Thank you for your consideration of iTalk Cloud Solutions products. All purchases of iTalk Cloud Solutions products are governed by terms and conditions. Please select your iTalk Cloud Solutions product link below for the applicable terms and conditions. Again, thank you for choosing iTalk Cloud Solutions.
IMPORTANT—READ CAREFULLY: These terms and conditions and license agreement (collectively, “Agreement”) is between you, your end users (hereafter “you”, or “Customer”) and ITalk Cloud Solutions, Inc. (“ITalk Cloud Solutions”) for the ITalk Cloud Solutions* products and services identified on the Quote or Order, which may include software, telephone and other equipment, certain telecommunications services, associated hosted online services, media, printed materials, and online or electronic documentation (collectively, the “Product(s)”). These terms and conditions cover any add-on Orders derived from your initial Order. By agreeing to purchase the Product, you acknowledge and represent that you have read, understand, have the legal capacity to, and hereby agree to be legally bound by this Agreement.
1.1 Subject to section 4 herein, Customer agrees to purchase the Product at the plan/rates indicated on the Quote/Order (that certain document to which Customer has agreed and accepted, either by electronic or physical signature which contains a detailed description of Customer’s ordered Product) (“Initial Contract Term”), payable in accordance with the payment schedule in the Quote/Order. If Customer’s Quote/Order does not indicate the Initial Contract Term, it shall be one (1) year. The Initial Contract Term may start up to 10 days from date of Order to allow for Product start-up; such date to be given to Customer by ITalk Cloud Solutions. After the Initial Contract Term, this Agreement shall automatically renew for the same term length as the Initial Contract Term (“Term(s)”) unless the Customer cancels the Product in accordance with section 1.2 below. Customer acknowledges that the rates indicated on the Quote/Order are dependent on the plan and payment schedule initially chosen by Customer. During the Initial Contract Term or any Term thereafter, should Customer choose to reduce/modify seats (licenses) or Product features, ITalk Cloud Solutions may adjust the rates for Customer’s Product for the remainder of the Initial Contract Term or any Term thereafter.
1.2 End of term cancellation. Customer may terminate the Product by providing thirty (30) days written notice prior to the end of the Initial Contract Term or next renewal Term to billing@iTalk Cloud Solutions.com.
2.1 If Customer has chosen to LEASE Equipment from ITalk Cloud Solutions for use with the Product (subscription service), ITalk Cloud Solutions will provide to Customer (during the Initial Contract Term or Term(s)) certain equipment, including but not limited to telephone handsets, components, cables, manuals and documents, routers and other network equipment (the “Equipment”) for use in Customer’s business sites. Provided Equipment may be new, like-new, or refurbished, and is the property of ITalk Cloud Solutions. ITalk Cloud Solutions will provide replacement Equipment during the term of the Agreement on the following basis:
2.1.1 Any Equipment which is not performing to original manufacturer specifications will be replaced by ITalk Cloud Solutions with like equivalent that will be in a like new or refurbished condition, subject to the following limitations. ITalk Cloud Solutions shall have the right to reject any request for replacement Equipment where the returned Equipment has failed due to Customer’s reckless or, in ITalk Cloud Solutions’s sole discretion, unreasonable use. Further, ITalk Cloud Solutions may decide in its sole discretion to reject any request for replacement Equipment where Customer is not acting in good faith, or where the Customer has a history of excess failures or requests for replacement.
2.1.2 Shipping Costs: ITalk Cloud Solutions will pay for return and replacement shipping for any Equipment failures that are due to manufacturer defects or otherwise through normal business use of the Equipment. ITalk Cloud Solutions will not be responsible for the shipping costs to and from Customer site for Equipment which has failures caused through accidental damage or lack or reasonable care, should replacement terms be agreed to between ITalk Cloud Solutions and Customer. Customer should ship via certified mail or retain tracking information when returning Equipment. ITalk Cloud Solutions will not assume liability for lost or missing return shipments without a proof of delivery from the carrier used.
2.1.3 RMA Process: Customer must contact ITalk Cloud Solutions to obtain a Return Material Authorization Number (“RMA Number”) before taking any return or replacement action. No return of Equipment will be accepted by ITalk Cloud Solutions without an RMA Number obtained from ITalk Cloud Solutions. All returned Equipment must be shipped clearly marked with an RMA Number, and be accompanied by a complete description of the nature of the defect. All Equipment must be returned as originally provided by ITalk Cloud Solutions. Missing Equipment items may incur further charges or, if applicable, less of a refund.
2.2 If Customer has chosen to PURCHASE Equipment from ITalk Cloud Solutions (per Quote/Order) for use with the Product, such Equipment shall have a one (1) year replacement warranty as follows:
2.2.1 Any equipment which is not performing to original manufacturer specifications will be replaced by ITalk Cloud Solutions with like equivalent equipment (new, like new, or refurbished condition). ITalk Cloud Solutions shall have the right to reject any request for replacement equipment where the returned Equipment has failed due to Customer’s reckless or, in ITalk Cloud Solutions’s sole discretion, unreasonable use. Further, ITalk Cloud Solutions may decide in its sole discretion to reject any request for replacement equipment where Customer is not acting in good faith, or where the Customer has a history of excess failures or requests for replacement;
2.2.3 Shipping Costs. See 2.1.2 above;
2.2.4 RMA Process. See 2.1.3 above.
2.3 Unless provided through a separately purchased support agreement (section 7) or equipment manufacturer warranty, no warranty is provided by ITalk Cloud Solutions after the one (1) year limited warranty. All other obligations of ITalk Cloud Solutions to provide warranty repair or replacement shall terminate at the end of the one (1) year limited warranty.
2.4 Equipment that is lost or stolen while in the care, custody and control of Customer shall not be replaced by ITalk Cloud Solutions in the manner described above and ITalk Cloud Solutions shall have no liability for such Equipment. In such instances, Customer will need to procure replacement Equipment from ITalk Cloud Solutions at the then current ITalk Cloud Solutions retail price. The occurrence of lost or stolen Equipment does not extinguish Customer’s obligations in this Agreement.
2.5 ITalk Cloud Solutions shall extend to Customer, on a ‘pass through’ basis, any warranty provided by the manufacturer of any purchased equipment to the extent permissible. ITalk Cloud Solutions may assist Customer with such pass-through warranty service at ITalk Cloud Solutions’s discretion. ITalk Cloud Solutions may require a security deposit, pre-payment or prior return of any products or components covered under such a pass-through warranty. ITalk Cloud Solutions reserves the right to reject any returned products or components which it determines not to be covered under a pass-through warranty, beyond the limited warranty period, not purchased from ITalk Cloud Solutions, or with damage resulting from misuse or other actions not covered under the manufacturer’s warranty. Such equipment will be returned to the Customer at the Customer’s expense.
2.6 The Product is intended for use with ITalk Cloud Solutions-provided or ITalk Cloud Solutions-certified equipment only. ITalk Cloud Solutions reserves the right to terminate or suspend the Product or service if other equipment is used by Customer without prior written approval by ITalk Cloud Solutions.
3. 911 & PRODUCT LIMITATIONS
3.1 The e911 service provided by ITalk Cloud Solutions works differently than traditional wire line 911 emergency services. These characteristics may make e911 services unsuitable for some customers. For example, Customer should not expect mobile or nomadic ITalk Cloud Solutions VoIP-enabled devices or applications to provide automatic location identification (“ALI”) technology that would assist first responders in identifying Customer’s location in the event of an emergency. For this reason, ITalk Cloud Solutions recommends Customer always maintain an operational and accessible alternative phone service, such as traditional wire line or cellular wireless service, to make calls to traditional 911 or e911.
Customer acknowledges that it is Customer’s responsibility to determine the technology or combination of technologies best suited to meet Customer’s emergency calling needs, and to make the necessary provisions for access to emergency calling services.
3.2 e911 Considerations:
3.2.1 Limited Availability. Customer acknowledges that the Product, including e911 service, will not function in all conditions, including but not limited to the following:
Absence of Electrical Power. If there is a power outage, Customer may be required to reset or reconfigure the Equipment before being able to use the Product and e911 service.
Internet Access. The Product and e911 service will not function if there is an interruption of Customer’s broadband or high-speed internet access service.
Configuration and Availability. Customer’s e911 service will not function if Customer’s phone fails or is not configured correctly or if the Product is not functioning for any reason, including suspension or disconnection of Product because of billing or other issues.
Network Issues. Due to technical factors in network design, and in the event of network congestion on the ITalk Cloud Solutions network, there is a possibility that an e911 call will produce a busy signal or will experience unexpected answering wait times and/or take longer to answer than standard 911 calls placed via traditional, legacy, circuit-switched telephone networks.
Non-Voice Systems. The Product and e911 service may not function with out-dialing systems including home security systems, medical monitoring equipment, TTY equipment, and entertainment or satellite television systems. Customer has no claim against ITalk Cloud Solutions for interruption or disruption of such systems by the Product, including e911 service.
3.2.2 Cost. ITalk Cloud Solutions passes through to Customer a mandatory e911 service fee of $25 per use to cover the costs associated with providing this service. This fee will be charged to Customer for each occurrence.
3.3 Physical Location. Customers who subscribe to e911 service will be required to register the physical location of their Equipment with ITalk Cloud Solutions, and agree to update the location whenever the physical location of their Equipment changes. Administrative options in the Product’s online control panel allows you to modify an emergency response address for your main office location, alternate locations, or even down to a specific DID. It is Customer’s responsibility to verify each of these emergency response addresses to ensure first responders are able to assist Customer in case of an emergency. Customer acknowledges that the only mechanism for routing e911 calls to the correct emergency call taker is the physical location(s) currently registered for the account. There may be some delay before the automatic number and location information is passed to the local emergency service operator.
In the event that the physical location has not been updated or is not complete, ITalk Cloud Solutions may attempt to route an e911 call based upon the bill-to or ship-to addresses associated with the customer’s account or initial Order.
3.4 Warning Labels. ITalk Cloud Solutions will provide Customer with warning labels regarding the limitations or unavailability of e911 service. Customer agrees to place a label on and/or near each telephone or other Customer premise equipment on which the services may be utilized. Customer should apprise guests, home service and care providers about the limitations set forth on the warning labels relating to the e911 service and inform them of alternative means of accessing e911 or traditional 911 services, such as traditional wire line or cellular wireless service.
3.5 911 Acknowledgement: Customer acknowledges and accepts that the Product does not support 911 emergency dialing or other emergency functions in the same way that traditional wire line 911 services operate. The differences are detailed in this section and you agree to notify any potential user of the services, who may place calls using your telephone/communication system(s), of the e911 limitations described herein. Customer hereby acknowledges that it has been advised of the circumstances under which e911 service may not be available or may be limited in comparison to traditional 911 emergency dialing.
CUSTOMER SHOULD MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING e911 or TRADITIONAL 911 SERVICES.
Please note that if you have not chosen ITalk Cloud Solutions to provide your telecommunications services or “voice”, your telecommunications service provider is responsible for compliance with e911 services. Depending on your specific installation and service provider, your product installation may not send and receive e911 calls reliably, and may not pass correct location information to emergency services. It is the responsibility of you and your telecommunications service provider to ensure compliance with all local codes, and to inform users of any limitations or issues regarding 911 use. ITalk Cloud Solutions is not liable for any resulting damages related to 911 use.
4. BILLING & PAYMENTS
4.1 Orders. Customer’s signature (electronic or physical) of a Quote is a non-cancellable Order by Customer for Product. Orders are not binding until accepted by ITalk Cloud Solutions, in its sole discretion. All Orders and/or shipments shall be FOB ITalk Cloud Solutions.
4.2 Payment by Credit Card Only. All Orders require a valid credit card number (“Credit Card”). Customer authorizes ITalk Cloud Solutions to charge the Credit Card for all fees and charges arising from Customer’s use of the Product. Customer agrees to notify ITalk Cloud Solutions of any change to the Credit Card information including, but not limited to, changes in account number, expiration date or billing address. ITalk Cloud Solutions shall not be responsible for any damages resulting from cancellation of Product arising from unreported changes to Credit Card information, credit limitation or other inability to charge the Credit Card.
4.3 All purchases related to the Product contained in the Order, including but not limited to activation fees, service fees and shipping charges are non-refundable. Upon receipt of an Order from Customer that is accepted by ITalk Cloud Solutions, we will begin the process of setting up the ordered Product for you. Therefore, once an Order has been placed, and accepted by ITalk Cloud Solutions, no refund will be given of any activation fees, setup charges, or other fees incurred, regardless of whether or not such Product was used.
4.4 Customer acknowledges and agrees that the Product is provided “AS IS”, as described in section 10. Credit allowances for interruption of Product is not required or warranted and shall be provided at the sole discretion of ITalk Cloud Solutions.
4.5 From time to time in its sole discretion, ITalk Cloud Solutions may offer promotions or discounts of activation or other fees. Customer shall not be entitled to a subsequent credit for such promotions or discounts, if not available and/or issued at the time of purchase.
4.6 Billing. ITalk Cloud Solutions will bill all fees and charges (described below) to Customer’s Credit Card on file.
4.6.1 Monthly Recurring Fees. Monthly service fees including any associated taxes and fees are paid in advance of each month’s service.
4.6.2 Non-Recurring Charges. Toll charges (as defined in section 4.9), and any other applicable charges which may include, but are not be limited to, usage charges, fax charges, activation fees, shipping charges, disconnection fees, equipment charges, cost recovery, and any other applicable charges, are billed subsequent to the end of each month’s service. The Credit Card will be charged prior to the end of the month if at any time Customer’s cumulative Non-Recurring Charges exceed two hundred fifty dollars ($250.00). The Credit Card will be charged for any additional Non-Recurring Charges at the end of the month.
4.6.3 Add-on Orders. Any additional Orders, software or licenses added after the commencement of Product will be billed pro-rata for the initial month.
4.7.1 By Customer. If payment cannot be charged to the Credit Card for any reason then, without any notice to Customer, ITalk Cloud Solutions reserves the right to either suspend or terminate Customer’s access to and/or use of the Product and to terminate this Agreement. Delinquent payments are subject to a late-payment charge of the greater of 1.5% of the outstanding balance, or the maximum amount allowed by law, whichever is higher. ITalk Cloud Solutions shall not be responsible for any third party costs incurred by Customer for exceeding credit limit, insufficient funds or other reasons. An activation fee may be imposed prior to reinstatement of any Product.
4.7.2 By Reseller. If Customer purchased the Product through a ITalk Cloud Solutions reseller and paid any amount to reseller for the Product or products/services related to the Product, reseller shall remit to ITalk Cloud Solutions the required amounts due for Customer’s Product. At any time, should Customer’s reseller not remit amounts due to ITalk Cloud Solutions for the Product or products/services related to the Product, ITalk Cloud Solutions may notify reseller and Customer of the non-payment breach and upon ITalk Cloud Solutions’s reasonable discretion, require that Customer cause it’s account to become current with ITalk Cloud Solutions and require Customer to become a direct Customer of ITalk Cloud Solutions by accepting ITalk Cloud Solutions’s terms and conditions for the Product. Customer shall hold ITalk Cloud Solutions harmless in such events and seek redress from the reseller for amounts not paid by reseller to ITalk Cloud Solutions (or applicable 3rd party). ITalk Cloud Solutions shall not be liable to Customer for any reseller non-performance that may cause Customer’s ITalk Cloud Solutions Product/account to be suspended or terminated due to reseller non-performance.
4.8 Taxes and Fees
4.8.1 Taxes. Amounts contained in the Quote may not include any customs duties, sales, use, value added, excise, federal, state, local, public utility, universal service or other similar taxes. All such taxes shall be paid by Customer and will be added to any amounts otherwise charged to Customer, and Customer will be liable for and will pay in full all such amounts.
4.8.2 e911. All Customers (where ITalk Cloud Solutions provides the voice) are required to subscribe to ITalk Cloud Solutions’s e911 service and will be subject to a monthly e911 service charge. The monthly e911 service fee shall be included in the applicable business plan charges for the associated line and Customer shall reimburse ITalk Cloud Solutions for the direct costs it incurs in providing e911 service, including state, county and municipal e911 surcharges, e911 automatic location information (ALI) database storage, line information database and caller id (LIDB/CNAM) expenses, and any other taxes or surcharges directly or indirectly associated with the provision of e911 service. ITalk Cloud Solutions reserves the right to adjust the level of charges associated with the provision of e911 service to reflect increases or decreases in the costs ITalk Cloud Solutions incurs. Other fees may apply for usage of e911 service as outlined in section 3 herein.
4.8.3 Onsite Installation. If onsite installation was purchased (see Order or Estimate), Customer shall also be responsible for reasonable and customary travel and travel-related expenses (“T&E costs”). T&E costs are not included in the onsite installation fee and shall be charged to the Credit Card (or invoiced) upon completion of installation.
4.9 Toll Charges. Every call to or from Equipment using the Product that originates or terminates in the Public Switched Telephone Network (“PSTN”), including other VoIP networks and inbound toll free number calls to Customer’s toll free number (if applicable), is considered a Toll Call. The duration of each call is to be calculated in one-minute increments and rounded up to the nearest one-minute increment for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. Subject to section 4.11 and section 5 below, Customers who are on an Unlimited Plan (defined below) shall not be charged for telephone calls to inclusive countries. The current list of inclusive countries (and related exclusions to the types of call covered) can be found athttp://www.iTalk Cloud Solutions.com/legal/international-service.html. As noted therein, certain types of calls, including but not limited to mobile phones and premium rate phones, will not be included in the unlimited calls program, and will be billed in accordance with section 4.10.
4.10 International rates. When Customer dials an international PSTN phone number or mobile phone number, charges may apply regardless of whether the party on the other line answers the call. Calls made by a Customer to an international mobile or premium rate international telephone number may result in higher toll charges. International rates vary by destination country, city, and band, and are subject to change by ITalk Cloud Solutions from time-to-time without prior notice. You will be charged for all calls to any international destination, excluding inclusive countries, in full-minute increments at ITalk Cloud Solutions’s then-current rate as posted at http://www.iTalk Cloud Solutions.com/legal/rates.html. Note that certain limitations apply to Customer’s ability to place calls to certain international destinations and types of phones, including but not limited to, satellite phones. Contact billing@iTalk Cloud Solutions.com for details or to make arrangements to pre-pay for such services.
4.11 Price Changes and other Modifications. Changes to charges, fees or taxes for the Product (other than international calling rates which are updated from time to time at http://www.iTalk Cloud Solutions.com/legal/rates.html) are effective after 10 days’ notice has been sent to Customer via email to the authorized email address for Customer’s account. ITalk Cloud Solutions may decrease prices without providing advance notice.
4.12 Customer must dispute mistakes in charges, fess or taxes in writing within thirty (30) days of the date of the charge, fee or tax by ITalk Cloud Solutions. After thirty (30) days from the date of the charge, fee or tax, Customer waives any objection and further recourse. Written statements disputing charges must be sent to: billing@iTalk Cloud Solutions.com . The existence of a validly filed dispute shall in no way relieve Customer of its obligation to pay all amounts billed by ITalk Cloud Solutions, including any disputed amounts.
5. REASONABLE USE, PROHIBITED USE, AND FRAUD (HOSTED)
5.1 Reasonable Business Use. Any of ITalk Cloud Solutions’s Products that offer unlimited minutes of PSTN calls (“Unlimited Plans”) are for reasonable business use of Customer only. Activities such as: autodialing, continuous or extensive call forwarding, use of virtual extensions for regular business use, continuous connectivity, fax broadcast, fax blasting, unlawful or unauthorized telemarketing, junk faxing, fax spamming, calling/faxing any person (through the use of distribution lists or otherwise) who has not given specific permission to be included in such a process, AND where Customer’s average outbound minutes per user (defined as the total number of outbound minutes used by Customer divided by the number seats/licenses purchased by Customer) exceed 1500 minutes a month, are NOT Reasonable Business Use as intended for the Product. If ITalk Cloud Solutions determines that Customer use of the Product is not within the scope of Reasonable Business Use, ITalk Cloud Solutions reserves the right to invoice Customer for any additional users or usage (including the right to charge Customer’s Credit Card) at the then current per-minute rate and/or to terminate or modify the terms of Customer’s Product.
5.2. Prohibited Use. Any use of the Product or any other action that causes a disruption in the network integrity of ITalk Cloud Solutions or its vendors, whether directly or indirectly, is strictly prohibited and may result in termination of the Product at the sole discretion of ITalk Cloud Solutions. Customer understands that neither ITalk Cloud Solutions nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Product. Customer agrees that it will NOT use the Product in ways that violate any law or regulation (including but not limited to laws prohibiting transmission of unsolicited fax advertisements), infringe the rights of others, or interfere with the users, services, or equipment of the network. Customer shall not transmit through the Product any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Customer further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Any use found to be inconsistent with this restriction will result in termination of the Product. Customer agrees and represents that it is purchasing the Product for its own internal use. Customer shall not sell, resell, transfer or assign, or make a charge for the Product without the advance written permission of ITalk Cloud Solutions.
5.3. Fraud: It is the express intention of the parties that Customer, and not ITalk Cloud Solutions, shall bear the risk of loss arising from any unauthorized or fraudulent usage of the Product. ITalk Cloud Solutions reserves the right, but is not required, to take any and all action it deems appropriate (including blocking access to particular calling numbers or geographic areas) to prevent or terminate any fraud or abuse in connection with the Product, or any use thereof, provided, however, that any such action shall be consistent with applicable federal and state laws, rules, and regulations and provided further that the failure to take any such action shall not limit Customer’s responsibility for all usage of the Product.
6. TELEPHONE NUMBER.
6.1 Ownership. Any telephone number provided by ITalk Cloud Solutions (a telephone number brought to ITalk Cloud Solutions from Customer not included) to the Customer (“Number”) shall be available for Customer’s use of the Product during the term of this Agreement. ITalk Cloud Solutions reserves the right to change, cancel or move the Number at its sole discretion. Where customer wishes to port in telephone number(s) for use with the Product, Customer should NOT cancel service with the current/previous service provider(s) until ITalk Cloud Solutions confirms to Customer that the numbers have been successfully ported to ITalk Cloud Solutions. Customer is responsible for the timely termination of all services with current/previous service provider and the settlement of any charges owed to their current/previous service provider. Additionally, Customer is responsible for the verification that the Number(s) provided to Customer meet the necessary requirements of Customer (i.e., such Number will be considered a local number to Customer in Customer’s area or such number is sufficiently different from a customer competitor’s number, etc.). ITalk Cloud Solutions will reasonably accommodate Customer with a particular number selection, prefix or sequence, as available and able to accommodate. ITalk Cloud Solutions accepts no responsibility or liability in the number ultimately issued or selected for the Product.
6.2 Listing. Additionally, Customer’s Number will likely NOT be listed in any local or regional telephone book unless Customer has taken independent steps to pay for telephone number or business advertisement. Numbers associated with the Product are not utilized with a traditional wire line/carrier. ITalk Cloud Solutions makes no warranty and accepts no responsibility or liability for Customer’s Number(s) NOT being listed in telephone books or other directories.
6.3 Porting. Customer’s porting away of a telephone number does not extinguish Customer’s obligations and/or limitations under this Agreement, including the notice requirements in sections 1 and 8.
7. SUPPORT AND SCHEDULED MAINTENANCE
7.1 Support. ITalk Cloud Solutions support for the Product is described at www.iTalk Cloud Solutions.com/supportterms.
7.2 Scheduled Maintenance. From time-to-time, ITalk Cloud Solutions performs maintenance to update servers and software that are part of the Product. ITalk Cloud Solutions performs scheduled maintenance between 8:00 pm to 2:00 am PST/PDT every Tuesday and Thursday. ITalk Cloud Solutions may, in certain circumstances, need to perform maintenance at other times. At any time that ITalk Cloud Solutions is required to perform emergency or un-planned maintenance, ITalk Cloud Solutions will make reasonable efforts to notify the account contact that has been listed by the Customer under the “Options” tab of Customer’s online administrative control panel or via email to such Customer email address on file. However, at times, emergency or un-planned maintenance may have to be done before ITalk Cloud Solutions can give any notice to Customer. In any event, ITalk Cloud Solutions will not be liable (under this Agreement or any uptime service agreement) for service interruptions where maintenance is prudent to perform.
8.1 By Customer. Customer may terminate this Agreement in accordance with section 1 of this Agreement. Customer is responsible for Termination Charges, and all Product related charges, including usage, until the termination date. In the event of an unauthorized cancellation or abandonment of service by the customer in the Initial Contract Term, Customer shall remain liable for the Monthly Recurring Fee and any applicable taxes, fees or charges, for the remainder of the Initial Contract Term plus the retail price of the Equipment (if leasing), if not returned utilizing a valid RMA Number described below.
8.2 By ITalk Cloud Solutions. ITalk Cloud Solutions reserves the right, at its sole discretion, to suspend or terminate the Product without advanced notice for Customer’s breach of this Agreement or Support Terms (including misuse of the Product), Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer that adversely affects the Product or the ITalk Cloud Solutions network/customer base, or upon the conclusion of the Initial Contract Term or other Term. ITalk Cloud Solutions reserves the right to determine, at its sole discretion, what constitutes misuse of the Product and Customer agrees that ITalk Cloud Solutions’s determination is final and binding on Customer. ITalk Cloud Solutions may charge an activation fee to reactivate a terminated service. Additionally, in the event of early termination during the Initial Contract Term due to a Customer breach, Customer shall remain fully obligated for the payment of all taxes, fees, and charges for Product ordered for the remainder of the Initial Contract Term.
8.3 Termination Charges. Upon Termination (a timely termination as described in section 1), in addition to any outstanding balance incurred or due on your account, Customer shall pay the full amount of the monthly recurring charges for the terminated Product for the month of the effective termination (regardless of whether the termination date is mid-billing cycle), in addition to any additional charges incurred under this Agreement. You agree that ITalk Cloud Solutions may charge such unpaid balance to the Credit Card.
8.4 Liability after Termination. Termination or expiration of this Agreement will not extinguish Customer’s obligations or liability arising prior to such termination or expiration. Notwithstanding, and after the effective date of any termination, ITalk Cloud Solutions shall not be liable to Customer for any obligations under this Agreement, including continued provision of Product.
8.5 Return of ITalk Cloud Solutions Equipment (leased). Within fourteen (14) business days of termination of the Product for any reason or expiration of Product, Customer shall return the Equipment at Customer’s expense utilizing a valid RMA Number, and in accordance with the return and shipping requirements described in section 2.1.3 herein. The Equipment must be returned to ITalk Cloud Solutions in good working order. If the Equipment is not received within fourteen (14) business days of termination or expiration of Product and as required herein, Customer’s credit card will be charged for the current full list value of such Equipment.
Additionally the Customer shall delete all ITalk Cloud Solutions software. For return of Equipment after fourteen (14) business days from the RMA Number issue date, please contact ITalk Cloud Solutions prior to shipment. Any late return of Equipment agreed to by ITalk Cloud Solutions will be subject to a 30% (of Equipment list value) restocking fee.
9.1 CUSTOMER. CUSTOMER AGREES TO RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS ITALK CLOUD SOLUTIONS, AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, VENDORS AND CONTRACTORS (“INDEMNIFIED PARTY” OR “INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, INJURIES AND JUDGMENTS (INCLUDING RELATED COSTS AND EXPENSES AND REASONABLE ATTORNEY’S FEES AND OTHER LITIGATION EXPENSES) (“CLAIM” OR “CLAIMS”) INCURRED BY THE INDEMNIFIED PARTY(IES) ARISING OUT OF OR RELATING TO CUSTOMER’S (A) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT, OR (B) MISUSE OF THE PRODUCT. FURTHER, CUSTOMER AGREES TO RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS INDEMNIFIED PARTY(IES) FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIM(S) RELATED TO THE FAILURE OR OUTAGE OF THE PRODUCT, INCLUDING THOSE RELATED TO E911 SERVICE.
9.2. ITalk Cloud Solutions.
9.2.1 ITalk Cloud Solutions shall defend Customer, and its officers, directors and employees, against any third party action alleging that the Product infringe(s) any valid U.S. patent or copyright, and ITalk Cloud Solutions shall pay all settlements entered into, and all costs (including reasonable attorneys’ fees) in connection with such action. If any Product, or parts thereof, becomes, or in ITalk Cloud Solutions’s opinion may become, the subject of an infringement claim, ITalk Cloud Solutions may, at its option, (a) procure for Customer the right to continue using such Product, (b) modify or replace such Product with substantially equivalent non-infringing products, or (c) require the return of such Product and refund to Customer a pro-rata portion of the purchase price of such Product based on a three-year straight line amortization of the purchase price.
9.2.2 ITalk Cloud Solutions shall have no indemnification obligations with respect to any third party action alleging that the use of any Product, or any part thereof, in combination with products not supplied by ITalk Cloud Solutions infringes any third party intellectual property right provided that the infringement is (a) due solely to the combination and use of such products together, if the use of the Product independent of any product not supplied by ITalk Cloud Solutions would not have given rise to the claim; or (b) Customer is advised by ITalk Cloud Solutions either directly or by means of Documentation, marketing or other published materials that the use of ITalk Cloud Solutions Product in tandem with such products represents a risk of infringement; and (c) Customer combines and uses such products with ITalk Cloud Solutions’s Product in contravention of ITalk Cloud Solutions’s disclaimer.
9.2.3 ITalk Cloud Solutions’s indemnification obligations pursuant to this section 9 shall be subject to the indemnified party (a) notifying the indemnifying party promptly in writing of such action, (b) giving the indemnifying party exclusive control and authority over the defense or settlement of such action, (c) not entering into any settlement or compromise of any such action without the indemnifying party’s prior written consent and (d) providing all reasonable assistance to the indemnifying party (provided that the indemnifying party reimburses the indemnified party for its out-of-pocket expenses incurred in providing such assistance).
10. DISCLAIMERS AND LIMITATION OF LIABILITY
10.1 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ITALK CLOUD SOLUTIONS PROVIDES THE PRODUCT “AS IS” AND WITH ALL FAULTS. ITALK CLOUD SOLUTIONS HEREBY EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER REMEDIES, WARRANTIES, GUARANTEES, OBLIGATIONS, REPRESENTATIONS AND LIABILITIES, EXPRESS OR IMPLIED, ARISING IN FACT, LAW, EQUITY, CONTRACT, TORT, UNDER STATUTE, UNDER WARRANTY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) ANY IMPLIED WARRANTY OR CONDITION ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE, (C) ANY OBLIGATION, LIABILITY RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, CONTRIBUTORY NEGLIGENCE, VICARIOUS LIABILITY OR STRICT PRODUCTS LIABILITY OF ITALK CLOUD SOLUTIONS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND REPRESENTATIVES, AND (D) ANY OBLIGATION, LIABILITY OR RESPONSIBILITY FOR LOSS OF PRODUCT OR DAMAGE TO ANY EQUIPMENT OR PART THEREOF, OR ANY PRODUCT DELIVERED OR PROVIDED UNDER THIS AGREEMENT OR THE ORDER. FURTHER, ITALK CLOUD SOLUTIONS DOES NOT WARRANT THAT THE PRODUCT WILL BE UNINTERRUPTED, FREE OF BUGS, ERRORS, VIRUSES OR OTHER DEFECTS, CYBERSECURITY ATTACKS, POWER OR INTER-RELATED OUTAGES, OR THAT THE PRODUCT WILL BE COMPATIBLE WITH CUSTOMER’S EXISTING INTERNET CONNECTION, NETWORK, OR COMMUNICATIONS INFRASTRUCTURE OR ENVIRONMENT.
10.2 DISCLAIMER OF CERTAIN DAMAGES. IN NO EVENT WILL ITALK CLOUD SOLUTIONS OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, VENDORS AND CONTRACTORS BE LIABLE FOR THE COST OF COVER OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, INFORMATION, REVENUE, PROFIT OR BUSINESS) ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE PRODUCT OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO PLACE OR RECEIVE ANY TELEPHONE CALLS TO ANY PARTY OR SERVICE RELATING TO ANY KIND OF EMERGENCY OR EXIGENT CIRCUMSTANCES, WHETHER ARISING IN FACT, LAW, EQUITY, CONTRACT, TORT (INCLUDING NEGLIGENCE AS DESCRIBED ABOVE), STRICT LIABILITY, UNDER STATUTE, UNDER WARRANTY OR OTHER THEORY EVEN IF ITALK CLOUD SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 LIMITATION OF LIABILITY. WITHOUT LIMITING THE FOREGOING, ITALK CLOUD SOLUTIONS’S (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND REPRESENTATIVES) LIABILITY ARISING OUT OF OR RELATING TO THE PRODUCT, THIS AGREEMENT IS LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE PRODUCT REGARDLESS OF THE AMOUNT OF DAMAGES CUSTOMER MAY INCUR AND WHETHER SUCH DAMAGES ARISE IN FACT, LAW, EQUITY, CONTRACT, TORT (INCLUDING NEGLIGENCE AS DESCRIBED ABOVE), STRICT LIABILITY, UNDER STATUTE, UNDER WARRANTY OR OTHER THEORY. FURTHER, CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ITALK CLOUD SOLUTIONS (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND REPRESENTATIVES) WILL NOT BE LIABLE FOR ANY PRODUCT OUTAGE, INCLUDING E911 SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING THE PRODUCT OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE E911 DIALING CHARACTERISTICS, REQUIREMENTS, AND LIMITATIONS SET FORTH IN THIS AGREEMENT.
10.4 Disclaimer of Third Party Actions and Control (including your selected carrier). ITalk Cloud Solutions does not and cannot control the flow or quality of data to or from the network and other portions of the Internet. Such flow depends in large part on the performance of Internet services selected by you and provided or controlled by third parties. At times, the quality of carrier, and/or the actions or inactions caused by third parties can produce occurrences in which Customer’s Product and/or connection to the Internet (or portions thereof) may be impaired or disrupted.
10.5 Security and Fraud Prevention. ITalk Cloud Solutions maintains fraud and security monitoring protocols. However, ITalk Cloud Solutions cannot and does not warrant complete security and fraud prevention of its Product, including any server, equipment or the ITalk Cloud Solutions network. Accordingly, ITalk Cloud Solutions disclaims any and all liability resulting from or related to data breaches, unauthorized intrusions or access and related security events.
10.6 Disclaimer Regarding Voicemail Transcription (if feature is provided as part of Customer Product selection). ITalk Cloud Solutions is not responsible for external communications received through ITalk Cloud Solutions’s voicemail transcription service. ITalk Cloud Solutions does not control the content and is therefore not responsible for any errors or omissions in any transcription content provided. Some voicemail messages may be mis-transcribed. This may occur because of poor dictation, noisy environment, poor phone connection or drop-outs, language, or simple transcription error. Accordingly, ITalk Cloud Solutions disclaims any and all liability resulting from or related to mis-transcription and you agree to hold ITalk Cloud Solutions harmless in such events.
10.7 Disclaimer Regarding Call Recording (if feature is provided as part of Customer Product selection). The call recording feature of the Product is provided to Customer “as is” with no proscription or restriction(s) of its use by Customer. Customer is responsible and liable for legal compliance of “call recording,” such as lawful use and requisite notice to employees, agents or third parties. ITalk Cloud Solutions shall not be liable to Customer or third party(s) involving “call recording” feature(s) of the Product, as selected by Customer. Accordingly, ITalk Cloud Solutions disclaims any and all liability, claims, or damages resulting from or related to call recording and you agree to hold ITalk Cloud Solutions harmless in such events.
The foregoing disclaimers and limitation of liability will apply to the maximum extent permitted by applicable law. The laws of some states/jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of certain damages. To the extent that those laws apply to this Agreement, the exclusions and limitations set forth above may not apply to you. For further Equipment warranty information, you may contact ITalk Cloud Solutions at 6900 North Dallas Parkway, Suite 250, Plano, Texas 75024. Any warranty DOES NOT apply to any beta software, software made available for testing or demonstration purposes, or any temporary software modules. All such software is provided “AS IS” without any warranty whatsoever.
11. INTELLECTUAL PROPERTY
11.1 For the purpose of this section, the term “ITalk Cloud Solutions Intellectual Property” shall include but is not limited to any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing), including software or programming delivered hereunder. Any software distributed by ITalk Cloud Solutions which is licensed under the GNU General Public License (GPL) is specifically excluded from this definition.
11.2 All ITalk Cloud Solutions Intellectual Property is solely for Product use by Customer as shipped, and may not be used as a replication master or otherwise copied without the written consent of ITalk Cloud Solutions. Use of software delivered in conjunction with the Product or as a separate item shall be subject to this Agreement. Initial use of ITalk Cloud Solutions software may require Customer to accept a separate license agreement (click-through) prior to delivery/installation. Customer acknowledges that all ITalk Cloud Solutions Intellectual Property furnished by ITalk Cloud Solutions hereunder and the contents thereof are the proprietary property of ITalk Cloud Solutions, and Customer has no right or interest therein except that Customer is granted a perpetual, non-exclusive, worldwide, non-transferable, and non-sublicenseable license to use the Product (including the applicable ITalk Cloud Solutions Intellectual Property) for Customer’s internal business purposes. This license shall terminate or expire in the same manner this Agreement may expire or be terminated, according to the applicable provisions. All Customer employees may exercise the license granted. No other license(s) are granted by implication, estoppel or otherwise. Customer agrees not to directly or indirectly reproduce, decompile or provide or otherwise make available to any third party any ITalk Cloud Solutions Intellectual Property. Customer shall be liable for all damages, including loss of anticipatory profits, incurred by ITalk Cloud Solutions as a result of such unauthorized use, copy or replication. The rights granted hereunder or use of Product (including the Equipment) does not convey any rights or ownership in ITalk Cloud Solutions patents, copyrights, trademarks, intellectual property or know-how.
12. EXPORT CONTROLS. You acknowledge that the Product is subject to export controls under the laws and regulations of the U.S. and any other applicable countries’ laws and regulations. . You agree to comply with all applicable laws and regulations that apply to the Product, including without limitation the U.S. Export Administration Regulations and, as applicable, will obtain all required U.S. and local authorizations, permits, or licenses. The parties agree to provide to each other information as may be reasonably required by the other in connection with obtaining authorizations or licenses.
13. U.S. GOVERNMENT LICENSE RIGHTS. All Product provided to the U.S. Government is provided with the commercial license rights and restrictions described in this Agreement. The U.S. Government has deemed that by installing, copying or using the Product, the Product is “commercial computer software” or “commercial computer software documentation” within the meaning of DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Product by the U.S. Government shall be governed solely by the term of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
14. FORCE MAJEURE. ITalk Cloud Solutions will not be liable for delay or failure to furnish the Product(s) contemplated by this Agreement when the delay or failure is caused by circumstances that are not reasonably within ITalk Cloud Solutions’s control, including an act of God, strike or lockout or other labor dispute, act of the public enemy, war (declared or undeclared) and terrorism (including cybersecurity attacks and hacking), blockade, revolution, civil commotion, lightning, fire, storm, flood, earthquake, explosion, power outages, governmental restraint, embargo, inability to obtain or delay in obtaining governmental approvals, permits, or licenses.
15. GOVERNING LAW, JURISDICTION, AND FEES. This Agreement, the related Quote(s), Order(s), add-on Orders, and the entire relationship of the parties, shall be governed by and construed under the laws of the State of Texas without giving effect to its choice of law principles. The parties disclaim the application of the 1980 U.N. Convention on Contracts for the International Sale of Goods or any successor thereto is disclaimed. Any litigation arising directly or indirectly out of this Agreement, the related Quote(s), Order(s), add-on Orders, and/or the entire relationship of the parties will be litigated in the Texas State Courts, Dallas County, Texas or, if original jurisdiction can be established, in the United States District Court for the Eastern District of Texas, Plano Division. THE PARTIES VOLUNTARILY, KNOWINGLY AND IRREVOCABLY WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING TO WHICH THEY MAY BE A PARTY INVOLVING ANY THE AGREEMENT, THE RELATED QUOTE(S), ORDER(S), ADD-ON ORDERS, AND/OR THE RELATIONSHIP OF THE PARTIES. In any formal action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorney(s’) fees.
16. ENGLISH LANGUAGE. It is the express wish of the parties that this Agreement and all related documents are drawn up in English and that the English version of any document will govern.
17. ENTIRE AGREEMENT. This Agreement and the Quote/Order set forth the entire agreement of ITalk Cloud Solutions and you with respect to the Product, and the subject matter hereof, and supersedes all prior and contemporaneous understandings and agreements, including, without limitation, purchase orders and specifications, whether written or oral.
18. SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable, the remainder of this Agreement will remain in full force and effect and shall control.
19. NOTICES. Any notice required or permitted to be sent under this Agreement shall be delivered by first class mail, return receipt requested, or via an international courier service (e.g. FedEx, DHL, UPS, etc.) to the addresses of the parties: 1) if Customer, the address Customer provided to ITalk Cloud Solutions in the Order; 2) if to ITalk Cloud Solutions, 6900 North Dallas Parkway, Suite 250, Plano, Texas 75024. Notice so sent will be deemed effective three days following deposit in the mail, proper postage prepaid or one day following delivery to an international courier, prepaid for overnight delivery.
20. MODIFICATIONS. ITALK CLOUD SOLUTIONS RESERVES THE RIGHT, AT ITALK CLOUD SOLUTIONS’S SOLE DISCRETION, TO CHANGE, MODIFY OR OTHERWISE ALTER THESE TERMS AND CONDITIONS AT ANY TIME. YOU CAN FIND THE MOST RECENT VERSION OF THESE TERMS AND CONDITIONS ATWWW.ITALK CLOUD SOLUTIONS.COM/TERMS (THE “WEBSITE”). SUCH MODIFICATIONS SHALL BECOME EFFECTIVE IMMEDIATELY UPON POSTING SUCH TO THE WEBSITE. IF YOU DO NOT AGREE TO THE POSTED, REVISED TERMS AND CONDITIONS, YOUR SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT, SUBJECT TO SECTIONS 1, 8, AND 19 OF THIS AGREEMENT. CONTINUED USE OF THE PRODUCT FOLLOWING THE POSTING OF MODIFICATIONS WILL CONSTITUTE YOUR ACCEPTANCE OF THE REVISED TERMS AND CONDITIONS. SHOULD YOU HAVE ANY QUESTIONS, PLEASE CONTACT US AT: INFO@ITALK CLOUD SOLUTIONS.COM.
© 2015 ITalk Cloud Solutions, Inc. All rights reserved. Unauthorized duplication is a violation of applicable laws.
*Unregistered or registered trade-mark(s) of ITalk Cloud Solutions, Inc. or its subsidiaries
- Access.ITalk Cloud Solutions has the right, but not the duty, to terminate or suspend Your access to the Website, without notice, for any conduct that ITalk Cloud Solutions, in its sole discretion, believes is in violation of any applicable law or is harmful to the interests of another user, a third-party provider, a service provider or ITalk Cloud Solutions. ITalk Cloud Solutions makes no representation that the information contained in the Website is appropriate or available for use throughout the world. It is forbidden to access the Website from territories where the legislation provides that the content or use of the Website is illegal. You choose to use the Website, and it is Your responsibility to ensure that You conform to all applicable local laws.
- Copyright.ITalk Cloud Solutions, its suppliers or the original creator of the material own all copyrights to material on the Website and all other intellectual property rights related to the Website. To the extent that ITalk Cloud Solutions has the right to do so without compensation to third parties, and except for material specifically provided under other terms, ITalk Cloud Solutions grants You permission to copy materials on the Website solely for Your non-commercial use in support of ITalk Cloud Solutions products. You agree that any copies of material shall retain all copyright and other proprietary notices in the same form and manner as the original. You may not, without ITalk Cloud Solutions’s permission, “mirror” any material contained on the Website or any other server. Except as specified above, nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license or right under any trademark, patent, copyright, mask work protection right or any other intellectual property right of ITalk Cloud Solutions or any third party.
- Trademarks.ITalk Cloud Solutions and the ITalk Cloud Solutions logo are trademarks or service marks, registered or not, of ITalk Cloud Solutions. Nothing in the Website may be interpreted so as to grant to You, directly or indirectly, the use of a trademark or service mark reproduced on the Website, whether belonging to ITalk Cloud Solutions or third party suppliers, without the written permission of ITalk Cloud Solutions. All other trademarks are the property of their respective owners.
- Communications and Information Provided to ITalk Cloud Solutions.
4.2. Information provided by you via the Website, including written or oral communications or other electronic means, may be recorded for quality assurance, diagnostic and training purposes. By submitting information using the Website, you consent to such recordation and usage as described in Section 4.1, above.
- Links.THE LINKS ON THE WEBSITE MAY LET YOU LEAVE ITALK CLOUD SOLUTIONS’S SITE. THE LINKED SITES ARE NOT UNDER THE CONTROL OF ITALK CLOUD SOLUTIONS AND ITALK CLOUD SOLUTIONS IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY LINKED SITE OR ANY LINK CONTAINED IN A LINKED SITE, OR ANY CHANGES OR UPDATES TO SUCH SITES. ITALK CLOUD SOLUTIONS IS NOT RESPONSIBLE FOR WEBCASTING OR ANY OTHER FORM OF TRANSMISSION RECEIVED FROM ANY LINKED SITE. ITALK CLOUD SOLUTIONS IS PROVIDING THESE LINKS TO YOU ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK DOES NOT IMPLY ENDORSEMENT BY ITALK CLOUD SOLUTIONS OF THE SITE.
- Product Availability.The availability of the ITalk Cloud Solutions products described on the Website, and the product descriptions, may vary from country to country. You should consult ITalk Cloud Solutions or an authorized reseller of ITalk Cloud Solutions’s products for availability of specific products in Your area.
- Export of Information.The United States Export Controls laws prohibit the export of certain technical data and software to certain territories. No content from the Website may be downloaded or otherwise exported in violation of United States law or any other local law from where You may be accessing the Website. You agree to comply with all United States and foreign Federal, State and local laws and regulations applicable to the use of the Website.
- Limitation of Liability.ITALK CLOUD SOLUTIONS, ITS RELATED COMPANIES, DIRECTORS, EMPLOYEES, REPRESENTATIVES OR AGENTS MAY NOT, UNDER ANY CIRCUMSTANCES BE HELD LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF (OR THE INABILITY TO USE) THE WEBSITE OR ANY MATERIAL ON THE WEBSITE. THIS INCLUDES, BUT IS NOT LIMITED TO, THE LOSS OF DATA OR LOSS OF PROFIT, EVEN IF ITALK CLOUD SOLUTIONS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF ALL OR PART OF THIS LIMITATION OF LIABILITY IS FOUND UNENFORCEABLE FOR ANY REASON, THEN ITALK CLOUD SOLUTIONS’S MAXIMUM AGGREGATE LIABILITY UNDER SUCH CIRCUMSTANCES FOR LIABILITY THAT WOULD OTHERWISE HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
- Assignment.The TOU may not be assigned or transferred by You without the prior written consent of ITalk Cloud Solutions. ITalk Cloud Solutions may assign the TOU to any affiliate or third party in part or in whole.
10.1. Any controversy or claim arising out of or in connection with the TOU, its enforcement or interpretation, will be finally resolved solely in accordance with the terms of this Section 10. THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT AND/OR THE USE OF THE WEBSITE.
10.2. Any claim, dispute or controversy (collectively a “Claim”) arising out of or relating to the TOU, including without limitation the formation, interpretation, breach or termination hereof, or any issue regarding whether a Claim is subject to arbitration hereunder, that cannot be settled by good faith negotiation between the parties within a reasonable period of time, will be conclusively determined by the Texas State Courts, Dallas County, Texas or, if original jurisdiction can be established, in the United States District Court for the Eastern District of Texas, Plano Division. In addition and notwithstanding the foregoing, ITalk Cloud Solutions shall be entitled to take any necessary legal action, including without limitation seeking immediate injunctive relief from a court of competent jurisdiction, in order to protect ITalk Cloud Solutions’s intellectual property and its confidential or proprietary information (including but not limited to trade secrets).
10.3. Actions on Claims between the parties with respect to the TOU must be brought in accordance with this Section 10 within two years after the cause of action arises.
10.4. Governing Law. The TOU are governed by Texas law, excluding choice of law principles and the United Nations Convention on Contracts for the International Sale of Goods. If any provision of the TOU is determined to be unenforceable or invalid, the TOU will not be rendered unenforceable or invalid as a whole, and the provision will be changed and interpreted so as to best accomplish the objectives of the original provision within the limits of applicable law. The failure to assert any rights under the TOU, including, but not limited to, the right to terminate in the event of breach or default, will not be deemed to constitute a waiver of the right to enforce each and every provision of the TOU in accordance with their terms.
- Access to Password Protected/Secure Areas.Access to and use of password protected and/or secure areas of the Website is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the Website may be subject to prosecution.
- Data Privacy.
12.1. You and ITalk Cloud Solutions agree that they shall comply in all respects with all applicable data protection laws and regulations (or any legislation or regulations amending or replacing the same) (together, the “Data Protection Laws”).
12.2. You shall in connection with these TOU (i) not do or permit anything to be done through an act or omission which might jeopardize or contravene ITalk Cloud Solutions’s liability under Data Protection Laws; and (ii) enter into such agreements as ITalk Cloud Solutions shall reasonably require in relation to the cross border migration of personal data.
12.3. You shall indemnify and keep ITalk Cloud Solutions fully indemnified against any and all liability, loss, damage, costs (including legal costs) and expenses which ITalk Cloud Solutions, or any ITalk Cloud Solutions affiliate may incur or suffer whether direct or consequential (including without limitation any economic loss or other loss of profits, business or goodwill) as a result of any breach of Section 12.2.
- INTELLECTUAL PROPERTY
13.1. For the purpose of this section, the term “ITalk Cloud Solutions Intellectual Property” shall include but is not limited to any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing), including software or programming delivered hereunder. Any software distributed by ITalk Cloud Solutions which is licensed under the GNU General Public License (GPL) is specifically excluded from this definition.
13.2. All ITalk Cloud Solutions Intellectual Property is solely for use as provided by ITalk Cloud Solutions, and may not be used as a replication master or otherwise copied without the written consent of ITalk Cloud Solutions. ITalk Cloud Solutions Intellectual Property furnished by ITalk Cloud Solutions are the proprietary property of ITalk Cloud Solutions, and no right or interest is granted, except as described in the individual Terms of Service and License Agreement for customers.
- ITalk Cloud Solutions products and services.Any products and services and software within described on the website or that you download from the Website is governed by the applicable ITalk Cloud Solutions Terms of Service and License Agreement posted athttp://www.iTalk Cloud Solutions.com/legalorhttp://www.iTalk Cloud Solutions.com/terms and is incorporated herein by reference. ITalk Cloud Solutions in its sole discretion may from time to time post a successor version of the applicable ITalk Cloud Solutions Terms of Service and License Agreement, which will then automatically replace the previously applicable ITalk Cloud Solutions Terms of Service and License Agreement with respect to licenses granted as from the date of posting.
15.1. WHILE ITALK CLOUD SOLUTIONS ATTEMPTS TO PROVIDE ACCURATE INFORMATION ON THE WEBSITE, IT ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATION. ITALK CLOUD SOLUTIONS MAY CHANGE THE INFORMATION ON THE WEBSITE, OR THE PRODUCTS MENTIONED, AT ANY TIME WITHOUT NOTICE. MATERIAL ON THE WEBSITE AND THE WEBSITE ITSELF IS PROVIDED “AS IS” AND ITALK CLOUD SOLUTIONS DOES NOT PROVIDE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. ITALK CLOUD SOLUTIONS SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE WEBSITE OR ANY CONTENT OR MATERIAL ON THE WEBSITE.
15.2. ITALK CLOUD SOLUTIONS MAKES NO WARRANTY THAT (i) THE WEBSITE WILL MEET YOUR REQUIREMENTS, (ii) ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE, AND (iv) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
15.3. ANY MATERIAL OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL OR SOFTWARE.
15.4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ITALK CLOUD SOLUTIONS OR THROUGH OR FROM THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOU.
ITalk Cloud Solutions* takes your privacy and the confidentiality of your business data very seriously. We understand that your phone system is critical to your business, and that you need to trust that system and the company that provides it fully. This policy outlines the types of information ITalk Cloud Solutions may collect, and our commitment to keeping that information safe, secure and private.
Collection and Use of Customer Information
ITalk Cloud Solutions provides a service where customers may upload and store their system configuration information and call statistics data on ITalk Cloud Solutions servers and equipment. Customers have the ability to disable the collection of call statistics data, which will cause all call data to be stored locally on the customer’s server. Disabling this data collection will disable any available graphical reporting capabilities.
In addition, ITalk Cloud Solutions software gives customers, at their discretion, the ability to record and save voicemails, phones calls and chats. All communications content is stored locally on the customer’s server(s), and unless provided for under separate terms and conditions, ITalk Cloud Solutions does not store any voicemail, call recordings, chats or other communications.
No Monitoring of Customer Communications
All phone calls are routed locally on the customer’s individual system, and externally via the customer’s selected communications service providers. ITalk Cloud Solutions does not monitor the content of Customer phone calls.
Maintenance of Optional Secure Connection to ITalk Cloud Solutions
In order to monitor the performance of your system, ITalk Cloud Solutions provides you with technical support, product enhancements, and upgrades, ITalk Cloud Solutions by default maintains a secure electronic connection to your server(s). ITalk Cloud Solutions implements numerous security techniques to ensure the safety of customer data and system access and to minimize the risk of network intrusion.
Customers can, at their discretion, elect to disconnect this connection. Disconnecting the connection will prevent the administration of your server(s), and will disable other important features, including graphical reporting. In addition, we will not be able to provide technical support or software updates until the connection is re-established.
When ITalk Cloud Solutions bills for services rendered, a third-party processing company may be used to charge customer credit cards and collect payment. A third-party is used only to process credit card charges, and does not store or distribute customer credit card or billing information.
ITalk Cloud Solutions Web Properties
ITalk Cloud Solutions may collect information from visitors to the ITalk Cloud Solutions.com web site, or any other web sites operated by ITalk Cloud Solutions. We may collect the Internet addresses of ITalk Cloud Solutions site visitors. We use the information that we log from the ITalk Cloud Solutions website to both improve our services, and help troubleshoot possible ITalk Cloud Solutions website problems. We may also analyze non-identifying statistics that we collect from website visitor usage, and provide this data to qualified third parties.
Additionally, ITalk Cloud Solutions web properties may contain content from third-party content providers, but these content providers neither receive nor distribute ITalk Cloud Solutions user or customer information, nor do they receive user or customer information from ITalk Cloud Solutions.
Electronic and Physical Mailing Addresses
ITalk Cloud Solutions requires a valid, working e-mail address upon account setup in order to send account information details, including account username and password. If you wish to receive no further communications from ITalk Cloud Solutions after the installation process is complete, you may send a request at http://cp.iTalk Cloud Solutions.com/support. Removal from this list will significantly limit our ability to provide you with technical support. In addition, ITalk Cloud Solutions may periodically communicate with you regarding new products, product updates, and important ITalk Cloud Solutions news and information. You have the option to exclude yourself from these communications. If you would like to cease receiving communications from ITalk Cloud Solutions, please send a request http://cp.iTalk Cloud Solutions.com/support/ with the subject line “UNSUBSCRIBE”.
We use and collect IP addresses to analyze trends, administer the site, and to track users’ movement across the site, and may provide this data to qualified third parties to help us improve the site and our service.
Our web sites may contain links to other sites. Please be aware that we are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of each and every web site that collects personally identifiable information. This privacy statement applies solely to information collected by ITalk Cloud Solutions web properties site or the ITalk Cloud Solutions application.
From time-to-time our site requests information from users via surveys. Participation in these surveys is completely voluntary and the user therefore has a choice whether or not to disclose this information. Information requested may include contact information and demographic information. Survey information will be used for purposes of monitoring or improving the use and satisfaction of this site or of the ITalk Cloud Solutions application.
ITalk Cloud Solutions implements numerous security techniques to ensure the safety of customer data and system access. Your information is encrypted and authenticated, using Secure Socket Layer (SSL) technology. The SSL systems provide data security for you and your users, and the authentication ensures that your valuable content is available only to registered users, and is not accessible to unwanted parties. Each registered user in your organization is provided with a unique username and password. Each time a user logs onto your ITalk Cloud Solutions application, they can only be authenticated and allowed access using the correct username and password that has been assigned. A session is issued for the purpose of capturing encrypted authentication data for the length of the session. Neither the username nor the password is included in the session. Security protocols put into operation by ITalk Cloud Solutions are determined by encrypted session Ids and dynamic data.
ITalk Cloud Solutions complies with the U.S.-EU Safe Harbor Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information from European Union member countries. ITalk Cloud Solutions has certified that it adheres to the Safe Harbor Privacy Principles of notice, choice, onward transfer, security, data integrity, access, and enforcement. To learn more about the Safe Harbor program, and to view ITalk Cloud Solutions’s certification, please visit http://www.export.gov/safeharbor/.
ITalk Cloud Solutions does not sell products or services for purchase by children. ITalk Cloud Solutions does not knowingly solicit or collect customer identifiable information from children or teenagers under the age of eighteen. In addition, ITalk Cloud Solutions will not knowingly link to any third party web site that solicits or collects customer identifiable information from minors. If you believe that a minor has disclosed personally identifiable information to ITalk Cloud Solutions, please contact ITalk Cloud Solutions at http://cp.iTalk Cloud Solutions.com/support/ so that the information can be removed.
We promise to be extremely careful with any information you entrust us with, and we would ask that you do the same. This includes ensuring the physical and electronic security of your network, and maintaining the privacy and confidentiality of your own data, usernames and passwords.
© 2015 ITalk Cloud Solutions, Inc. All rights reserved. Unauthorized duplication is a violation of applicable laws.
*Unregistered or registered trade-mark(s) of ITalk Cloud Solutions, Inc. or its subsidiaries.