TALKSHOE TERMS OF SERVICE

Last Update: December 2007

1. ACCEPTANCE OF TERMS

Welcome to TalkShoe! By visiting and/or using this service, the website, the TalkShoe Live! Pro service including the client software and the telephony facilities and conference service, other TalkShoe services, or listening, reading, watching or otherwise consuming the user submitted or user generated content (the “Service”), you agree to be bound by the following terms and conditions (“Terms of Service”), the terms and conditions of TalkShoe’s Privacy Policy, and the terms and conditions of TalkShoe’s License Agreements. Any of these terms and conditions may be updated from time to time without notice to you. You can review the most current versions of:

If you do not agree to any of these terms and conditions, then please do not use TalkShoe.

2. THE TALKSHOE SERVICE

These Terms of Service apply to all users of the Service, including users who are also contributors of audio or video content, information, and other materials or services on the Service. The Service may contain links to third-party Services that are not owned or controlled by TalkShoe, and TalkShoe assumes no responsibility for, the content, privacy policies, or practices of any third-party Services. You understand and agree that the Service may include advertisements and that these advertisements are necessary for TalkShoe to provide the Service. You also understand and agree that the Service may include certain communications from TalkShoe, that these communications are considered part of the Service, and that you may or may not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to the Terms of Service.

Please be aware that TalkShoe has created certain areas on the Service that contain adult, mature or explicit content. You must be at least 18 years of age to access and view such areas.

TalkShoe reserves the right to modify or discontinue any aspect of the Service at any time and from time to time, with or without notice. You agree that TalkShoe shall not be liable to you or to any third party for modification, suspension or discontinuance of the Service.

3. YOUR ACCOUNT AND SECURITY

TalkShoe hereby grants you permission to use the Service as set forth in these Terms of Service, provided that: (a) your use of the Service as permitted is solely for your personal, non-Commercial use, (b) if you are a Commercial user - you agree to use the service according to the Terms of Service Commercial Use, (c) your use of any content is governed by these Terms of Service and particularly the License Agreements, (d) you will not copy or distribute any part of the Service in any medium without TalkShoe’s prior written authorization, (e) you will not alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purpose, and (f) you will otherwise comply with the terms and conditions of these Terms of Service.

In order to access some features of the Service, you will have to create an account. Certain features or services offered on or through the Service may require you to open an account (including setting up a username, password and PIN). You are entirely responsible for maintaining the confidentiality of your account information, including your password and PIN, and for any and all activity that occurs under your account. You agree to notify TalkShoe immediately of any unauthorized use of your account or password and PIN, or any other breach of security. However, you may be held liable for losses incurred by TalkShoe or any other user of or visitor to the Service due to someone else using your username, password, PIN or account.

You may not use anyone else’s username, password, PIN or account at any time without the express permission and consent of the holder of that username, password, PIN or account. TalkShoe cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.

4. YOUR REGISTRATION OBLIGATIONS

In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's Sign Up form (the "Profile Data") and (b) maintain and promptly update the Profile Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or TalkShoe has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, TalkShoe has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).

TalkShoe is concerned about the safety and privacy of all its users, particularly children. For this reason, parents of children under the age of 13 who wish to allow their children access to the Service must submit a request for child access to ChildAccess@talkshoe.com. When you submit such a request, you certify that you are at least 18 years old and that you are the legal guardian of the child/children listed in your request. Provided your request for child access is granted by TalkShoe, you acknowledge that you give your child permission to access many areas of the Service, including communication among TalkShoe users (among others). Please remember that the Service is designed to appeal to a broad audience. Accordingly, as the legal guardian, it is your responsibility to determine whether any of the Service areas and/or content (as defined in Section 6 below) are appropriate for your child.

5. USER SUBMISSIONS

The Service may now or in the future permit the submission of audio, video or other communications, information or content submitted by you and other users ("User Submissions") and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, TalkShoe does not guarantee any confidentiality with respect to any submissions.

You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize TalkShoe to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Service and these Terms of Service; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service.

You retain all of your ownership rights in your User Submissions, as modified by the User Submissions License Agreement by Creative Commons referenced in these Terms of Service.

By submitting the User Submissions to TalkShoe, you hereby grant TalkShoe (and its successors) and other TalkShoe users all rights as defined in the License Agreements referenced herein.

You further agree that you will not: (a) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant TalkShoe all of the license rights granted herein; (b) publish falsehoods or misrepresentations that could damage TalkShoe or any third party; (c) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, gruesome, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (d) impersonate another person.

TalkShoe does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and TalkShoe expressly disclaims any and all liability in connection with User Submissions. TalkShoe reserves the right to remove User Submissions without prior notice. TalkShoe will remove all User Submissions if properly notified that such User Submission infringes on another's intellectual property rights. TalkShoe will also terminate a User's access to its Service if they are determined to be a detriment to the TalkShoe Service or its users. TalkShoe reserves the right to decide whether a User Submission is appropriate and complies with these Terms of Service entirely and solely upon TalkShoe’s discretion and without regard to whether or not there is in fact a copyright infringement, violation of intellectual property law, or violation of any local, state, national or international law. TalkShoe may remove such User Submissions and/or terminate a User's access for submitting such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.

You understand that when using the Service, you will be exposed to User Submissions from a variety of sources, and that TalkShoe is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against TalkShoe with respect thereto, and agree to indemnify and hold TalkShoe, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Service.

You understand that when using the Service, all participation is recorded unless the Host specifically requests otherwise.

You understand that when using the Service, you may participate in a live discussion, conversation, show or the like which is moderated by a Host, and such participation is also recorded. You accept that the Host has the ability and the right, in their sole discretion, to mute your voice, mute your chat, eliminate your chat altogether, and/or remove you from the Service at any time for any reason without the obligation to notify you or provide you with a reason.

TalkShoe may prepend, insert, append, or replace advertising content to or into your User Submission both as it is being recorded and after-the-fact. You are expressly forbidden to record, copy, forward, or rebroadcast any such advertising content.

TalkShoe abides by the federal Digital Millennium Copyright Act (DMCA) by responding to notices of alleged infringement that comply with the DMCA and other applicable laws. As part of TalkShoe’s response, it may remove or disable access to material residing on the Service that is controlled or operated by TalkShoe that is claimed to be infringing, in which case TalkShoe will make a good-faith attempt to contact the person who submitted the affected material so that they may make a counter notification, also in accordance with the DMCA. The DMCA Notice and Takedown Procedure can be found on http://www.talkshoe.com/se/legal/DMCAPolicy.html

TalkShoe permits you to link to materials on the Service for personal, non-commercial purposes only. TalkShoe reserves the right to revoke or extend this exception either generally or in specific cases.

6. YOUR USE OF THE SERVICE

You agree not to:

(a)   use or launch any automated system, “offline readers”, “page-scrape”, “robot”, “spider”, “deep-link”, or other automatic means or similar manual means to access, acquire, copy or monitor any portion of the Service including any content, or in any way reproduce or circumvent the navigational structure or presentation of the Service or any content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service;

(b)   use any means that accesses the Service in a manner that sends more request messages to the TalkShoe servers in a given period of time than a human can reasonably produce in the same period by using a convention on-line web browser. Notwithstanding the foregoing, TalkShoe grants the operators of public search engines permission to use spiders to copy materials from the Service for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. TalkShoe reserves the right to revoke these exceptions either generally or in specific cases;

(c)   use the Service for any commercial solicitation purposes other than if you are the Host and are hosting a live discussion, conversation, show or the like. You further agree not to solicit, for commercial purposes, any users of the Service with respect to their content submissions. TalkShoe reserves the right to bar any such activity;

(d)   attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any TalkShoe server, by hacking, password “mining” or any other illegitimate means. You may not probe, scan or test the vulnerability of the Service or any network connected to the Service, nor breach the security or authentication measures on the Service or any network connected to the Service. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Service, or any other customer of TalkShoe, including any TalkShoe account not owned by you, to its source, or exploit the Service or any service or information made available or offered by or through the Service, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Service;

(e)   take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Service or TalkShoe’s systems or networks, or any systems or networks connected to the Service or to TalkShoe. You agree not to use any means to interfere or attempt to interfere with the proper working of the Service or any transaction being conducted on the Service, or with any other person’s use of the Service;

(f)    upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

(g)   disrupt the normal flow of dialogue, cause a page to "scroll" faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real-time exchanges;

(h)   interfere with or disrupt the Service or servers or networks connected to the Service;

(i)    disobey any requirements, procedures, policies or regulations of networks connected to the Service;

(j)    intentionally or unintentionally violate any applicable local, state, national or international law;

(k)   use the Service for any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other such form of solicitation;

(l)    forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to TalkShoe on or through the Service or any service offered on or through the Service. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity;

(m)  provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;

(n)   use the Service to harm minors in any way;

(o)   "stalk" or otherwise harass another;

(p)   use the Service for any purpose that is unlawful or prohibited by these Terms of Service, including but not limited to any purpose that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;

(q)   solicit the performance of any illegal activity or other activity which infringes the rights of TalkShoe or others; and/or

(r)   collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through q above;

7. LINKING TO TALKSHOE & LINKING BACK TO TALKSHOE

TalkShoe requires that users, who desire to link to their content, use the widgets, players, promotional badges, and/or links provided by TalkShoe. Such code is provided directly on the users Community Call webpage http://www.talkshoe.com/tc/###### or is linked from that same webpage such as ttp://www.talkshoe.com/talkshoe/web/tscmd/badges/#####/160. As such, direct linking/embedding of audio is forbidden. TalkShoe reserves the right to protect its business and thus users who attempt to bypass the Community Call page will have all of their content (audio, video, flash, images, etc.) removed. The user may also be blocked from recording, uploading or playing any further content across our network of sites.

A link back to http://www.talkshoe.com must be placed on any site that where users embed images.

TalkShoe reserves the right to disable direct linking on user accounts that are using excessive bandwidth or otherwise abusing the system.

8. INTERSTATE NATURE OF COMMUNICATIONS

When you sign up TalkShoe, you acknowledge that in using the Service you will be causing communications to be sent through TalkShoe’s computer networks, portions of which are located in Pennsylvania and other locations in the United States and portions of which are located abroad. As a result, and also as a result of TalkShoe’s network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature can result in the transmission of interstate communications regardless of where you are physically located at the time of transmission. Accordingly, by agreeing to this Terms of Service, you acknowledge that use of the Service results in interstate data transmissions.

9. SPECIAL ADMONITIONS FOR INTERNATIONAL USE

Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

10. NO RESALE OF SERVICE

You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service (including your TalkShoe username, password, PIN or account), use of the Service, or access to the Service.

11. INDEMNITY

You agree to indemnify and hold TalkShoe, its parent corporation, its subsidiaries, affiliates, officers, directors, agents, employees, partners and licensors harmless from any claim, damages, obligations, losses, liabilities, costs or debt, expenses or demands, including reasonable attorneys' fees, made by any third party due to or arising out of content you submit, post, transmit or otherwise make available through the Service, your use of the Service, your connection to the Service, your violation of the Terms of Service, or your violation of any rights of another.

12. WARRANTY DISCLAIMER

YOU AGREE THAT YOUR USE OF THE TALKSHOE SERVICE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, TALKSHOE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF. TALKSHOE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS WEBSITE'S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (a) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (b) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (d) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (e) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. TALKSHOE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND TALKSHOE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

13. LIMITATION OF LIABILITY

IN NO EVENT SHALL TALKSHOE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER ORNOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

YOU SPECIFICALLY ACKNOWLEDGE THAT TALKSHOE SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

The Service is controlled and offered by TalkShoe from its facilities and/or its partners facilities in the United States of America. TalkShoe makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

 

14. ABILITY TO ACCEPT THE TERMS

You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use the Service - there are lots of other great websites for you. Talk to your parents about what websites are appropriate for you.

15. GENERAL

Entire Agreement. These Terms of Service constitute the entire agreement between you and TalkShoe and govern your use of the Service, superseding any prior agreements between you and TalkShoe with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other TalkShoe services, affiliate services, affiliate products, or third-party content.

Choice of Law and Forum. These Terms of Service and the relationship between you and TalkShoe shall be governed by the laws of the Commonwealth of Pennsylvania without regard to its conflict of law provisions. You and TalkShoe agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Allegheny, Pennsylvania.

Waiver and Severability of Terms. The failure of TalkShoe to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.

No Right of Survivorship and Non-Transferability. You agree that your TalkShoe account is non-transferable and any rights to your account or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.

Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms of Service must be filed within one year after such claim or cause of action arose or be forever barred.

Section Titles. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect.