Talk-Out Terms of Use and Conditions


Terms of Use and Conditions
Talk-Out Systems Inc.

These Terms of Service constitute the agreement ("Agreement") between Talk-Out Systems Inc., ("we," "us" or "Talk-Out") and the user ("you", "user", "customer") of Talk-Out Systems Inc.'s communications services and any related to services ("Service"). This Agreement governs the Talk-Out Services. If you purchased our services through a Reseller and/or our website at «www.talk-out.com», you are a "Retail Customer" for purposes of this Agreement.

Talk-Out Systems Inc., and its logo are registered trademarks and cannot be used by any Customer without the written consent of Talk-Out.
The Customer assumes all responsibility and risk associated in using the service and website, and Talk-Out shall not be liable for any damages whatsoever resulting from said use. The User has the responsibility to evaluate the usefulness and value of any service(s), merchandise or any other information provided through our website.
Talk-Out makes no expressed or implied warranty as to the merchantability of content or programming accessed through use of the service and website.
Talk-Out will not be liable for any incidental, consequential, direct or indirect damages arising out of the use of or inability to use of the service and website by customer. If there is a variance in state law, then the liability of Talk-Out is limited to the greatest extent permitted by law.    

1. SERVICE TERM

1.1 Service Term
Service is offered on a monthly basis and is also prepaid for on a prescribed recurring basis for a term that begins on the activation day when the fee is paid on Talk-Out’s website. For any Call Plan or Virtual Office, service begins on the activation day and ends on the day before the same date in the following period (“Service Term”) (eg. from the 22nd to the 21st of the following month). Subsequent terms of this Agreement automatically renew for the same Service Term unless YOU complete the TERMINATION FORM directly accessible on our website at «www.talk-out.com» within your Account (Call Plans) or Virtual Office (Resellers) (under the «Service» link and «Termination» link) of disconnection at least TEN (10) days before the end of the applicable Service Term for Call Plan(s) and/or Virtual Office(s) (See RESELLER Agreement). You are purchasing the Service for the full Service Term, meaning that if you attempt to disconnect Service prior to the end of the applicable Service Term, you will be responsible for all charges relating to the then-current Service Term, consequently the monthly cost of the service will not be refunded. You will also be responsible for charges for the following Service Term in the event that you do not provide the requisite disconnect notice time allotment as described above and any other consecutive month until Termination has been officially submitted.


1.2 Prohibited Uses: Unlawful Uses and Inappropriate Conduct
You shall use the Service and the Website only for lawful purposes. You shall not use the Service or Website in any way that is improper or inappropriate, including in a manner that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior. In addition, you shall not use the Service or the Website to impersonate another person; send bulk unsolicited messages; use robots, data mining techniques or other automated devices or programs to catalogue, download, store or otherwise reproduce or distribute information from the Service or use any such automated means to manipulate the Service; use the Service to violate any law, rule or regulation; violate any third party’s intellectual property or personal rights; or exceed your permitted access to the Service. Subject to applicable law, we may, but are under no obligation to, monitor usage of the Service for violations of this Agreement. The service can only be used for personal use. Any commercial use that is deemed abusive will result in a cancellation of service. No telemarketing companies are allowed to use this service. We may remove or block any or all communications if we suspect a violation of this Agreement or if we deem it necessary in order to protect the Service, or Talk-Out, its parent, affiliates, directors, officers, agents, resellers and employees from harm. We reserve the right to immediately disconnect your Service without notice, if, in our sole and absolute discretion, we determine that you have used the Service or the Website for an unlawful purpose or in ways mentioned above. In the event of such disconnection you will be responsible for all fees and charges due under this Agreement, including those referred to in Section 1.1, no fees will be refunded. If we believe that you have used the Service or the Website for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, Talk-Out will provide customer and call detail information in response to lawful government requests, subpoenas, court orders and to protect its rights and property, and in response to law enforcement requests where the failure to disclose the information may lead to imminent harm to the customer or others. Furthermore, Talk-Out reserves all of its rights at law and equity to proceed against anyone who uses the Services illegally or improperly.
Copyright; Trademark; Unauthorized Usage of Service or Website; Firmware or Software.

2.1 Copyright; Trademark.
The Service or software used to provide the Service or provided to you in conjunction with providing the Service, and all Services, information, documents and materials on our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") are and will at all times remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our marks.

2.2 Theft of Service
You shall not use or obtain the Service in any manner that avoids Talk-Out policies and procedures including in an illegal or improper manner. You shall notify us immediately, in writing or by calling our customer support line, if your mobile or landline , also referred to as “Device”, is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the disconnection of your Service and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service whether or not it involves a stolen Device. Talk-Out reserves all of its rights at law and equity to proceed against anyone who uses the Services or Device illegally or improperly.

2.3 Service Distinctions
The Service is not a traditional telecommunications service and we provide it on a best efforts basis. Talk-Out provides Unlimited Long Distance at a fixed cost as defined on our website «www.talk-out.com»Things beyond our control may affect the Service, such as power outages, fluctuations in the Internet, your Provider's network reliability, underlying ISP or broadband service. Other things may affect Service, such as maintenance. Talk-Out will act in good faith with a view to minimizing disruptions to your use of and access to Service. Important distinctions exist between a traditional telecommunications service and our Service, and our Service is subject to different regulatory treatment than a traditional telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.

2.4 No 0+ or Operator Assisted Calling; May Not Support x11/8xx Calling
The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900 or calling card calls). The Service may not support 311, 511 and/or other x11 services in one or more (or all) service areas. The 911 emergency number is not supported by our service and is not necessary since a working mobile phone or landline is required to use our service. The 911 service is always available as a direct dial from the mobile phone (Charges may apply by your provider).

3. CHARGES; PAYMENTS; TAXES; DISCONNECTION

3.1 Billing
When the Service is activated, you must provide us with a valid email address and a payment method that we accept. We reserve the right to stop accepting your payment method or your payments. If your payment method expires, you close your account, your billing address changes, or your payment method is cancelled and replaced on account of loss or theft, you must advise us at once. We will bill all charges, fees, applicable taxes and surcharges for each Service Term in advance to your payment method, either credit card or direct debit, including but not limited to: credit or debit card refusal fees; change of Call Plan fees; change of number on the Call Plan; Administration fees regarding any changes to your account; Cancellation fees; usage charges; international usage charges; advanced feature charges; premium services/Add ons and taxes.

The Talk-Out Fee Chart will be posted on our website and can be modified without prior notice. The monthly bill will be automatically posted in your account on our website, which is also kept in our files.

The above fees are defined as follows:
Credit or debit card refusal Fees - These fees covers charges for any credit or debit card refusals while attempting to process payment on our website.
Change of Call Plan Fees - During a given month any change in a Call Plan will incur an administration fee to user.
Change of number on a Call Plan - Once you have submitted your phone, landline or mobile number to connect to our Talk-Out Access Number and decide to change that specific number during the course of your service period, a transfer fee will be charged.
Administration Fee - any MANUAL change BY OUR STAFF of address, phone or mobile number and name etc., on our database will incur such fees.
Cancellation Fees - any cancellation of service processed after the 10th day of activation will automatically incur a cancellation fee to user.
Service Fee - This is the basic charge associated with your service. This fee includes the calling charges defined by your Call Plan and/or services, the features associated with your plan and basic account services.
Administration Fees - is defined as any type of demand from customer/user not described in the above fees.
Taxes - Talk-Out is obligated (if applicable) to bill and collect local, provincial and federal taxes on behalf of the various taxing authorities. Talk-Out remits all taxes it collects to the appropriate taxing authority.

3.2 Billing Disputes
You must notify us in writing within seven (7) days after receiving your statement from your credit or debit card issuer if you dispute any Talk-Out charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be directed to Talk-Out’s Customer Care at:«customercare@talk-out.com».

3.3 Payment and Collection

(a) Payment
Your subscription to the Service authorizes us to collect from your payment method. This authorization will remain valid until YOU SUBMIT the TERMINATION FORM directly accessible on our website at «www.talk-out.com» within your Account (Call Plans) or Virtual Office (Resellers) (under the «Service» link and «Termination» link). We may disconnect your Service at any time in our sole and absolute discretion if any charge to your payment method is declined or reversed, your payment method expires and you have not provided us with a valid replacement payment method or in case of any other non-payment of account and/or service charges.

(b) Collection
If your Service is disconnected, you will remain fully liable to us for all charges pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and legal fees and expenses.

3.4 Disconnection; Discontinuance of Service
We reserve the right to suspend or discontinue the Service generally, or to disconnect your Service, at any time at our sole and absolute discretion. If we discontinue the Service generally, or disconnect your Service without a stated reason, you will only be responsible for charges accrued through the date of disconnection, including a pro-rated portion of the final Service Term charges. If your Service is disconnected on account of your breach of any provision of this Agreement, you will be responsible for all charges through the end of the current Service Term, including unbilled charges, plus the disconnection fee, if applicable, all of which will immediately be due and payable. You will also be responsible for charges for the following Service Term in the event that you do not provide the requisite disconnect notice time allotment as described in article 1.1.

3.5 Taxes
Federal, provincial, municipal, local or other governments may assess taxes, surcharges and/or fees on your use of Talk-Out’s service. These charges may be a flat fee or a percentage of your Talk-Out charges and may change from time to time without notice. These charges are based on the rates applicable of the address you provided to us upon subscription. You are responsible for all applicable federal, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service. Such amounts are in addition to payment for the Service and will be billed to your payment method as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.

3.6 No Refunds for Pre-Paid Service Plan Customers
Subject to the Money Back Guarantee and applicable law, we will not refund any Service Fees or any other amounts paid in connection with any pre-paid Service plans.

4. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES

4.1 Limitation of Liability
We will not be liable for any delay or failure to provide the Service, including 911 Dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:

an act or omission of an underlying carrier, service provider, vendor or other third party;
equipment, network or facility failure;
equipment, network or facility upgrade or modification;
force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions;
equipment, network or facility shortage;
equipment or facility relocation;
service, equipment, network or facility failure caused by the loss of power to you;
outage of, or blocking of ports by, ISP or broadband service providers or other impediment to usage of the Service caused by any third party;
any act or omission by you or any person using the Service or Device provided to you; or
any other cause that is beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 Dialing) to be connected or completed, or forwarded.

Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period.

4.2 Disclaimer of Liability for Damages
IN NO EVENT WILL TALK-OUT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, RESELLERS OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO PROVIDES SERVICES TO YOU IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY OR CONDITION, PRODUCT LIABILITY, TORT (INCLUDING NEGLIGENCE), INTELLECTUAL PROPERTY INFRINGEMENT, STRICT LIABILITY, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.

4.3 Indemnification and Survival

(a) Indemnification
You shall defend, indemnify, and hold harmless Talk-Out, its officers, directors, employees, affiliates, resellers and agents and any other service provider who furnishes services to you in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, legal fees and expenses) by, or on behalf of, you or any third party or user of the Service, relating to this Agreement or the Services, including, without limitation, 911 Dialing, or the Device.
(b) Survival
The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement.

4.4 No Warranties on Service
To the extent permitted by applicable law, WE MAKE NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, REASONABLY ACCEPTABLE QUALITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY OR CONDITION ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY OR CONDITION THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE PROVIDE NO WARRANTY OR CONDITION THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER TALK-OUT NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, RESELLERS OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO PROVIDES SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF TALK-OUT OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE, IF ANY, BY TALK-OUT OR TALK-OUT'S AGENTS AND RESELLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OR CONDITION OF ANY KIND.

4.5 No Third Party Beneficiaries
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.

4.6 Content
You will be liable for any and all liability that may arise out of the content transmitted by or to you or any person, whether authorized or unauthorized, using the Service (each such person, a "User"). You shall ensure that YOU and your User's use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to disconnect or suspend your Services and remove you or your Users' content from the Service, if we determine, at our sole and absolute discretion, that such use or content does not conform with the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Our action or inaction under this Section will not constitute any review or approval of you or your Users' use or content.

5. MISCELLANEOUS

5.1 Governing Law
The Agreement and the relationship between you and us is governed by the laws of the Province of Quebec and the federal laws of Canada applicable therein without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 5.2, you shall submit to the personal and exclusive jurisdiction of the courts located within the Province of Quebec and waive any objection as to venue or inconvenient forum.

5.2 Mandatory Arbitration and No Jury Trial
Except to the extent contrary to applicable law, any dispute or claim between you, any member of your household or any guest or employee of you and us arising out of or relating to the Service or Device will be resolved by arbitration before a single arbitrator administered by a Canadian arbitration organization of our choosing. The arbitration shall take place in Montreal, Quebec and shall be conducted in English. The arbitrator's decision will follow the plain meaning of the relevant documents, and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED, except to the extent such a limitation is prohibited by applicable law. All claims shall be arbitrated individually. Except to the extent contrary to applicable law, you shall not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, QUEBEC.

5.3 No Waiver of Rights
Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.

5.4 Entire Agreement
This Agreement, including any future modifications as may occur within the terms of the Agreement, and the rates for Services found on our website constitute the entire agreement between you and Talk-Out and govern the use of the Service by you, members of your household, guests and employees. This Agreement supersedes any prior agreements between you and Talk-Out and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.

5.5 Severability
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.

6. FUTURE CHANGES TO THIS AGREEMENT
We may change the terms and conditions of the Service and this Agreement, as well as amounts charged under this Agreement, from time to time. Notices will be considered given and effective on the date posted on «www.talk-out.com», or as otherwise may be required by applicable law. Subject to applicable law, such changes will become binding on you on the date they are posted on our website and no further notice by us is required upon your continued use of the Service. The Agreement as and when posted or otherwise amended in accordance with applicable law, supersedes all previously agreed to, electronic and written terms of service, including, without limitation, any terms included with the packaging of the service and/or Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including, without limitation, any written terms enclosed within the packaging of the service and/or Device. If this Agreement is amended and you do not wish to accept the amendment, you may terminate the Agreement as provided in Section 1.1.

7. PRIVACY

7.1 Network Security
Talk-Out Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Talk-Out is not liable for any lack of privacy which may be experienced with regard to the Service. Please refer to our Privacy Policy at «www.talk-out.com» for additional information.

7.2 Personal Information
To the extent that personal information is provided in connection with this Agreement, the customer confirms that he or she consents, and that all other necessary consents have been obtained, to the use, collection and disclosure by Talk-Out, assignees of Talk-Out, and their respective affiliates, Independent representatives, agents, resellers and contractors for the following purposes: (i) providing products and services to the customer, (ii) contract management and administration, (iii) establishing a customer relationship and communicating with customers, (iv) developing, implementing and managing products and services for customers, (v) assisting in law enforcement purposes and collecting unpaid debts, (vi) protecting, managing and promoting their business interests and activities; (vii) providing information to the customer on other products and services which may be available; and (viii) otherwise as required or permitted by law or this Agreement. The customer may withdraw his or her consent in respect of clause (vii) above, without affecting his or her other arrangements with Talk-Out, by notifying Talk-Out's Privacy Officer in writing at «privacyofficer@talk-out.com». Further information on Talk-Out's privacy policies, as well as access to any such personal information for purposes of review, correction and updating, may also be obtained by writing to the Privacy Officer. For the purposes of this Section 7.2, "personal information" does not include the name, address and telephone number of a subscriber that appears in a publicly available telephone directory.

8. EXPORT CONTROLS
You agree to comply fully with all relevant export laws and regulations of Canada, and without limiting the generality of the foregoing, you expressly agree that you shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Service or any direct product thereof to any destination, company or person restricted or prohibited by such laws or regulations.

NB. ALL PRICES ARE IN CANADIAN CURRENCY

April 2009