Terms & Conditions

Terms and conditions for use of Talk Cafe, INC Services

PLEASE READ CAREFULLY. Your use of the Talk Cafe, Inc services at www.talkcafe.com (the “Site”) and of any Talk Cafe software product (“Software”) constitutes your agreement to abide by the Terms and Conditions published on the Site, and Talk Cafe’s Privacy Policy. If you do not agree to these Terms and Conditions, you may not use the Site or the Software When you register and/or use any Talk Cafe Service (“Service”) including but not limited to Free Trials you agree to all of the terms and conditions of this Agreement.

Please read the following terms and conditions carefully, as they form the agreement between you and Talk Cafe (Company). If you do not agree to these terms and conditions, you may not use the Service. By using the Service after February 8th, 2006 you are agreeing to be bound by this Agreement, including all amendments made to date.

USER AGREEMENT

This Agreement governs the relationship between you, the Company and any mobile service provided through which you access the Service with respect to your use of the Service. You must agree to abide by all of the terms and conditions contained in this Agreement in order to become and/or remain an authorized user of the Service. As used in this Agreement, “we” and “us” means the Company or any of its successors or assigns.

RIGHT TO USE

Your right to use the Service is subject to any limitations, conditions and restrictions established by us from time to time, at our sole discretion. We may alter, suspend or discontinue any aspect of the Service at any time, including the availability of any Service feature, database or content. We may also impose limits on certain features and aspects of the Service or restrict your access to parts or all of the Service without notice or liability. It is therefore your responsibility to periodically review these terms and conditions for any changes. Your continued use of the website or our systems after the changes have been made is your tacit approval of any changes.

ADULT

You represent, warrant and covenant that you are at least 18 years old.

CODE OF CONDUCT

You agree to use the Service in accordance with the following Code of Conduct: you will keep all information provided to you through the Service as private and confidential and will not give such information to anyone without the permission of the person who provided it to you;

you will not use the Service to engage in any form of harassment or offensive behavior, including but not limited to the posting of communications, pictures or recordings which contain libelous, slanderous, abusive or defamatory statements, or racist, pornographic, obscene, or offensive language or images;

you will not use the Service to infringe the privacy rights, property rights, or any other rights of any person you will not post messages, pictures or recordings or use the Service in any way which violates, plagiarizes or infringes upon the rights of any third party, including but not limited to any copyright or privacy or other personal or proprietary rights, or is fraudulent or otherwise unlawful or violates any law;

you will not use the Service to promote any solicitation for funds, advertising or solicitation for goods or services;

you will not post or transmit in any manner any contact information including, but not limited to, telephone numbers, postal addresses, e-mail addresses, web sites, or full names through your publicly posted information.

Customer shall not interfere with the use and enjoyment of the Service by other persons.

CARRIER TRANSACTIONS AND CHARGES

Your dealings with any wireless, telecommunications, or other carrier (“Carrier”) in connection with the Site or the Service, including payment for and delivery of any Software, participation in any promotions offered by any Carrier, and/or any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and the Carrier. Talk Cafe shall not be responsible or liable for any part of any such dealings or promotions.

You are solely responsible for, and Talk Cafe will not have any liability to you for, any access or usage charges charged by a Carrier related to any device that you use to access the Site or use the Service, including, without limitation, usage charges for mobile telephones, Palm OS devices, Windows CE devices, car navigation systems, pagers, “smartphones” and other devices, whether wireless or wireline.

Fees and payments are between you and your mobile service provider and are subject to the terms and conditions you agreed to with your mobile service provider.
You agree to pay or have paid all fees and charges incurred in connection with your use of the Service (including any applicable taxes) at the rates in effect when the charges were incurred. All fees and charges are non-refundable. We may change the fees and charges in effect for using the Service, or add new fees or charges, by posting new fees and changes on the site from time to time. You also are responsible for any fees or charges incurred to access the Service, including but not limited to telephone charges, long distance charges or mobile phone charges. YOU, AND NOT US, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR THIRD PARTY’S WIRELESS INVOICE, WHICH WERE NOT AUTHORIZED BY YOU.

PRIVACY AND USE OF INFORMATION

By using the services you have also agreed to our Privacy Policy. You acknowledge that (a) we cannot ensure the security or privacy of information or documents you provide through the mobile phone system, and you release us from any and all liability in connection with the use of such information by other parties; (b) we are not responsible for, and cannot control, the use by others of any information which you provide to them and you should use caution in selecting the personal information you provide to others through the Service; and (c) we cannot assume any responsibility for the content of messages sent by other users of the Service, and you release us from any and all liability in connection with the content of any communications you may receive from other users. We cannot guarantee, and assume no responsibility for verifying, the accuracy of the information provided by other users of the Service.
You may not use the Service for any unlawful purpose. We may refuse content that impersonates someone else, is protected by proprietary law, or is vulgar or otherwise offensive, as determined by us in our sole discretion.

NOTICES AND ANNOUNCEMENTS

By opting in to use our services including but not limited to using Free Trials, you authorize us to notify you of information that Talk Cafe deems is of potential interest to you. Notices and announcements may include commercial text messages or emails and other notices describing changes, upgrades, new products and services.

MONITORING OF INFORMATION

We reserve the right to monitor all advertisements, public postings and messages to ensure that they conform to the content guidelines that may be applicable from time to time and this agreement.

REMOVAL OF INFORMATION

While we do not and cannot review every message sent by users of the Service, and are not responsible for any content of these messages, we reserve the right, but are not obligated, to delete or move content including without limitation profiles, public postings and messages, that we, at our sole discretion, deem to violate the Code of Conduct set out above or any applicable content guidelines, or to be otherwise unacceptable. You shall remain solely responsible for the content of profiles, public postings and messages you may record to the Service or send to the users of the Service.

TERMINATION OF ACCESS TO SERVICE

We may, at our sole discretion, terminate or suspend your access to all or part of the Service at any time, with or without notice, for any reason, including, without limitation, breach of this Agreement. Without limiting the generality of the foregoing, any fraudulent, abusive, or otherwise illegal activity that may otherwise affect the enjoyment of the Service or the Internet by others may be grounds for termination of your access to all or part of the Service at our sole discretion, and you may be referred to appropriate law enforcement agencies.

PROPRIETARY RIGHTS

Site Content. All content that is made available to view and/or download in connection with the Site (“Site Content”) is the copyrighted work of and is owned by Talk Cafe and/or its licensors, as applicable, and is protected by copyright laws and international treaty provisions. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any Site Content (including, without limitation, Site Content that Talk Cafe enables you to download) without the express written permission of Talk Cafe and the copyright owner.

Software. The Software, and any copies thereof, and all copyrights, trademarks, patents, trade secrets and/or any other proprietary rights therein (collectively, “Intellectual Property”) are owned by Talk Cafe and/or its licensors and are protected by U.S laws and international treaty provisions. Your limited rights to use the Software are described below.

Reservation of Rights. All rights not expressly granted to you herein are reserved. You acknowledge that the Site Content and Software are licensed, and not sold, by Talk Cafe and/or its licensors, as applicable, and that Talk Cafe and/or its licensors, as applicable, shall retain all right, title and interest in and to the Site Content and Software, and all Intellectual Property rights therein.

PROPRIETARY INFORMATION

The Service contains information that is proprietary to us, our partners, and our users. We assert full copyright protection in the Service. Information posted by us, our partners or users of the Service may be protected whether or not it is identified as proprietary to us or to them. You agree not to modify, copy or distribute any such information in any manner whatsoever without having first received the express permission of the owner of such information.

NO RESPONSIBILITY

You acknowledge that we are not responsible for suspension of the Service, regardless of the cause of the interruption or suspension. Any claim against us shall be limited to the amount you paid, if any, for use of the Service during the previous 3 months. We may discontinue or change the Service or its availability to you at any time and you may stop using the Service at any time.

SECURITY

Your account is private and should not be used by anyone else. You are responsible for all usage or activity on the Service.

INDEMNITY

The Company is not liable or responsible for any damages arising out of your use of the Service. You agree to hold harmless the Company for any and all actions and claims that may arise as a result of Customer’s use of the Services for any and all actions or claims that may arise between you and any third party for which Company may be made a party, or which Company may become a party through your action or non-action. You agree to fully defend Company at your expense including payment of all attorneys fees, expenses and damages that may result from, be based on, or relate to your action or non-action. You agree and understand that in any event Company becomes a party to any action to which you are obligated to defend, Company shall have the option of retaining its own counsel for which you agree to pay all attorneys fees and costs associated with the action. Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you; provided, however, that you shall remain liable for any such claim. Company officers, directors, shareholders, parents, affiliates, agents, employees, representatives and assigns shall not be liable to you for direct, indirect, special, incidental, consequential, exemplary or punitive loss, injury, or damages of any kind, resulting from Company’s inability to perform their obligations hereunder due to causes beyond its control.

NO WARRANTIES

The Service is distributed on an “as is” basis. We do not warrant that this Service will be uninterrupted or error-free. There may be delays, omissions, and interruptions in the availability of the Service. Where permitted by law, you acknowledge that the Service is provided without any warranties of any kind whatsoever either express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose. You acknowledge that use of the Service is at your own risk. We do not represent or endorse the accuracy or reliability of any profile, advice, opinion, statement or other information recorded or distributed through the Service by Company, our partners or any user of the Service or any other person or entity. You acknowledge that any reliance upon any such opinion, member profile, advice, statement or information shall be at your sole risk.

Your continued use of the Service now, or following the posting of notice of any changes in this Agreement, will constitute a binding acceptance by you of this Agreement, or any subsequent modifications.

We may modify this Agreement from time to time. Notification of changes in this Agreement will be posted on the Service as we may determine in our sole discretion. If you do not agree to any modifications, you should terminate your use of the Service. Your continued use of the Service now, or following the posting of notice of any changes in this Agreement, will constitute a binding acceptance by you of this Agreement, or any subsequent modifications.

DISCLOSURE AND OTHER COMMUNICATION

We reserve the right to send you messages through the Service, for the purpose of informing you of issues, changes or additions to the Service, or of any Company related products and services. We reserve the right to disclose information about your usage of the Service and demographics in forms that do not reveal your personal identity. And by your use of the Service, you consent to such disclosures and communications subject to the terms of our Privacy Statement.

THIRD PARTY SITES

The Site may contain links to third party web sites (“Linked Sites”). These Linked Sites are not under the control of Talk Cafe and Talk Cafe is not responsible for the availability, site content, or performance of any Linked Sites.

Talk Cafe is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Talk Cafe of the Linked Site or any association with its operators. You are responsible for viewing and abiding by the privacy statements and terms of use posted at the Linked Sites. You should direct any concerns regarding these third-party sites to those sites’ administrators.

LAW

This Agreement shall be construed, both as to validity and performance, and enforced in accordance with the laws of the State of Florida. In the event of a dispute involving the interpretation or application of any term or condition of this agreement, or based upon, relating to or arising out of this agreement, such dispute shall be submitted to final and binding arbitration in Pinellas County, Florida in accordance with Commercial Arbitration Rules of the American Arbitration Association of Florida. The decision and award of the arbitrator shall be final and binding on the parties hereto and judgment of such award may be entered in any court of competent jurisdiction. In the event that any party seeks legal action for any purpose as a result of the default or for protecting its interest in the subject matter of this agreement including all arbitrable matters and declaratory relief the prevailing party shall be entitled to collect attorneys fees and costs from the non-prevailing party.

ASSIGNMENT

You do not have the right to assign this Agreement or any of your rights to the Service to anyone. Company has the right to assign any or all of its rights and duties under this Agreement or to the Service to any third party. At Company’s election, if Company’s obligations hereunder are assumed by a third party, Company shall be relieved of any and all liability under this Agreement.

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