1.1 Right to Use Services. During the term or subscription period, if any, identified when you subscribed or completed an order, agreement or enrollment form, SalesTalk grants you a nontransferable, nonexclusive, limited right to access and use the Services subject to the terms of this Agreement. “Services” means the products, content and services made available to you by SalesTalk in one or more order, agreement or enrollment form(s) you have signed or accepted and as described on SalesTalk’s Site.
1.2 Limitations. The Services are provided by means of your access via the internet and may be limited, inaccessible or inoperable for various reasons or causes beyond the control of SalesTalk which are not reasonably foreseeable, including without limitation, internet service provider failures or delays, interruption or failure of digital transmission links, limitations of transmissions, hostile network attacks, network congestion or other failures or acts of God. Services may also be subject to other limitations, such as, the number of users from one customer, the volume of transactions, or disk storage space.
2. YOUR ACCOUNT, PASSWORD, AND SECURITY. You are responsible for maintaining the confidentiality of your password and account. Furthermore, you are solely responsible and liable for any and all activities that occur under your account, including among other things, the content of transmissions utilizing the Services from your account. You shall notify SalesTalk promptly of any unauthorized access to or use of your account or any other breach of security known to you.
3. FEES AND PAYMENT. You shall pay in advance all amounts specified in all order forms or agreements relating to the Services, excluding any freemium or similar, non-chargeable offers you may receive from SalesTalk. Fees charged are based on Services you have purchased and payment obligations are non-terminable, other than as set forth in any orders, agreements or forms, and non-refundable. SalesTalk’s fees are exclusive of all federal, state, local or other taxes, levies, duties, fees or other governmental charges that may be assessed on the Services, including without limitation, sales, value-added, use or withholding taxes (“Taxes”). You are responsible for paying any and all such Taxes. If SalesTalk is legally obligated to pay such Taxes, you will be charged the appropriate amount. You shall provide SalesTalk with current and valid credit card information allowing us to charge such credit card in advance for all Services you receive from SalesTalk. If, for any reason, payment is not received when due, interest will accrue from the original due date, at the rate of 1.5% per month or the maximum amount allowed by law, whichever is less, compounded annually, and SalesTalk may suspend or terminate the Services immediately.
4. OWNERSHIP. Excluding “Customer Content” (see Paragraph 6 below), all programs, content and materials made available to you through the Services, including but not limited to text, software product, and graphics (collectively, “Content”), provided by SalesTalk or third party providers are protected by copyright law, patent law, moral rights law, trade secret law, confidential information law, trademark law, unfair competition law or other similar rights (collectively, “Intellectual Property Rights”). SalesTalk and its third party providers retain all right, title and interest to their respective Intellectual Property Rights, including without limitation any applications or rights to apply for registration of any such rights, in the Content and relevant portions of the Services. You shall not (i) copy, transmit, distribute, sell, license, lease, de-compile, reverse engineer, disassemble, modify, translate, publish, participate in the transfer or sale of, create derivative works from, perform, display, incorporate into another web site or computer programs or other materials, (ii) in any other way exploit any of the Content or Services or any derivative works thereof, in whole or in part, for commercial or non-commercial purposes, or (iii) remove, obscure or alter any copyright or other proprietary notices or legends on or embedded in the Content or any part of the Services.
5. CONFIDENTIALITY. You understand and agree that during the course of this Agreement certain information that may be confidential or proprietary to you or SalesTalk (the “Disclosing Party”) may be disclosed to the other party (the “Receiving Party”). “Confidential Information” means all information disclosed that is identified as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure and may include components of our Content and/or Services and your data. During the term of this Agreement and for a period of five (5) years thereafter, the Receiving Party shall not disclose any of the Confidential Information of the Disclosing Party to anyone other than its employees or independent contractors who have a need to know in connection with this Agreement and who are bound in writing to confidentiality restrictions at least as restrictive as those contained herein. The confidentiality obligations herein do not apply to the existence of this Agreement or that the parties have executed this Agreement, but do apply to the specific terms of the parties’ relationship, including, without limitation, order or enrollment form information, pricing and specific services to be performed for you. Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public through no fault of the Receiving Party; (ii) was in its possession or known by it prior to receipt; (iii) was furnished by a third party with the right to do so; or (iv) was independently developed without use of any Confidential Information of Disclosing Party.
7.1 Defame, libel and slander, abuse, harass, stalk, embarrass, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others;
7.2 Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, adult-oriented, pornographic, tortious, indecent, unlawful, immoral or otherwise objectionable material or information, including without limitation, through using the Services or modifying and using the Content;
7.3 Harm minors in any way;
7.4 Harvest or otherwise collect information about others, including without limitation email addresses and email interception, without their consent;
7.5 Create a false identity for the purpose of misleading others as to your identity or the origin of a message or forge message headers or manipulate identifiers to disguise origin of transmission;
7.6 Transmit or upload any material that contains viruses, trojan horses, worms, time bombs, cancel bots, denial of service attacks, flood pings, or any other harmful or deleterious programs;
7.7 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;
7.8 Interfere with or disrupt the Services, networks or servers connected to the Services or violate the regulations, policies or procedures of such networks or servers;
7.9 Attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means;
7.10 Violate any applicable laws or regulations including, without limitation, laws regarding the transmission of technical data or software exported from the United States through the Services;
7.11 Use the Services to promote illegal activities;
7.12 Use the Services for gambling or betting or to promote the use of alcohol, firearms or tobacco products;
7.14 Engage in any other conduct, which, in SalesTalk’s sole discretion, is considered unauthorized or objectionable.
9. SPAMMING. User shall not use the Services in any way, form or manner for chain letters, junk email, “Spamming” (defined below) or any use of distribution lists to any person who has not given specific permission to be included in such a process, including without limitation the collection, storage or transmission of information for such a distribution list. An e-mail advertisement that (a) is addressed to a recipient with whom the initiator does not have an existing business or personal relationship, and (b) is not sent at the request of or with the express consent of the recipient to receive such communications from you is defined as “Spam” or “Spamming”. If any user uses the Services for Spamming, SalesTalk reserves the right to immediately terminate your access to the Services and to seek appropriate legal recourse as necessary.
11. MESSAGE STORAGE. SalesTalk shall not have responsibility or liability for SalesTalk’s or your deletion of a message or the failure to send messages. SalesTalk shall not have responsibility or liability for messages not processed due to space constraints or message limitations. You agree that SalesTalk is not liable to you or any third-party for any changes to the storage limitations.
12. LINKED SITES. SalesTalk may provide through the SalesTalk web site or the Services, or you may include in messages, links to other web sites or resources (“Linked Sites”). You acknowledge and agree that SalesTalk has no control over and are not responsible for the availability of Linked Sites. You further acknowledge and agree that SalesTalk does not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from Linked Sites. You agree that SalesTalk shall not have responsibility or liability, directly or indirectly, for any damage or loss caused, or alleged to be caused, by or in connection with the use of or reliance on, any such content, goods or services available on Linked Sites.
13. WARRANTIES AND DISCLAIMERS. SalesTalk warrants that it has the power and authority to enter into this Agreement and that it will perform the Services in a manner consistent with generally accepted industry standards. You must notify SalesTalk of any warranty claim within thirty (30) days following performance of the relevant Service in order to receive warranty remedies. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SALESTALK DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SALESTALK OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. SALESTALK AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING AVAILABILITY, ACCURACY, RELIABILITY, SUITABILITY, TIMELINESS OF THE SERVICES OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION. TO THE MAXIMUM EXTENT ALLOWABLE UNDER STATE LAW, YOU AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK.
14. LIMITATION OF LIABILITY. You agree that SalesTalk shall not have any liability for any User Material sent or received or not sent or not received through the Services, including among other things for the timeliness, deletion, limitation of content, mis-delivery or failure to store any of your communications or personalization settings. You acknowledge and agree that SalesTalk and its third party providers do not endorse the content of any of your communications and shall not have any liability for any unlawful, harassing, defamatory, privacy invasive, abusive, threatening, offensive, harmful, vulgar, obscene, tortious, or otherwise objectionable content or conduct, or your content or conduct that infringes or may infringe the Intellectual Property Rights or other rights of another. You specifically agree that SalesTalk shall not have any liability for any content sent or received using the Services and/or included in the Service by any third party. If the SalesTalk Site becomes unavailable due to problems in the Services, related hardware, server, or connectivity from the SalesTalk Site or location or ISP location, SalesTalk will use diligent efforts to restore operation of the SalesTalk Site. SalesTalk will not be responsible for unavailability of the SalesTalk Site due to (i) outages caused by the failure of the public network or communication components; (ii) errors in HTML, coding in, or any other aspect of, the files or data provided by you or your agent; (iii) unauthorized use or misuse of the Services; (iv) scheduled downtime; (v) failure of any components outside those of the Service; or (vi) the failure of any components if such failure results from causes beyond the reasonable control of SalesTalk. SalesTalk shall not be liable for violation of any applicable law, rule or regulation or the rights of any third party arising out of Client Content or User Materials provided by you or your agent or utilized by the Services.
15. YOU AGREE THAT SALESTALK, ITS THIRD PARTY PROVIDERS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS AND AFFILIATES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR RESULTING FROM (i) THE USE, INABILITY TO USE OR DELAY IN THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (iii) ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH OR FROM THE SERVICES; (iv) MESSAGES OR CONTENT RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (v) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (vi) INTERRUPTION, SUSPENSION OR TERMINATION OF THE SERVICES REGARDLESS OF WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SALESTALK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. SALESTALK MAKES NO CLAIMS THAT ITS SERVICES OR THE CONTENT ARE APPROPRIATE OR MAY BE USED OUTSIDE OF THE UNITED STATES. ACCESS TO THE SERVICES OR THE CONTENT MAY NOT BE LEGAL BY CERTAIN PERSONS OR IN CERTAIN COUNTRIES. YOUR USE OF THE SERVICES FROM OUTSIDE THE UNITED STATES IS AT YOUR OWN RISK AND YOU ARE RESPONSIBLE FOR COMPLIANCE WITH THE LAWS OF YOUR JURISDICTION. IN NO EVENT WILL SALESTALK BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AMOUNT THAT SALESTALK HAS RECEIVED FROM YOU IN THE 180 DAYS PRECEDING THE DATE OF CLAIM GIVING RISE TO SUCH LIABILITY.