Terms of Service

Welcome to Talksoon. We hope that you enjoy and appreciate using our “Services”, which include (i) visiting our website at https://talksoon.com, including all subdomains, present and future (the “Website”); (ii) using our “Platform”, available on the Website, which allows you to respond to your clients’ communications in a seamless and consistent way and that includes, without limitation, interactive voice systems and messaging and communication tools; and (iii) using our “Widget”, which allow your clients to communicate with you via SMS or phone directly from your website.

By visiting the Website, by creating an account with Talksoon, by clicking “accept” to the Terms of Service (the “Terms”) or by executing any Subscription Documentation (as defined below), you hereby accept to be bound by these Terms without any reservations, modifications, additions or deletions. If you do not agree to all the provisions contained in the Terms, you are not authorized to use the Services. The Terms are a legal and binding agreement between you and us.

If you (“Client”, as defined below), accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “Client”, as used in these Terms, will refer and apply to that company or other legal entity.

The Services are owned and operated by TalkSoon Inc., a Canadian corporation with a mailing address listed below. Where the present Terms refer to “Talksoon” they may refer to TalkSoon Inc. and / or its shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns (collectively “Representatives”), depending on the context. Any reference to “we”, “our”, or “us” in these Terms shall also refer to Talksoon and / or its Representatives.

1. DEFINITIONS.

1. Advanced Support” has the meaning set out in Section 7.2. 

2. “Aggregate/Anonymous Data” has the meaning set out in Section 5.2. 

3. “Authorized Users” has the meaning set out in Section 4.3. 

4. “Beta Releases” has the meaning set out in Section 4.6. 

5. “Client” means the individual, the company or other entity accessing and using the Services.

6. “Client Data” has the meaning set out in Section 5.1. 

7. “Computer Code” has the meaning set out in Section 11.1. 

8. “Confidential Information” means (i) any and all non-public, confidential or proprietary information of a party, including any information relating to the content of these Terms and a party’s business, products, services, activities, operations, business affairs, customers and prospects, intellectual property, technology, know-how, design rights and trade secrets, whether such information is provided orally, in writing, in computer readable form or otherwise and whether or not it is specifically identified as confidential; and (ii) any copies, extracts or reproductions, in whole or in part, of any of the foregoing.

9. “Customer” means a client or customer of Client or a potential client or customer of Client. 

10. “Customer Data” means data related to the identity, characteristics, and activities of Customers, collected or submitted to the Services by Client or captured by the Services.

11. “Disclosing Party” has the meaning set out in Section 10.1. 

12. “Feedback” has the meaning set out in Section 11.2. 

13. “Fees” has the meaning set out in Section 8.1. 

14. “Free Access Subscription” has the meaning set out in Section 4.6. 

15. “Force Majeure” means any unavailability caused by circumstances beyond a party’s reasonable control, including natural disasters, acts of government, floods, fires, earthquakes, civil unrest, pandemics, epidemics, government-mandated quarantines, publicly declared states of emergency, terrorism, strikes or other labor problems (other than those involving the parties’ respective employees), internet service provider failures or delays, or denial of service attacks.

16. “Indemnified Party” has the meaning set out in Section 13.3. 

17. “Indemnifying Party” has the meaning set out in Section 13.3. 

18. “Initial Term” has the meaning set out in Section 9.1. 

19. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, whether registered or not.

20. "Law(s)” means all applicable local, state, provincial, federal and international laws, rules, and regulations, or amendments thereto, including, but not limited to, the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act, Do Not Call rules and prohibitions, and Canada’s Anti-Spam Legislation (“CASL”).

21. “Marketing” has the meaning set out in Section 6.2. 

22. “Receiving Party” has the meaning set out in Section 10.1. 

23. “Renewal Term” has the meaning set out in Section 9.1. 

24. “Scope of Use” has the meaning set out in Section 1.26. 

25. Subscription” has the meaning set out in Section 8.1. 

26. “Subscription Documentation” means any proposal, quote, services agreement, order form or statement of work that references these Terms and details the Services to be provided by Talksoon to Client and, if applicable, the usage limits, characteristics or other limitations of the Services (the “Scope of Use”). 

27. “Subscription Start Date” has the meaning set out in Section 9.1.

28. “Subscription Fees” has the meaning set out in Section 8.1.

29. “Term” has the meaning set out in Section 9.1.

30. “Third-Party Claim” has the meaning set out in Section 13.3. 

31. “Third-Party Content” means content, data, or other materials that Client provides to or incorporates with the Services from its Third-Party Providers, including through Third-Party Products used by Client.

32. “Third-Party Loss” has the meaning set out in Section 13.1. 

33. “Third-Party Products” has the meaning set out in Section 12. 

34. “Third Party Providers” has the meaning set out in Section 12. 

2. CONTACTING US.

If you have any questions about the Terms, please contact:

Talksoon Legal Services
legal@talksoon.com

or:

Talksoon Legal Services
139 Dobie Avenue
Mont-Royal, Québec H3P 1S3
Canada

3. SERVICES.

1. Access to and Use of the Services. Subject to these Terms, Talksoon’s Acceptable Use Policy, the specific terms set out in the applicable Subscription Documentation, as well as payment of the applicable Fees, Talksoon grants to Client a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license during the Term to access and use the Services and the Platform. Talksoon has no obligation to provide any services or perform any tasks not specifically set forth in these Terms or the applicable Subscription Documentation.

   
   

2. Alteration of Subscription Documentation. Any amendments or modifications to any existing Subscription Documentation must be agreed to in writing by the parties. Talksoon has no obligation to perform any Services under any amended Subscription Documentation until the parties have agreed to the effect of such changes on the applicable Fees.

   
   

3. Modification of the Services. Talksoon reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services) on a permanent or temporary basis. The Services are offered as an online, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Services and that Talksoon, at its option, may make updates, bug fixes, modifications, or improvements to the Services from time to time.

4. ACCOUNTS; RESTRICTIONS.

1. Account Registration. Upon execution of the Subscription Documentation, Client requires a Talksoon account in order to access the Services. Talksoon will create Client’s account based on the information provided by Client in the Subscription Documentation. Such account information must be accurate, current, and complete, and will be governed by Talksoon’s Privacy Policy, as may be amended from time to time. Client agrees to keep its account information up to date so that Talksoon may send notices, statements, and other information by email or directly to Client via the Platform. 

2. Account Security; Passwords. As part of the account registration process, Client will be asked to create a password. It is your responsibility to create a password of sufficient strength that cannot easily be discovered by third parties. You are responsible for maintaining the confidentiality of your password and are responsible for all activities that occur under your account, whether by you or any third party. You will be able to change your password at any time. Talksoon will not be liable for any loss or damage arising from the unauthorized use of Client’s account(s).

3. Eligibility and Use by Others. By agreeing to these Terms, Client warrants that it and its employees, agents, contractors, and any other users (including, but not limited to, Third-Party Providers) whom Client has authorized to access the Services on its behalf (“Authorized Users”): (a) are over 18 years old; (b) have not previously been suspended or removed from the Services; and (c) will comply with all Laws when using the Services. Client may permit its Authorized Users to use the Services provided that (i) their use is for Client’s benefit only; and (ii) their use remains in compliance with these Terms. 

4. Responsibility for Authorized Users. Client will be responsible and liable for all Authorized Users’ access and use of the Services and their compliance with these Terms. Client shall ensure that each Authorized User has its own separate account, with a unique email log-in and password. Client is solely responsible for determining its Authorized Users and restricting and/or terminating the rights of such users during the Term, as Client deems appropriate. Additionally, Client is solely responsible for complying, and ensuring that its Authorized Users comply, with all Laws. Client will be solely responsible for any and all actions taken using its and its Authorized Users’ accounts, passwords, or access credentials. Client must notify Talksoon within twenty-four (24) hours of any breach of security or unauthorized use of its account. In all circumstances, Talksoon reserves the right to suspend access to the Services or to terminate any Authorized User’s account, at its sole discretion. 

5. General Restrictions. Client must not (and must not allow any third party to): (a) rent, lease, copy, transfer, sublicense, or provide access to the Services to a third party (except Authorized Users as specifically authorized above); (b) incorporate the Services into, or use the Services with or to provide, any site, product, or service; (c) use the Services (or any portion thereof) for time-sharing purposes or for a third party’s benefit; (d) publicly disseminate information regarding the performance of the Services (which is deemed to be Talksoon’s Confidential Information); (e) modify or create derivative works of the Services or any portion thereof; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to the Services, except to the extent expressly permitted by Law and then only upon advance notice to Talksoon; (g) break or circumvent any security measures or rate limits for the Services; (h) distribute any portion of the Services other than as specifically permitted in these Terms; (i) use the Services in violation of the Acceptable Use Policy; or (j) remove or obscure any proprietary or other notices contained in the Services.

6. Beta Releases and Free Access Subscriptions. Subject to Client’s compliance with these Terms, Talksoon may provide Client with certain Services for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta”, or other early-stage Services, integrations, or features (“Beta Releases”) for the Term set forth in the applicable Subscription Documentation. This Section 4.6 will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Client’s Scope of Use allocations) and supersedes any contrary provision in these Terms. Talksoon may use good faith efforts in its discretion to assist Client with Free Access Subscriptions or Beta Releases. Without limiting the other disclaimers and limitations in these Terms, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CLIENT AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH TALKSOON WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CLIENT’S SOLE RISK. You may choose to use Free Access Subscriptions and Beta Releases at your sole discretion. Talksoon makes no guarantees or promises with respect to the continued availability of any Free Access Subscriptions or Beta Releases or that future versions of a Free Access Subscription or Beta Release will be released or will be available under the same commercial or other terms. Talksoon may discontinue Beta Releases at any time, in our sole discretion, and decide not to make any Beta Releases generally available. Notwithstanding anything to the contrary herein, Talksoon may terminate Client’s right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in Talksoon’s sole discretion, without incurring any liability whatsoever.

   
   

5. CLIENT DATA.

1. Rights in Client Data. As between the parties, Client retains all rights, title, and interest (including any Intellectual Property Rights) in and to any text, images or other content and data that Client selects or submits for use or incorporation with the Services (including without limitation, chat and message logs, call logs, Customer Data or any Third-Party Content) (“Client Data”). Client hereby grants Talksoon a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Client Data solely to the extent necessary to provide the Services and related services to Client and as otherwise provided herein. Client further instructs Talksoon to use and disclose Client Data and Customer Data as necessary to (a) provide the Services consistent with these Terms and Talksoon’s Privacy Policy, including detecting, investigating, and preventing security incidents, spam, fraud, or unlawful use of the Services; and (b) respond to Client’s inquiries or any technical problems and to ensure the Services are working properly.

   
   

2. Aggregate/Anonymous Data. Client agrees that Talksoon will have the right to generate usage data from Client’s use of the Services and may aggregate anonymized Client Data and Customer Data (“Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is owned by Talksoon. Talksoon may use Aggregate/Anonymous Data for any business purpose during or after the Term (including, without limitation, to develop and improve Talksoon’s products and services and to create and distribute reports and other materials). Talksoon will not distribute Aggregate/Anonymous Data in a manner that personally identifies Client or its Customers, or that would otherwise violate any Laws. 

   
   

3. Monitoring. Client understands and agrees that Talksoon may monitor and analyze Client’s use of the Services, Client Data or Customer Data in order to improve the Services, to improve Client’s experience using the Services, to customize and communicate informational or product offerings and promotions to Client and to ensure Client’s compliance with the Acceptable Use Policy. Client also understands that any Third-Party Provider(s) that Client elects to use or access in connection with the Services may also monitor and analyze the Client Data and/or Customer Data that Client uses or accesses in connection with such Third-Party Provider(s).  

   
   

4. Storage. Talksoon does not provide an archiving service. Except as otherwise required by applicable law, Talksoon will delete: (i) any or all copies of Client Data after receiving Client’s written request in respect thereof; and (ii) all copies of Client Data no sooner than 60 days after termination of these Terms. Talksoon expressly disclaims all obligations with respect to Client Data storage.

   
   

6. REPRESENTATIONS AND WARRANTIES; CLIENT OBLIGATIONS. 

1. Warranty. Client represents and warrants that it will use the Services in full compliance with all Laws and these Terms, including the Acceptable Use Policy, and that it will not use the Services in a manner that would cause Talksoon to violate any obligation with respect to any such Laws. Client also represents and warrants and represents that: (a) Client has sole ownership of any Client Data it provides to Talksoon, or otherwise has legal rights to provide such Client Data, and that the Client Data and Talksoon’s use thereof will not violate third-party rights, including intellectual property, privacy, and publicity rights; (b) Talksoon’s possession and/or use of the Client Data on Client’s behalf in connection with the Services, as contemplated hereunder, will not violate any contract, statute, or regulation; (c) Client is authorized to provide Talksoon with any Customer, Client, or Authorized User information it provides in connection with the Services, including any personally identifying information; and (d) Client and/or the Authorized User(s) will only use the Services for interaction with actual Customers. If Client receives any take-down requests or infringement notices related to Client Data or its use of Third-Party Products, it will promptly stop using such data or products in connection with the Services and will notify Talksoon immediately. Additionally, if a Third-Party Product is integrated with the Services on Client’s behalf, Client grants Talksoon the right to access Client Data or Client’s CRM system directly (or as otherwise requested and permitted by the Third-Party Provider) for the purposes of fulfilling Talksoon’s obligations under these Terms and Client warrants that Client is not restricted by Law or applicable agreement from granting Talksoon such right. 

   
   

2. Customer Consent; Intended Use of the Services. Client understands and agrees that the Services are intended to allow Client to receive phone calls and to send electronic communications, including, but not limited to, text messages, only to Client’s own current Customers who have consented to the receipt of such communications and are provided with necessary notices in accordance with the Laws. Client also understands and agrees that the Services are intended primarily to be used to send transactional and/or informational messages, not advertisements, marketing, telemarketing, or promotional messages, as such are defined in the Laws (hereinafter, collectively “Marketing”). Accordingly, Client will, for the duration of the Term: (a) provide all required disclosures to Customers and obtain all required consents and/or authorizations from Customers, based on the Laws, prior to utilizing the Services; and (b) obtain all necessary rights, releases, and consents to allow Client Data to be collected, used, and disclosed in the manner contemplated by these Terms and to grant Talksoon the rights provided for herein. Client agrees and acknowledges that Client is solely responsible for its compliance with the Laws and the Acceptable Use Policy and that Client must not rely on the Services for any such compliance. Use of the Services does not guarantee compliance with the Laws or the Acceptable Use Policy, and Talksoon expressly disclaims any liability for Client’s non-compliance. Talksoon reserves the right to suspend or terminate Client’s access to the Services or specific feature(s) of the Services if Talksoon believes, in its sole discretion, that Client has violated this Section 6.

   
   

7. SUSPENSION OF SERVICES; SUPPORT.

1. Suspension of Services. Talksoon may suspend Client’s access to the Services if: (i) Client fails to comply with any material obligation under these Terms and such failure is not remedied within 5 days of Client receiving written notice from Talksoon; (ii) Talksoon detects fraud, a security breach, a denial of service attack, or any other similar threat that causes or that could cause, in Talksoon’s reasonable opinion, damage to the Services or to the Client Data; or (iii) Talksoon is undertaking scheduled maintenance. Talksoon will use commercially reasonable efforts to restore the access to or use of the Services as soon as possible after the suspension. Any suspension by Talksoon of the Services in application of this Section 7.1 shall not release Client from its payment obligations. 

   
   

2. Support. Talksoon makes email-based support available at support@talksoon.com. Additional support services may be available to Client, subject to the payment of any additional Fees, as specified in the applicable Subscription Documentation (the “Advanced Support”). Any Advanced Support will be subject to these Terms and Talksoon’s applicable support policies, if any. Unless otherwise agreed to by the parties, Client is primarily responsible for its own account setup and onboarding. Additionally, Client remains solely responsible for maintaining sufficient internet access, network connectivity, power, and other technical requirements necessary to enable its use of the Services, the email-based support and any Advanced Support. Talksoon's ability to deliver the Advanced Support will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any Client information required by Talksoon to deliver the Advanced Support.

8. FEES AND PAYMENT.

1. Fees. Unless otherwise specified in the applicable Subscription Documentation, the Services are provided on an ongoing, subscription basis, subject to recurring payments for periodic charges, according to the terms set out in the applicable Subscription Documentation (the “Subscription”). Client agrees to pay to Talksoon the fees for the Subscription (the “Subscription Fees”) and any additional fees, if applicable, all as set forth in the applicable Subscription Documentation (collectively, the “Fees”). Except as otherwise specified in the applicable Subscription Documentation, unless Client terminates a Free Access Subscription prior to the lapse of the free access term, access to the Services will convert to a paid Subscription and Client agrees to pay Talksoon the applicable Subscription Fees. Unless otherwise specified in the applicable Subscription Documentation, payment for all Fees is due within thirty (30) days of the invoice date. 

   
   

2. Payment of Fees. Unless otherwise specified in the applicable Subscription Documentation, all Subscription Fees will be paid annually or monthly in advance as described in the Subscription Documentation, though overage fees (if any) may be charged in arrears. All payments hereunder are to be made in Canadian dollars for Canadian Clients and U.S. dollars for all other Clients. Subscription Fees are non-refundable and non-creditable, except as expressly set forth in Section 9.3 (Termination for Cause). The payment methods accepted by Talksoon are cheque, Interac e-transfer or wire transfer. For the avoidance of doubt, all additional Fees for additional Service features or Additional Support requested by Client will be billed when the Service feature or Additional Support is first accessed by Client and, if applicable, will renew automatically thereafter on Client’s existing Subscription Start Date. Access to the Services in accordance with your Subscription will continue unless and until you or Talksoon terminates your Subscription in accordance with Section 9. You must cancel your Subscription before it renews in order to avoid billing the next recurring Subscription Fees to your account. Should Talksoon be unable to process/receive the Fees when due and owing, payment shall be considered overdue. Talksoon will have the right to charge interest on all overdue amounts equal to the maximum amounts allowed by Law. Additionally, after payment becomes overdue, Talksoon will have the right to immediately suspend Client’s access to the Services and/or seek to enforce Client’s payment obligations, including through the use of third-party services.

   
   

3. Taxes. Talksoon’s Fees are exclusive of all taxes and Client must pay any applicable taxes and regulatory fees, as identified on Talksoon’s invoices.

   
   

4. Fee Increase. Talksoon may increase your Fees at any time during the Term, provided that (a) Talksoon provides you with at least 45 days’ prior written notice of any Fee increase; and (b) any Fee increase will only take effect on the start date of the next Renewal Term. Talksoon may also, from time to time and at its sole discretion, make promotional offers or different Fees available to its clients or other users. Such promotional offers will not apply to you unless specified in writing in your Subscription Documentation.

9. TERM AND TERMINATION.

1. Term. These Terms will remain in effect until terminated in accordance with this Section 9. Unless otherwise stated in the applicable Subscription Documentation, the initial term for any Subscription is 12 months (the “Initial Term”) and will automatically renew for subsequent periods of equal duration (each, a “Renewal Term” and, collectively with the Initial Term, the “Term”), unless either party gives written notice of non-renewal at least 14 days before the end of the Initial Term or the then-current Renewal Term, as applicable. Client may give notice of non-renewal by sending an email to support@talksoon.com. If no Subscription start date is specified on the applicable Subscription Documentation, the Subscription starts when Client first obtains access to the Services (the “Subscription Start Date”). Unless Client’s Subscription Documentation expressly states otherwise, any additional Service features or Additional Support purchased during the Term will be coterminous with the Term already in effect, as per Client’s original Subscription Documentation. 

   
   

2. Non-Refundable. Notwithstanding Client’s rights under articles 2125 through 2129 of the Civil Code of Quebec, which are hereby expressly waived by Client, all amounts paid or payable under these Terms are non-refundable.

   
   

3. Termination for Cause. Either party may terminate these Terms, including any related Subscription Documentation, if the other party: (a) fails to cure any material breach of these Terms (including a failure to pay any Fees) within 30 days of receiving written notice detailing the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within 60 days thereafter). Talksoon may also terminate these Terms, including any related Subscription Documentation, immediately if Client breaches Sections 4 (Accounts; Restrictions) or 6 (Representations & Warranties; Client Obligations) or for repeated violations of other Sections of these Terms. 

   
   

4. Effect of Termination. Upon any expiration or termination of these Terms or any Subscription Documentation: (a) Client’s license rights will terminate and it must immediately cease use of the Services and delete (or, at Talksoon’s request, return) any and all copies of any Talksoon documentation, scripts, passwords or access codes, and any other Talksoon Confidential Information in Client’s possession, custody, or control; and (b) Client’s right to access any Client Data from the Services will cease. Except in the case of a written agreement to the contrary between the parties, Talksoon, without incurring any liability to Client or to any third party, may delete all Client Data found in Talksoon's systems or otherwise in Talksoon’s possession or control in accordance with Section 5.4. If Talksoon terminates these Terms for cause as provided in Section 9.3 (Termination for Cause), any payments for the remaining portion of the Term will become due and must be paid immediately by Client. All remedies under these Terms, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

   
   

5. Transition Services. Upon any expiration or termination of these Terms, Talksoon and Client may negotiate in good faith and enter into an agreement regarding transition of the Services, which may include porting over Client’s phone number(s) to Client or to a separate service provider.

   
   

6. Survival. All provisions of these Terms which, by their nature should survive termination of these Terms, shall survive termination, including, without limitation, the provisions on intellectual property, disclaimers, indemnity and limitations of liability.

10. CONFIDENTIAL INFORMATION.

1. Obligation of Confidentiality. Except as otherwise expressly permitted in these Terms, each party (the “Receiving Party”) must: (a) hold in confidence and not disclose the Confidential Information of the other party (the “Disclosing Party”) to third parties; and (b) use the Disclosing Party’s Confidential Information only as necessary to fulfil its obligations and exercise its rights under these Terms. The Receiving Party may share the Disclosing Party’s Confidential Information with its employees, agents, contractors, subcontractors, or Authorized Users having a legitimate need to know, provided that the Receiving Party remains responsible for any authorized recipients’ compliance with the terms of this Section 10 and such authorized recipients are bound to confidentiality obligations no less protective than those set out herein.

   
   

2. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (a) is or becomes public knowledge through no fault of the Receiving Party; (b) was known by the Receiving Party prior to receipt of the Confidential Information; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the Receiving Party without using the Disclosing Party’s Confidential Information. A Receiving Party may also disclose the Disclosing Party’s Confidential Information to the extent required by law, subpoenas, or court orders, provided it uses commercially reasonable efforts to notify the Disclosing Party (where permitted to do so) and cooperates in any effort by the Disclosing Party to obtain confidential treatment for its Confidential Information.

   
   

3. Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section, each party is entitled to seek appropriate equitable relief, in addition to any other remedies it may have at law.

11. Proprietary Rights.

1. Ownership. You acknowledge that: (a) the Services, Platform, Website and Widget contain proprietary and confidential information that is protected by applicable intellectual property and other laws; and (b) Talksoon, its Representatives and/or third parties (via license) own all rights, title and interest in and to the Services, Platform, Website and Widget and content that may be presented or accessed through the Services, Platform, Website or Widget including, without limitation, all Intellectual Property Rights therein and thereto. More specifically, Talksoon, its Representatives and/or third parties (via license) own all rights, title and interest in and to Talksoon’s Confidential Information, Aggregate/Anonymous Data and any other data generated or derived from the use or operation of the Services, including volumes, calls, locations, frequencies, bounce rates, and performance results for the Services. All rights not specifically granted under these Terms are reserved to Talksoon and its licensors.
   
   

   The content, arrangement and layout of the Services, Platform, Website and Widget, including but not limited to the trademarks, photos, logos, audio, images, text (in the form of plain text, HTML, or PDFs) and Computer Code are proprietary to Talksoon, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of Talksoon, or as permitted by the functionalities of the Services, Platform, Website or Widget or these Terms.
   
   The above paragraph further applies to third party property used as part of the Services, Platform, Website or Widget including but not limited to third party Computer Code. For the purposes of the present Section, “Computer Code” includes but is not limited to source code in any programming language, object code, frameworks, CSS, JavaScript or similar files, templates, modules, or any similar files, and related documentation.

   
   

2. Feedback. Talksoon shall own all rights, title and interest in and to any suggestions, requests or recommendations for modifications, improvements, new features or enhancements to the Services that Client may, alone or jointly with Talksoon, propose or make during the Term (collectively, “Feedback”). Client hereby irrevocably (i) assigns all rights, title and interest in and to the Feedback to Talksoon; and (ii) waives in favor of Talksoon, its successors and assigns any and all moral rights that Client has or may have in the Feedback in each jurisdiction throughout the world, to the fullest extent that such rights may be waived in each respective jurisdiction.

12. THIRD-PARTY PRODUCTS AND INTEGRATIONS.

Talksoon may permit Client to make arrangements with third-party providers that provide products or services in connection with, but which are not included in, the Services as described in these Terms (“Third-Party Provider(s)”). If Client elects to use any Third-Party Provider(s) or any applications, integrations, add-ons, software, code, online services, systems, and other products that are not part of the Services or the Platform (“Third-Party Products”) in connection with the Services, such Third-Party Provider(s) or Third-Party Products may make Third-Party Content available to Client and may access Client’s instance of the Services, including Client Data. Client agrees and acknowledges that use of such Third-Party Provider(s) or Third-Party Products may require Client to enter into separate terms and conditions with such third-party. Unless Talksoon expressly agrees otherwise in a signed writing, Talksoon (a) is not a party to any such terms; (b) will not be liable thereunder; (c) does not warrant or specifically support any Third-Party Providers, Third-Party Products; or Third-Party Content; and (d) disclaims all responsibility and liability for the Third-Party Providers and Third-Party Products and their access to the Services, including their modification, deletion, disclosure, or collection of Client Data. Talksoon is not responsible in any way for Client Data once it is transmitted, copied, or removed from the Services.

13. INDEMNIFICATION.

1. Indemnification by Client. Client will indemnify and hold harmless Talksoon and its Representatives from and against any third-party claims and related costs, damages, liabilities, and expenses (including reasonable legal fees) (collectively, “Third-Party Losses”) arising from or pertaining to: (a) your unauthorized use of, or misuse of, the Services; (b) your violation (actual or alleged) of any Law or third party right, including any Intellectual Property Right or publicity, confidentiality or privacy right; (c) any dispute or issue between you and any third party (including but not limited to your Customers, and any Third-Party Service Providers); (d) any Client Data; (e) Talksoon's use, as contemplated under these Terms, of any information provided to Talksoon by you or your Customers; (f) Client’s gross negligence or wilful misconduct and (g) any breach or alleged breach of these Terms.

2. Indemnification by Talksoon. Talksoon will indemnify and hold Client harmless from and against any third-party claims and related costs, damages, liabilities, and expenses (including reasonable legal fees) arising from or pertaining to (a) Talksoon’s gross negligence or wilful misconduct; or (b) Talksoon's infringement, misappropriation, or violation of a third party’s Intellectual Property Rights. 

   
   

3. Indemnification Procedure. In the event that a party seeks indemnification (an “Indemnified Party”) under the terms of this Section 13, it shall promptly provide written notice to the other party (an “Indemnifying Party”) of (i) any claim, action, proceeding, charge, order (including, without limitation, a judicial or administrative order or injunction), directive, decision or judgment (each, a “Third-Party Claim”) asserted against the Indemnified Party in connection with or as a result of these Terms; or (ii) any occurrence which, in the Indemnified Party’s opinion, gives rise or is likely to give rise to a Third-Party Claim made or filed against such Indemnified Party. The failure of an Indemnified Party to give such written notice does not discharge the Indemnifying Party from its indemnification obligations under this Agreement.
   
   

   In the event that an Indemnified Party has incurred a Third-Party Loss in connection with, or as a result of, these Terms and which is indemnifiable by the Indemnifying Party pursuant to this Section 13, it shall notify the Indemnifying Party as soon as reasonably practicable, indicating the Third-Party Claim for which payment is requested, and shall request payment therefor by the date specified in such notice. The Indemnifying Party shall pay such amounts to the Indemnified Party as are required to fully indemnify such Indemnified Party for any such Third-Party Losses. Any amount not paid on the date specified in such notice shall bear simple interest at the rate of 12% per annum, accruing daily, from the day following the date specified in such notice until payment in full has been received by the Indemnified Party. This obligation of the Indemnifying Party shall be postponed whenever a Third-Party Claim is contested in good faith by an Indemnifying Party until such Third-Party Claim becomes due by the Indemnified Party.
   
   

   The Indemnifying Party shall assume control of the defense of a Third-Party Claim for the Indemnified Party, subject to the following:

   
   

   A. The Indemnified Party has the right to participate in (but not control) its own defense, at its own cost; 

   B. The Indemnifying Party may not settle the Third-Party Claim without the prior written consent of the Indemnified Party unless, as part of the settlement, the Indemnified Party receives a full and final release and discharge and does not have to take any undertaking nor make any disbursement;

   C.  The Indemnifying Party shall have no obligation for any Third-Party Claim under this Agreement if the Indemnified Party makes any admission, settlement or other communication regarding such Third-Party Claim without the prior written consent of the Indemnifying Party; and

   D. The Indemnified Party shall be granted full access to the relevant books, records and correspondence, proceedings and exhibits of the Indemnifying Party solely relating to such Third-Party Claim.

14. DISCLAIMERS.

1. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER OF TALKSOON OR ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS, VENDORS AND LICENSORS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. TALKSOON MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE AND TALKSOON DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. TALKSOON WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT DATA, CLIENT CONDUCT, THIRD-PARTY PROVIDERS, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-TALKSOON SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE, AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THESE TERMS, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON TALKSOON SERVICES. THE DISCLAIMERS IN THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

   
   

2. No Legal Advice. No advice or information, whether oral or written, obtained by you from the Services or from Talksoon or any materials or content available through the Services will create any warranty regarding Talksoon or the Services that is not expressly stated in these terms. Talksoon does not provide its clients with legal advice regarding data privacy or compliance with the Laws and any statements made by Talksoon to its client(s) do not constitute legal advice. Use of the Services does not guarantee compliance with the Laws in any jurisdiction.

15. LIMITATIONS OF LIABILITY. 

1. Limitation of Liability. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL TALKSOON, ITS AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS, VENDORS AND LICENSORS BE LIABLE FOR (I) ANY INDIRECT, INCIDENTAL, EXTRAORDINARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES; OR (II) ANY LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, LOSS OF USE, BUSINESS INTERRUPTION OR ANY OTHER FINANCIAL LOSS, ARISING DIRECTLY OR INDIRECTLY FROM THE TERMS OR CAUSED BY THE SERVICES OR THE PLATFORM, OR THE MISUSE OR INABILITY TO USE THE SERVICES OR THE PLATFORM, EVEN IF TALKSOON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION: WHETHER IN CONTRACTUAL LIABILITY, APPLICATION OF THE WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY OF MANUFACTURERS AND VENDORS, STRICT CIVIL LIABILITY OR UNDER ANY OTHER LEGAL THEORY.

2. Amount Limitation. THE TOTAL LIABILITY OF TALKSOON IN RESPECT OF THE CLAIMS OF CLIENT OR ANY OTHER PERSON ARISING UNDER THESE TERMS SHALL BE LIMITED TO THE AGGREGATE SUMS PAID BY CLIENT TO TALKSOON UNDER THESE TERMS DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT FROM WHICH THE LIABILITY ARISES. THE OCCURRENCE OR FILING OF MULTIPLE CLAIMS SHALL NOT INCREASE THIS AMOUNT. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, TALKSOON’S TOTAL LIABILITY WILL NOT EXCEED, IN THE AGGREGATE, FIFTY U.S. DOLLARS ($50.00 USD). 

3. Exclusion of Certain Damages. Talksoon shall not be liable or required to indemnify Client in any way whatsoever and assumes no responsibility for any losses or damages arising directly or indirectly from (i) the Client Data; (ii) the modification or alteration in any manner by Client, its Authorized Users or any Third-Party Providers of any part of the Platform or the Services; (iii) the use of or reliance on any Client Data; or (iv) any failure by Client to comply with its obligations under these Terms.

4. Specific Jurisdictions. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU.

16. GENERAL.

1. Assignment. These Terms will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign these Terms without the advance written consent of the other party, except that Talksoon may assign these Terms without consent to an affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign these Terms except as expressly authorized under this Section 16.1 will be null and void.

2. Notices. Any notice or communication to Talksoon under these Terms must be in writing. Client must send any notices under these Terms (including breach notices) by email to legal@talksoon.com. Talksoon may send notices to the e-mail addresses on Client’s account or, at Talksoon's option, to Client’s last-known postal address. Talksoon may also provide operational notices regarding the Services or other business-related notices through conspicuous posting of such notice on Talksoon's Website or the Services. Each party hereby consents to receipt of electronic notices and agrees that any notices, agreements, disclosures, or other communications sent electronically will satisfy any legal communication requirements, including that those communications be in writing. Talksoon is not responsible for any automatic filtering Client or its network provider may apply to email notifications.

3. Publicity. Unless otherwise specified in the applicable Subscription Documentation, Talksoon may use Client’s name, logo, and marks to identify Client as a Talksoon client on Talksoon's website and other marketing materials.

4. Talksoon Communication with Client. You agree that Talksoon may send you emails and text messages, including transactional, operational, and marketing messages, possibly using automated technology, to the email or phone number that you provide to Talksoon. Message and/or data rates may apply to such messages, and you may opt out at any time. You will keep your contact information up to date and will notify Talksoon immediately in the event that your contact information changes.

5. Subcontractors. Talksoon may subcontract any or all of its obligations under these Terms to any third party. 

6. Independent Contractors. The parties to these Terms are independent contractors, and these Terms do not create a partnership, joint venture, employment, franchise, or agency relationship between the parties. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

   
   

7. Force Majeure. No default, delay or failure to perform on the part of either party (with the exception of Client’s payment obligations hereunder) shall be considered a breach of these Terms where such default, delay or failure is due to a Force Majeure.

8. Amendments; Waivers. Talksoon reserves the right, at any time and without prior notice, to modify or replace any of these Terms. Any changes to these Terms can be found at the following link: https://www.talksoon.com/terms. It is Client's responsibility to check the Terms periodically for changes. Client’s use of the Services following the posting of any changes to the Terms constitutes acceptance of those changes. If there are any significant changes to the Terms that materially affect Client’s relationship with Talksoon, Talksoon will use commercially reasonable efforts to notify Client by sending a notice to Client’s email address, which shall include a link to the updated Terms. Client’s continued use of the Services following such notice will constitute an: (i) acknowledgement of the amended Terms; and (ii) agreement to abide by and be bound by the amended Terms. No waiver will be implied from conduct or failure to enforce or exercise rights under these Terms. No waiver of any provision of these Terms will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. Failure to enforce any provision of these Terms will not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.

9. Severability. If a competent court rules a provision of these Terms invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions of these Terms shall in no way be affected or compromised.

10. No Third-Party Rights. Nothing in these Terms confers on any third party the right to enforce any provision of these Terms. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Subscription Documentation and not by any of Client’s affiliates. 

    
    

11. Entire Agreement. These Terms, in conjunction with the Privacy Policy, the Acceptable Use Policy and all applicable Subscription Documentation, all of which form an integral part hereof, constitutes the complete agreement between the Parties and cancels and replaces all prior or concomitant agreements, representations or warranties, oral or written, between the parties concerning the subject matter of these Terms. Any terms provided by Client (including as part of any purchase order or other business form used by Client) are for administrative purposes only and have no legal effect. In the event of any inconsistencies between the provisions set forth in these Terms and in any Subscription Documentation, the provisions of the Subscription Documentation shall prevail.

12. Governing Law; Jurisdiction and Venue. These Terms shall be governed and construed in accordance with the laws in force in the Province of Quebec, Canada. The courts sitting in the district of Montreal in the Province of Quebec shall have exclusive jurisdiction in respect of any dispute related to these Terms. The foregoing choice of jurisdiction and venue shall not prevent either party from seeking injunctive relief with respect to a violation of Intellectual Property Rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such Convention shall not apply to these Terms nor to any dispute arising therefrom.

13. Language. The parties have expressly requested that these Terms be drawn up in English and that all modifications thereof can be made in this language. Les parties ont expressément demandé que ce contrat soit rédigé en anglais et que toute modification à celui-ci puisse également être rédigée dans cette langue.