Section 1 - Background
1.1 By clicking on the ACCEPT or installing and using the WhatSpeak Services you are entering into a legally binding contract and agree to be bound by the terms and conditions of this Agreement. You hereby agree that this Agreement as updated from time to time covers all your use of the WhatSpeak Services, whether it is from this installation or from any other terminals where WhatSpeak Services have been installed, by you or by third parties.
1.2 This Agreement is made between you and WhatSpeak only and not with any of the Channels (defined below). The WhatSpeak Services, including customer support services, are not provided by the Channels but by WhatSpeak, who is solely responsible for them subject to the terms of this Agreement.
1.3 You hereby agree to the use of electronic communications in order to enter into this Agreement and associated contracts, place orders and create other records and to the electronic delivery of notices, instructions, policies and records of transactions initiated or completed through the WhatSpeak Services. You hereby waive any rights or requirements which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
1.4 In general, WhatSpeak Services are open to all ages and users that can accept this Agreement and the WhatSpeak Privacy Statement. But if you reside or are located in a jurisdiction (i) which restricts the ability to enter into agreements such as this Agreement according to age and you are under the relevant age limit, and/or (ii) where it is unlawful to offer or use software for voice or data communications, you may not enter into this Agreement and download, install or use the WhatSpeak Services. You explicitly state that you have verified in your jurisdiction that your use of the WhatSpeak Services is allowed.
1.5 In particular, a few specific WhatSpeak Services such as certain chatrooms and certain chat themes may be suitable only for users over 17 years old (e.g., dating and romance chat). WhatSpeak may check your age when you register for the WhatSpeak Services or use such services.
Section 2 - Definitions
In this Agreement, capitalised terms have the following definitions:
2.2 Channel: any third party physical or virtual shop, store, retailer, kiosk, portal, hardware provider, channel partner or similar vendor and any service provider associated with them, through or from which you download or access any WhatSpeak Services.
2.3 Device: any device on which the WhatSpeak Services are installed, accessed and/or used from time to time, including without limitation any type of computer, telephone, mobile phone, PDA, smartphone, tablet, modem, e-book reader, music player, camera or any other communications or networking device.
2.4 Documentation: any documentation provided by WhatSpeak online or by any other method, including any instructions or policies relating to the use of the WhatSpeak Services.
2.5 Emergency Calls: communications services that enable connection to any type of medical, law enforcement, fire, civil protection or any other kind of emergency service or operator and/or to provide them with details of the caller's location.
2.6 IP Rights: any and all intellectual and/or industrial property rights, including but not limited to copyrights, designs, database rights, trademarks and patents, as well as know-how and trade secrets (including trade and product names, signs, logos, or banners), whether registered or unregistered, contained in or relating to the WhatSpeak Services, the Documentation or the WhatSpeak Website.
2.7 WhatSpeak: WhatSpeak , a company established under the laws of India, with its address at 10/8, Budha Deb Bose Road.Ashram Para, Siliguri, West Bengal - 734001
2.8 WhatSpeak API: application program interface consisting of the set of routines utilized by the WhatSpeak Services to provide the functionality for a given platform or operating system, the WhatSpeak API being included in or linked to the WhatSpeak Services.
2.9 WhatSpeak Paid Services: any services which WhatSpeak may offer against payment from time to time, including without limitation the ability to make calls or send messages, access content, play games etc. (see Section 8 below).
2.10 WhatSpeak Services: the facilities and products provided by WhatSpeak under this Agreement including without limitation the software distributed by WhatSpeak for Internet and/or mobile communications, the WhatSpeak Paid Services, the WhatSpeak API, UI and Documentation, as well as any future programming fixes, updates and upgrades.
2.11 WhatSpeak Staff: the officers, directors, employees, agents, consultants and advisors of WhatSpeak or its related companies.
2.12 Third Party Service: any product, service, store, website, software and/or other technology owned and controlled by third parties which may be incorporated into or accessible through the WhatSpeak Services or into which the WhatSpeak Services may be incorporated.
2.13 UI: the user interface of any WhatSpeak Service.
2.14 User Account: the account with user ID and password chosen by or assigned to you for the purpose of installing, accessing or using the WhatSpeak Services.
Section 3 - WhatSpeak Services License and Restrictions
3.1 Subject to the terms of this Agreement, WhatSpeak hereby grants you a limited, personal, non-commercial, non-exclusive, non-sub-licensable, non-transferrable, non-assignable, free of charge licence to download, install, access and use the WhatSpeak Services on one or more Devices for the sole purpose of using the communication applications provided by WhatSpeak and any other applications that may be explicitly provided by WhatSpeak, for personal use.
3.2 For the avoidance of doubt, you may use WhatSpeak Services for communication purposes within your work or profession, in accordance with the terms of this Agreement. You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights or access to third parties with regard to the WhatSpeak Services or any part thereof.
3.3 You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the WhatSpeak Services or any part thereof.
3.4 The following shall apply to Third Party Services:
3.4.1 any Third Party Service that is incorporated in the WhatSpeak Services is subject to the provisions of this Agreement;
3.4.2 use of Third Party Services may in addition be subject to your signing up for an account with and accepting the terms and conditions of the relevant third party, including provisions relating to processing of personal data which may differ from WhatSpeak's policies and for which WhatSpeak is not responsible. You acknowledge and agree that you are not entering into a contractual relationship with WhatSpeak or its related companies regarding such Third Party Services and your rights and obligations are exercisable exclusively between you and the applicable third party;
3.5 WhatSpeak, in its sole discretion, reserves the right to add or delete features or functions, and/or to provide programming fixes, updates and upgrades, to the WhatSpeak Services. You agree that WhatSpeak has no obligation to make available to you any particular version or element of the WhatSpeak Services and that they are subject to change, termination or suspension for any reason at any time, at WhatSpeak's discretion, including without limitation for maintenance, changes in applicable laws, WhatSpeak's business decisions, breach though your User Account of any provision of this Agreement, or of the Documentation or other policies or instructions given from time to time, or for any other reason within or outside WhatSpeak's control. WhatSpeak will not accept any liability in relation to any loss or damage whatsoever caused by the release and/or the absence of release of new versions of the WhatSpeak Services and/or the suspension or termination of provision of or access to any part of the WhatSpeak Services or this Agreement. You also agree that you may have to enter into a modified version of this Agreement, in order to download, install, access or use a new version of the WhatSpeak Services.
Section 4 - API License and Restrictions
4.1 Subject to the terms of this Agreement, WhatSpeak hereby grants you a limited, personal, non-commercial, non-exclusive, non-sub-licensable, non-assignable, free of charge licence to use the WhatSpeak API for the sole purpose of enabling your application to connect with WhatSpeak Services, provided that:
4.1.1 all such use of WhatSpeak API is carried out for legitimate purposes and must in no way adversely affect the functionality or performance of the WhatSpeak Services;
4.1.2 you will not remove, overwrite, conceal or otherwise make the UI inaccessible for end users;
4.1.3 you will not use the WhatSpeak API in order to create derivative works based on or competitive with the WhatSpeak Services or the WhatSpeak API;
4.1.4 you will monitor the WhatSpeak Website in order to ensure that you are aware of any changes in the applicable legal documents. In the event you cannot agree on any changes in any applicable legal document, you will immediately cease any and all use of the WhatSpeak API and, where applicable, any and all use of the WhatSpeak Services; and
4.1.5 you agree that your use of the WhatSpeak API will be entirely at your own risk.
4.2 WhatSpeak retains all IP Rights in and to the WhatSpeak Services including the WhatSpeak API and any derivative works created therefrom by or for WhatSpeak or its licensors. You retain the intellectual property rights you may have in the applications, materials, products or processes you create which connect to the WhatSpeak Services utilizing the WhatSpeak API. WhatSpeak, its related companies, or any of their licensors, licensees, assigns or successors, shall have no liability for any and all damages, liabilities, causes of action, judgments or claims: (a) pertaining to any intellectual property you develop that is based on, uses, or relates to the WhatSpeak API; and (b) which otherwise may arise in connection with your use of, reliance on, or reference to the WhatSpeak API.
4.3 If you are interested in doing anything else than permitted under this Agreement, please do contact WhatSpeak to discuss a possible commercial arrangement. For the avoidance of doubt, any activity not expressly permitted under this Agreement always requires WhatSpeak's previous written consent.
Section 5 - IP Rights
5.1 You acknowledge that all IP Rights in the WhatSpeak Services, WhatSpeak Website, WhatSpeak API, software, networks, systems, content (including advertising content) and all other material provided to or accessible by you in connection with the WhatSpeak Services or WhatSpeak Website, are and shall remain the exclusive property of WhatSpeak and/or its licensors and include materials protected under trademark and/or patent laws in various territories worldwide (whether or not registered). Nothing in this Agreement shall act as a transfer or assignment of any such IP Rights to you. You will not take any action to challenge, jeopardize, limit or interfere with the IP Rights. All IP Rights in and to any third party content, products or services that is not contained within the WhatSpeak Services, but may be accessed through use of the WhatSpeak Services, are the property of the respective owners.
5.2 You agree that you will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or WhatSpeak's (or any other person's) rights and ownership, in whatever form attached to, incorporated in or associated with the WhatSpeak Services, Documentation or any other materials.
Section 6 - Use of the WhatSpeak Services
6.1 The WhatSpeak Services are designed to enable you to communicate with other persons including other WhatSpeak Services users. Some categories of communications or services may be WhatSpeak Paid Services and require you to purchase credits in order to use them.
6.2 WhatSpeak cannot guarantee that you will always be able to communicate with other persons, that all your communication will always be delivered to other users nor that such communication will be without disruptions, delays or communications-related errors.
6.3 You expressly acknowledge and agree that the WhatSpeak Services are not intended to support or carry Emergency Calls. For Emergency Calls, you acknowledge that WhatSpeak is not a replacement for your primary telephone service and that it is your responsibility to obtain, separately from WhatSpeak Services, traditional wireless or fixed line telephone service that supports such calls.
6.4 You will use the WhatSpeak Services exclusively for lawful purposes. In particular but without limitation you may not (a) intercept, monitor, interfere with or modify any communication which is not intended for you, (b) interfere with, hack, disrupt or gain unauthorised access to any network, computer system, server or hardware of WhatSpeak or any other person, (c) impersonate any other person or use their User Account or ID, (d) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to attack, distort, delete, damage, disassemble or otherwise interfere with the WhatSpeak Services or network, (e) send any unsolicited commercial communication not permitted by applicable laws, regulations or codes of practice (e.g., spam), (f) collect or harvest personal information from other users (e.g., phishing), (g) harass or threaten any person, (h) expose any person to material which is offensive, defamatory, harmful to minors, indecent, illegal, in breach of third party rights or otherwise objectionable, (i) undertake any activity that is in breach of the law, public order, or public morality using the WhatSpeak Services.
6.5 WhatSpeak reserves the right to edit, correct, take down, store and/or permanently delete any material posted by you in any user profile, forum, chat or other use of the WhatSpeak Services that WhatSpeak in its discretion deems to be in breach of the above rules or otherwise inappropriate for any reason, or as required by any public authority, and to cooperate with and when requested to do so retain and/or provide such material to any such authority.
6.6 You must only use the WhatSpeak Services in accordance with the terms of your agreement(s) with your internet service, mobile and fixed line communications provider as applicable. You must not use WhatSpeak Services if they are not permitted by such agreement(s).
6.7 You agree that WhatSpeak may impose limits on the use of the WhatSpeak Services and/or terminate your use of the WhatSpeak Services in order to ensure "fair use" and to protect the WhatSpeak Services and networks, in particular if it appears to WhatSpeak that the WhatSpeak Services or networks are being resold or otherwise misused including through their use or access using any software or system not distributed or authorised by WhatSpeak.
6.8 You acknowledge that the contents of any communication sent or received using the WhatSpeak Services is exclusively the responsibility of the person from whom such communication or content originated. You will be solely liable if you send or receive content referred to in Section 6.4 and you accept the risk that such content might be sent to you. WhatSpeak will not be liable for any type of communication made by means of the WhatSpeak Services. You may report an infringement of this Agreement or inappropriate content, behaviour or use of the WhatSpeak Services from or by any other user to support@WhatSpeak.com although all decisions on any action to be taken shall be at WhatSpeak's sole discretion.
Section 7 - Utilization of your Device
7.1 You hereby acknowledge and agree that:
7.1.1 the WhatSpeak Services may utilize the processor and bandwidth of any Device used to access or use them;
7.1.2 use of the WhatSpeak Services, in addition to the cost of any WhatSpeak Paid Services, may require you to contract, set up and pay for data and/or other communications services from your internet service, mobile or fixed line communications provider, including roaming charges if you are outside your home country. Please check the terms of your agreement with your communications provider before using the WhatSpeak Services as you are solely responsible for all such costs and for selecting and paying for the appropriate Device, data, communications and internet access services and plans you wish to use with the WhatSpeak Services; and
7.1.3 within the WhatSpeak Services WhatSpeak or its third party providers may serve and deliver advertisements to and access, index and record responses made from your Device. Any contacts with advertisers are made at your own discretion and risk and may be subject to their applicable terms of service or sale and privacy policies which are not controlled by WhatSpeak and may differ from WhatSpeak's policies.
7.2 You acknowledge that WhatSpeak will use its commercially reasonable efforts to protect the privacy and proper functioning of your Device and of your communications, but that WhatSpeak does not give any guarantees in this respect.
Section 8 - WhatSpeak Paid Services
8.1 If you wish to use WhatSpeak Paid Services, you must agree to all the terms of this Section. All the other provisions of this Agreement also apply to WhatSpeak Paid Services.
8.2 Payments will be made exclusively in the manner(s) indicated by WhatSpeak from time to time, including through service providers separate from WhatSpeak. You need to agree to any specific terms presented at the moment of making a payment, including without limitation provisions relating to processing of personal data by that service provider which may differ from WhatSpeak's policies and for which WhatSpeak is not responsible.
8.3 You are solely responsible for any charges incurred using your User Account and must keep your log-in details private and notify WhatSpeak if you believe that another person has had unauthorized access to your User Account. In particular, if you use any chatrooms or other WhatSpeak Services reserved for adult users you must keep you User Account details private in order to prevent access by underage users.
8.4 Please be aware that occasionally third party websites may pose as WhatSpeak sites and may request your User Account details. WhatSpeak seeks to prevent the operation of such sites, but WhatSpeak cannot be responsible for any consequences of interacting with any such site and recommends that you only log into your User Account via pages reached from www.WhatSpeak.com
8.5 If you have not already begun to use the applicable WhatSpeak Paid Services, then depending on the type of service you may be entitled to a full refund provided you contact WhatSpeak to claim this within seven working days of purchase. Otherwise, all purchases are final and no refunds are available for payments made for WhatSpeak Paid Services. In the event that you believe you have been charged in error, you must contact WhatSpeak support within 14 days of such charge. If you have not used your credit for 6 months then it will automatically expire and you will lose it. WhatSpeak will try to send you a reminder before it expires. No refunds will be given for charges which are more than 14 days old. If your User Account expires or is terminated you will also lose any remaining credit in your User Account. Note that certain special promotions may be subject to shorter expiry dates within which you would need to use the relevant credit, so please read the applicable terms carefully at the time of purchase.
Section 9 - Term and Termination
9.1 This Agreement will be effective from the date on which you accept it by (i) clicking on the ACCEPT button as stated above, or (ii) your first use of the WhatSpeak Services, and will remain effective until terminated by either WhatSpeak or you as set out below.
9.2 Without limiting any other remedies, WhatSpeak may without prior notice to you restrict, suspend or terminate any licences granted hereunder and/or your use of any version or element of the WhatSpeak Services including the WhatSpeak Paid Services, block access to the WhatSpeak Website and/or suspend or cancel your User Account and/or ID, with immediate effect, if WhatSpeak reasonably believes you have failed to comply with any terms contained in this Agreement, the Documentation and/or WhatSpeak's other policies or instructions, you have infringed someone else's rights (e.g. copyrights, other intellectual property, or privacy rights), or engaged in any fraudulent, immoral or illegal activity. WhatSpeak reserves the right to cancel User Accounts that have been inactive for more than six months. If credits for WhatSpeak Paid Services have been purchased and remain unused you will lose these but WhatSpeak will try to remind you before any such cancelation.
9.3 You may terminate this Agreement with immediate effect at any time provided that you meet all the conditions set out in Section 9.4 below.
9.4 Upon termination of this Agreement for any reason (a) all licences and rights to use the WhatSpeak Services including the WhatSpeak API shall terminate, and (b) you will cease all use of the WhatSpeak Services, and (c) you will remove the WhatSpeak Services from all Devices, hard drives, networks and other storage media and destroy all copies in your possession or under your control, and (d) any unused prepaid credits for WhatSpeak Paid Services will be retained by WhatSpeak and not repaid.
9.5 WhatSpeak WILL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT LOSS OR DAMAGE CAUSED BY THE TERMINATION OF THIS AGREEMENT WHETHER OR NOT WhatSpeak HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
Section 10 - Representations and Warranties; Indemnification of WhatSpeak
10.1 You represent and warrant that you (i) are authorized to enter into this Agreement and comply with its terms, and to use all WhatSpeak Services that you use, (ii) will only provide true, accurate, up to date and complete registration, contact and billing information, and (ii) will at all times comply with your obligations hereunder, as well as any and all applicable laws, regulations and policies.
10.2 You agree to indemnify, defend and hold WhatSpeak, its related companies and the WhatSpeak Staff harmless from and against any and all liability and costs, including reasonable attorneys' fees, in connection with or arising out of the absence, failure or outage of the WhatSpeak Services and/or your (a) breach of any term of this Agreement or any applicable law or regulation, or (b) breach of any rights of any third party, or (c) use or misuse of the WhatSpeak Services, or (d) use and/or modification of the WhatSpeak API and/or any application created using the WhatSpeak API, or (e) communications made by means of the WhatSpeak Services.
10.3 You acknowledge that the WhatSpeak Services may be subject to international rules that govern the export of software. You agree to comply with all applicable international and national laws that apply to the WhatSpeak Services as well as end-user, end-use and destination restrictions issued by national governments or international bodies.
Section 11 - Disclaimer of Warranties
11.1 THE WhatSpeak SERVICES ARE PROVIDED "AS IS". WhatSpeak HEREBY EXCLUDES ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE WhatSpeak SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR ANY PARTICULAR PURPOSE OR REQUIREMENT. WhatSpeak DOES NOT REPRESENT OR WARRANT THAT THE WhatSpeak SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT MESSAGE, FILE OR PACKET LOSS, NOR DOES WhatSpeak WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET OR ANY FIXED OR MOBILE COMMUNICATIONS NETWORK, OR ANY QUALITY, ACCURACY OR RELIABILITY OF COMMUNICATIONS MADE THROUGH THE WhatSpeak SERVICES.
11.2 You agree that the entire risk arising out of the use or performance of the WhatSpeak Services remains with you, to the maximum extent permitted by law.
11.3 To the extent that any jurisdiction does not permit any of the exclusions or limitations set out above, some of these exclusions or limitations may not apply to you and WhatSpeak's liability will in that case be limited as far as possible under applicable law.
Section 12 - Limitation of Liability
12.1 YOU AGREE THAT WhatSpeak, ITS RELATED COMPANIES, ITS LICENSORS AND THE WhatSpeak STAFF WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF OR INABILITY TO USE THE WhatSpeak SERVICES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, INCLUDING FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFIT, CONTRACT, BUSINESS, GOODWILL OR DATA, COMPUTER FAILURE OR PECUNIARY LOSS), EVEN IF WhatSpeak, ITS RELATED COMPANIES OR THE WhatSpeak STAFF HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING THOSE ARISING FROM OR RELATING TO THE USE OR INABILITY TO USE WhatSpeak SERVICES TO MAKE EMERGENCY CALLS.
12.2 YOU ALSO AGREE THAT THE CHANNELS ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WHATSOEVER IN RELATION TO THE WhatSpeak SERVICES INCLUDING WITHOUT LIMITATION IN RELATION TO THE SALE, DISTRIBUTION OR USE, PERFORMANCE OR NON-PERFORMANCE THEREOF, PRODUCT LIABILITY, THIRD PARTY INTELLECTUAL PROPERTY CLAIMS, NON-COMPLIANCE WITH ANY APPLICABLE WARRANTY, LAW OR REGULATION (INCLUDING CONSUMER PROTECTION AND SIMILAR LEGISLATION), AND ANY CONTENT INCLUDED THEREIN THAT THEY HAVE NOT PROVIDED.
12.3 YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE WhatSpeak SERVICES IS TO DE-INSTALL AND CEASE USE OF SUCH WhatSpeak SERVICES, SAVE IN RESPECT OF WhatSpeak SERVICES PURCHASED FROM A CHANNEL, IN WHICH CASE IF SUCH WhatSpeak SERVICE FAILS TO COMPLY WITH ANY APPLICABLE WARRANTY, YOU MAY BE ENTITLED TO CONTACT SUCH CHANNEL AND REQUEST A REFUND OF THE PURCHASE PRICE AS ITS EXCLUSIVE OBLIGATION IN ACCORDANCE WITH ITS APPLICABLE TERMS AND CONDITIONS.
12.4 WhatSpeak DOES NOT ENDORSE OR WARRANT AND ACCEPTS NO LIABILITY FOR ANY CONTACT, CORRESPONDENCE, TRANSACTIONS OR LOSS AND DAMAGE THAT MAY ARISE BETWEEN YOU AND ANY THIRD PARTY THROUGH THE WhatSpeak SERVICES OR WhatSpeak WEBSITE, WHETHER OR NOT SUCH THIRD PARTY ADVERTISES WITHIN THE WhatSpeak SERVICES OR WhatSpeak WEBSITE. YOU ACKNOWLEDGE THAT PARTICULAR CARE IS REQUIRED - AND WhatSpeak WILL HAVE NO LIABILITY FOR ANY ADVERTISEMENT, ANY INFORMATION TRANSMITTED OVER THE WhatSpeak SERVICES OR WEBSITE OR ANY DECISIONS MADE - IN CONNECTION WITH ANY FINANCIAL SERVICES OR PRODUCTS.
12.5 To the extent that any jurisdiction does not permit any of the exclusions or limitations set out above, some of these exclusions or limitations may not apply to you and WhatSpeak's liability will in that case be limited as far as possible under applicable law.
Section 13 - General Provisions
13.1 WhatSpeak reserves the right to modify this Agreement at any time by notifying you by any reasonable means or by publishing the modified Agreement on the WhatSpeak Website. The modified Agreement shall become effective thirty days from such publication or notification, unless you expressly accept