Terms of Use

1. Terms of Use

1.1 (Version No. 7. Effective Date: May 25, 2018) 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.

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 by posting a notice on the Sites or by sending you an email. 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 or receive a call or send or receive 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

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.

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 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. 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 © 2018 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.