TERMS OF SERVICE AGREEMENT FOR BETA VERSION OF tuitalk™ SERVICES
Argela-USA, Inc. under the brand tuitalk (“tuitalk”, “us”, or “we”), provides free calling and Short Message Service (SMS) that are offered by tuitalk in a pre-release beta version that has not been tested in all situations (the “Beta tuitalk Services”). The services offered by tuitalk include the Beta tuitalk Services, the beta version of the tuitalk client software (“tuitalk Software”), the website, and any other features, content, or, applications offered from time to time by us in connection with the Beta tuitalk Services and Website (collectively, the “Services”).
This Terms of Service agreement (“Agreement”), together with the tuitalk privacy policy (the “Privacy Policy”) that can be found under Privacy Policy Link of our web page: www.tuitalk.com and that is hereby incorporated by reference, sets forth the legally binding terms for your use of the Services.
BY ACCESSING AND USING THE SERVICES OR THE tuitalk™ SOFTWARE, YOU AGREE TO COMPLY WITH AND BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL PROVISIONS OF THIS AGREEMENT, PLEASE DO NOT USE THE SERVICES OR THE tuitalk™ SOFTWARE.
If you are an individual using the Services on behalf of an entity, you represent and warrant that you have all necessary right and authority to bind such entity to the terms and conditions of this Agreement.
1. THE BETA tuitalk™ SERVICES
1.1 Scope of Services. tuitalk offers you the Beta tuitalk Service solely as defined in and subject to the limitations and restrictions of the applicable service description, available at www.tuitalk.com (the “Service Description”).
1.2 Fees. tuitalk does not charge you any fees for the Beta tuitalk Services, but the tuitalk Software will display advertisements before your call is connected, as set forth in Section 1.3. Please be aware that you need a working online connection and a computer with speakers and a microphone to use the Beta tuitalk Services and that providing these are solely your responsibility.
1.3 Advertisements. In order to provide you with the Beta tuitalk Services free of charge, tuitalk works with third parties (“Advertisers”) that will display advertisements of products and/or services (“Advertisements”) through the tuitalk Software and the Website. Advertisements are provided directly by Advertisers and not by tuitalk.
1.4 Limitations of the Services. You acknowledge that (a) tuitalk is not a Voice-over-IP (VoIP) service provider or telephone carrier and that the call services themselves may be subject to additional terms of the call service operator, (b) the Services should not be used to make emergency telephone calls, (c) the Service may not be available, any (d) the Services may not be provided at any specific level of quality.
2. YOUR ACCOUNT
In order to participate in the Beta tuitalk Services, you must create a Beta tuitalk Services account (“Account”) through the Website.
2.1 Eligibility. By using the Services, you represent and warrant that: (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services does not violate any applicable law or regulation or the terms of this Agreement.
2.2 Password. When you sign up to become a registered user of the Beta tuitalk Services (“User”), you will also be asked to choose a username and a password for your Account. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the Account, nickname, or password of another User at any time. You agree to notify us immediately if you suspect any unauthorized use of your Account or access to your password, and in any case you are solely responsible for any and all use of your Account.
2.3 Term. This Agreement shall remain in full force and effect until your Account is terminated as provided herein. You may delete your Account at any time, for any reason by emailing us at: delete_account@tuitalk.com. tuitalk may terminate your Account if (i) you are in breach of this Agreement; (ii) if tuitalk decides in it sole discretion to stop providing the applicable Services; (iii) if tuitalk ends the beta test of the Beta tuitalk Services; or (iv) for any or no reason, without giving you notice. You understand that any termination of this Agreement and your Account may involve deletion of your Account information from our live databases and all the information stored for such Account. tuitalk will not have any liability whatsoever to you for any termination of your Account or related deletion of you information. We may modify, suspend or discontinue the Services at any time, for any reason, at our sole discretion.
3. PROPRIETARY RIGHTS
3.1 tuitalk Materials; License; Ownership and Restrictions. tuitalk grants you the limited right to display the information and content provided on or through the Services (the "tuitalk Materials") only on your personal computing device, provided that: (1) the tuitalk Materials remain unmodified, and (2) such display is solely for your personal or internal informational use (that is, not distributed or otherwise transmitted outside of your home or company, or otherwise broadcast in any media). This limited license terminates automatically, without notice to you, if you breach this Agreement or upon termination or expiration of your Account and/or this Agreement. Upon termination of this limited license, you agree to immediately destroy any downloaded and/or printed Materials. You acknowledge that all the intellectual property rights in the Services and tuitalk Materials are owned by tuitalk or tuitalk’s licensors; and the intellectual property rights in the Advertisements are owned by the respective Advertiser or such Advertiser’s licensors. Except as expressly set forth herein, you agree not to (a) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the Services or tuitalk Materials; or (b) rent, lease, loan, or sell access to the Services. You acknowledge that, except as expressly provided herein, you have no right, title or interest in or to the Services and tuitalk Materials.
3.2 tuitalk Software. Any computer software which is made available by tuitalk on or through the Services is licensed to you subject to the terms and conditions of its associated license agreement only, unless expressly stated otherwise. You are not authorized to download, install, execute, or otherwise use, any tuitalk Software unless you agree to the terms and conditions of the applicable license agreement.
3.3 Ratings of Advertisements. By rating the Advertisements, you hereby grant us an irrevocable, non-exclusive, fully-paid and royalty-free license to reproduce, prepare derivative works of, distribute, and publicly perform and display such ratings (“Ratings”) for any purpose, including, without limitation, to make it available through the Website to every User of the Beta tuitalk Services and every visitor of our Website (each, a “Visitor”). You should only post ratings that (a) you are comfortable sharing under the terms and conditions set forth herein and (b) that do not violate this Agreement, including, without limitation, the rules regarding acceptable use and conduct set forth in Section 4.
3.4 Profiles. You expressly agree that tuitalk may use your Ratings and information regarding your use of the Services to create and further refine User profiles to further enhance the performance of the Services and to help our Advertisers to provide Users with targeted Advertisements. You furthermore agree that tuitalk may create aggregate information from your Ratings and your use of the Services by removing personally identifiable information, such as names, and to use and disclose such aggregate information in its discretion.
3.5 Feedback. tuitalk may periodically request that you provide, and you agree to provide to tuitalk, feedback regarding the use, operation and functionality of the Services (“Feedback”). Such Feedback will include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features. You hereby assign to tuitalk all rights in the Feedback and agree that tuitalk will have the right to use the Feedback and related information in any manner it deems appropriate.
4. ACCEPTABLE USE AND CONDUCT
You are solely responsible for any use of the Services (including all Ratings that are posted) through your Account and for your interactions with any other User or recipient of the calls you make by using the Beta tuitalk Services.
4.1 Prohibited Use. You will not use the Services (or post any Ratings) in any way that (i) is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (ii) bullies, harasses or advocates stalking, bullying, or harassment of another person; (iii) involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing, or “spamming,”; (iv) is false or misleading or promotes, endorses or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (v) promotes, copies, performs or distributes an illegal or unauthorized copy of another person’s work, whether it is protected by copyright or trade secret law, or not, such as, without limitation, presenting the work of a third party as your own (plagiarism), providing stolen or illegally obtained materials, providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protection devices, or providing pirated music, videos, or movies, or links to such pirated music, videos, or movies, or otherwise infringes other person’s intellectual property rights infringes another person’s intellectual property without a license to do so, whether or not such intellectual property is registered (or filed for registration) in any country; (vi) is involved in the exploitation of persons under the age of eighteen (18) in a sexual or violent manner, or solicits personal information from anyone under the age of eighteen (18); (vii) provides instructional information about illegal activities such as, without limitation, making or buying illegal weapons or substances, violating someone’s privacy, conducting terror acts, or providing or creating computer viruses and other harmful code; (viii) solicits passwords or personally identifying information for commercial or unlawful purposes; (ix) except as expressly approved by us, involves promotions such as contests, sweepstakes, barter, advertising, or pyramid schemes; (x) contains or transmits viruses, Trojan horses, worms, time bombs, or similar software; or (xi) otherwise violates the terms of this Agreement or creates liability for us. You represent and warrant that: (a) you own the Ratings posted by you on the Services or otherwise have the right to grant the license set forth in this Agreement and (b) neither your use of the Services nor your Ratings violates the privacy rights, publicity rights, copyright rights, or other rights of any person.
4.2 Breach. Any use of the Services in violation of this Agreement may result in, among other things, termination or suspension of your rights to use the Services. In order to cooperate with governmental requests, subpoenas or court orders, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including, without limitation, Account information (i.e. name, e-mail address, etc.), IP addressing and traffic information, usage history (including, without limitation, telephone numbers that you have dialed through the Beta tuitalk Services), and posted Ratings.
4.3 Enforcement by Us. We have the right (but not the obligation) to review any Rating and delete (or modify) any Rating that in our sole judgment violates this Agreement or which is represents a prohibited use as set forth in Section 4.1, or may otherwise violate the rights, harm, or threaten the safety of any User, or any other person, or create liability for us, any User, or any other person. We reserve the right (but have no obligation) to investigate and take appropriate legal action in our sole discretion against you if you violate this provision or any other provision of this Agreement, including without limitation, removing the Ratings from the Services (or modifying it), terminating your Account, reporting you to law enforcement authorities, and taking legal action against you.
4.4 Non-Commercial Use; No Disruption. The Services are for the personal use of Users and visitors of our Website only and may not be used to promote any commercial endeavors or to provide any professional services to any third party, except those that are specifically approved in writing by us or in connection with Services expressly designated for commercial use. You will not: (i) cover or obscure any Advertisements, (ii) interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services; or (iii) introduce software or automated agents to the Services or use with the Services so as to make calls or send messages, produce multiple Accounts, generate automated messages, or to strip or mine data from the Services, or the like. You will not attempt to impersonate another User or person, including any of our employees. You will use the Services in a manner consistent with any and all applicable laws and regulations.
5. THIRD-PARTY WEBSITES; ADVERTISEMENTS
The Services may contain links to third-party websites (“Third-Party Websites”) (a) placed by us as a service to those interested in this information; or (b) posted by other users of the Services. The Services will also provide you with Advertisements of the Advertisers. You use all such links to Third-Party Websites and any products and/or services promoted by the Advertisements at your own risk. We do not monitor or have any control over, and make no claim or representation regarding Third-Party Websites or Advertisements. To the extent links are provided by us, they are provided only as a convenience, and such link does not imply our endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Website. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of Third-Party Websites, websites linking to the Website, the Advertisements, or the products and services promoted in the Advertisements. When you leave the Website, our terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Website, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
6. DISCLAIMERS
THE SERVICES ARE SOLELY PROVIDED FOR TESTING AND EVALUATION DURING THE BETA TEST AND ARE PROVIDED “AS-IS” AND AS AVAILABLE. WE EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) THE SERVICES WILL MEET ANY QUALITY SPECIFICATION, OR (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
7. LIMITATION ON LIABILITY
IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR USE OF THE SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO FIFTY U.S. DOLLARS (U.S.$50).
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
8. GENERAL
8.1 Amendments. This Agreement may be modified by us from time to time. If we make material changes to the Agreement, we will notify you at your primary e-mail address, as specified in your Account. You agree that such amended Agreement will be effective ten (10) days after being sent to you, and your continued use of the Services after that time shall constitute your acceptance of the amended Agreement.
8.2 Release. To the maximum extent permitted by applicable law, you hereby release, and waive all claims against tuitalk and its employees and agents from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising out of or in any way connected with (a) any interaction and communication with any person or entity through your use of the Services and (b) the products and services promoted in the Advertisements. If you are a California resident, you waive your rights, whether known or unknown, under California Civil Code § 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations similarly waive their rights under applicable and/or analogous laws, statutes, or regulations.
8.3 Survival. The provisions under Sections 2.3, 3, 4, 5, 6, 7, and 8 will survive termination of this Agreement for any reason.
8.4 Indemnity. You agree to indemnify and hold us, our subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Services in violation of this Agreement and/or arising from your breach of any provision of this Agreement.
8.5 U.S. Export Controls. No software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. By downloading or using any software, you represent and warrant that such download or use is not in violation of any such law.
8.6 Governing Law and Arbitration. This Agreement shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state courts and federal courts located within the State of California for the purpose of litigating all such claims or disputes. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction.
8.7 Other. This Agreement is accepted upon your use of the Services or by registering to be a user. This Agreement constitutes the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Please contact us with any questions regarding this Agreement by e-mailing us at: info@tuitalk.com. If you are a California resident, you may report complaints about the Services to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
8.8 Copyright/Trademark Information. Copyright © 2008, tuitalk. All rights reserved. The trademarks, logos and service marks ("Marks") displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
Last updated: February 2008
