This Terms of Service (the "Agreement") governs your access to and use of the pre-release beta version of Ditech's toktok solution, which includes software and service (collectively "Service") provided by Ditech Networks, Inc. ("Ditech", "we" or "us").
This Agreement, together with the Ditech Privacy Policy that is hereby incorporated by reference, sets forth the legally binding terms for your use of the Service.
By accessing and using the Service, you agree to comply with and be bound by this Agreement. If you do not agree with all provisions of this Agreement, please do not use the Service.
This Agreement may be amended by Ditech from time to time. If we make material changes to the Agreement, we will post an amended Agreement on the Site, as defined below, or notify you through the Service interface or at your primary email address, as specified in your member Account information. You agree that such amended Agreement will be effective immediately after being posted or sent to you, and your continued access to the Site or use of the Service after that time shall constitute your acceptance of the amended Agreement.
The Service. Subject to the terms and conditions of this Agreement, Ditech grants you a limited, revocable license to access and use the Service as described by Ditech on its website (www.mytoktok.com) (the "Site"). The Service will depend on use of the most updated software.
The Service software. Subject to the terms and conditions of this Agreement, Ditech grants you a non-transferable, non-exclusive, non-sublicensable, worldwide license to reproduce (solely to install and execute) the software that we make available for download, in executable object code format only, solely for your own non-commercial use. Ditech may, in our sole discretion, inform you that we have released an updated version of the software, at which point you will download the updated version and replace the prior version with it.
Restrictions. Ditech reserves the right to change or discontinue the Service (or any feature thereof) at any time, with or without notice. The non-exclusive licenses are personal to you and may not be transferred or assigned. You acknowledge that all the intellectual property rights in the Service are owned by Ditech or Ditech's licensors. Except as expressly set forth in Section 1.1 or 1.2, you agree not to (a) copy, disclose, reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the Service; or (b) rent, lease, resell, sublicense, loan, or sell access to the Service. You will not use any device, software, or routine to interfere or attempt to interfere with any application, function, or use of the Service. You shall not decompile, disassemble, decrypt, extract, reverse engineer, or otherwise attempt to derive the source code of any Ditech software (including the tools, methods, processes, and infrastructure) enabling or underlying the Service. You shall not attempt to access the Service through any unapproved interface. You acknowledge that, except as expressly provided herein, you have no right, title or interest in or to the Service. The licenses in Section 1.1 and 1.2 terminate automatically, without notice to you, if you breach this Agreement or upon termination or expiration of your Account and/or this Agreement. All rights in and to any Ditech software not expressly granted to you in this Agreement are expressly reserved to us and our licensors.
Your Account; The Service
Eligibility. In order to participate in the Service, you must create a Service account ("Account") through the Site. You shall at all times be responsible and liable for any transactions or activities that occur on your Account. You shall immediately notify Ditech, as per Section 16 "Notice", if any unauthorized use of your Account has occurred or of any other breach of security. In no event shall Ditech be liable for any unauthorized activities with your Account. By using the Service, you represent and warrant that: (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Service does not violate any applicable law or regulation or the terms of this Agreement.
Passwords. You are solely responsible for maintaining the confidentiality of your password, and, at all times, you will be solely responsible for all transactions and activities that occur as a result of your disclosure of such password, even if such transactions and/or activities were not authorized by you. You agree not to provide your password to any other person or to use the password of another user at any time.
Term. This Agreement shall remain in full force and effect until Ditech terminates the beta program. You may delete your Account at any time, for any reason by following the instructions on the Account webpage. Ditech may terminate your Account if (i) you are in breach of this Agreement; (ii) if Ditech decides in it sole discretion to stop providing the applicable Service; (iii) if Ditech ends the beta test of the Service; or (iv) for any or no reason, without giving you notice. You understand that any termination of this Agreement and your Account may involve deletion of your Account information from our live databases and all the information stored for such Account. Ditech will not have any liability whatsoever to you for any termination of your Account or related deletion of you information. We may modify, suspend or discontinue the Service at any time, for any reason, at our sole discretion. Upon termination of this Agreement by either party, your right to access and use the Service will terminate immediately.
Telephone Number Ownership. You understand and agree that you are not the owner of any toll-free or local telephone number assigned to you by Ditech as part of the Service. Ownership of all telephone numbers is vested solely in Ditech and its partners (who will assign or re-assign such numbers to you for your use during the term of this Agreement). You understand and agree that following the termination of your Ditech Account for any reason, you will no longer have access to or use of such telephone number. In either case, such telephone number may be re-assigned immediately to another customer and you agree that Ditech will not be liable for any damages (including consequential or special damages) arising out of any such re-assignment. You hereby waive any claims with respect to any such telephone number re-assignment, whether based on contract, tort or other grounds, even if you have advised Ditech of the possibility of any such damages.
Internet and Telecommunication Connections. In order to use the Service, you agree, at your sole expense: to (1) provide and be responsible for payment for all equipment necessary to establish a connection to the mobile network, Internet and/or to the Publicly Switched Telephone Network ("PSTN"), as may be required to use the Service; (2) provide for access to the mobile network, Internet and/or PSTN and pay any mobile or Internet connection service fees associated with such access; (3) supply and pay for all phone service features required for your use of the Service; and (4) pay us for the Service if applicable. You acknowledge that Ditech is not a Voice-over-IP (VoIP) service provider or telephone carrier and that the call services themselves may be subject to additional terms of the call service operator. In providing Service, Ditech may route your communications through its servers. You hereby consent to the transmission and filtering for applicable keywords by Ditech of such communication, and you represent and warrant that to the extend legally required, you will obtain consent from any third party with whom you communicate with using the Service for transmission and filtering for applicable keywords by Ditech of such communication, as required by applicable law.
Security. Ditech will use industry standard efforts to maintain the confidentiality of your Account information. Although Ditech will implement and follow these measures to protect against unauthorized access to or interception of your Account information, you acknowledge and agree that Ditech (and its third-party providers) cannot fully eliminate security risks and cannot guarantee that unauthorized access to your information will never occur.
Excluded Telephone Numbers. Ditech has the right to restrict communication to any telephone numbers in its sole discretion. These may include, but are not limited to certain geographic locations, special services numbers, satellite telephony services, and other call forwarding services. You will abide by all rules, regulations, procedures and policies of Ditech and any policies of the networks connected to the Service.
Modifications to Service. To maintain or improve the Service, to prevent fraud, or for any other reason determined by Ditech, its sole discretion, Ditech may restrict, suspend, terminate or modify your Service with or without notice. You agree that Ditech shall not be responsible or liable in any way for deactivation or deletion of accounts or for loss of emails, voice mails, communications, postings, data or information as a result of, or arising out of, administration of the Service, whether or not you are given prior notice thereof.
911 or Emergency Service. You acknowledge and agree that Ditech uses its internal servers and telephone numbers to route your communications during your use of the Service, and that these Ditech telephone numbers (which may be from a different area code than your own) may be displayed on caller-id mechanisms. If, however, you access any 911 or similar emergency services (traditional 911, E911, or similar access to emergency services). The Service is not intended to replace your primary phone service, such as traditional landline or mobile phone. The Service will not route that call, it will go through your mobile carrier.
No Operator or 0+ Assisted Calling. The Service does not support operator assisted or 0+ calling (including, without limitation, collect calls, third party billing calls, 900 or calling card calls).
Recording Voice Notes. Ditech provides a function that allows you to record telephone voice notes. The laws regarding the notice and notification requirements of such recorded voice notes vary by state to state. You are solely responsible for complying with all federal, state and local laws in the relevant jurisdiction when using this feature. Ditech expressly disclaims all liability with respect to your recording of voice notes. You hereby release and agree to hold harmless Ditech from and against any damages or liabilities of any kind related to the recording of any voice notes using the Services.
Acceptable Use and Conduct.
Use of Service. You agree to use the Service only for your personal noncommercial use in accordance with this Agreement. You are to use the Service only for lawful purposes and that you shall not, at any time, use the Service for any unlawful or abusive purpose or in any way which interferes with our ability to provide Service to other customers, prevents or restricts other customers from using the Service, or damages any Ditech or other customer's property. You must use the Service (including the software) in a manner consistent with any and all applicable laws and regulations.
Unsolicited Advertisement Policy. The transmission of unsolicited calls, using the Service for broadcasting, or transmitting unsolicited fax advertisements is illegal under federal law, including the Federal Telephone Consumer Protection Act of 1991 (http://ftp.fcc.gov/cgb/consumerfacts/unwantedfaxes.html), and a number of similar state laws. Distribution of unsolicited voicemail, broadcast and fax advertisements through the Service is prohibited. You shall not use the Service to send or transmit any unsolicited communications or advertisements and understand that, if you do, Ditech may immediately terminate your right to use the Service without any liability of any kind. At Ditech's option and without further notice, Ditech may use technologies and procedures, such as filters, that may terminate such unsolicited advertisements without delivering them.
International Use. Ditech makes no representation that the Service is appropriate or available for use in locations outside the United States, and accessing the Service from territories where their contents are illegal is prohibited. You agree to comply with all applicable foreign and domestic laws, rules and regulations regarding the transmission of technical data exported from or imported to the United States or the country in which you reside.
Resale. Your right to use the Services is personal to you. You agree not to resell the use of the Services.
Feedback. Ditech may periodically request that you provide, and you agree to provide to Ditech, feedback regarding the use, operation and functionality of the Service ("Feedback"). Such Feedback will include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features. You hereby assign to Ditech all rights in the Feedback and agree that Ditech will have the right to use the Feedback and related information in any manner it deems appropriate.
Fees for Service. Ditech currently makes the Service available to you without charge, but retains the right to charge for the Service in the future, after providing no less than thirty (30) days notice of such fees. All pricing changes will be sent to you by email and you are responsible for regularly reviewing such pricing information to obtain timely notice of such changes. Continued use of the Services or non-termination of your account after changes or charges are sent constitutes your acceptance of the prices sent.
BILLING.
Payment. Payment of your Service account balance is due monthly, in accordance with your payment plan, the currency in which it is billed, and must be made by the credit or debit card (hereinafter "credit card" will refer to both credit and debit cards) designated by you for Service use and transactions or through other methods, including monthly invoicing (if you meet certain criteria) or pre-payment by check or credit card. Your activation fee and monthly service fees, as applicable, are payable in advance and are COMPLETELY NON-REFUNDABLE. You agree that Ditech may submit charges for your monthly service fee monthly, plus all applicable usage fees, in each case, without further authorization from you, until you provide prior notice (in accordance with Ditech's verification procedures, as may be established by Ditech from time to time in its sole discretion) ("Verification Procedures") that you have terminated this authorization or wish to change your designated card. Such notice will not affect charges submitted before Ditech reasonably could act on your notice. If you sign up for more than one Service account, your first payment for such additional Service number(s) may be prorated to coincide with the monthly anniversary of your first Service number. Failure to use your account will not be deemed a basis for refusing to pay any charges. If you have any questions regarding any charges that have been applied to your Service account, you must contact Customer Service within thirty (30) days of the charge date.
Credit Card Payments. Each time you use the Services, or allow or cause the Services to be used, you agree and reaffirm that Ditech is authorized to charge your designated card. If the credit card payment is not received by Ditech from the card issuer (or its agent or affiliate), you agree to pay all amounts due upon demand by Ditech. Your card issuer's agreement governs your use of your designated card, and you must refer to such agreement (not this Agreement) with respect to your rights and liabilities as a cardholder. You are responsible for overdraft fees and all other fees charged by your card issuer. You agree that Ditech may (at its option) accumulate charges incurred during your monthly billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and that Ditech may delay obtaining authorization from your card issuer until submission of the accumulated charges. This means that accumulated charges may appear on the statement you receive from your card issuer.
Pre-Paid Discounts. If you subscribed for a Service pursuant to a special offer granting a pre-paid discount for a fixed term, your pre-paid fees are payable in advance and are COMPLETELY NON-REFUNDABLE. In addition, your initial service fee for the next term immediately following your pre-paid period will be PRE-AUTHORIZED AGAINST YOUR CREDIT CARD LIMIT and will be immediately charged to your credit card without further authorization from you, upon the expiration of such pre-paid period, unless you provide prior notice (in accordance with the Verification Procedures) that you have terminated this authorization. Such notice will not affect charges submitted before Ditech could reasonably act on your notice.
Providing Notification to Ditech. You must promptly notify Ditech of changes to: (a) the account number or expiration date of your designated credit card and (b) your billing address for the designated credit card. You must also promptly notify Ditech if your card is canceled (e.g., for loss or theft).
Proprietary Rights. Ditech owns and retains all proprietary rights in the Service (including the software). The Service contains the copyrighted material, trademarks, and other proprietary information of Ditech and its licensors. The provision of the Service does not transfer to you or any third party any rights, title or interest in or to such intellectual property, including, without limitation, any intellectual property rights in any Ditech or third-party content.
Warranty Disclaimer. To the extent permitted under applicable laws, the Service is provided "As-is" and as available and Ditech expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to, the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. Ditech does not guarantee and does not promise any specific results from the use of the Service. Ditech makes no warranty that the Service will be uninterrupted, free of viruses or other harmful code, timely, secure, or error-free. You agree that Ditech is not responsible for the timeliness, deletion, mis-delivery, or personalization or preference settings. Ditech does not assume any obligation to monitor activities conducted on the Service.
Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you.
Limitation on Liability. To the extent permitted under applicable laws, Ditech shall not be liable to you, or any third party, for any lost profits, indirect, consequential, exemplary, incidental, special or punitive damages arising from your use of the Service, even if Ditech has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, Ditech's liability to you for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the greater of (1) an amount equal to the amounts paid to you by Ditech; and (2) Fifty U.S. Dollars (US $50). The existence of one or more claims will not serve to enlarge this limit.
Some jurisdictions do not allow the exclusion or limitation of liability, so the above limitation or exclusion may not apply to you.
Indemnity. You agree to indemnify and hold Ditech, its subsidiaries, affiliates, officers, agents, and other partners and their employees, harmless from any loss, liability, claim, or demand, including reasonable attorney's fees, made by any third party due to or arising out of or relating to: (a) your use of the Service (including the software), or (b) arising from your breach of this Agreement.
Governing Law and Arbitration. This Agreement shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. If a dispute arising under this Agreement results in litigation, the non-prevailing party will pay the court costs and reasonable attorneys' fees of the prevailing party. Any dispute between the parties will be resolved by arbitration in Santa Clara County, California, under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer-Related Disputes of the American Arbitration Association ("AAA"). The parties will share the costs of the arbitration equally. The AAA will appoint the arbitrator, who will not have the power to hear any consolidation, joinder, or class arbitration. You expressly agree to waive any right to a jury trial.
Electronic Communications. The communications between you and Ditech use electronic means, whether you visit the Site or send us emails, or whether Ditech posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Ditech in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Ditech provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights. You may also receive a copy of this Agreement by emailing us.
Other. This Agreement contains the entire agreement between you and Ditech regarding the use of the Service. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. Notwithstanding any other provisions herein, the parties agree that no person or entity (including any other member) shall be deemed a third-party beneficiary of this Agreement. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect. The failure of Ditech to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Please contact us with any questions regarding this Agreement.
Copyright/Trademark Information. Copyright © 2009, Ditech Networks, Inc. All rights reserved. The trademarks, logos and service marks ("Marks") displayed on the Service are our property or may be the property of third parties. Certain uses of Marks require the permission of the owner.
Disclosures. Ditech is located at 825 Middlefield Road, Mountain View, CA 94043. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Notice. Notices given by Ditech to you will be given by email, by a general posting on the Site or by conventional mail. Notices given by you to Ditech must be given by email or by conventional mail (subject, however, to Ditech's verification procedures, which may include the requirement that you contact Ditech by phone to confirm that any such notice was in fact sent by you). In any matter requiring Ditech's prior consent, such consent will be considered given only if made in writing by an authorized representative of Ditech.
Please e-mail us at support@mytoktok.com, or write to us at:
toktok Support
c/o Ditech Networks, Inc.
825 E. Middlefield Road
Mountain View, CA 94043
This Agreement was last updated on March 12, 2009.