PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
User Content. Some areas of the Service allow Users to post content such as videos, images, profile information, comments, and other content or information (any such materials you submit or otherwise make available on the Service we call “User Content”). You retain any ownership of your User Content.
User Content Restrictions. You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, pornographic, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the rights to each and every musical composition (including lyrics) and sound recording contained in such User Content, and that you have the power to grant the licenses granted below. Telly reserves the right, but is not obligated, to reject and/or remove any User Content that Telly believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
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.
Your responsibilities for your User Content. In connection with your User Content, you affirm, represent and warrant the following:
You have the consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use
Your User Content and Telly’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
Telly may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
No liability for User Content. Telly takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Telly shall not be liable for any damages you allege to incur as a result of User Content.
User Content License Grant.
To Telly. By posting any User Content on the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Telly a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, cache, store, promote, market, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content,in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Telly’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any formats or channels.
To other Users. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.
How long we keep your User Content. Following termination or deactivation of your User account, or if you delete any User Content, Telly may retain your profile information and User Content for a commercially reasonable time for backup, archival, or audit purposes. The licenses you grant above to any comments that you have posted to public or semi-public areas of our Service will continue indefinitely.
Use of Our Service
Eligibility. You may use the Service (including the Telly Plus Service, as defined below) only if you can form a binding contract with Telly, and only in compliance with this Agreement and all applicable laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Telly.
License to our Telly Service. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service as permitted by the features of the Service. Telly reserves all rights not expressly granted herein in the Service and the Telly Content (as defined below). Telly may terminate this license at any time for any reason or no reason.
Commercial Uses. You agree not to use the Service (including any User Content) for any of the following commercial purposes without our written consent:
Selling access to the Service;
Selling or placing advertisements, sponsorships, or promotions on or within any third party’s User Content;
Operating promotions, contests, or sweepstakes in connection with any third party’s User Content or the Service;
Selling or placing advertisements, sponsorships, or promotions around or on the same page as any third party’s User Content that we permit you to embed on your website or blog, unless the page contains other material not obtained from Telly which is of sufficient value to be the basis for such advertisements or promotions.
Please contact us at email@example.com if you would like to discuss partnership or commercial ventures with Telly.
Telly Accounts. Your Telly account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a Telly account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to Telly with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
Your responsibility for your account. You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Telly immediately of any breach of security or unauthorized use of your account. Telly will not be liable for any losses caused by any unauthorized use of your account. You may control your User profile and how you interact with the Service by changing the settings in the settings page.
Service Rules. You agree not to engage in any of the following prohibited activities unless expressly permitted by Telly or made available as a public feature of the Service: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Telly servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Telly grants the operators of public search engines revocable permission to use spiders to copy materials from Telly.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
Streaming Content. Accessing the audiovisual content available on the Service (including without limitation Telly Plus Content, as defined below) for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited. “Stream” or “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Telly Service to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.
Changes to the Service. We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
Your interactions with other Users. You are solely responsible for your interactions with other Telly Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Telly shall have no liability for your interactions with other Users, or for any User’s action or inaction.
Telly Plus Subscription Services Terms and Conditions
Telly Plus Services. As part of the Service, Telly may offer paid monthly subscriptions to features of the Service that allow Users to access and Stream video content on demand (“Telly Plus”). By subscribing to or otherwise using Telly Plus, you expressly agree to the Telly Plus Subscription Services Terms and Conditions set forth in this Section (“Subscription Terms”). If you do not agree to these Subscription Terms, you may not access or use Telly Plus, and you must immediately cease any and all use of Telly Plus.
Eligibility. You may use the Telly Plus Service only if you can form a binding contract with Telly, and only in compliance with this Agreement and all applicable laws, rules and regulations. Telly Plus may be accessed only in particular geographic locations: Saudi Arabia, Bahrain, UAE, Kuwait, Qatar, Oman, Lebanon, Jordan, Egypt, Morocco, Algeria, Tunisia, Iraq or Yemen (each a “Telly Plus Service Location”). If you are not located in a Telly Plus Service Location, as determined by Telly in its sole discretion, you are not eligible to subscribe to or otherwise use Telly Plus. Any access to or use of Telly Plus outside the Telly Plus Service Location is expressly prohibited. You acknowledge and agree that Telly may immediately suspend or terminate your access to Telly Plus and/or your Telly account if Telly believes, in its sole discretion, that you are not located within a Telly Plus Service Location.
Telly Plus License. Subject to the terms and conditions of this Agreement (including these Subscription Terms) and the payment of all applicable Subscription Fees (as defined below), during the term of your subscription, Telly grants you a non-exclusive, limited, non-transferable, freely revocable license to Stream the video content made generally available on Telly Plus (“Telly Plus Content”) in a Telly Plus Service Location solely for your personal, non-commercial use and solely as permitted by the features of the Service. You agree not to archive, download, reproduce, distribute, modify, perform, broadcast, display, license, create derivative works of, license, offer for sale, or sell, or otherwise use or access any Telly Plus Content in any manner not expressly authorized under this Agreement, unless expressly authorized in writing by Telly. Any use of the Telly Plus Content other than as expressly authorized under this Agreement is strictly prohibited. Telly reserves all rights not expressly granted herein in Telly Plus and the Telly Plus Content.
Use of Telly Plus. You may use Telly Plus solely in accordance with the terms and conditions of this Agreement and all applicable laws, rules, and regulations, including without limitation the laws of the Telly Plus Service Location from which you access Telly Plus. THE TELLY PLUS SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND TELLY MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE TELLY PLUS SERVICE. You acknowledge and agree that certain Telly Plus Content may not be available to you depending on your location, and that Telly may add or remove any Telly Plus Content, or discontinue the Telly Plus service, at any time, in Telly’s sole discretion.
Billing Policies; Recurring Subscription. By registering for Telly Plus, you agree to the pricing terms as set forth on the Telly Plus service, as we may update them from time to time. You agree to pay all fees due for your monthly subscription to Telly Plus (“Subscription Fees”) on or around the date you register for Telly Plus (unless you participate in a free trial or other promotion as provided below), and you hereby authorize Telly to charge your Payment Method (as defined below) for all such Subscription Fees. You acknowledge and agree that your Telly Plus subscription will automatically renew for additional one (1) month periods on or around each monthly anniversary of the date you registered for Telly Plus (each a “Renewal Date”), unless you cancel your Telly Plus subscription prior to the applicable Renewal Date. You further authorize Telly to charge your Payment Method the Subscription Fees on or around each Renewal Date. Telly may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement.
No Refunds. You may cancel your Telly Plus account at any time; however, there are NO REFUNDS OR CREDITS for cancellation, unless required otherwise by applicable law. In the event that Telly suspends or terminates your account or this Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or Subscription Fees for any portion of the Service, any content or data associated with your account, or for anything else.
Payment Information; Taxes. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service (“Payment Method”) at the prices in effect when such charges are incurred. You will pay any applicable taxes and other fees, if any, relating to any such purchases, transactions or other monetary transaction interactions.
Free Trials. We may offer free trial periods of Telly Plus and/or other promotions in connection with Telly Plus (“Promotion(s)”). You acknowledge and agree that the full Subscription Fees will become immediately due upon the expiration of the Promotion, unless you cancel your Telly Plus subscription prior to the expiration of the Promotion. You agree to pay all such Subscription Fees on or around such date, and you authorize Telly to charge your Payment Method for all such Subscription Fees
Mobile Software. We may make available Mobile Software to access the Service via a mobile device. To use the Mobile Software you must have a mobile device that is compatible with the Mobile Service. Telly does not warrant that the Mobile Software will be compatible with your mobile device. Telly hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Telly account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that Telly may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Telly or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Telly reserves all rights not expressly granted under this Agreement. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Mobile Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Telly Service.
Mobile Software from iTunes. The following applies to any Mobile Software you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Telly, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Telly as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Telly as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, Telly, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Telly acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof.
Our Proprietary Rights
Telly Content. Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, Telly Plus Content, and User Content belonging to other Users (the “Telly Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Telly and its licensors (including other Users who post User Content to the Service). Except for the limited licenses granted in the “User Content License Grant” and “Telly Plus License” Sections, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Telly Content. Use of the Telly Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
Ideas and Feedback. You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Telly under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Telly does not waive any rights to use similar or related ideas previously known to Telly, or developed by its employees, or obtained from sources other than you.
Telly cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Our Policy. Since we respect artist and content owner rights, it is Telly’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Telly’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work that you claim has been infringed;
Identification of the material that is claimed to be infringing and where it is located on the Service;
Information reasonably sufficient to permit Telly to contact you, such as your address, telephone number, and, e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Address: 1 Market Plaza Spear Tower
Telly Inc - Suite 3669
San Francisco, CA 94105
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES. In accordance with the DMCA and other applicable law, Telly has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Telly may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
You agree to defend, indemnify and hold harmless Telly and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) your User Content or any that is submitted via your account; (vi) your use of any Telly Plus Content in violation of local law; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
THE SERVICE (INCLUDING WITHOUT LIMITATION THE TELLY PLUS SERVICE) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, TELLY, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
TELLY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE TELLY SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND TELLY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TELLY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL TELLY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TELLY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL TELLY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO TELLY HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF TELLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Service is controlled and operated from its facilities in the United States. Telly makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
Governing Law, Arbitration, and Class Action/Jury Trial Waiver
Governing Law. Unless otherwise required by applicable law, this Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. You may also be entitled to certain consumer protection rights under the laws of your local jurisdiction. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in the Arbitration provision below, the parties agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California (“Santa Clara Courts”) to resolve any dispute, claim, or controversy arising out of this Agreement, unless you and Telly agree otherwise. Nothing in this Agreement shall prevent Telly from seeking injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, including any provisional relief required to prevent irreparable harm. You agree that the Santa Clara Courts are the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the Arbitration provision below is found to be unenforceable.
Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES PARTIES LOCATED IN THE UNITED STATES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM TELLY. If you are a User located in the United States (including its possessions and territories), for any dispute with Telly, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Telly has not been able to resolve a dispute it has with you after attempting to do so for a period of sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The arbitration will be conducted in Santa Clara County, California (or the nearest AAA office), unless you and Telly agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. If you are an individual using the Service for personal use, AAA may be contacted at www.adr.org and may require you to pay a fee for the initiation of your case unless you apply for and successfully obtain a fee waiver from AAA. You may also be required to pay a portion of the arbitrator’s fees as delineated in the AAA Consumer-Related Disputes Supplementary Procedures (subject to the fee waiver provision), which may be found on the AAA website. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, unless prohibited by applicable law, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party’s data security, intellectual property rights, or other proprietary rights. If you are an individual using the Service for your personal use, you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process.
Class Action/Jury Trial Waiver. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND TELLY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Telly without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Telly in connection with the Service, shall constitute the entire agreement between you and Telly concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Telly’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Contact. Please contact us at email@example.com with any questions regarding this Agreement.
This Agreement was last modified on November 6, 2013.
HOW WE COLLECT AND USE INFORMATION
- Information you provide us directly: We ask for certain information such as your username, first and last name, and e-mail address when you register for a Telly account, or if you correspond with us. We may also retain any messages you send through the Service, and may collect information you provide in User Content you post to the Service. We use this information to operate, maintain, and provide to you the features and functionality of the Service and as is further explained below.
- Information we may receive from third parties: We may receive information about you from third parties. For example, if you access our websites or Service through a third-party connection or log-in, for example, through Facebook Connect, by “following,” “liking,” adding the Telly application, linking your account to the Telly Service, etc., that third party may pass certain information about your use of its service to Telly. This information could include, but is not limited to, the user ID associated with your account (for example, your Facebook UID), an access token necessary to access that service, any information that you have permitted the third party to share with us, such as your profile photo, videos you have posted or “liked” on the third-party service, and your friends or contacts, and any information you have made public in connection with that service. We may also receive information about your friends or contacts on the third-party service, such as their names, profile photos, and videos they have posted or “liked” on the service and make that information available to other Users of our Service. You should always review, and if necessary, adjust your privacy settings on third-party websites and services before linking or connecting them to the Telly Service. You may also unlink your third party account from the Service by adjusting your settings on the third party service. If you unlink your third party account, we will remove the information collected about you in connection with that service.
- Analytics information. We may directly collect analytics data, or use third-party analytics tools, to help us measure traffic and usage trends for the Service. These tools collect information sent by your browser or mobile device, including the pages you visit and other information that assists us in improving the Service. We collect and use this analytics information in aggregate form such that it cannot reasonably be manipulated to identify any particular individual user.
- Cookies information: When you visit the Service, we may send one or more cookies — a small text file containing a string of alphanumeric characters — to your computer that uniquely identifies your browser and lets Telly help you log in faster and enhance your navigation through the site A cookie may also convey information to us about how you use the Service (e.g., the pages you view, the links you click and other actions you take on the Service), and allow us or our business partners to track your usage of the Service over time. A persistent cookie remains on your hard drive after you close your browser. Persistent cookies may be used by your browser on subsequent visits to the site. Persistent cookies can be removed by following your web browser’s directions. A session cookie is temporary and disappears after you close your browser. You can reset your web browser to refuse all cookies or to indicate when a cookie is being sent. However, some features of the Service may not function properly if the ability to accept cookies is disabled.
- Log file information: Log file information is automatically reported by your browser or mobile device each time you access the Service. When you use our Service, our servers automatically record certain log file information. These server logs may include anonymous information such as your web request, Internet Protocol (“IP”) address, browser type, referring / exit pages and URLs, number of clicks and how you interact with links on the Service, domain names, landing pages, pages viewed, and other such information.
- Clear gifs/web beacons information: When you use the Service, we may employ clear gifs (also known as web beacons) which are used to anonymously track the online usage patterns of our Users. In addition, we may also use clear gifs in HTML-based emails sent to our users to track which emails are opened and which links are clicked by recipients. The information is allows for more accurate reporting and improvement of the Service.
- Device identifiers: When you access the Service by or through a mobile device (including but not limited to smart-phones or tablets), we may access, collect, monitor and/or remotely store one or more “device identifiers,” such as a universally unique identifier (“UUID”). Device identifiers are small data files or similar data structures stored on or associated with your mobile device, which uniquely identify your mobile device. A device identifier may be data stored in connection with the device hardware, data stored in connection with the device’s operating system or other software, or data sent to the device by Telly. A device identifier may convey information to us about how you browse and use the Service. A device identifier may remain persistently on your device, to help you log in faster and enhance your navigation through the Service. Some features of the Service may not function properly if use or availability of device identifiers is impaired or disabled.
- Location data: When you access the Service by or through a mobile device, we may access, collect, monitor and/or remotely store “location data,” which may include GPS coordinates (e.g. latitude and/or longitude) or similar information regarding the location of your mobile device. Location data may convey to us information about how you browse and use the Service. Some features of the Service (including Telly Plus), particularly location-based services, may not function properly if use or availability of location data is impaired or disabled.
- Commercial and marketing communications: We use the information we collect or receive to communicate directly with you. We may send you emails containing newsletters, promotions and special offers. If you do not want to receive such email messages, you will be given the option to opt out or change your preferences. We also use your information to send you Service-related emails (e.g., account verification, purchase and billing confirmations and reminders, changes/updates to features of the Service, technical and security notices). You may not opt out of Service-related e-mails.
SHARING OF YOUR INFORMATION
We will not rent or sell your information into third parties outside Telly and its group companies (including any parent, subsidiaries and affiliates) without your consent, except as noted below:
- Who you may choose to share your User Content with: Any information or content that you voluntarily disclose for posting to the Service, such as User Content, becomes available to the public, as controlled by any applicable privacy settings. Subject to your profile and privacy settings, any User Content that you make public is searchable by other Users. If you remove information that you posted to the Service, copies may remain viewable in cached and archived pages of the Service, or if other Users have copied or saved that information.
- What happens in the event of a change of control: We may buy or sell/divest/transfer the company (including any shares in the company), or any combination of its products, services, assets and/or businesses. Your information such as customer names and email addresses, User Content and other user information related to the Service may be among the items sold or otherwise transferred in these types of transactions. We may also sell, assign or otherwise transfer such information in the course of corporate divestitures, mergers, acquisitions, bankruptcies, dissolutions, reorganizations, liquidations, similar transactions or proceedings involving all or a portion of the company.
- Sharing certain service type information we collect about you: We may share certain service type information, including information obtained through tools such as cookies, log files, device identifiers, location data and clear gifs (such as anonymous usage data, referring/exit pages and URLs, platform types, number of clicks, etc.): (i) with our third-party business partners for the purposes described in the section above on “How We Collect and Use Information.” We may also aggregate or otherwise strip data of all personally identifying characteristics and may share that aggregated, anonymized data with third parties.
- Please note that an advertiser may ask Telly to show an ad to a certain audience of Users (e.g., based on demographics or other interests). In that situation, Telly determines the target audience and Telly serves the advertising to that audience and only provides anonymous aggregated data to the advertiser. If you respond to such an ad, the advertiser or ad server may conclude that you fit the description of the audience they are trying to reach.
HOW WE STORE AND PROTECT YOUR INFORMATION
- Keeping your information safe: Telly cares about the security of your information, and uses commercially reasonable safeguards to preserve the integrity and security of all information collected through the Service. To protect your privacy and security, we take reasonable steps (such as requesting a unique password) to verify your identity before granting you access to your account. You are responsible for maintaining the secrecy of your unique password and account information, and for controlling access to your email communications from Telly, at all times. However, Telly cannot ensure or warrant the security of any information you transmit to Telly or guarantee that information on the Service may not be accessed, disclosed, altered, or destroyed. Your privacy settings may also be affected by changes to the functionality of third party sites and services that you add to the Telly Service, such as social networks. Telly is not responsible for the functionality or security measures of any third party.
- Compromise of information: In the event that any information under our control is compromised as a result of a breach of security, Telly will take reasonable steps to investigate the situation and where appropriate, notify those individuals whose information may have been compromised and take other steps, in accordance with any applicable laws and regulations.
YOUR CHOICES ABOUT YOUR INFORMATION
- You control your account information and settings: You may update your account information and email-communication preferences at any time by logging in to your account and changing your profile settings. You can also stop receiving promotional email communications from us by clicking on the “unsubscribe link” provided in such communications. We make every effort to promptly process all unsubscribe requests. As noted above, you may not opt out of Service-related communications (e.g., account verification, purchase and billing confirmations and reminders, changes/updates to features of the Service, technical and security notices). If you have any questions about reviewing or modifying your account information, you can contact us directly at firstname.lastname@example.org.
- Opting out of collection of your information for Tracking / Advertising: Please refer to your mobile device or browser’s technical information for instructions on how to delete and disable cookies, and other tracking/recording tools. Depending on your type of device, it may not be possible to delete or disable tracking mechanisms on your mobile device. Note that disabling cookies and/or other tracking tools prevents Telly or its business partners from tracking your browser’s activities in relation to the Service, and for use in targeted advertising activities by third parties. However, doing so may disable many of the features available through the Service. If you have any questions about opting out of the collection of cookies and other tracking/recording tools, you can contact us directly at email@example.com.
Telly does not knowingly collect or solicit any information from anyone under the age of 13 or knowingly allow such persons to register as Users. The Service and its content are not directed at children under the age of 13. In the event that we learn that we have collected personal information from a child under age 13 without verification of parental consent, we will delete that information as quickly as possible. If you believe that we might have any information from or about a child under 13, please contact us at firstname.lastname@example.org.
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