Talko - TERMS OF SERVICE
Here's What You Need To Know.
INTRODUCTION; AGREEMENT TO THIS TERMS OF SERVICE
Welcome to Talko Inc’s (“ Talko ”, “We”, “Our”) mobile device software application (the “
Talko Software ”), Web site, and any other mobile or web services or applications owned,
controlled, or offered by Talko (Collectivly, the Talko Services") Users who access,
download, use, purchase and/or subscribe to the Talko Services (collectively or individually “ You
”or “User”or “Users”) must do so under the following terms and conditions of service and
BEFORE USING ANY TALKO SERVICES, PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF SERVICE. BY ACCESSING, DOWNLOADING, USING, PURCHASING AND/OR SUBSCRIBING TO THE TALKO
SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS OF SERVICE, INCLUDING ANY FUTURE MODIFICATIONS TO THESE TERMS AND CONDITIONS OF SERVICE (COLLECTIVELY, THE “AGREEMENT”), WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN PLEASE CEASE USING THE TALKO SERVICES
THE AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND TALKO. You may receive a copy of this Agreement by emailing us at: Info@Talko.ca,
Subject: Terms of Service Agreement.
AGE RESTRICTION. THE TALKO SERVICES ARE AVAILABLE FOR INDIVIDUALS AGED 18 YEARS OR OLDER.
1.1) AGE RESTRICTED ACCESS. NO PERSONS UNDER THE AGE OF EIGHTEEN
- YEARS (TWENTY-ONE (21) YEARS IN PLACES WHERE EIGHTEEN (18) YEARS IS NOT THE AGE OF MAJORITY) MAY DIRECTLY OR INDIRECTLY VIEW, POSSESS OR OTHERWISE USE THE TALKO SERVICES.
1.2) AFFIRMATION OF CURRENT ADULT STATUS. YOU HEREBY AFFIRM AND WARRANT THAT YOU ARE CURRENTLY OVER THE AGE OF EIGHTEEN
YEARS (TWENTY-ONE (21) YEARS IN PLACES WHERE EIGHTEEN (18) YEARS IS NOT THE AGE OF MAJORITY) AND YOU ARE CAPABLE OF LAWFULLY ENTERING INTO AND PERFORMING ALL THE OBLIGATIONS SET FORTH IN THIS AGREEMENT.
1 of 16
2. IMPORTANT DISCLAIMER ABOUT LOCATION DATA.
THE TALKO SERVICES ARE INTENDED ONLY AS PERSONAL, LOCATION-BASED
SERVICES FOR INDIVIDUAL USE AND SHOULD NOT BE USED OR RELIED ON AS AN EMERGENCY LOCATOR SYSTEM, USED WHILE DRIVING OR OPERATING VEHICLES, OR USED IN CONNECTION WITH ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OR INACCURACY OF THAT APPLICATION OR THE TALKO SERVICES COULD LEAD DIRECTLY TO DEATH,
PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE. TALKO IS
NOT SUITED OR INTENDED FOR FAMILY FINDING PURPOSES, FLEET TRACKING, OR ANY OTHER TYPE OF BUSINESS OR ENTERPRISE USE – OTHER PRODUCTS EXIST TODAY THAT MAY BE USED SPECIFICALLY FOR THESE PURPOSES.
3. MODIFICATION OF THIS AGREEMENT
We reserve the right, at our discretion, to change, modify, add, or remove portions of this Agreement (including the Guidelines) at any time by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on the TALKO Service. Please check this Agreement (including the Guidelines) periodically for changes.
You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Your continued use of the Talko Services after our dispatching of an e-mail notice to you (if applicable) or the posting of any modifications or changes on the Talko Service constitutes your binding acceptance of such
changes. For any material changes to this Agreement (including the Guidelines), you acknowledge and agree that any such amended or modified terms shall automatically be effective thirty (30) days after our dispatch of an e-mail notice to you (if applicable) or thirty (30) days after they are initially posted on the Talko Services. These changes will be effective immediately for new Users of the
4. OWNERSHIP; PROPRIETARY RIGHTS
The Talko Services are owned and operated by Talko Inc. The Talko Software, content, visual
interfaces, information, graphics, design, compilation, computer code, products, software, services, including, but not limited to, the mobile device applications, and all other elements of the Talko Services (collectively, the “Materials”) are protected by United States & Canada copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the Talko Services
are the property of Talko or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names displayed on the Talko Services are proprietary to
2 of 16
Talko or its affiliates and/or third-party licensors. Except as expressly authorized by Talko under this Agreement, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of
5. GUIDELINES; USAGE RULES; PROHIBITED CONDUCT & USES
5.1) Talko’s Guidelines located at talko.ca/profile-guideline (“
hereby incorporated into this Agreement by reference. Please read the Guidelines carefully before providing any photo, text, or links to the Talko Services.
5.2) YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU WILL COMPLY WITH THE GUIDELINES AND YOU MAY NOT AND WARRANT THAT YOU WILL NOT:
use the Talko Services or any location information displayed within the Talko Services to “stalk”, harass, abuse, defame, threaten or defraud other Users, or collect, attempt to collect, or store location or personal information about other Users;
use the Talko Services if you are under the age of 18 years old (twenty-one (21) years in places where eighteen (18) years is not the age of majority);
include offensive or pornographic materials or materials that are harmful to minors in your Talko Services personal profile page;
use the Talko Services for any commercial or non-private use, it being understood that the Talko Services are for personal, non-commercial use only;
use the Talko Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, and import or export control;
make unsolicited offers, advertisements, proposals, or send junk mail, to other Users of the Talko Services. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Talko Services accounts of other Users;
misrepresent the source, identity or content of information transmitted via the Talko Services;
remove, circumvent, disable, damage or otherwise interfere with security-related features of the Talko Services, features that prevent or restrict use or copying of any content accessible through the Talko Services, or features that enforce limitations on use of the Talko Services;
10.intentionally interfere with or damage operation of the Talko Services or any User’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code;
post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, defamatory, libelous, offensive, obscene, indecent,
3 of 16
pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically or otherwise offensive to any group or individual, intentionally misleading, false, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
use the Talko Service with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, or otherwise capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management, or similar applications;
use the Talko Service in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the Talko Services could lead directly to death, personal injury, or severe physical or property damage;
attempt to gain unauthorized access to the Talko Services, or any part of it, other accounts, computer systems or networks connected to the Talko Services, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Talko Services or any activities conducted on the Talko Service; or
use any robot, spider, scraper or other automated means to access the Talko Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Talko Services or modify the Talko Services in any manner or form, nor to use modified versions of the Talko Services, including (without limitation) for the purpose of obtaining unauthorized access to the Talko Services.
USAGE; REFUSAL OR SUSPENSION OF SERVICE
6.1) 6.1 You acknowledge that some of the Talko Services may be accessed by downloading the Talko Services to a mobile device, without the need to register an account. You are responsible for the security on the mobile device on which the Talko Services are installed. If you elect to use the Talko Services or register for an account with Talko, you represent and
warrant that: (a) all required registration information you submit is truthful and accurate; and
you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your Talko account login information and the security of your mobile device, and are fully responsible for all activities that occur under your Talko account. You agree to immediately notify Talko of any unauthorized use, or suspected unauthorized use of your Talko account or any other breach of security. Talko cannot and will not be liable for
any loss or damage arising from your failure to comply with the above requirements. 6.2) TALKO RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO HAVE OUR SYSTEMS MONITOR ANY USER’S USE OF THE TALKO SERVICE,
4 of 16
INCLUDING A USER’S REGISTRATION OR INVITE-A-FRIEND ATTEMPTS, AS WELL AS A USER’S USE OF OR ACCESS TO THE LOCATION INFORMATION AND PROFILES OF OTHER USERS. ACCORDINGLY, TALKO ALSO RESERVES THE RIGHT TO (A) DISABLE ANY USER’S USE OF OR ACCESS TO THE TALKO SERVICES, INCLUDING THE LOCATION INFORMATION OR PROFILES OF
OTHER USERS, OR (B) TERMINATE ANY USER’S ACCOUNT, FOR ANY REASON AND WITHOUT ANY NOTICE.
6.3) You alone are responsible for your involvement with other Users. You agree that Talko will not be responsible for any loss or damage incurred as the result of any such interactions. Talko reserves the right, but has no obligation, to monitor disagreements between you and
6.4) Talko does not control the content of User accounts and profiles. Talko has the right, but does not have any obligation, to monitor such content for any purpose. You acknowledge that you are solely responsible for all content and material that you provide to the Talko
6.5) PLEASE NOTE: TALKO RESERVES THE RIGHT TO REFUSE ACCESS TO ANY USER, FOR ANY REASON AND WITHOUT ANY NOTICE.
7. USER SUBMISSIONS
7.1) The Talko Services allow the submission of content and materials (such as pictures,
ideas, notes, concepts, or creative suggestions) by you and other Users (“User Submissions”),
and the hosting, sharing and/or publishing of such User Submissions. User Submissions and
understand that through your use of the Talko Services You consent to the collection and use
for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use, and authorize Talko to
use, all intellectual property and any other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Talko Services and this Agreement; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to
use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Talko Services and this Agreement. For clarity, you shall retain all of your ownership rights in your User
You understand that when using the Talko Services you will be exposed to User
Submissions from a variety of sources, and that Talko is not responsible for the accuracy,
5 of 16
usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent or objectionable.
7.3) Talko assumes no responsibility whatsoever in connection with or arising from User Submissions. Talko assumes no responsibility for actively monitoring User Submissions for inappropriate content. If at any time Talko chooses, in its sole discretion, to monitor User Submissions, Talko nonetheless assumes no responsibility for the content of the User Submissions, no obligation to modify or remove any inappropriate User Submissions, and no responsibility for the conduct of the User submitting User Submissions. Further, Talko does
not endorse and has no control over the content of User Submissions submitted by other Users. Talko makes no warranties, express or implied, as to the content of User Submissions or the accuracy and reliability of any User Submissions. Nonetheless, Talko reserves the right to
prevent you from submitting User Submissions and to edit, restrict or remove User Submissions for any reason at any time.
7.4) User Submissions are owned by the User who submitted them, subject to Talko’s license to such User Submissions under this Agreement. User Submissions can not be shared, displayed or duplicated by any other party other than the submitted User, except as permitted under this
7.5) You hereby grant, and you represent and warrant that you have the right to grant, to Talko an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to
reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Submissions, and to grant sublicenses of the foregoing, solely for the purposes of including your User Submissions in the Talko Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral
rights or attribution with respect to your User Submissions.
7.6) If you provide Talko any feedback or suggestions regarding the Site or Services (“ Feedback”), you hereby assign to Talko all rights in the Feedback and agree that Talko shall have the right to use such Feedback and related information in any manner it deems appropriate. Talko will treat any Feedback you provide to Talko as non-confidential and non-proprietary. You agree that you will not submit to Talko any information or ideas that
you consider to be confidential or proprietary.
8. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS
The Talko Services may include links to other web sites or services solely as a
convenience to Users. Talko does not endorse any such linked sites or the information,
material, products or services contained on other linked sites or accessible through other linked sites. Furthermore, Talko makes no express or implied warranties with regard to the
information, material, products or services that are contained on or accessible through linked sites. Access and use of linked sites, including information, material, products and services on linked sites or available through linked sites is solely at your own risk.
8.2) Your correspondence or business dealings with, or participation in promotions of,
6 of 16
advertisers found on or through the Talko Services are solely between you and such advertiser. You agree that Talko shall not be responsible or liable for any loss or damage of any sort
incurred as the result of any such dealings or as the result of the presence of such advertisers on the Talko Services.
8.3) Parties other than Talko may provide services or sell products via the Talko Services. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or the content of their product and service offerings. Talko does not
assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other terms and conditions of use.
8.4) By your use of third party applications that connect with the Talko Services (“Third Party Applications”), you acknowledge and agree that Talko may transmit User Submissions to
Third Party Websites or Third Party Applications through application protocol interfaces developed and maintained by those Third Party Websites or Third Party Applications. Talko is not responsible for the transmission of the User Submissions from the Talko Services to
Third Party Websites or Third Party Applications, nor the use of the User Submissions on any Third Party Websites or Third Party Applications. You should review the terms of service and privacy policies of any Third Party Websites or Third Party Applications. Talko is not
responsible for and does not endorse any features, content, or other materials on or available from Third Party Sites or Third Party Applications. Talko also does not screen, audit, or
endorse Third Party Sites or Third Party Applications. Accordingly, if you decide to access Third Party Sites or Third Party Applications, you do so at your own risk and agree that your use of any Third Party Sites or Third Party Applications is on an “as-is” basis without any warranty as to the Third Party Sites or Third Party Applications actions, and that this Agreement does not apply to your use of any Third Party Sites or Third Party Applications.
9. END USER LICENSES
9.1) Mobile Device. To use the Talko Software you must have a mobile device that is compatible with the Talko Services. Talko does not warrant that the Talko Services will be
compatible with your mobile device.
9.2) License Grant. Subject to the terms of this Agreement, Talko hereby grants you a non-exclusive, non-transferable, revocable license to (i) use a compiled code copy of the Talko Software for one Talko Services account on one mobile device owned or leased solely by you, for your personal, noncommercial use and (ii) use the Talko Services (other than the Talko
Software) for your personal, noncommercial use.
9.3) Restrictions. You may not: (i) modify, disassemble, decompile or reverse engineer the Talko Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Talko Software to any third party or use the Talko Software to provide time sharing or similar services for any third party; (iii) make any copies of the Talko Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Talko Software, features that prevent
7 of 16
or restrict use or copying of any content accessible through the Talko Software, or features that enforce limitations on use of the Talko Software; or (v) delete the copyright and other proprietary rights notices on the Talko Software.
9.4) Software Upgrades. You acknowledge that Talko may from time to time issue upgraded versions of the Talko Software, and may automatically electronically upgrade the version of the Talko Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and
conditions of this Agreement will apply to all such upgrades. You agree that Talko
will not be liable to you for any such modifications.
9.5) Open Source. With respect to any open source or third-party code that may be incorporated in the Talko Software, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. Nothing in this
Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such open source software. In particular, nothing in this Agreement restricts your right to copy, modify, and distribute such open source
software that is subject to the terms of the GNU General Public License.
9.6) Rights Reserved. The foregoing license grant under this Agreement is not a sale of the Talko Software or any copy thereof and Talko or its third party partners or suppliers retain all right, title, and interest in the Talko Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Talko reserves all rights not expressly granted under this Agreement.
9.7) Trademarks, Service Marks and Logos. The name of this web site is a service mark
of Talko. No use of this mark shall be permitted except through the prior written authorization and permission of Talko. All rights reserved.
9.8) Government End Users. If this Talko Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Talko Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS
252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR
52.227-14 (ALT III), as applicable.
9.9) Export Control. The Talko Software originates in the Canada, and is subject to Canadian export laws and regulations. The Talko Software may not be exported or
re-exported to certain countries or those persons or entities prohibited from receiving exports from Canada. In addition, the Talko Software may be subject to the import and
export laws of other countries. You agree to comply with all Canadian and foreign laws related to use of the Talko Software and the Talko Services.
You acknowledge and agree that the availability of the Talko Software is dependent on the third party from which you received the Talko Software, e.g., the
Android Market or Apple app store (each, an “App Store”). You acknowledge that this Agreement is between you and Talko and not with the App Store. Each App Store may have its own terms and conditions to which you must agree before downloading the Talko
8 of 16
Software from it. You agree to comply with, and your license to use the Talko Software is
conditioned upon your compliance with, all applicable terms and conditions of the applicable App Store.
10. VIOLATIONS; TERMINATION
You agree that Talko, in the good faith belief that you have violated any of the terms and conditions of this Agreement, may terminate any account you have with the Talko Services or your use of the Talko Services or any portion thereof and remove and discard all or any part of
your account or any User Submission, at any time. You agree that any termination of your access to the Talko Services or any account you may have or portion thereof may be effected without prior notice, and you agree that Talko will not be liable to you or any third-party for any such termination. Talko does not permit copyright infringing activities on the Talko Services, and reserves the right to terminate access to the Talko Services, and remove all content submitted, by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Services may be referred to
appropriate law enforcement authorities. These remedies are in addition to any other remedies Talko may have at law or in equity.
11. DISCLAIMERS; NO WARRANTIES
11.1) THE TALKO SERVICES AND ANY THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE TALKO SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”,
AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.
TALKO, AND ITS SUPPLIERS AND PARTNERS, DISCLAIM ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
11.2) TALKO AND ITS SUPPLIERS AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE TALK SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE TALKO SERVICES OR THE SERVER THAT MAKES THEM
AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11.3) TALKO AND ITS SUPPLIERS AND PARTNERS (INCLUDING TALKO’S THIRD-PARTY WIRELESS CARRIER PARTNERS) DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY LOCATION INFORMATION OR THE OTHER
TALKO SERVICES IN TERMS OF SECURITY, SAFETY, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT TALKO OR ITS SUPPLIERS
OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICES OR EQUIPMENT NECESSARY TO ACCESS THE TALKO SERVICES. YOU
UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE
9 of 16
OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE TALKO
SERVICES AT YOUR OWN DISCRETION AND RISK.
11.4) CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12. INDEMNIFICATION; HOLD HARMLESS
You agree to indemnify, defend, and hold Talko (and its affiliated companies, contractors,
employees, agents, and suppliers and partners) harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys’ fees, brought by a third party arising out of or related to (a) your use or misuse of any location information or the other Talko Services
generally, (b) any violation of the rights of any other person or entity by you, (c) any breach or violation by you of this Agreement, or (d) your use the Talko Services to meet another User in-person or to locate and attend any offline place or event. Talko reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to
indemnify us, and you agree to cooperate with our defense of these claims.
13. LIMITATION OF LIABILITY AND DAMAGES
13.1) YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL TALKO (OR ITS
AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS) BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES [RELATED TO OR RESULTING FROM: (A) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF YOUR LOCATION INFORMATION; (B) YOUR USE OR INABILITY TO USE THE TALKO SERVICES; (C) THE TALKO SERVICES GENERALLY (INCLUDING THE TALKO SOFTWARE) OR SYSTEMS THAT MAKE THE TALKO SERVICES AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH TALKO OR ANY OTHER USER OF THE TALKO SERVICES], EVEN IF TALKO OR A TALKO AUTHORIZED REPRESENTATIVE
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
13.2) IN NO EVENT SHALL TALKO’S (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR THIRD-PARTY PARTNERS OR SUPPLIERS) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION [ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE TALKO SERVICES] (WHETHER IN CONTRACT, TORT
10 of 16
(INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING THE TALKO SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY
PRECEDING THE DATE OF YOUR CLAIM OR FIFTY DOLLARS, WHICHEVER IS GREATER.
13.3) APPLICABLE LAW IN YOUR PROVINCE/STATE MAY NOT ALLOW THE LIMITATIONOR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT TALKO’S LIABILITY WILL BE
LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR STATE/PROVINCE.
BENEFIT OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT TALKO HAS OFFERED THE TALKO SERVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS
AND THE LIMITATIONS OF LIABILITY SET FORTH ABOVE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE
LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND TALKO,
AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND TALKO. TALKO WOULD NOT BE ABLE TO PROVIDE THE TALKO SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS
WITHOUT THESE LIMITATIONS AND DISCLAIMERS.
RELEASE. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, (1) any interactions with, or act or omission of, or User Submissions provided by, other Talko Service Users or (2) any third party site, products, services, and links included on or accessed through the Talko Service. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”.
DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
It is Talko’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. In addition, Talko will promptly terminate without notice the accounts of Users that are determined by Talko to be “repeat infringers.” A repeat
11 of 16
infringer is a User who has been notified by Talko of infringing activity violations more than twice and/or who has had a User Submission removed from the Talko Service more than
16.2) If you are a copyright owner or an agent thereof, and you believe that any content hosted on any Talko Service infringes your copyrights, then you may submit a notification
pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Talko’s Designated Copyright Agent with the following information in writing:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the applicable Talko Service are covered by a single notification, a representative list of such works on the applicable Talko Service;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Talko to locate the material;
Information reasonably sufficient to permit Talko to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”); and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is allegedly infringed by the aforementioned content.”).
12 of 16
- Payments. Cancellation. Final Sale: Any and all payments made to Talko for use andaccess to any Talko Services and Talko Software are final and all charges are nonrefundable. Cancellations are effective the following billing period in which payment is due. You will not receive a refund for any payment amount, even if payment was made for multiple billing periods. If you have an account set up for reoccurring billing, you may cancel your account at any time. You will continue to have the same access for any billing period or periods for which you have paid. If your profile content or your conduct within the Talko Software or Talko Services violates our Terms of Service, your access and account may be immediately terminated and all payments forfeited.
We reserve the right at any time to charge fees for access to portions of the Talko Services, Talko Software or the Talko Services or Talko Software as a whole
18.1) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, without giving effect to any principles of conflicts of
18.2) Jurisdiction. Except as set forth below, you agree that any action at law or in equity arising out of or relating to this Agreement or the Talko Services shall be filed only in the state or federal courts in and for Ontario and you hereby consent and submit
exclusively to the personal jurisdiction of such courts for the purposes of litigating any such action. Nothing in this Agreement shall not prevent Talko from seeking injunctive relief in a
court of competent jurisdiction.
If a dispute arises between you and Talko, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that you will notify
us about any dispute you have with Talko regarding the Talko Service by emailing: Info@Talko.ca
You and Talko agree that we will resolve any claim or controversy at law or equity that arises out of or relates to this Agreement or the Talko Serviceclaim( ”)“ in accordance with this Section 18.3. Notwithstanding anything to the contrary, for any claim where the total amount of the award sought is less than $10,000 USD, the party requesting relief may choose to resolve the dispute through binding non-appearance-based arbitration in
13 of 16
accordance with the following: (a) the arbitration will be provided through a nationally-recognized alternative dispute resolution provider mutually agreed upon by the parties; (b) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (c) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
All claims between you and Talko must be resolved in accordance with this Section
18.3. All claims filed or brought contrary to this Section shall be considered improperly filed. Should you file a claim contrary to this Section, Talko may recover attorneys’ fees and costs up to $1,000, provided that Talko has notified you in writing of the improperly filed claim, and you fail to promptly withdraw the claim. Similarly, should Talko file a claim contrary to this Section, you may recover attorneys’ fees and costs up to $1,000, provided that you have notified Talko in writing of the improperly filed claim, and Talko fails to promptly withdraw the claim. The remedies in this subsection will not limit any other remedies that either party may have in law or in equity.
18.4) Severability, Waiver. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
18.5) Notices. Talko may provide you with notices, including those regarding changes to this Agreement, by email, regular mail or postings on the Talko Services.
18.6) Assignment. This Agreement (including the Guidelines), and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned or transferred by Talko without restriction.
18.7) Survival. Any and all provisions related to or regarding limitation of liability,disclaimers, and indemnification and, specifically, Sections 1, 2, 4, 5, 6, 7, 8, 9.3, 9.5- 9.10, 11 through 19 hereby survive any termination of this Agreement or any termination of your use of or subscription to the Talko Services.
18.8) Headings; Entire Agreement. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The word including means including without limitation. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement or Guidelines made by Talko as set forth in Section 3 above.
14 of 16
18.9) Claims. YOU AND TALKO AGREE THAT ANY CAUSE OF ACTIONARISING OUT OF OR RELATED TO THE TALKO SERVICES MUST
COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18.10) Disclosures. The services hereunder are offered by Talko Inc.
General Inquiries: email@example.com.
Apple App Store Additional Terms and Conditions. The following additional terms and conditions apply to you if you are using a Talko Software from the Apple App Store. To the
extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 19, the more restrictive or conflicting terms and conditions in this Section 19 apply, but solely with respect to Talko Softwares from the Apple
19.1) Acknowledgement: Talko and you acknowledge that this Agreement is concluded between Talko and you only, and not with Apple, and Talko, not Apple, is solely responsible for Talko Software and the content thereof. To the extent this Agreement provides for usage rules for Talko Software that are less restrictive than the Usage Rules set forth for Talko
Software in, or otherwise is in conflict with, the App Store Terms of Service, the more restrictive or conflicting Apple term applies.
19.2) Scope of License: The license granted to you for Talko Software is limited to a non-transferable license to use Talko Software on an iOS Product that you own or control and
as permitted by the Usage Rules set forth in the App Store Terms of Service.
19.3) Maintenance and Support: Talko is solely responsible for providing any maintenance and support services with respect to Talko Software, as specified in this Agreement (if any), or as required under applicable law. Talko and you acknowledge that
Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Talko Software.
19.4) Warranty: Talko is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of Talko's
Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for Talko Software to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to Talko
Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Talko’s sole responsibility.
Talko and you acknowledge that Talko, not Apple, is responsible for addressing any claims of you or any third party relating to Talko Software or your possession and/or use of Talko Software, including, but not limited to: (i) product liability claims; (ii) any claim that Talko Software fails to conform to any applicable legal or regulatory
requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Talko’s liability to you beyond what is permitted by applicable law.
19.6) Intellectual Property Rights: Talko and you acknowledge that, in the event of any
15 of 16
third party claim that Talko Software or your possession and use of Talko Software infringes that third party’s intellectual property rights, Talko, not Apple, will be solely responsible for
the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
19.7) Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
19.8) Developer Name : Talko’s contact information for any end-user
questions, complaints or claims with respect to Talko Software is set forth in Section 18.10.
19.9) Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using Talko Software
19.10) Third Party Beneficiary: Talko and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will
be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE
16 of 16