In the United States, the Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn that we have collected Personal Information from a child under age 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us Personal Information, please contact us at email@example.com.
The Personal Information we gather from customers enables us to personalize and improve the Services. We collect the following types of Personal Information from our customers:
Personal Information You Provide to Us:
We receive and store any information you enter on our Website, send to us through the Services or via email or SMS, or knowingly provide to us in any other way. The types of Personal Information collected may include your full name, email address, gender, age range, mobile phone number, and any other information necessary for us to provide our Services. Although some information may be required to register with us, you can choose not to provide us with certain information; by omitting information, you may not be able to take advantage of some of our features/services. The Personal Information you provide is used for such purposes as providing the Services, answering your questions about the Services, and communicating with you about Talkatone’s products and services, including specials and new features. We will only send you marketing in accordance with your expressed communications preferences, however.
We may communicate with you if you’ve provided us the means to do so. For example, if you’ve given us your email address, we may send you promotional email offers on behalf of other businesses, or email you about your use of the Services, in accordance with your preferences. Also, we may receive a confirmation when you open an email from us if your computer supports this type of program. This confirmation helps us make our communications with you more interesting and helpful and improve our Services by allowing Talkatone to use aggregated confirmation information. If you do not want to receive communications from us, please indicate your preference by emailing us at firstname.lastname@example.org.
Other Information Collected Automatically:
If you are a user located in the European Economic Area (“EEA”), our legal basis for collecting and using the personal information described above will depend on the personal information concerned and the specific context in which we collect it. However, we will normally collect personal information from you only where we have your consent to do so, where we need the personal information to perform a contract with you, or where the processing is in our legitimate interests and not overridden by your data protection interest or fundamental rights and freedoms. In some cases, we may also have a legal obligation to collect the personal information in question. If you have any questions about or need further information concerning the legal basis on which we collect and use your personal information, please contact us at email@example.com.
Your account is protected by a password for your privacy and security. If you access your account via a third party site or service, you may have additional or different sign-on protections via that third party site or service. You must prevent unauthorized access to your account and Personal Information by selecting and protecting your password appropriately and limiting access to your computer or device and browser by signing off after you have finished accessing your account.
Talkatone uses appropriate technical and organizational measures to protect user information and to ensure that user account information is kept private; however, Talkatone cannot guarantee the security of user account information. Unauthorized entry or use, hardware or software failure, and other factors, may compromise the security of user information at any time.
Given that the Internet is a global environment, using the Internet to collect and process Personal Information necessarily involves the transmission of Personal Information on an international basis. Therefore, by using Talkatone, you acknowledge the transfer of your Personal Information outside your country of residence to any country where we have facilities or engage third parties (including the United States of America). You understand that the countries to which we may transfer information may not have as comprehensive a level of Personal Information protection as in your country.
If you have any questions or concerns regarding privacy in our Services, please send us a detailed message at firstname.lastname@example.org. We will make every effort to resolve your concerns.
1.2 You understand and agree that the Service is intended for use only in the United States and Canada, and only United States or Canadian phone numbers are available under the Service. The Company is not responsible for users who voluntarily choose to use the Service outside the intended territories above.
In the United States, the Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as reasonably possible. If you believe that a child under 13 may have provided us personal information, please contact us at email@example.com.
To the extent the Company processes any personal data on behalf of the customer in connection with the provision of the Service and (a) the personal data relates to individuals located in the EEA; or (b) the customer is located in the EEA, the parties agree that such personal data will be processed in accordance with the Data Processing Addendum set out in Schedule A (“DPA”). In the event of any conflict between the remainder of the Agreement and the DPA, the DPA will prevail.
For the purposes of this section 4, the terms "personal data", "process" and "EEA" have the meanings given in the Data Processing Addendum.
5.1 The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below), and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Company’s) rights.
5.2 You understand that Company owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), creative derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!
6.2 By way of example, and not as a limitation, you shall not (and shall not permit any third party to) either (i) take any action or (ii) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, that:
6.3 Additionally, you shall not: (i) take any action that imposes or may impose (as determined by Company in its absolute sole discretion) an unreasonable or disproportionately large load on Company’s (or its third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures Company may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); or (iv) run Maillist, Listserv, any form of auto-responder or spamming on the Service.
6.4 You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Service, or (iii) copy, rent, lease, distribute, or otherwise transfer any or all of the rights that you receive hereunder.
7.1 Depending on the Services you use or sign up for, you may be required to pay fees in connection with the Service. Should you elect to subscribe to such features, you shall pay all applicable fees, as described on the Sites in connection with such features. If you request a change in any Service, there may be additional or different fees. Special or enhanced features you use may also carry applicable charges. For instance, depending on the type of Service you use, there may be charges for calls placed to or from certain locations, including without limitation payphones and areas within extended calling zones.
7.3 Except as outlined in Section 11.4, Company will be under no obligation to offer any refunds or reimbursements for the purchase price of any prepaid credits you purchase from Company or any fees you pay to Company.
7.4 Company reserves the right to change its pricing and to institute new charges at any time, upon ten (10) days prior notice to you, which may be posted on the Sites or other public channels. Use of the Service by you following such notification constitutes your acceptance of any new or increased charges.
8.2 Company has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Company will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
10.1 The Service may provide you with the ability to upload, submit, disclose, distribute or otherwise post (hereafter, “posting”) content, videos, audio clips, written forum comments, data, text, photographs, software, scripts, graphics, works of authorship or other information to the Services (“User Submissions”). By posting User Submissions on or at any of the Sites or otherwise through the Service, you:
10.2 Company does not endorse and has no control over any User Submission. Company cannot guarantee the authenticity of any data which users may provide about themselves. You acknowledge that all Content accessed by you using the Service is at your own risk and you will be solely responsible for any damage or loss that you cause to any party resulting therefrom.
10.3 Company has no obligation to monitor the Site, Service, Content, or User Submissions. Company may remove any User Submission at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Submission), or for no reason at all.
10.4 Under no circumstances will Company be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted or otherwise made available via the Service.
11.1 Company may in its absolute discretion terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership.
11.2 If you wish to terminate your account, you may do so in your absolute sole discretion, with our without cause, at any time, and effective immediately by following the instructions on the Sites.
12.1 If Company provides a phone number (“Company Number”) to you, you understand and agree that you do not own the number or have a right to keep that Company Number forever. Company may change or withdraw your Company Number from time to time for any reason upon notice to you.
12.2 Company may reclaim the Company Number you received through the Service (if you have one) if you have not placed or received calls or sent or received text messages (“Inactivity” or “Inactive”) for a period of thirty (30) days. However, you may be eligible for the Company Number Phase Out (described below) before Company reclaims your Company Number. We will not reclaim numbers that you have ported to the Service.
12.3 Company Number Phase Out: If you have a Company Number and you have any prepaid credits in your account, your prepaid credits may be deducted from your account following thirty (30) days of Inactivity in twenty (20) credit increments. Following every thirty (30) days of Inactivity, twenty (20) prepaid credits will be deducted from your account. If you have less than twenty (20) credits in your account at any time during a thirty (30) day period of Inactivity, all of your remaining prepaid credits will be deducted at the same time. In addition, if your account has been Inactive for one hundred eighty (180) consecutive days, all of your remaining prepaid credits will be deducted at the same time. Once your account has been Inactive for a period of thirty (30) days after your prepaid credit balance has reached zero, Company may reclaim the Company Number associated with such account. Please note that if you begin using the Company Number before Company reclaims it, you will not receive any refund or restoration of prepaid credits.
13.1 Company makes no representation that the Content is appropriate or available for use in locations outside of California, the United States or Canada, and accessing the Service is prohibited from territories where such Content is illegal. If you access the Service from other locations, you do so at your own initiative and are responsible for compliance with any applicable local laws.
15.4 The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
16.1 You shall defend, indemnify, and hold harmless Company, its affiliates and each of its, and its affiliates employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to:
16.2 Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Company in asserting any available defenses.
17.2 You and Company agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
17.4 Arbitration. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Francisco County, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.
17.5 Jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California.
18.1 Company does not make any representations or give any warranties, conditions or other terms (collectively "Promises") concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. Company does not make any Promises that the Services will function without disruptions, delays, or errors. Many factors, including your local network, your internet service provider, your firewall, your power supply, the public telephone network, and the public internet, may affect your ability to use the Services and the quality of your communications through the Services, and may result in the failure of your communication. Company is not responsible for any disruption, interruption or delay caused by any failure of or inadequacy in any of these factors or any other items over which Company has no control. We make no representations or Promises regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and Services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Company or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product).
18.3 Electronic Communications Privacy Act Notice (18USC 2701-2711): COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITES OR ANY WEBSITE LINKED TO THE SITES. Company will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Company’s equipment, transmitted over networks accessed by the Sites, or otherwise connected with your use of the Service. Some states and jurisdictions do not allow the preceding limitation of liability on the protection of privacy to the extent personal information is stored on Company’s equipment; where this is the case, the preceding limitations do not apply to you, but only to the extent such information is stored on Company’s equipment.
19.1.1 DEATH OR PERSONAL INJURY CAUSED BY COMPANY'S NEGLIGENCE; OR
19.1.2 FRAUD OR FRAUDULENT MISREPRESENTATION.
19.2 SUBJECT TO CLAUSES 18.1-18.3:
19.2.1 COMPANY SHALL NOT BE LIABLE, WHETHER IN CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR:
20.1 Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference).
20.6 Calls and text messages sent using the TalkaTone service will be routed to their destination in whatever manner and through whichever third parties as the Company determines in its sole discretion. Such routing determination may be based upon the Company’s cost in completing the communication, incentives provided by third parties to route your communication through their service, or otherwise. By using the Company’s calling and text services you expressly acknowledge and agree to such routing determinations by the Company, and to the extent that your authorization of such routing determinations is required under applicable laws, rules, regulations or otherwise, you hereby provide such authorization to the Company.
21.2 The names of actual companies and products mentioned at the Sites may be the trademarks of their respective owners.
22.1 Company has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of Company’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this policy.
22.2 It is Company’s policy to (1) block access to or remove Content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.
22.3 Procedure for Reporting Copyright Infringements:
22.3.1 If you believe that Content residing on or accessible through the Sites or Service infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
22.4 Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
22.4.1 It is Company’s policy:
22.5. Procedure to Supply a Counter-Notice to the Designated Agent:
22.5.1 If the Content provider, member or user believes that the Content that was removed or to which access was disabled is either not infringing, or the Content provider, member or user believes that it has the right to post and use such Content from the copyright owner, the copyright owner’s agent, or pursuant to the law, the content provider, member or user must send a counter-notice containing the following information to the Designated Agent listed below:
22.6 If a counter-notice is received by the Designated Agent, Company may send a copy of the counter- notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter- notice, at Company’s discretion.
1.1 The following capitalised terms used in this DPA shall be defined as follows:
2. DATA PROCESSING
2.1 The parties acknowledge and agree that for the purpose of the Data Protection Laws, the customer is the Controller and Talkatone is the Processor.
2.2 Instructions for Data Processing. Talkatone will only Process Customer Personal Data in accordance with customer’s written instructions. The parties acknowledge and agree that the Agreement (subject to any changes to the Service agreed between the parties) and this DPA shall be customer’s complete and final instructions to Talkatone in relation to the processing of Customer Personal Data.
2.3 Processing outside the scope of this DPA or the Agreement will require prior written agreement between customer and Talkatone on additional instructions for Processing.
2.4 Required consents. Where required by applicable Data Protection Laws, customer will ensure that it has obtained/will obtain all necessary consents and complies with all applicable requirements under Data Protection Laws for the Processing of Customer Personal Data by Talkatone in accordance with the Agreement.
3. TRANSFER OF PERSONAL DATA
3.1 Authorised Subprocessors. Customer agrees that Talkatone may use Subprocessors to Process Customer Personal Data. The list of Subprocessors currently engaged by Talkatone and authorized by Customer, as of May 25, 2018, is available at https//oomainc.box.com/v/talkatone-subprocessor-list.
3.2 Talkatone shall notify customer from time to time of the identity of any Subprocessors engaged. If customer (acting reasonably) objects to a new Subprocessor on grounds related to the protection of Customer Personal Data only, then without prejudice to any right to terminate the Agreement, customer may request that Talkatone move the Customer Personal Data to another Subprocessor and Talkatone shall, within a reasonable time following receipt of such request, use reasonable endeavours to ensure that the original Subprocessor does not Process any of the Customer Personal Data. If it is not reasonably possible to use another Subprocessor, and customer continues to object for a legitimate reason, either party may terminate the Agreement on thirty (30) days written notice. If customer does not object within thirty (30) days of receipt of the notice, customer is deemed to have accepted the new Subprocessor.
3.3 Save as set out in clauses 3.1 and 3.2, Talkatone shall not permit, allow or otherwise facilitate Subprocessors to Process Customer Personal Data without customer’s prior written consent and unless Talkatone:
3.4 International Transfers of Customer Personal Data. To the extent that the Processing of Customer Personal Data by Talkatone involves the export of such Customer Personal Data to a third party in a country or territory outside the EEA, such export shall be:
4. DATA SECURITY, AUDITS AND SECURITY NOTIFICATIONS
4.1 Talkatone Security Obligations. Talkatone will implement and maintain appropriate security measures to safeguard the security of Customer Personal Data. Talkatone will maintain an information security and risk management program based on commercial best practices to preserve the confidentiality, integrity and accessibility of Personal Data with administrative, technical and physical measures conforming to the generally recognised standards and practices. Talkatone shall implement appropriate technical and organisational measures to protect Customer Personal Data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access. Customer acknowledges and agrees that these measures ensure a level of security that is appropriate to the risk.
4.2 Upon customer’s reasonable request, Talkatone will make available all information reasonably necessary to demonstrate compliance with this DPA.
4.3 Security Incident Notification. If Talkatone becomes aware of a Security Incident, Talkatone will (a) notify customer of the Security Incident within 72 hours, (b) investigate the Security Incident and provide customer and any law enforcement or regulatory official with reasonable assistance as required to investigate the Security Incident.
4.4 Talkatone Employees and Personnel. Talkatone will treat the Customer Personal Data as confidential, and shall ensure that any employees or other personnel have agreed in writing to protect the confidentiality and security of Customer Personal Data.
4.5 Audits. Talkatone will, upon customer’s reasonable request and at customer’s expense, allow for and contribute to audits, including inspections, conducted by customer (or a third party auditor on customer’s behalf and mandated by customer) provided (i) such audits or inspections are not conducted more than once per year (unless requested by a Supervisory Authority); (ii) are conducted only during business hours; and (iii) are conducted in a manner that causes minimal disruption to Talkatone’s operations and business.
5. ACCESS REQUESTS AND DATA SUBJECT RIGHTS
5.1 Data Subject Rights. Where applicable, and taking into account the nature of the Processing, Talkatone will use reasonable endeavours to assist customer by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of customer’s obligation to respond to requests for exercising Data Subject rights laid down in the Data Protection Laws.
6. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION.
6.1 To the extent required under applicable Data Protection Laws, Talkatone will provide customer with reasonably requested information regarding its Service to enable customer to carry out data protection impact assessments or prior consultations with any Supervisory Authority, in each case solely in relation to Processing of Customer Personal Data and taking into account the nature of the Processing and information available to Talkatone.
7.1 Deletion or return of data. Subject to 7.2 below, Talkatone will, at customer’s election and within 90 (ninety) days of the date of termination of the Agreement:
7.2 Talkatone and its Subprocessors may retain Customer Personal Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that Talkatone ensures the confidentiality of all such Customer Personal Data and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.
This Annex 1 includes certain details of the processing of Customer Personal Data as required by Article 28(3) of the GDPR.
Subject matter and duration of the Processing of Customer Personal Data
The subject matter and duration of the Processing of the Customer Personal Data are set out in the Agreement and this DPA.
The nature and purpose of the Processing of Customer Personal Data
The Customer Personal Data will be subject to the following basic processing activities: transmitting, collecting, and storing data in order to provide the Service to the Customer, and any other activities related to the provision of the Service or specified in the Agreement.
The types of Customer Personal Data to be processed
The Customer Personal Data concern the following categories of data:
The categories of data subject to whom the Customer Personal Data relates
The Customer Personal Data transferred concerns the following categories of data for the data subjects:
The obligations and rights of the customer
The obligations and rights of the customer are as set out in this DPA.