Smalltalkr Free Terms and Conditions. 

September 2024 

Use of Smalltalkr Free constitutes acceptance of these terms and conditions 
Your use of the free, cloud based, hosted software-as-a-service of Smalltalkr (“Smalltalkr Free”), is expressly subject to these terms and conditions of service and creates a binding contract with Smalltalkr (the “Agreement”). The Agreement becomes effective when you electronically and affirmatively assent to this Agreement upon registration of your account with Smalltalkr to use and access Smalltalkr Free. 

This Agreement applies only to Smalltalkr Free, which is a free product offered by Smalltalkr that showcases some of the features of the paid subscription products offered by Smalltalkr. Subscription products are governed by  a separately Hosted Services Agreement. 

Who are You? 

The client is you (“You”) and/or the organization or company for whom you represent (“You” or the “Client”) in assenting to this Agreement. 
If you registered an account using your corporate email domain, your organization is the Client, and the Client can modify and re-assign roles on your account, including your role, and otherwise exercise its rights under the Agreement. If Client elects to replace You as the Client representative with ultimate authority for the account, we will provide You with notice following such an election, and You agree to take any actions reasonably requested by us to facilitate the transfer of authority to a new representative of the Client. 

If You use a personal email address to sign up for Smalltalkr Free, You will still be considered a representative of the company or organization for whom You use Smalltalkr Free. This means that your company or organization will be subject to this Agreement. By registering for an Smalltalkr Free account, You represent and warrant that you have the requisite legal authority to contract on behalf of your company or organization. 

How long can You use Smalltalkr Free? 

Smalltalkr makes its Hosted Service available to You based on the terms in this Agreement. During the period of your access and use of Smalltalkr Free (“Free Term”), and subject to your compliance with this Agreement, You are granted a worldwide, fully-paid, royalty-free, limited-term, non-sublicensable, non-transferable and non-exclusive license to access and use Smalltalkr Free for internal business purposes. The Free Term commences when you register or open your Smalltalkr Free account and agree to the terms and conditions of this Agreement and continues until You, the Client, or Smalltalkr terminates the Agreement. 

Smalltalkr can terminate this Agreement at any time if You breach its terms and conditions. We will give you two (2) days’ notice if we discover that You have breached this Agreement and that we intend to terminate your access. We may also terminate your account and therefore this Agreement in the event of non-use or abandonment of your account. 

You can terminate this Agreement at any time by closing your account or otherwise giving Smalltalkr notice of your intent to terminate the Agreement. Following termination, we will delete your Client Data (defined below) within sixty (60) days. 

What are Your responsibilities when using Smalltalkr Free? 

You are responsible for any equipment needed for your connections and applications. We are responsible for ours. You agree to use Smalltalkr Free service in compliance with the laws as related to telecommunications, anti-spam, do not call, and any other applicable law. You cannot resell, sublicense, lease, time-share or otherwise make Smalltalkr Free available to third parties other than explicitly stated in this Agreement. You cannot use Smalltalkr Free to send or store unlawful material or material containing software viruses, worms, Trojan horses or similar harmful code, files, scripts, agents or programs. You further cannot use Smalltalkr Free to impersonate someone or something when sending messages. You agree to not modify, copy or create their own similar systems based on Smalltalkr Free (this includes attempts to reverse engineer the service or access it for the purpose of building a competitive product). 

Because it is so important, we are going to state it again: under no circumstances may You use Smalltalkr Free for competitive purpose. Any attempt to do so will be a material breach of this Agreement, and will be subject to further legal action, including but not limited to preliminary injunctive relief. You agree that if we prevail in any legal action, You will pay our attorneys’ fees and other costs related to litigation. 

How does Smalltalkr get and use my data? 

As the Client, You will supply Smalltalkr with your information (“Client Data”) in order to access the functionality of Smalltalkr Free. By accessing the service and providing the Client Data and Information, You are warranting that this information is true and accurate, and that You have authorization to provide the Client Data to Smalltalkr. In the event the Client Data is inaccurate, and/or You do not have authorization to provide the Client Data to Smalltalkr, You agree to indemnify Smalltalkr for any third party claims arising from Your provision of the Client Data and/or Your use of Smalltalkr Free. Please ensure that You have all requisite legal authority to provide Client Data to Smalltalkr Free prior to any provision of Client Data. 

Smalltalkr will use the Client Data solely as directed by You, and in accordance with all applicable law, including data privacy laws. The protection of Client Data is a top priority for Smalltalkr, so we will maintain administrative, physical, and technical safeguards that include measures for preventing unauthorized access, use, modification, deletion, and disclosure of Client Data by our personnel. Before sharing Client Data with any of our third-party service providers and/or subcontractors, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Client Data and preventing unauthorized access. Moreover, we have entered into data transfer agreements (“DTAs”) with each of our third-party service providers, and each of those DTAs have onward data transfer agreements that contain the safeguards discussed herein. 

What is included with Smalltalkr Free? 

You can get a comprehensive description of the features of Smalltalkr Free, as well a comparison with our subscription products, at https://www.smalltalkr.com/pricing/ , which will be updated from time to time, as we reserve the right to modify or even discontinue Smalltalkr Free in our sole discretion. There is no service level agreement applicable to Smalltalkr Free.

Representations, Warranties, Indemnifications, and Limitations of Liability 

You and Smalltalkr represent that each have the legal power to enter into this Agreement and will comply with all applicable laws when performing under this Agreement. Smalltalkr makes no other warranty, including any implied, statutory or any other warranties, including warranties of merchantability or fitness for a particular purpose. Smalltalkr is providing Smalltalkr Free at no charge, as-is and doesn’t warrant that the operation of Smalltalkr Free will be uninterrupted or free of errors. 

Smalltalkr defends, indemnifies and holds You and your officers, directors, employees and agents harmless against any loss, damage or costs – including reasonable attorney fees – incurred in connection with claims, demands, suits, or proceedings made or brought against you by a third party alleging that use of our service contemplated under this Agreement (i) violates any applicable law or regulation or (ii) infringes the intellectual property rights of the third party, provided that the You promptly provide written notice of the claim to Smalltalkr. The latter represents Smalltalkr’ sole obligation and the Client’s sole remedy respecting infringement or misappropriation of third-party intellectual property rights. 

You agree to defend, indemnify and hold Smalltalkr, its affiliates and each of their officers, directors, employees, and agents harmless against any loss, damage or costs – including reasonable attorney fees – incurred in connection with claims made against Smalltalkr or its affiliates by a third party alleging that the Client Data created and stored by You in the service or otherwise provided to Smalltalkr by You in connection with this Agreement (i) violates any applicable law or regulation; (ii) violates any third party’s privacy rights; or (iii) infringes any patent, copyright or other intellectual property right of a third party, provided that Smalltalkr (a) promptly gives the You written notice of the claim (provided that the obligations under this section shall not be reduced by the failure to give such notice except to the extent that the Client is materially prejudiced by such failure); (b) gives the You sole control of the defense and settlement of the claim (provided that You may not settle any claim unless it unconditionally releases Smalltalkr of all liability and obligation); and (c) provides You, at the your cost, all reasonable assistance. 

EXCEPT FOR THE CLIENT’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION, OR EITHER PARTY’S BREACH OF THE CONFIDENTIALITY OBLIGATIONS ALSO SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF ANY SUBSCRIPTION FEES PAID DURING THE PRECEDING TWELVE (12) MONTHS. 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SMALLTALKR OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE CLIENT FOR ANY LOST PROFITS, OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, AND WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT SMALLTALKR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

Confidentiality Obligations 

In this Agreement, “confidential information” means all confidential and proprietary information of a disclosing party disclosed to the receiving party. Confidential information doesn’t include information that: (i) is or becomes generally known in a way that does not breach any obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure by the disclosing party without breaching any obligation owed to the disclosing party; (iii) was independently developed by the receiving party without breaching any obligation owed to the disclosing party; or (iv) is received from a third party without breaching any obligation owed to the disclosing party. The receiving party must not disclose the disclosing party’s confidential information for any purpose outside the scope of this Agreement, except with prior written consent from the disclosing party. Upon any termination of this Agreement, the receiving party shall continue to maintain the confidentiality of the disclosing party’s confidential information and, upon request and to the extent feasible, return to the disclosing party or destroy (at the disclosing party’s election) all materials containing the confidential information. 

General and Additional Terms 

No Amendment or Waiver. No amendment or waiver of any provision of this Agreement will be effective unless it is in writing and signed by the You and Smalltalkr. To the extent that there is any conflict between this Agreement and any other schedule or attachment, this Agreement shall prevail unless expressly stated otherwise. This Agreement represents the entire Agreement among the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. 

Force Majeure. Neither You nor Smalltalkr will be liable by reason of any failure or delay in the performance of obligations hereunder on account of events beyond the reasonable control of the party affected, which may include denial-of-service attacks, failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action. 

This Agreement shall be governed by the laws of Delaware 

All disputes hereunder shall be resolved in the applicable state or federal courts of Delaware. The parties consent to the jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available without reference to conflict of laws principles.