Terms of Service

Telmate Terms of Service and User Agreement

Welcome to Telmate!

TELMATE’S TERMS AND CONDITIONS

Last Updated: 11/16/2016

These terms and conditions (“Terms”) create a legal agreement between you and Telmate, LLC (the “Agreement”). These Terms apply when you access, visit, or use Telmate’s equipment or services, including the Telmate Tablet, the GettingOut services, Telmate.com, GettingOut.com, Guardian and other Telmate apps, products, and services (collectively, the “Services”).

1. ACCEPTANCE OF THESE TERMS

By clicking the “accept” button, you signify that you have read, understand, and agree to be legally bound by these Terms.

2. DISPUTE RESOLUTION AND MANDATORY ARBITRATION

These Terms contain provisions that govern the resolution of any and all claims between you and Telmate, including an agreement and obligation to arbitrate disputes (see Section 29 below). The arbitration clause requires you to submit claims that you may have against Telmate to binding arbitration and to waive your rights to class-action proceedings, unless you opt-out in accordance with Section 29. Unless you opt-out of binding arbitration: (1) you will only be permitted to pursue claims against us on an individual basis, not as a part of any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

3. REGISTRATION

Before using any of the Services, you may be required to register an account with Telmate. You may be required to provide personal and/or financial information. You expressly represent, warrant, and agree that any information you give to Telmate will always be accurate, correct and complete. If you provide any information that is, or that Telmate has reasonable grounds to suspect is, untrue, inaccurate, not current or incomplete, Telmate may without notice suspend or terminate your access and use of the Services, refuse to provide you with any and all current or future use of the Services, and report the incident to law enforcement. You acknowledge and agree to the following: (i) to never use another participant’s account without Telmate’s written permission; (ii) be solely responsible for the activity that occurs on your account; (iii) keep any and all of your account passwords and usernames secure; (iv) notify Telmate promptly of any breach of security or unauthorized use of your account; (v) not select or use a user account name or I.D. of another person with the intent to impersonate that person; and (vi) be responsible for maintaining the confidentiality of your account. You agree that Telmate will not be responsible for any losses arising out of the unauthorized use of your Account. If applicable, you may be required to provide valid credit card information. By providing your credit card information you authorize Telmate to charge such credit card for your financial obligations relating to your access and use of the Services. Telmate reserves the right to refuse registration of or to cancel a user account for any reason.

4. LIMITED LICENSE

Contingent upon your compliance with these Terms, Telmate grants you a personal, limited, worldwide, nonexclusive, nontransferable, revocable license to access and use the Services for lawful, non-commercial, personal uses only. Accessing or using the Services for commercial purposes, including commercial publication, distribution, sale or personal gain, is expressly prohibited.

This Agreement does not constitute a grant or an intention or commitment to grant any right, title or interest in the Services or Telmate’s trade secrets to you. You receive no rights to the Services other than the license specifically granted in this Section. Copies of any software created or transferred pursuant to this Agreement are licensed, not sold, and the recipient receives no title to or ownership of any copy or of the software itself. Except as otherwise specifically permitted in writing from Telmate or in this Agreement, you may not under any circumstances: (a) modify, alter, or create any derivative works of any component of the Services, including but not limited to translation of any the Services content; (b) disclose any element of the Services to any third party without written consent from Telmate including but not limited to the application icon, any content or results; (c) copy or reproduce any element of the Services, including but not limited to taking screenshots; (d) sublicense or permit use of the Services by anyone else; (e) reverse engineer, make derivative works, decompile, or disassemble, use the Services to develop any other products, or otherwise attempt to derive the source code for the Services (except to the extent applicable laws specifically prohibit such restriction); (f) redistribute, sell, rent, lease, sublicense, share, or otherwise transfer your rights under this Agreement.; (g) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels; (h) or use the Services, in a manner that is not in strict accordance with this Agreement.

5. SERVICES

Upon registration, and on the conditions that you pay the applicable fees and comply with these Terms, Telmate will provide you with access to and use of the Services. Telmate is under no obligation to provide you with technical support, and Telmate does not represent, warrant or provide assurance that any errors or discrepancies will be corrected. Telmate may in its discretion provide support and functionality for the Services from time to time. You acknowledge that Telmate has the right to: (1) take appropriate legal action against anyone who Telmate determines has violated these Terms, including, without limitation, reporting to law enforcement authorities, (2) manage the Services in a manner designed to protect the rights and property of Telmate and users of the Services and to facilitate the proper functioning of the Services; and (3) modify, suspend, disable, restrict access to, or discontinue the Services (or any part or content thereof) for any reason, including but not limited to required maintenance at any time with or without notice to you, and Telmate will not be liable to you or to any third party should it exercise such rights. Telmate will provide you with any applicable upgrades without additional charge, as part of its general release. Upon delivery to you, upgrades will become part of the software and will be subject to this Agreement.

6. ACCEPTABLE USE POLICY

You may use the Services only for their intended purposes, in accordance with all applicable legal requirements including all federal, state, and local laws and regulations (including correctional facility policies) and these Terms. You may not facilitate or permit anyone else to, directly or indirectly:

  1. use the Services in connection with criminal or tortious activity, including child pornography, fraud, trafficking in controlled substances or humans, harassment, stalking, spamming, or infringement of intellectual property;
  2. use the Services in connection with pornography;
  3. engage in nudity, profanity, suggestive body gestures, terminology and/or any other activity deemed inappropriate in the sole discretion of Telmate or a correctional facility;
  4. advertise or sell products or services;
  5. perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or use of the Services by other users;
  6. use any automated mechanism in connection with the Services, such as scripts, web crawlers, bots robots or scrapers, or manual equivalents, for any purpose;
  7. impersonate any person or entity, misrepresent yourself, or attempt to use another user’s account without the user’s permission;
  8. accept payment or anything of value in exchange for performance of any activity on or through the Services;
  9. transmit chain letter or junk emails to other users;
  10. engage in any automated use of the Services, such as using scripts to send comments or messages;
  11. interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services; or
  12. use the Services in a manner inconsistent with any and all applicable laws and regulations.

If Telmate determines that you may have violated these Terms, it may report the matter to law enforcement and correctional facility administrators, and/or refuse or restrict your access to all or any portion of the Services.

7. YOUR PRIVACY RIGHTS

In connection with your use of the Services, please review Telmate’s Privacy Policy in order to understand how w use information we collect from you when you access, visit or use our Services. The Privacy Policy is part of and is governed by these Terms of Use and by accepting the Terms of use, you agree to be bound by the terms of the Privacy Policy, and agree that we may use information collected from you in accordance with the Privacy Policy.

8. CONSENT TO MONITOR AND SHARE BIOMETRIC DATA

Telmate collects personal information through its services, including but not limited to your location, voiceprint and facial geometry, and shares such data (and access to such data) with law enforcement and correctional facilities. By using Telmate’s Services, you agree that Telmate, the applicable correctional facility, and government agents may:

  1. monitor or record voice and video calls made through the Services;
  2. obtain the location of your device from which you access the Service; and
  3. monitor and collect messages, emails, text and other data sent and received using the Service and all other activity related to the Services.

Your voice, image, and data transmitted in connection with the Services are subject to Telmate’s Privacy Policy.

9. CONTENT SUBMITTED

With respect to any content or information you submit or make available via the Services, such as your image, voice, comments, endorsements, reviews, testimonials, pictures, videos and other content, you grant to Telmate a perpetual, irrevocable, worldwide, royalty-free, transferable, non-exclusive license to use, copy, distribute, publicly display, modify, create derivative works of, commercialize and sublicense such content, in whole or in part, in any media, now or hereafter known or developed, for all lawful purposes, without any additional consideration due to you. You acknowledge and represent that such content is not confidential and you hereby waive any publicity or privacy right to such content.

In the event that you submit or post any creative suggestions, proposals, or ideas about our products or services, you agree that such submissions will be automatically treated as non-confidential and non-proprietary and will become our sole property without any compensation or credit to you whatsoever.

You represent and warrant that your activities through the Services do not and will not violate this Agreement or the rights of any third party, including infringing or misappropriating any third party intellectual property and publicity rights. You are solely responsible for your activity through the Services.

10. CONFIDENTIALITY

You acknowledge, understand and agree that the Services, including their design, interface, source code, platform or any part thereof, are proprietary to Telmate, that they are Telmate’s valuable trade secret, and that they are Telmate’s confidential information. You also acknowledge, understand, and agree that Telmate may make information available to you or that you may otherwise learn of Telmate’s confidential proprietary information (“Telmate’s CPI”). Telmate’s CPI includes trade secrets, know how, invention techniques, processes, programs, schematics, software source documents, data, customer lists, financial information, and sales and marketing plans, which you intentionally or unintentionally may become aware of as a result of this Agreement and using the Services.

You expressly acknowledge and agree that you will not reproduce, duplicate, copy, sell, resell, trade, or collect or harvest, distribute, disclose, license, sublicense, distribute, reverse engineer, rent or lease any part of the Services or Telmate Content, in any medium, without Telmate’s written permission.

Because of the sensitive nature of the information that you may become aware of as a result of this Agreement, you and Telmate intend that the confidentiality and confidential proprietary information provisions in the Agreement to be interpreted as broadly as possible to protect Telmate’s CPI.

Notwithstanding any other provision of this Agreement, you specifically acknowledge, understand, and agree that your breach of this Agreement could cause great or irreparable injury to Telmate, and that pecuniary compensation would not afford adequate relief, and therefore, Telmate will be entitled to seek appropriate equitable relief including injunction in addition to whatever other remedies it might have at law or in equity for any threatened or actual breach of this Agreement. In such event, you will be responsible for Telmate’s attorney fees resulting from such breach and pay all other damages, whether direct or indirect.

You agree to implement all reasonable security measures to protect Telmate’s CPI, and without limitation to the foregoing, shall use best efforts to maintain the security of Telmate’s CPI. You will promptly notify Telmate of any misuse or misappropriation of Guardian that comes to your attention you will use your best efforts to cooperate with and assist Telmate in identifying and preventing any unauthorized use, copying, or disclosure of any of Telmate’s CPI.

11. INFORMATION COLLECTED

TELMATE, OR AGENTS OF LAW ENFORCEMENT MAY ACCESS, REVIEW, SEARCH USE, RECORD, MODIFY, COPY, VIEW, LISTEN TO, DISPLAY OR DISTRIBUTE ANY AND ALL OF YOUR CONTENT AND PERSONALLY IDENITFIABLE INFORMATION AS PERMITTED BY LAW, WITHOUT PROVIDING NOTICE OR COMPENSATION. YOU HEREBY ACKNOWLEDGE YOUR AWARENESS OF, AND CONSENT TO ALL SUCH ACTIVITY. The personally identifiable information collected includes photos of you; your voice recordings, and your geo-location using the location services, GPS, or Wi-Fi functions on the mobile device are running the Services on. You acknowledge, understand and agree that Telmate and Law enforcement personnel will keep a record of any collected personally identifiable information. Telmate and Law enforcement personnel will also collect additional information, such as the name of your mobile service provider, operating system of the device you are running the Services on, and the date and time you access or use the Services. You acknowledge understand and agree that Telmate may use any information collected to help Telmate improve the Services and the services, application, content and features. You acknowledge understand and agree that law enforcement personnel may use any information collected in any manner permitted by law or if law enforcement personnel has good faith belief that the disclosure is necessary to prevent a serious and imminent threat to public safety.

Telmate will not disclose the personally identifiable information collected through your use of the Services to unaffiliated third parties. Telmate reserves the right, however, to provide such information to our employees, contractors, agents, and designees to the extent necessary. Notwithstanding the foregoing, Telmate may disclose any personally identifiable information under the following circumstances:

  1. as required by applicable law or by proper legal or governmental authority
  2. to prevent, investigate, detect or prosecute criminal offenses or attacks on the technical integrity of Telmate’s network;
  3. to protect the rights, property, safety and security of Telmate and its employees, and/or the public.

12. FEEDBACK

You may choose to or Telmate may invite you to submit comments, suggestions, feedback, or ideas (collectively "Feedback") about the Services. By submitting any Feedback, you acknowledge and agree that such Feedback is (i) gratuitous, unsolicited and given without restriction; (ii) that it will not place Telmate under any fiduciary or other obligation; (iii) that Telmate is free to use the Feedback without any compensation to you; (iv) and Telmate has the right to disclose the Feedback on a non-confidential basis or otherwise to anyone. You grant Telmate the worldwide, non-exclusive, perpetual, irrevocable, royalty free rights: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any Telmate product, technology, service, specification or other documentation (individually and collectively, "Telmate Products"); (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of any Feedback (and derivative works thereof) as part of any Telmate Product. Further, you represent and warrant that any Feedback is not subject to any licenses or other restrictions, which would require Telmate to comply with any additional obligations, including but not limited to third party intellectual property rights, with respect to any Telmate Products that incorporate any Feedback.

13. USER CONTENT IS NOT PRESCREENED

We do not prescreen content posted by users and cannot guarantee the Services will be free from content that is inaccurate, deceptive, offensive, defamatory, unlawful or otherwise objectionable. We have no liability relating to any user content or activities of users on the Services. Even in the event we choose to monitor any user content, we assume no responsibility for, or any obligation to monitor or remove, such user content.

14. SECURITY PRECAUTIONS

Telmate uses commercially reasonable efforts to protect your personally identifiable information, unfortunately, no security system, or system of transmitting data can be guaranteed to be 100% secure, and even with these measures, Telmate cannot guarantee the security of your personally identifiable information. By accessing or using the Services, you acknowledge, understand, and agree that Telmate makes no such guarantee, and that you access or use the Services at your own risk.

15. FEES, PAYMENT, AND REFUNDS

You may be required to pay fees for access. These fees may include monthly subscription fees and/or usage-based fees charged at a “per minute” or “per usage” type of rate. The fees may vary based a variety of factors, including state law and the correctional facility where an offender is incarcerated. Additional taxes and fees may be assessed for certain actions (such as balance transfers). Fees are subject to change. You acknowledge and agree that Services purchased on a subscription basis, are subject to recurring payments until the subscription for that Service is terminated by you or by Telmate as described herein.

You may maintain a balance of funds in your account that may be used when you access a Service that requires a fee. For example, if you reserve a “Remote Visitation”, you need to pay for that Service. Upon confirmation of the reservation, we will deduct the price of the visitation from your account. If you wish to use a function that requires payment (e.g., reserving a kiosk for “Remote Visitation”) and have insufficient funds in your account, you will not be able to access that function until you deposit additional funds. If you allow your account balance to drop to one cent or below, your account will be suspended, and you will be unable to access any fee-based features within the Services. Account access will be restored once you make a deposit, or authorize charges against a valid credit card.

You may associate up to two credit cards to your account. These credit cards can be used to automatically refill the balance of an account that has fallen below the five ($5) dollar minimum. If the account is below this minimum, your primary credit card will automatically be debited twenty-five ($25) dollars, which is instantly deposited into your stored account balance. If billing to the primary credit card fails, Telmate will attempt to debit the secondary credit card, if one is on file. If that charge fails, Telmate may email you, if an email is on file, notifying you of the billing failure. By providing credit card detail or using this payment method, you understand and approve Telmate’s collection, retention (in encrypted format) and use of your credit card data as necessary herein.

If you close your account with a balance remaining, you may request a refund of such unused balance. You may select from the following refund delivery options: (a) balance transfer to a separate account associated with a connected, verified destination phone number, less taxes and fees; or (b) balance issued to a prepaid calling card, less taxes and fees, useable for calling anywhere in the USA. If the balance exceeds $50.00 it may be refunded via the original purchase method (credit card deposits to the same credit card, cash deposits will be refunded by check; there is a $10.00 fee for any issued check).

You are solely responsible for all charges (fees) incurred through your account. You can view a history of charges against your account in the “Account History” section of your profile. If there are any questions about our billing or refund policy please contact customerservice@telmate.com. If you believe that Telmate has charged you for any Service in error, you must contact Telmate within ninety (90) days of such charge. No refunds will be given for any charges which are more than ninety (90) days old.

16. PERSONAL COMMUNICATION DEVICES

The Services offered by Telmate may require the usage of a personal communication device (“Device”) such as a smartphone, mobile phone, personal computer, etc. You are solely responsible for any fees, charges, or other expenses associated with the use of any such Device. These include any charge associated with purchasing or leasing a Device, any monthly, weekly, daily or prepaid charges for network access and/or data usage required for operation of Services on the Device, and any charges associated with receiving text messages, alerts, push notifications, emails, etc. on the Device. The use of Guardian requires a compatible Smartphone, Internet access, certain software; are may require periodic updates. Guardian may be accepted by the performance of these factors. High-speed Internet access is strongly recommended for regular use of the Services and required for video.

Motor Vehicle Operation. You expressly agree that you will abstain from using any Device in connection with any Telmate Service, including but not limited to the performance of any Guardian related check ins, in any way that distracts or prevents you from obeying all traffic and/or safety laws. In addition, you agree to refrain from using any Services during the operation of any motor vehicle, including, but not limited to, automobiles, motorcycles, buses, trains, aircraft, and watercraft. Further, you agree to not permit others to use your account of any Services while they are in operation of a motor vehicle. Such unauthorized use of Services can lead to serious bodily harm including death.

17. OWNERSHIP AND COPYRIGHT OF SOFTWARE

Title to the Services and all copies of any associated software remain with Telmate. You agree to prevent any unauthorized copying of software associated with the Services. Except as expressly provided in Section 4, Telmate does not grant any express or implied right to you under Telmate patents, copyrights, trademarks, or trade secret information.

You acknowledge that the Services are only licensed to you and that Telmate retains ownership of all right, title and interest to the Services, the Documentation, its source code, its design, trademark, logo, and all intellectual property rights therein and thereto (including without limitation, all patent rights, design rights, copyrights and trade secret rights). You receive no title to or ownership of any copy or part of the Services itself.

For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

18. MAINTENANCE

From time to time, Telmate may perform maintenance on or upgrade the Services, or the underlying infrastructure that enables the use of the Services. This may require Telmate to temporarily suspend or limit the use of some or all options of the Services until such time as this maintenance and/or upgrade can be completed. Telmate will try but is not obligated to publish notice of any significant suspension or limitation in advance. You acknowledge and agree that you are not entitled to damages for any suspension or limitation of the use of the Services or any part thereof whether Telmate provided specific advance notice no not.

19. VIDEO VISITATION POLICY

When you schedule a video visit through Telmate, the video kiosk is reserved for that period of time and may not be used by any other inmate at the facility. If you are unable to attend the visit as originally reserved, please log into your Telmate account and cancel your scheduled visit reservation with at least 24 hours’ notice to Telmate. No refunds are provided for cancelled Video Visitations. Credits for future visits may be available, but only if you provide 24 hours’ advance notice of cancellation to Telmate. Visits that are not cancelled at least 24 hours in advance, or that did not take place because the visitor or the inmate either did not attend or attended late, will not be credited.

If your visit is cancelled by the correctional facility staff more than 24 hours in advance, you will receive credit for a future visit reservation. If it is cancelled less than 24 hours prior to your scheduled visit you may be eligible for a credit, but you will need to contact our 24-hour support staff at 866-516-0115 within 2 hours of your scheduled visit to request a credit. If the facility staff cancelled the visit due to inappropriate behavior or other rules violation, it will not qualify for a credit.

Any visitation credits remaining when an inmate is released will automatically be converted to prepaid phone time and subject to Telmate's prepaid refund policy.

20. LINKS TO OUR WEBSITE

You may link to our homepage, provided you do so in a way that is fair and accurate, clearly identifies Telmate, and does not damage our reputation or take advantage of it. However, you may not suggest any form of association, approval or endorsement on our part without our express written consent.

21. TERMINATION

If you want to terminate this Agreement, you may do so by (a) notifying Telmate at any time and (b) closing your accounts for all of the Services which you use, where Telmate has made this option available to you. No refunds for prepaid Services will be provided. Your notice must be sent, in writing, to customerservice@telmate.com. Once your account is deactivated or suspended, you will be unable to use or access any Services, including sending or receiving messages, scheduling or reserving remote visitations, or viewing or posting content. Your account information, personal data, image, voiceprint, biometric data, links and content may be retained and used in accordance with Telmate’s Privacy Policy.

We reserve the right in our sole discretion to delete any of your content, restrict your use of all or any part of the Services, and modify or discontinue the Services (or any part of the Services), for any or no reason, without notice, and without liability to you or anyone else. We also reserve the right to block users from accessing or posting content to the Services by using any technology available, such as blacklisting certain IP addresses or device numbers.

22. REPRESENTATIONS AND WARRANTIES

You represent and warrant that you are 18 years of age or older and you have provided accurate and current information about yourself in connection with your registration for and use of the Services.

If you are a parent or guardian of an inmate or child using the Services who is younger than 18 years of age, you represent and warrant that you have the legal right to consent to and, by clicking to accept this Agreement, do consent to the terms and conditions of this Agreement on behalf of your minor child. If you are a parent or guardian of an inmate or child using the Services who is younger than 13 years of age, you acknowledge that Telmate may collect personally identifiable information of your child, including the child’s image, voice and—if the child is an inmate—his or her name, contact information, and other personal data. We use such data as permitted by our Privacy Policy. You hereby consent to the child’s use of and participation in the Services.

If you are a minor under the age of 18, you represent and warrant that a parent or guardian has reviewed these terms and consents to your use of the Services.

23. WARRANTY DISCLAIMER

THE SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTIES OF ANY KIND. YOU USE THE SERVICES AT YOUR OWN SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, QUALITY, PERFORMANCE, MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE AND NON-INFRINGEMENT RELATED TO OR ARISING OUT OF THE SERVICES, ANY CONTENT ON THE SERVICES, OR ANY PRODUCTS OR SERVICES PURCHASED OR MADE AVAILABLE VIA THE SERVICES, AS WELL AS WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. TELMATE DOES NOT WARRANT THAT THE SERVICES WILL PROVIDE CONTINUOUS, PROMPT, SECURE, OR ERROR-FREE SERVICE. TELMATE ASSUMES NO LIABILITY FOR ANY ERRORS OR OMISSIONS, INCLUDING THE INACCURACY OF CONTENT, OR FOR ANY DAMAGES OR LOSSES THAT YOU OR ANY THIRD PARTY MAY INCUR AS A RESULT OF USE OF OR THE UNAVAILABILITY OF THE SERVICES. TELMATE ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE, FOR ANY DAMAGES TO, OR VIRUSES THAT MAY AFFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ARISING FROM YOUR USE OF THE SERVICES.

24. LIMITATION OF LIABILITY AND DAMAGES

IN NO EVENT WILL TELMATE BE LIABLE FOR AMOUNTS EXCEEDING THE AMOUNT OF FEES RECEIVED BY TELMATE FOR THE PRIOR 12 MONTHS BEFORE THE CLAIM AROSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TELMATE AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICES PROVIDERS AND LICENSORS SHALL NOT BE LIABLE TO YOU OR ANYONE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED, WHETHER BASED ON UPON CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATED TO (i) THE USE OF OR THE INABILITY TO USE THE SERVICES, OR ANY ERRORS, OMISSIONS OR INACCURACIES IN ANY CONTENT IN THE SERVICES; (ii) THE SERVICES OR THE CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) THE PERFORMANCE OF THE PRODUCTS AND SERVICES PURCHASED OR MADE AVAILABLE THROUGH THE SERVICES; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR DATA, CONTENT OR PERSONAL INFORMATION; (v) ANY BUGS VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICES OR ANY PRODUCTS OR SERVICES MADE AVAILABLE THROUGH THE SERVICES. APPLICABLE LAW MAY NOT ALLOW CERTAIN LIMITATIONS OR EXCLUSIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

25. INDEMNITY

You agree to defend, indemnify and hold harmless Telmate; its affiliates, licensors and service providers; and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms or your use of the Services, including, but not limited to, your user content; any use of the Services’ content, services and products other than as expressly authorized in these Terms; or your use of any information obtained from the Services.

26. THIRD PARTY APPS AND SITES

The Services may contain links to websites, applications or other products or services operated by other companies, and offers provided by third parties (“Third Party Sites”). Telmate does not endorse, monitor or have any control over these Third Party Sites, which are governed by separate terms and privacy policies. Nor is Telmate responsible for the content or policies of Third Party Sites, which you access at your own risk. Telmate expressly disclaims any liability for these Third Party Sites.

27. COMMUNICATION OF TERMS

By providing Telmate your email address you consent to Telmate using the email address to send you service-related notices, policies, terms and changes thereto and records of transactions with Telmate, including any notices required by law. You agree that Telmate may provide you with notices, including those regarding changes to the Terms, by posting on a Telmate product or website. The changes will be effective when posted. You understand and agree that your acceptance of the Terms or your use of the Services after the date of publication shall constitute your agreement to the updated Terms. If you do not agree with the amended Terms, you may terminate your relationship with Telmate in accordance with this Agreement.

If Telmate has provided you with a translation of the English language version of the Terms, you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with Telmate. If there is any contradiction between what the English language version of the Terms says and what a translation says, then the English language version shall take precedence.

28. ARBITRATION AND WAIVER OF CLASS ACTION

All controversies, disputes or claims between Telmate, its affiliates, and their respective members, officers, directors, agents, employees and attorneys, and you, arising out of or related to: (i) this Agreement or any other agreement between the parties or any provision of such agreements, (ii) the relationship of the parties hereto, (iii) the validity of this Agreement or any other agreement between the parties or any provision of such agreements, (iv) the validity or applicability of this arbitration requirement, or the interpretation of any part of this clause, or (v) any use of the Services will be submitted for arbitration to the San Francisco, California office of the American Arbitration Association on demand of either party. Such arbitration proceedings will be conducted in San Francisco, California and, except as otherwise provided in this agreement, will be heard in accordance with the then current commercial arbitration rules of the American Arbitration Association. All matters relating to arbitration will be governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq., or successor statute) and not by any state arbitration law. In the event that either party fails to timely pay any amount that such party is responsible to pay under the then-applicable arbitration rules, the other party may dismiss the arbitration without prejudice, and institute litigation to resolve the claims.

Except as limited by this Agreement, the arbitrator will have the right to award or include in his/her award any relief which he/she deems proper in the circumstances, including, without limitation, money damages (with interest on unpaid amounts from the date due), specific performance, injunctive relief, and attorneys’ fees and costs, provided that the arbitrator will not have the right to award exemplary or punitive damages. The award and decision of the arbitrator will be conclusive and binding upon all parties hereto and judgment upon the award may be entered in any court of competent jurisdiction. The parties agree to be bound by the provisions of any limitation on the period of time in which claims must be brought under applicable law or this agreement, whichever expires earlier. The parties further agree that, in connection with any such arbitration proceeding, each must submit or file any claim which would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same proceeding as the claim to which it relates. Any such claim, which is not submitted or filed as described above, will be forever barred.

Telmate and you agree that arbitration will be conducted on an individual, not a class-wide, basis and that an arbitration proceeding between Telmate and you may not be consolidated with any other arbitration proceeding.

Notwithstanding anything to the contrary contained in this section, Telmate and you each have the right in a proper case to obtain temporary restraining orders and temporary, preliminary and/or permanent injunctive relief from a court of competent jurisdiction, but the parties agree to contemporaneously submit any other claims not resolved by such injunctive relief for arbitration on the merits as provided herein.

You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth this Section by sending written notice of your decision to opt-out by certified mail, UPS, or FedEx to the following address: General Counsel, Telmate LLC, 655 Montgomery St. 18th Floor, San Francisco, CA 94107. The notice must be received within thirty (30) days of the date you have agreed to Terms of Use, otherwise you agree to be bound to arbitrate disputes in accordance with the terms set forth above. If you elect to opt-out of this arbitration provision, Telmate will not be bound to arbitrate all disputes, and Telmate may elect to terminate your use of the Service. If Telmate terminates your use of the Service, it will provide you with a refund of any fees you have paid that have not been used in connection with the Service.

29. MISCELLANEOUS

  1. Survival

    The terms that by their nature may survive termination shall remain in effect and survive the termination of this Agreement, including without limitation Content Submitted, Acceptable Use Policy, Services Are Monitored, Indemnity, Warranty Disclaimer, Limitation of Liability and Damages, Arbitration, and Miscellaneous.

  2. Assignment

    This Agreement is personal to you, the user, and you may not assign any rights, obligations, or licenses in this Agreement to another party. Telmate may assign its rights and obligations without restriction.

  3. Disputes

    This Agreement shall be governed by the laws of the state of Delaware, without giving effect to its conflict of laws provisions. You agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and agree you will not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. To the extent it may be applicable, you agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act.

  4. Limitations on Claims

    Any cause of action or claim you may have with respect to Telmate or the Services must be commenced within one (1) year after the claim or cause of action arises, or such claim or cause of action is barred.

  5. No Waiver

    Telmate’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of that or any other right or provision. Neither the course of conduct between the parties nor trade practice shall modify any of these Terms.

  6. Severability

    If any provision in this Agreement is determined by a court to be invalid or unenforceable, the remaining provisions shall continue to be valid and enforceable.

  7. Entire Agreement

    This Agreement constitutes the entire agreement between you and us and govern your use of the Services, and supersedes any prior agreements, communications, representations, or understandings between you and Telmate, including without limitation any prior versions of this Agreement.