1. Terms of Use
1.1 (Version No. 10. Effective Date: April 6, 2023) Please read these terms of use (“Agreement” or
“Terms
of
Use”) carefully before using the services offered by
Talkatone LLC (“Company” or “we”). This Agreement sets
forth the legally binding terms and conditions for your use of the various websites owned and operated
by
Company, including, without limitation, the
https://www.talkatone.com website and domain name (“Sites”), and
any other features, content, or applications offered from time to time by Company in connection
therewith
(collectively “Service”). By using the Sites or Service in any manner, including but not limited to
visiting
or browsing the Sites, you agree to be legally bound by this Agreement. This Agreement applies to all
users
of the Sites or Service, including users who are also contributors of content, information, and other
materials or services on the Sites.
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 addition,
you understand and agree that
any or all parts of the Service may not be available in certain parts of the United States and Canada.
2. Acceptance of Terms
2.1 The Service is offered subject to acceptance, without modification, of these Terms of Use and all
other
operating rules, policies and procedures that may be published from time to time on the Sites by
Company. In
addition, some services offered through the Service may be subject to additional terms and conditions
promulgated by Company from time to time; your use of such services is subject to those additional terms
and
conditions, which are incorporated into these Terms of Use by this reference.
2.2 The Service is available only to individuals who are at least 16 years old. You represent and
warrant
that if you are an individual, you are of legal age to form a binding contract and are at least 16 years
old, and that all registration information you submit is accurate and truthful. If you’re agreeing to
these
Terms of Use on behalf of an organization or entity, you represent and warrant that you are authorized
to
agree to these Terms of Use on that organization or entity’s behalf and bind them to these Terms of Use
(in
which case the reference to “you” and “your” in these Terms of Use, except for in this sentence, refer
to
that organization or entity). Company may, in its absolute sole discretion, refuse to offer the Service
to
any person or entity and change its eligibility criteria at any time.
3. Modification of Terms of Use
3.1 Company reserves the right, at its absolute sole discretion, to modify or replace any of the
Terms of Use, or change,
suspend, or discontinue the Service (including, without limitation, the availability of any feature,
database, or
content) at any time and in any manner by posting such changes on our website. You should review
this Agreement
regularly for changes and can easily identify if changes have been made by checking the “Effective
Date” at the top of
this page.
Company may also impose limits on certain features and services or restrict your access to parts or
all of the Service
without notice or liability.
If you don’t agree with the new Terms of Use, you are free to reject them; unfortunately, that means
you will no longer
be able to use the Services. Your continued use of the Service following the posting of any changes
to the Terms of Use
constitutes acceptance of all of the changes.
4. Privacy
4.1 Company’s current Sites and Service
privacy statement is located at
https://www.talkatone.com/privacy/ (the “Privacy Policy”) and is
incorporated into these Terms of Use.
For inquiries in regard to the Privacy Policy, or to report a privacy related problem, please contact
privacy@talkatone.com.
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 support@talkatone.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. Company and Content
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. Rules and Conduct
6.1 As a condition of use, you promise not to use the Service for any purpose that is prohibited by
these
Terms of Use. You will only use the Services for your own internal, personal, non- commercial use, and
not
on behalf of or for the benefit of any third party, and only in a manner that complies with all laws
that
apply to you. You are responsible for all of your activity in connection with the Service. If your use
of
the Services is prohibited by applicable laws, then you aren’t authorized to use the Services.
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:
- infringes or violates the intellectual property rights or any other rights of any person or
entity
(including Company);
- violates any law or regulation, including but not limited to all applicable local, state,
national and
international laws and regulations;
- is harmful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent,
invasive of
another’s privacy, tortious, obscene, offensive, or profane;
- jeopardizes the security of your account or anyone else’s account (such as allowing someone else
to log
in to the Services as you);
- attempts, in any manner, to obtain the password, account, or other security information from any
other
user;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
- “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or
Content
(through use of manual or automated means);
- involves commercial activities and/or sales without Company’s prior written consent, such as
telemarketing, call center operations, contests, sweepstakes, barter, advertising, pyramid
schemes, or any
other use to generate income for yourself or others as a result of calling numbers through the
Service
(other than for your individual business communications);
- involves unusual calling patterns inconsistent with normal, individual subscription use, for
example,
regular calls of short duration or calls to multiple numbers in a short period of time;
- is intended to disrupt, damage, limit or interfere with the proper function of any software,
hardware,
or telecommunications equipment or to damage or obtain unauthorized access to any system, data,
password
or other information of Company or any third party; or
- impersonates any person or entity, including any employee or representative of Company.
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.
6.5 Company reserves the right to remove any Content from the Sites or Service 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 Content or if Company is concerned that you may have violated these Terms of Use), or
for
no reason at all.
7. Fees, Bill Payment, and Refund
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.
7.2 Company may offer a Service that allows you to purchase prepaid credits to be used for minutes and/or messaging Services. Usage of minutes (whether prepaid or not) is billed in twelve (12) second increments. Prepaid credits are billed at the time of purchase. Unless prohibited by law and except as expressly provided in these Terms of Use (including, without limitation, Section 12.3 as it relates to Company Numbers, as defined below), any prepaid credits you purchase will expire thirty (30) days from your most recent date of use of the Service to place a call or send a
text message. Prepaid credits may not be transferred and will not be restored once expired.
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. Third Party Sites
8.1 The Service may permit you to link to other websites or resources on the Internet, and other
websites
or resources may contain links to the Sites or Services. When you access third party websites, you do so
at
your own risk. When you access third party websites or use third party services, you accept that there
are
risks in doing so and that Company is not responsible for such risks. We encourage you to be aware when
you
leave the Services and to read the terms and conditions and privacy policy of each third party website
or
service that you visit or utilize.
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.
9. No Emergency Services or Three-Digit Dialing
9.1 You expressly agree and understand that the Service is not intended to support or carry emergency or
time-critical calls or communications to any type of hospital, law enforcement agency, medical care unit
or
any other kind of emergency or time-critical service (“Emergency Services”). Company, its affiliates or
staff are in no way liable for such emergency calls or communications. By agreeing to these Terms of Use
you
understand that additional arrangements must be made to access Emergency Services. To access Emergency
Services, you acknowledge and accept your responsibility to purchase, separately from the Service,
traditional wireless or wireline telephone service and other means of communication intended for access
to
Emergency Services. You recognize and agree that Company is not required to offer Emergency Services or
access thereto pursuant to any applicable local and or national rules, regulation or law. You further
acknowledge that Company is not a replacement for your primary telephone service or any other means of
communication. In addition, the Service does not support three-digit dialing (including 311). To access
any three-digit dialing, you must use your primary telephone service or other means of communication.
10. User Submissions
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:
- by submitting the User Submissions to Company, or displaying, publishing, or otherwise posting
any
Content on or through the Sites or the Service, you hereby do and shall grant Company a
worldwide,
non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable
license to
use, modify, reproduce, distribute, prepare derivative works of, display, perform, and otherwise
fully
exploit the Content in connection with the Sites, the Service and Company’s (and its successors
and
assigns) business, including without limitation for promoting and redistributing part or all of
the Sites
(and derivative works thereof) or the Service in any media formats and through any media
channels
(including, without limitation, third party websites). You also hereby do and shall grant each
user of the
Sites and/or the Service a non- exclusive license to access your User Submissions through the
Sites and
the Service, and to use, modify, reproduce, distribute, prepare derivative works of, display and
perform
such User Submissions as permitted through the functionality of the Sites and the Service and
under these
Terms of Use. For clarity, the foregoing license grant to Company does not affect your other
ownership or
license rights in your User Submission(s), including the right to grant additional licenses to
the
material in your User Submission(s), unless otherwise agreed in writing;
- represent and warrant that you own or otherwise control all rights to such User Submissions and
that
disclosure and use of such User Submissions by Company (including without limitation, publishing
content
on or at the Sites) will not infringe or violate the rights of any third party; and
- understand that Company shall have the right to reformat, excerpt, or translate any materials,
content
or information submitted by you; and that all information publicly posted or privately
transmitted through
the Sites is the sole responsibility of the person from which such content originated and that
Company
will not be liable for any errors or omissions in any content; and that Company cannot guarantee
the
identity of any other users with whom you may interact in the course of using the Service.
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. Termination
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.
11.3 To understand how Company treats information you provide after you stop using the Service, please
refer to Company’s Privacy Policy at http://www.talkatone.com/privacy.html.
11.4 Any fees paid hereunder are non-refundable; provided, however, that if Company is in breach of the
Terms of Use, you may be able to receive a pro-rata refund if you live in a jurisdiction that provides
for
such pro-rata refunds.
11.5 All provisions of these Terms of Use which by their nature should survive termination shall survive
termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and
limitations of liability.
12. Account Inactivity and Phone Number Ownership
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 calls or 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 thirty (30) credit increments. Following every
thirty (30) days
of Inactivity, thirty (30) prepaid credits will be deducted from your account. If you have less than
thirty (30) 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. International/Non-California Use
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.
14. Apple App Store Terms
14.1 These Terms of Use apply to your use of all the Services, including the iPhone, iPod and iPad
applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following
additional terms also apply to the Application:
- Both you and Company acknowledge that these Terms of Use are concluded between you and Company
only, and
not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-
sublicensable
basis, solely to be used in connection with the Services for your private, personal,
non-commercial use,
subject to all the terms and conditions of these Terms of Use as they are applicable to the
Services;
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and
support
services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including
those
implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty
obligation
to you will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that Company, and not Apple, is responsible for addressing any claims
you or
any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third party claim that the Application or
your
possession and use of the Application infringes that third party’s intellectual property rights,
Company,
and not Apple, will be responsible for the investigation, defense, settlement and discharge of
any such
infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government
embargo, or
that has been designated by the U.S. Government as a “terrorist supporting” country, and that
you are not
listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Company acknowledge and agree that, in your use of the Application, you will comply
with
any applicable third party terms of agreement which may affect or be affected by such use; and
- Both you and Company acknowledge and agree that Apple and Apple’s subsidiaries are third party
beneficiaries of these Terms of Use, and that upon your acceptance of these Terms of Use, Apple
will have
the right (and will be deemed to have accepted the right) to enforce these Terms of Use against
you as the
third party beneficiary hereof.
15. Integration and Severability
15.1 These Terms of Use are the entire agreement between you and Company with respect to the Service and
use of the Sites, and supersede all prior or contemporaneous communications and proposals (whether oral,
written or electronic) between you and Company with respect to the Sites.
15.2 If any provision of these Terms of Use is found to be unenforceable or invalid, that provision will
be
limited or eliminated to the minimum extent necessary so that the Terms of Use will otherwise remain in
full
force and effect and enforceable.
15.3 Nothing in these Terms of Use is intended to exclude or limit Company’s liability for fraud or
fraudulent misrepresentation.
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. Indemnification
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:
- your use or misuse of, or access to, the Sites, Service, Content or otherwise from your User
Submissions;
- your violation of these Terms of Use; or
- infringement by you, or any third party using your account, of any intellectual property or
other right
of any person or entity.
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. Dispute Resolution
17.1 A printed version of these Terms of Use and of any notice given in electronic form shall be
admissible
in judicial or administrative proceedings based upon or relating to these Terms of Use to the same
extent
and subject to the same conditions as other business documents and records originally generated and
maintained in printed form.
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.
17.3 These Terms of Use shall be governed by and construed in accordance with the laws of the State of
California, excluding its conflicts of law rules, and the United States of America.
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. Warranty Disclaimer
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).
18.2 THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT PROMISES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
SOME
STATES AND JURISDICTIONS DO NOT ALLOW THE FOREGOING LIMITATIONS ON IMPLIED PROMISES (OR THE DURATION OF
IMPLIED PROMISES), AND WHERE THIS IS THE CASE THE ABOVE LIMITATIONS WILL NOT APPLY TO YOU; PROVIDED,
HOWEVER, THAT ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW ARE EXCLUDED
FROM
THESE TERMS OF USE TO THE FULLEST EXTENT PERMITTED BY LAW.
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. Limitation of Liability
19.1 NOTHING IN THESE TERMS OF USE EXCLUDES OR LIMITS LIABILITY OF COMPANY FOR:
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:
- LOSS OF PROFITS; OR
- LOSS OF BUSINESS; OR
- DEPLETION OF GOODWILL OR SIMILAR LOSSES; OR
- LOSS OF ANTICIPATED SAVINGS; OR
- LOSS OF GOODS; OR
- LOSS OF CONTRACT; OR
- LOSS OF USE; OR
- LOSS OR CORRUPTION OF DATA OR INFORMATION; OR
- ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PURE ECONOMIC LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES,
WHETHER
THE SAME ARE SUFFERED BY YOU OR ANY PERSON CLAIMING UNDER OR THROUGH YOU AND WHETHER THE SAME
ARE SUFFERED
DIRECTLY OR INDIRECTLY.
19.1.5 COMPANY’S TOTAL LIABILITY IN CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED
PERFORMANCE
OF THESE TERMS OF USE SHALL BE LIMITED TO ANY AMOUNT PAID BY YOU TO COMPANY IN THE PREVIOUS TWELVE (12)
MONTH PERIOD.
20. Miscellaneous
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).
20.2 These Terms of Use are personal to you, and are not assignable, transferable or sublicensable by
you
except with Company’s prior written consent. Company may assign, transfer or delegate any of its rights
and
obligations hereunder without consent.
20.3 No agency, partnership, joint venture, or employment relationship is created as a result of these
Terms of Use and neither party has any authority of any kind to bind the other in any respect.
20.4 In any action or proceeding to enforce rights under these Terms of Use, the prevailing party will
be
entitled to recover costs and attorneys’ fees.
20.5 All notices under these Terms of Use will be in writing and will be deemed to have been duly given
when received, if personally delivered or sent by certified or registered mail, return receipt
requested;
when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is
sent, if sent for next day delivery by recognized overnight delivery service.
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. Copyright and Trademark Notices
21.1 Unless otherwise indicated, these Terms of Use and all Content provided by the Company are
copyright ©
Talkatone LLC. All rights reserved. TalkMe.IM
and Talkatone are either trademarks or registered
trademarks of the Company.
21.2 The names of actual companies and products mentioned at the Sites may be the trademarks of their
respective owners.
22. Digital Millennium Copyright Act Notice
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:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the
copyright
that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the Content that is claimed to be infringing including information regarding
the
location of the Content that the copyright owner seeks to have removed, with sufficient detail
so that
Company is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, e-
mail
address;
- A statement that the notifier has a good faith belief that the Content is not authorized by the
copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the
notifying
party is authorized to make the complaint on behalf of the copyright owner.
22.4 Once Proper Bona Fide Infringement Notification is Received by the Designated
Agent:
22.4.1 It is Company’s policy:
- to remove or disable access to the infringing Content;
- to notify the Content provider, member or user that it has removed or disabled access to the
Content;
and
- that repeat offenders will have the infringing Content removed from the system and that Company
will
terminate such content provider’s, member’s or user’s access to the service.
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:
- A physical or electronic signature of the Content provider, member or user;
- Identification of the Content that has been removed or to which access has been disabled and the
location at which the Content appeared before it was removed or disabled;
- A statement that the Content provider, member or user has a good faith belief that the Content
was
removed or disabled as a result of mistake or a misidentification of the Content; and
- Content provider’s, member’s or user’s name, address, telephone number, and, if available,
e-mail
address and a statement that such person or entity consents to the jurisdiction of the Federal
Court for
the judicial district in which the content provider’s, member’s or user’s address is located, or
if the
Content provider’s, member’s or user’s address is located outside the United States, for any
judicial
district in which Company is located, and that such person or entity will accept service of
process from
the person who provided notification of the alleged infringement.
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.
23. Contact
The Service is operated and provided by Talkatone LLC. If you have questions about these Terms of Use
please contact us at support@talkatone.com, 525 Almanor Ave., Suite 200, Sunnyvale, CA 94085.
SCHEDULE A
TALKATONE DATA PROTECTION ADDENDUM (“DPA”)
1. DEFINITIONS
1.1 The following capitalised terms used in this DPA shall be defined as follows:
- “Controller” has the meaning given in the GDPR.
- “Data Protection Laws” means the EU General Data Protection Regulation 2016/679
(“GDPR”),
any applicable national implementing legislation in each case as amended, replaced or superseded
from time
to time, and all applicable legislation protecting the fundamental rights and freedoms of
persons and
their right to privacy with regard to the Processing of Customer Personal Data.
- “Data Subject” has the meaning given in the GDPR.
- “European Economic Area” or “EEA” means the Member States of the European Union
together
with Iceland, Norway, and Liechtenstein.
- “Processing” has the meaning given in the GDPR, and “Process” will be interpreted
accordingly.
- “Processor” has the meaning given in the GDPR.
- “Security Incident” means any confirmed accidental or unlawful destruction, loss,
alteration,
unauthorised disclosure of, or access to, any Customer Personal Data.
- “Standard Contractual Clauses” means the Standard Contractual Clauses (processors)
approved by
European Commission Decision C(2010)593 or any subsequent version thereof released by the
European
Commission (which will automatically apply).
- “Subprocessor” means any Processor engaged by us who agrees to receive from us Customer
Personal
Data.
- “Customer Personal Data” means the “personal data” (as defined in the GDPR)
described in
Annex 1 and any other personal data contained in the Customer Data that Talkatone processes on
your behalf
in connection with the provision of the Service.
- “Supervisory Authority” has the meaning given in the GDPR.
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:
- enters into a written agreement with the Subprocessor which imposes equivalent obligations on
the
Subprocessor with regard to their Processing of Customer Personal Data, as are imposed on
Talkatone under
this DPA; and
- shall at all times remain responsible for compliance with its obligations under the DPA and will
be
liable to customer for the acts and omissions of any Subprocessor as if they were Talkatone’s
acts and
omissions.
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:
- to a country or territory ensuring an adequate level of protection for the rights and freedoms
of Data
Subjects as determined by the European Commission;
- to a third party that is a member of a compliance scheme recognised as offering adequate
protection for
the rights and freedoms of Data Subjects as determined by the European Commission; or
- governed by the Standard Contractual Clauses between the customer as exporter and such third
party as
importer. For this purpose, the customer appoints Talkatone as its agent with the authority to
complete
and enter into the Standard Contractual Clauses as agent for the customer on its behalf.
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. TERMINATION
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:
- make available for retrieval all Customer Personal Data Processed by Talkatone (and delete all
other
copies of Customer Personal Data Processed by Talkatone following such retrieval); or
- delete the Customer Personal Data Processed by us.
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.
Annex 1
DETAILS OF THE PROCESSING OF CUSTOMER PERSONAL DATA
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:
- Traffic data about the communications that take place through our Service to enable us to
transmit those
communications effectively and efficiently;
- Network monitoring data to enable us to maintain the security and agility of our internal
networks;
- Call detail records of data produced by a telephone call or other telecommunication transactions
including various attributes of the call, such as time, duration, completion status, source
number and
destination number;
- Voice recordings and any other personal data contained in voice recordings;
- Billing data, which includes any payment data;
- Emails or other communications with Talkatone; and
- Any other personal data provided by the customer in connection with its use of the Service.
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:
- Identification information for Customer’s end user contact information (address, phone number,
email
address, fax number)
- Identification information for anyone who uses the Talkatone Service at the request of or in
connection
with the business of the Customer (including phone numbers and email addresses)
- Any other personal data that the Customer or users choose to include in the context of the
communications that are sent and received using the Talkatone Services
The obligations and rights of the customer
The obligations and rights of the customer are as set out in this DPA.