLUDING WITHOUT LIMITATION THE MATERIALS SUBMISSIONS OF OTHER USERS OF THE SITE OR SERVICES. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, MATERIALS SUBMISSIONS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE" AND "WHERE-IS" BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LISTENPORT DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER OR MOBILE DEVICE.
Limitation of Liability.
LISTENPORT SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS SUBMISSIONS TO OR FROM THIS SITE OR SERVICES. IN NO EVENT SHALL LISTENPORT BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF LISTENPORT KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
Local Laws; Export Control.
LISTENPORT controls and operates this Site and Services from its headquarters in the United States of America and the Materials Submissions may not be appropriate or available for use in other locations. If you use this Site or Services outside the United States of America, you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to LISTENPORT, whether by letter, email, telephone, or otherwise (collectively, "Feedback"), suggesting or recommending changes to the Site, Services or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and LISTENPORT is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that LISTENPORT is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Dispute Resolution and Arbitration; Class Action Waiver
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer's satisfaction by contacting us at privacy@LISTENPORT.com. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and LISTENPORT. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and LISTENPORT shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney's fees).
For the purpose of this Provision, "LISTENPORT" means LISTENPORT and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term "Dispute" means any dispute, claim, or controversy between you and LISTENPORT regarding any aspect of your relationship with LISTENPORT, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). "Dispute" is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as LISTENPORT's licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give LISTENPORT an opportunity to resolve the Dispute. You must commence this process by mailing written notification to LISTENPORT, Legal Department LISTENPORT 703.728.9009, 43300-116 Southern Walk Plaza, 810 Ashburn, VA 20148, privacy@LISTENPORT.com. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If LISTENPORT does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or LISTENPORT may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the "Opt-Out Deadline"). You may opt out of this Provision by mailing written notification to LISTENPORT, Legal Department LISTENPORT Inc. 43300-116 Southern Walk Plaza, 810 Ashburn, VA 20148, privacy@LISTENPORT.com. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with LISTENPORT through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with LISTENPORT. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or LISTENPORT may initiate arbitration proceedings. The American Arbitration Association ("AAA"), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA's Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA's Commercial Arbitration Rules will apply. In either instance, the AAA's Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act ("FAA") governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or LISTENPORT may initiate arbitration in either Herndon, Virginia or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, LISTENPORT may transfer the arbitration to Herndon, Virginia in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – LISTENPORT will pay all arbitration filing fees and arbitrator's costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with LISTENPORT as provided in the section above titled "Pre-Arbitration Claim Resolution" and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney's fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and LISTENPORT specifically agree to do so following initiation of the arbitration.
You understand and agree that by entering into this Agreement you and LISTENPORT are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and LISTENPORT might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with LISTENPORT or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if LISTENPORT makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require LISTENPORT to adhere to the language in this Provision if a dispute between us arises.
If you violate these Terms, LISTENPORT may terminate and/or suspend your access to this Site or Services without notice. LISTENPORT prefers to advise you of your inappropriate behavior and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by LISTENPORT, may result in immediate termination of your access to this Site
LISTENPORT may also in its sole discretion and at any time discontinue providing the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site, under any provision of the Terms, may be effected without prior notice to you, and acknowledge and agree that LISTENPORT may bar any further access to the Site. Further, you agree that LISTENPORT shall not be liable to you or any third-party for any termination of access to the Site.
Limited Time to Bring Claim
Where permitted by law, you and LISTENPORT agree that any cause of action arising out of or related to the Site, the Services or any Materials must be commenced within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
The Federal Arbitration Act, Virginia state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms or the Site or Services will be heard in the courts located in Loudon County, Virginia. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. LISTENPORT's failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and LISTENPORT and supersede all prior or contemporaneous negotiations, discussions or agreements between you and LISTENPORT about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
If you have any questions about these Terms or otherwise need to contact LISTENPORT for any reason, you can reach us at Legal Department LISTENPORT Inc. 43300-116 Southern Walk Plaza, 810 Ashburn, VA 20148, privacy@LISTENPORT.com
ListenPort allows your customers to use their phones to send you feedback, suggestions and questions privately and lets your managers respond immediately.