Effective Date: December 1, 2016
This policy applies to inmates, as well as to friends and families who access Telmate’s services in order to contact or provide funds to inmates. Please read this policy carefully to understand our practices regarding your information and how we will treat it. If you do not agree with our practices, please do not use our sites or services. By accessing or using Telmate’s sites or services, or by clicking the “accept” button when you register to use a Service, you consent to Telmate’s use of your personal information as described in this policy. This policy may change from time to time, and your continued use of the sites or any service after we make changes is deemed to be acceptance of those changes, so please check the policy periodically for updates.
This policy covers:
The correctional facility where an inmate is located, not Telmate, owns the data related to your communications with an inmate. This includes (without limitation) (i) the content of voice and video calls, voicemails, text and picture messages, and any other types of communications, (ii) the location of the device from which the communication was made, (iii) and all other data associated with such communication, including your account data. Telmate has no control over how each correctional facility uses or discloses such data. This policy applies only to Telmate’s activities, and not to the activities of any subsequent or downstream user of the data. Correctional facilities’ use and disclosure of your personal information is subject to their own policies.
Telmate shares your data (and access to such data) with law enforcement and correctional facilities (federal, state, county and local), as well as investigative or public safety entities (public and private) and the agents of such parties (collectively, “Law Enforcement”). You should assume that all communications will be accessed, reviewed, analyzed, searched, scrutinized, rendered searchable, compiled, assembled, accumulated, stored, used, and transferred by Telmate and Law Enforcement. As such, you expressly acknowledge that you use the services without any reasonable expectation that the contents of these communications are, or will remain, private or protected by any legal privilege.
By using a site or service, you agree, understand, and consent for Telmate to:
Telmate converts inmates’ voice recordings into a sound spectrogram, which is used as a voiceprint to verify the inmate’s identity and for other law enforcement purposes. In addition, Telmate may collect voiceprints of visitors and share them with Law Enforcement.
Telmate may use software to recognize geometrical patterns that comprise the digital image of a face, a process known as facial recognition. Telmate may use facial recognition to compare known faces against a new face to determine a probable match. Telmate employees may also visually compare images it collects (and share such comparisons with Law Enforcement) for identity verification and other security purposes.
Both the voiceprints and the facial geometries are types of biometric data captured by Telmate.
By signing up for an account or using a service, you expressly consent to Telmate’s collection, use and disclosure of your communications, including your biometric data.
We collect information from you in two ways. First, you provide us with certain information when you register for and use our services. Second, we collect certain data automatically as you interact with our sites and services.
Information You Provide to Us
We may collect information from you when you register to use the services, make purchases on our sites, or send any communication or correspondence, by any means, to any of our employees or agents. We directly collect the following types of information that you provide to us:
Information that We Automatically Collect from You when You Use the sites or services
Data Collected Through Our Cookies and Web Beacons. We (or service providers on our behalf) may use technologies, including "cookies" or "web beacons" to automatically collect information from you when you use the site and services. Cookies are small amounts of data that are stored within your Internet browser that can recognize the same browser navigating online at a later time. Web beacons are web page elements that can recognize certain types of information on your computer or mobile device such as cookies and the time and date of a page viewed.
Information that may be collected by cookies and web beacons when you use the sites or services may include, without limitation:
You may be able to set your browser to reject cookies or to notify you when you are sent a cookie. Not all features of the sites or services will function as intended if you reject cookies.
The information we collect automatically is statistical data and may include personal information, or we may maintain it or associate it with personal information we collect in other ways or receive from third parties.
Location Information Collected through Mobile Applications. If you access the sites or services, we may also be able to identify the location of the computer or other device you use. When you receive a call through our sites or services, we collect the location of your phone to help ensure accurate billing practices as well as for the safety and security of correctional facilities safety and for investigative purposes.
Your Internet browser and mobile device may allow you to adjust your browser settings so that "do not track" requests are sent to the websites that you visit. Telmate does not track its users over time and across third party websites to provide targeted advertising and therefore does not respond to Do Not Track signals.
We may use information collected from or about you for any of the following purposes:
We may also combine information we collect about you through the Service with other information about you that we receive from third party sources. By way of example and not limitation, we may use a change of address or other list service to ensure that our records for your account are accurate.
We may share the information we collect in connection with the sites or services with the following third parties:
We share your data with Law Enforcement, as described in Section A above.
We may share your personal information with our third party distributors, vendors, suppliers and other service providers who provide services to us or on our behalf, such as operating and supporting the Service, analyzing data, performing marketing or consulting services, assisting us with the preparation and mailing of our business and marketing communications, and with service processing and fulfillment functions. For example, we may disclose your billing information to payment processors when you add money to your account or conduct other financial transactions through the services.
Third Party Analytics Providers
We may also share your information with third parties who conduct marketing studies and data analytics. These third parties may combine your information with the information of other consumers for purposes of conducting these studies and/or analytics.
Transfer or Assignment in Connection with Business Transfers or Bankruptcy
Response to Subpoenas or Court Orders or to Protect Our Rights
We may disclose your information to government authorities or third parties if:
We may share information relating to your use of the service with any third party on an anonymous, aggregate basis. While this information will not identify you personally, in some instances these third parties may be able to combine this aggregate information with other data they have about you, or that they receive from third parties, in a manner that allows them to identify you personally.
Because safety and security are Telmate's top priority, you may not opt out of the sharing of your communications with Law Enforcement, and all data associated with your communications. If you do not consent to the collection, use and disclosure of this type of data, please do not use the sites or services.
You may choose not to share your location details with us by adjusting your location services settings. For instructions on changing the relevant settings, please contact your service provider or mobile device manufacturer. If you choose not to share your location details with us, you may be denied access to certain sites or services, or parts of them.
Telmate complies with all required PCI standards regarding our treatment of payment card data. Additionally, we have implemented commercially reasonable measures designed to secure your personal information from unauthorized access, use, alteration and disclosure. However, the transmission of information via the internet is not completely secure. We cannot guarantee the security of your personal information transmitted via our sites or services. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the sites or services.
If your name, email address, mailing address, telephone number, other contact information or financial information that you provide to us changes, you may update the information by contacting our Customer Service team at email@example.com.
By accessing and using our website, equipment, and services, you hereby release and forever discharge Telmate, all applicable Law Enforcement Officials and the correctional facility from any and all liability, expense, cost or remedy which may arise as a result of your use of our websites and services as well as the use of the Data in the manner described herein.
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”).
By clicking the “accept” button, you signify that you have read, understand, and agree to be legally bound by these Terms.
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.
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.
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.
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.
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:
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.
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:
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.
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.
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:
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.
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.
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.
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 firstname.lastname@example.org. 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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.