TALKSTER TERMS OF SERVICE

IMPORTANT — PLEASE READ CAREFULLY

Before reading the articles below, please note the following preliminary terms, which use some of the definitions specified in Article 1 below:

No Emergency Calls: by entering into this Agreement You acknowledge and agree that the Talkster service does not and does not intend to support or carry emergency calls.

Entering into this agreement: These Terms of Service apply to the agreement between Talkster International Inc. (“Talkster”) and You, as a user, for the use of the VoIP service. You must enter into this Agreement by checking the acceptance box or similar buttons, checkboxes or links as may be designated by Talkster, in order to use the VoIP service. Furthermore, by using Your Account and the VoIP service You agree to be bound by these Terms of Service and any new versions hereof.

Electronic Signatures and agreement(s): You acknowledge and agree that by clicking on the ACCEPT button, or similar buttons, checkboxes or links as may be designated by Talkster, to show Your approval of any foregoing text, You are entering into a legally binding contract with Talkster. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and to the electronic delivery of notices, policies and records of transactions initiated or completed through the VoIP service. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction, to the extent permitted under applicable mandatory law, which require an original (non-electronic) signature or delivery or retention of non-electronic records.

Jurisdiction’s Restrictions: if You are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and You are under such a jurisdiction and under such an age limit, You may not enter into this Agreement or use the VoIP service. Furthermore, if You are residing in a jurisdiction where it is forbidden by law to use the VoIP service, You may not enter into this Agreement and You may not use the VoIP service. By entering into this Agreement You explicitly state that You have verified in Your own jurisdiction if Your use of the VoIP service is allowed.

GENERAL CONDITIONS

Article 1 — DEFINITIONS

In these Terms of Service the following boldface definitions are used in both the singular and plural form.

1.1

Account: refers to Your account for the payment and use of the VoIP service;
1.2

Affiliate: any corporation, company or other entity that directly or indirectly controls, is controlled by, or is under common control with, Talkster. For the purpose of this definition, the word "control" shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting stock of the corporation, company, or other entity.
1.3

Agreement: means the agreement between Talkster International Inc. and You for the use of the VoIP service;
1.4

Emergency Service: means services that connect a user to emergency services personnel or public safety answering points pursuant to applicable local and or national regulatory requirements;
1.5

End User License Agreement: means the End User License Agreement between Talkster International Inc. and You for the license to use the Talkster Software;
1.6

Password: refers to a code You select, which, in combination with the User ID, gives You access to Your Account;
1.7

PSTN User: refers to a user of the Public Switched Telephone Network;
1.8

Talkster: refers to the entity Talkster International Inc., with its address at 1300 Don Mills Road, 2nd Floor, Toronto, Ontario, Canada;
1.9

Talkster Credit: where applicable means the payment method that can be used to purchase VoIP service and any other services or products that Talkster may add thereto from time to time; Free World Dialing does not require any form of payment from the end user;
1.10

Terms of Service: means these general terms and conditions, irrespective of the form in which these general terms and conditions are presented to You, which cover and form part of the Agreement;
1.11

User ID: refers to an identification code You selected, which in combination with the Password, gives access to Your Account;
1.12

VoIP service: means the payable services and software features provided by Talkster; Free World Dialing is a free service to the end user supported by audio, coupon and click-to-communicate advertising methods;
1.13

Website: means any and all elements and contents of the website available – amongst other URLs – under the URL www.talkster.com;
1.14

You: You, the user and/or subscriber of VoIP services.

Article 2 — GENERAL PROVISIONS

2.1

No warranties. Talkster shall endeavor to provide the VoIP service with minimum disruptions. However Talkster cannot guarantee that the VoIP service will always function without disruptions, delay or other imperfections. Since the VoIP service will be transmitted through public Internet lines and the public switched telephony network, You understand that there may be power outages or Internet service disruption and You may experience some disruptions in the VoIP service, e.g. packet loss and delay. Additionally, You also understand that calls to or from the public switched telephony network are not encrypted and as such, could be potentially subject to eavesdropping by law enforcement officials or other third parties over the public Internet. Talkster will not be liable for any disruption, delays, eavesdropping or other omissions in the VoIP service.
2.2

Suspension and interruption. Talkster is entitled, without any liability, to refuse, restrict, limit, suspend and/or interfere or interrupt the VoIP service or any part thereof, without any notice to You for the repair, improvement, and/or upgrade of the VoIP service or for any of the reasons for termination in accordance with Article 12.3 of these Terms of Service.
2.3

Change of technical features. Talkster may change the technical features of the VoIP service in order to keep pace with the latest demands and technological developments, at its own discretion and without any notice to You.
2.4

No control. You acknowledge and understand that Talkster does not control, or have any knowledge of, the content of any communication(s) spread by the use of the VoIP services. The content of the communication is entirely the responsibility of the person from whom such content originated. You, therefore, may be exposed to content that is offensive, harmful to minors, indecent or otherwise objectionable. Talkster will not be liable for any type of communication spread by means of the VoIP service.
2.5

No traditional telephone service. You acknowledge and understand that the VoIP service is not a traditional telephone service or a replacement for Your primary or mobile telephone service. Important distinctions (some, but not necessarily all, of which are described in this Terms of Service) exist between the traditional telephone service and the VoIP service provided by Talkster.

Article 3 — YOUR COOPERATION

3.1

Use of the VoIP service. You will use the VoIP service in accordance with these Terms of Service, the End User License Agreement and the relevant legislation.
3.2

Information. You will at all times provide Talkster in good time with any data or information necessary to a proper provision of the VoIP service.
3.3

Suspension. If any data that is required for providing the VoIP service is: not available to Talkster; not available in good time or not in accordance with the arrangements; or if You do not fulfill Your obligations in any other way, Talkster will be entitled to suspend the provision of the VoIP service.
3.4

No resell. You agree not to resell the VoIP service to any third party.
3.5

Lawful purposes. You acknowledge and agree to use the VoIP service solely for lawful purposes. In this respect You may not, without limitation (a) intercept or monitor, damage or modify any communication which is not intended for You, (b) send any unsolicited commercial communication not permitted by applicable law, (c) use your Account or VoIP service in any fraudulent way, or (d) expose any other user to material which is offensive, harmful to minors, indecent or otherwise objectionable.
3.6

Indemnification. You agree to indemnify and hold Talkster and Talkster Staff, and Affiliates harmless against any and all third-party claims, actions, proceedings and costs, including but not limited to reasonable attorney’s fees, incurred by Talkster arising out of or relating to Your violation of the Terms of Service, applicable law or rights of any third parties and/or the misuse of the VoIP service.

Article 4 — USER ID, PASSWORD AND ACCOUNT

4.1

User ID, Password and Account. For certain services based on the Talkster platform, to make use of the VoIP service, Talkster will grant You a User ID, Password and Account. You are solely responsible for maintaining the confidentiality of Your User ID and Password. You are responsible and liable for all activities conducted through Your User ID, Password and Account, even if this occurs without Your permission.
4.2

Notification and Indemnification. You agree to immediately notify Talkster in writing of any unauthorized and/or fraudulent use of Your User ID, Password, Account and/or Talkster Group Account. You agree to indemnify Talkster against any and all third party claims and all related liabilities arising out of, or relating to, the use of Your User ID, Password, and/or Account. Talkster will not be liable for any damages resulting from the unauthorized and/or fraudulent use of Your User ID and/or Password and the unauthorized use of Your Account.
4.3

Change of User ID and Password. Talkster reserves the right to change Your User ID or Password if this is in the interest of the functioning of the VoIP service or to prevent fraudulent use of the VoIP service.

Article 5 — ACCOUNT BALANCE

5.1

Credit balance. Talkster may offer, in addition to free or ad-supported services, paid services. In order to use paid services that may be offered by Talkster, you must procure Talkster Credit. You must deposit a credit balance on Your Account by credit card, promotional voucher, or other means which may be made available by Talkster. New accounts paid by credit card are activated immediately upon receipt and validation of credit information. For such activation, You must give Talkster a valid credit card number (Visa, MasterCard, American Express or any other issuer then-accepted by Talkster). Talkster reserves the right to stop accepting credit cards from one or more issuers.
5.2

Activating Account. In the event Talkster has provided You with a password or voucher number which represents a credit balance for a VoIP service, You will activate this credit balance on Your respective account by typing this password or voucher number on the relevant part of the website (www.talkster.com.)

Article 6 — REFUND POLICY

6.1

You can request a refund for unused and unexpired VoIP service or unused Talkster Credit at any time, by contacting customer support at service@talkster.com. Refund requests carried out through other means shall not be eligible for the refund. For the avoidance of doubt, no refunds shall be given for services paid or credit acquired paid through vouchers or pre-paid cards. Talkster reserves the right to deny repetitive refund requests (more than twice for any given type of VoIP service).
6.2

Upon a duly submitted refund request, Talkster will refund You the credit balance of Your Talkster Credit. In case You have used less than one dollar (1 USD) of Your Talkster Credit it will be refunded in full.
6.3

Upon a duly submitted refund request, Talkster will refund You on a pro rata basis for the unused period of subscription of the Talkster Service, as applicable.
6.4

All refunds shall be paid either through the original payment method used, or any other reasonable payment method to be determined by Talkster, and addressed to such person that deposited the credit initially or Your Talkster Credit shall be adjusted accordingly. Further, subject to Article 6.1, Talkster will refund Your credit balance in the event You terminate Your Account(s) pursuant to article 7.2, 13.1, 13.2 and 16.5.
6.5

A credit balance for Talkster Credit expires 180 days after the last chargeable use of the Talkster Credit. Credit balances that are not used within the said 180 day period will be lost.
6.6

Any abuse by You of the terms relating to refunds hereunder shall lead to the termination of this Agreement.

Article 7 — TARIFFS AND PAYMENT

7.1

Payment. In order to purchase credits for the paid VoIP service, You shall pay Talkster the tariffs as stated on the website www.talkster.com. Unless stated otherwise, all tariffs and charges shall be stated in U.S. Dollars and shall be exclusive of any applicable taxes.
7.2

Change of tariffs. Talkster reserves the right to change the tariffs of the service at any time by giving a thirty (30) day notice of such change on the website www.talkster.com. If You do not wish to accept such adjustment of tariffs, You are entitled to terminate the Account(s) which the adjustment affects. You may terminate the affected Accounts by written notice, with effect from the date on which the adjustment of tariffs would become effective. You agree that by continuing to use the VoIP service following the adjustments of the tariffs, You accept such adjustments.
7.3

Charged in error. In the event You believe that Talkster has charged You in error, You must contact Talkster’s customer services within 90 days after such charge. Talkster reserves the right to not give any refunds or adjustments will not be given for any charges which are more than 90 days old.
7.4

Positive balance. You can only make use of the paid VoIP service when Your Account has a positive and sufficient credit balance.

Article 8 — PRIVACY, PERSONAL DATA AND TRAFFIC DATA

8.1

Privacy Policy. Talkster is committed to respecting Your privacy and the confidentiality of Your personal and traffic data. The Privacy Policy, published on Talkster’s website at www.talkster.com, applies to the use of personal data and the traffic data, as well as the confidential information transmitted via the VoIP services. As stated in the Privacy Policy, in order to provide You with VoIP Services or other services You have requested, Talkster may sometimes, if necessary, share Your personal and traffic data with carriers, distributors, partnering service providers and/or agents. Further, as stated in the Privacy Policy, Talkster and/or its local partners may need to provide such data to designated competent authorities upon request, or may need to enter into further activities due to local regulations, for example with regard to the interception of communications, if requested by such authorities.

We do not sell or rent Your personal information to third parties for their marketing purposes without Your explicit consent and we use Your information only as described in the Privacy Policy. We store and process Your information on computers that may be located outside Your country that are protected by physical as well as technological security devices. You can access and modify the information You provide in accordance with the Privacy Policy. If You object to Your information being transferred or used in this way please do not use our services.

Article 9 — INTELLECTUAL PROPERTY RIGHTS

9.1

Ownership. All intellectual property rights regarding the VoIP service, including but not limited to the software and related documentation developed and/or owned by Talkster shall be and shall remain the sole property of Talkster. The providing of the VoIP services does not imply any transfer of intellectual property rights.
9.2

License. You shall only obtain a non-exclusive and non-transferable right for the use of the VoIP services. You commit Yourself to adhere strictly to any conditions laid down in the Terms of Service or imposed in any other way.

Article 10 — LIMITATION OF LIABILITY

10.1

No incidental consequential damages. To the maximum extent permitted by applicable law, Talkster shall not be liable for any special, incidental or consequential damages whatsoever (including but not limited to, damages for loss of profits or confidential or other information, for business interruption, for loss of privacy arising out of or in any way related to the use of or inability to use the VoIP service), even if Talkster has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.
10.2

Specific Disclaimer of Liability for Emergency Services. Talkster does not provide Emergency Services in conjunction with the VoIP service or any other services. Neither Talkster nor its officers or employees may be held liable for any claim, damage, or loss, and You hereby waive, to the maximum extent permitted by applicable law, any and all such claims or causes of action, arising from or relating to the use of VoIP service or any other service provided hereunder to contact Emergency Services personnel. You shall defend, indemnify, and hold harmless Talkster, Talkster Staff, Affiliates and agents and any other service provider who furnishes any services to You in connection with the VoIP service or any other services provided under these Terms of Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, You relating to the absence, failure or outage of the VoIP service or any other service provided hereunder, including specifically any claims arising out of the failure of Talkster to offer Emergency Services.
10.2.1

Alternative Arrangements. By agreeing to these Terms of Service You acknowledge and accept that Talkster does not offer Emergency Services. You understand that additional arrangements must be made to access Emergency Services. To access Emergency Services, You acknowledge and accept Your responsibility to purchase, separately from VoIP service, traditional wireless or wireline telephone service that offers access to Emergency Services.
10.2.2

No Compulsion to Offer Emergency Services. You recognize and agree that Talkster is not required to offer Emergency Services pursuant to any applicable local and or national rules, regulation or law. You further recognize that Talkster is not a replacement for Your primary telephone service.
10.3

Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In that event the liability will be limited as far as legally possible under the applicable legislation.
10.4

Indemnification
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS US, OUR OFFICERS, DIRECTORS, EMPLOYEES, SUPPLIERS, LICENSORS AND AFFILIATES, FROM AND AGAINST ANY CLAIMS, LOSSES, DAMAGES, FINES AND EXPENSES (INCLUDING ATTORNEY'S FEES AND COSTS) ARISING OUT OF OR RELATING TO ANY CLAIMS THAT YOU HAVE USED THE TALKSTER  SERVICE IN VIOLATION OF ANOTHER PARTY'S RIGHTS, IN VIOLATION OF ANY LAW, IN VIOLATIONS OF ANY TERMS OF THESE TERMS OF SERVICE, OR ANY OTHER CLAIM RELATED TO YOUR USE OF THE TALKSTER  SERVICE.
10.5

Disclaimer of Warranties
THE TALKSTER SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE TALKSTER SERVICE IS AT YOUR SOLE RISK.

WE EXPRESSLY DISCLAIM, AND YOU HEREBY WAIVE, ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE TALKSTER  SERVICE WILL MEET YOUR REQUIREMENTS, BE UNINTERUPTED, TIMELY, SECURE, VIRUS FREE OR ERROR FREE, OR THAT ANY ERRORS IN THE SOFTWARE OR TALKSTER  SERVICE WILL BE CORRECTED.

ANY CONTENT SENT, TRANSMITTED OR OBTAINED THROUGH THE USE OF THE TALKSTER SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY COMPUTER SYSTEM, MOBILE TELEPHONE, MOBILE WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OF THE TALKSTER SERVICE.

NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM US, OUR EMPLOYEES, OFFICERS, DIRECTORS, AGENTS OR REPRESENTATIVES SHALL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
10.6

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT ARE WE BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER OR FOR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS ARISING OUT OF THESE TERMS OF USE OF THE TALKSTER  SERVICE, THE USE OR INABILITY TO USE THE TALKSTER  SERVICE, THE MODIFICATION, SUSPENSION OR DISCONTINUATION OF THE SERVICE, YOUR ACCOUNT INFORMATION, ANY CONTENT SENT, RECEIVED, STORED OR DISTRIBUTED VIA THE TALKSTER  SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US RELATED TO THE TALKSTER  SERVICE SHALL BE CANCELLATION OF THE TALKSTER  SERVICE. IF A COURT AWARDS ANY DAMAGES DESPITE THE FOREGOING LIMITATIONS OF LIABILITY IN THIS TERMS OF SERVICE, SUCH DAMAGES FOR ANY AND ALL CLAIMS UNDER THIS TERMS OF SERVICE SHALL NOT IN THEIR AGGREGATE, IN ANY CIRCUMSTANCE, EXCEED THE AMOUNT YOU PAID FOR THE TALKSTER  SERVICE.

THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM, OR A FUNDAMENTAL BREACH.

Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.

Article 11 — FORCE MAJEURE

11.1

Force majeure. You acknowledge and understand that the VoIP service does not function and Talkster will not be in breach of any of its obligations towards You under these Terms of Service in the event of a force majeure event. A force majeure event means any event beyond the control of Talkster including, but not limited to, an act of God, insurrection or civil disorder, war or military operations, national or local emergency, a serious and sustained power outage or severe Internet service disruption, flood, subsidence, or weather conditions of exceptional severity.
11.2

Consequences of force majeure. In the event Talkster is affected by a force majeure event, it shall promptly notify You of the estimated extent and duration of its inability to perform or delay in performing its obligations, on a best efforts basis. Talkster will not accept any liability for the consequences arising out of a force majeure event.

Article 12 — TERM AND TERMINATION

12.1

Term. The Agreement will be effective as of the date of Your acceptance thereof, and will remain effective until terminated by either party as set forth in these Terms of Service.
12.2

Termination by You. You may terminate the Agreement at any time, under the conditions provided herein.
12.3

Termination by Talkster. Without limiting other remedies, we may limit, suspend, or terminate this service and Your use of Talkster service and software, prohibit access to Talkster’s website, remove hosted content, and take technical and legal steps to keep You off the Website if we think that You are in breach of these Terms of Service, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, infringing someone else’s intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons, with immediate effect and without recourse to the courts. Talkster shall effect such termination by providing notice to You to the email address You have provided, and/or preventing Your access to Your Account and to the VoIP service.
12.4

Consequences of Termination. Upon termination of the Agreement for any reason all licenses and rights to use the VoIP service shall terminate and You will cease any and all use of the VoIP service.
12.5

Survival. All provisions which must survive in order to give effect to their meaning shall survive any expiration or termination of the Agreement, including without limitation, all of Your representations, warranties and indemnification obligations.

Article 13 — MISCELLANEOUS

13.1

New versions of the Terms of Service. Talkster reserves the right to modify these Terms of Service at any time by providing such revised Terms of Service to You or by publishing the revised Agreement on the Website, which shall become effective within thirty (30) days thereof, unless You expressly accept the revised Terms of Service by checking the acceptance box or clicking on similar buttons, checkboxes or links as may be designated by Talkster. Your continued use of the VoIP service after expiry of said period of time shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. If You do not wish to accept these revised Terms of Service, You are entitled to terminate Your Account, in writing or by e-mail to service@talkster.com, with effect from the date on which the revised Terms of Service would become effective. You can find the latest version of these Terms of Service www.talkster.com. Talkster reserves the right to make changes to these Terms of Service from time to time.
13.2

Adjustment of the VoIP service. Talkster reserves the right to adjust the VoIP service at any time, for example to conform to legal and regulatory obligations. If You do not wish to accept the adjusted VoIP service, You are entitled to terminate Your Account, in writing or by e-mail to service@talkster.com, with effect from the date on which the adjusted VoIP service will be provided.
13.3

Paid, Free and Ad-Supported Services. Talkster may offer a number of services based on the Talkster platform. These services may be free to the end user or paid, as stated clearly on the Talkster site. Where offered, Talkster services may be ad-supported. Terms of ad delivery are stated in our privacy policy.

Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of these Terms of Service shall nonetheless remain in full force and effect.
13.5

No waiver. Talkster does not guarantee we will take action against all breaches of these Terms of Service. The failure of Talkster at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by Talkster.
13.6

No Assignment by You. You are not allowed to assign this contract or any rights hereunder.
13.7

Assignment by Talkster. Talkster is allowed to, at its sole discretion, assign this contract or any rights hereunder to any affiliate, without giving prior notice.
13.8

Applicable Law. The Agreement shall be governed by and construed in accordance with the laws of the province of Ontario , Canada without giving effect to the conflict of laws or provisions of Ontario or Your actual state or country of residence.
13.9

Competent Court. Any legal proceedings arising out of or relating to Agreement will be subject to the jurisdiction of Canadian courts and specifically the courts of the province of Ontario .
13.10

Language. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall prevail.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF SERVICE AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CHECKING THE ACCEPTANCE BOX AND/OR CONTINUING TO USE THE VOIP SERVICE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO TALKSTER THE RIGHTS SET FORTH HEREIN.

If you have any questions or concerns regarding this agreement, please contact us at info@talkster.com.