TERMS OF USE

Last Updated: 12/03/2015

1. ACCEPTANCE OF THESE TERMS.

These Terms of Use (“Terms of Use” or “Terms”) are a legal agreement between you and Telmate, LLC (“Telmate,” “we,” “us,” or “our”) that governs your use of the Telmate Tablet, the GettingOut services, Telmate.com, GettingOut.com, Guardian and other Telmate apps and services (collectively, the “Services”). By clicking the “accept” button, you signify that you have read, understand and agree to be bound by these Terms of Use. We have the right to change the Terms of Use at any time. We agree to post a notice of the changes in the footer of our websites, and the changes will be effective 30 days after posting such notice to our websites. Your continued use of any of the Services shall be considered your acceptance of the revised Terms of Use.

2. DISPUTE RESOLUTION.

These Terms of Use contain provisions that govern how claims the parties have against each other are resolved, including an agreement and obligation to arbitrate disputes (see Section 19 below). This requires you to submit claims you have against us to binding arbitration and to waive your rights to class-action proceedings, unless you opt-out in accordance with Section 20.

3. REGISTRATION.

Before using any of the Services, you may be required to register an account with Telmate. You must register using complete and accurate information, including your legal name. You are responsible for all activity that occurs under your username and password. Do not share your password with anyone. We reserve the right to refuse registration of or to terminate your account for violations of this Section, in our sole discretion.

4. LIMITED LICENSE.

So long as you comply with these Terms of Use, Telmate grants you a 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.

5. SERVICES.

Upon registration, and on the conditions that you pay the applicable fees and comply with these Terms, Telmate will provide you with access to and use of the Services.

6. ACCEPTABLE USE POLICY.

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

(i) use the Services in connection with criminal or tortious activity, including child pornography, fraud, trafficking in controlled substances or humans, harassment, stalking, spamming, or infringement of intellectual property;(ii) use the Services in connection with pornography;

(iii) engage in nudity, profanity, suggestive body gestures, terminology and/or any other activity deemed inappropriate in the sole discretion of Telmate or a correctional facility;

(iv) advertise or sell products or services;

(v) perform or attempt to perform any actions that would interfere with the proper working of the Services or prevent access to or use of the Services by other users;

(vi) use any automated mechanism in connection with the Services, such as scripts, web crawlers, bots robots or scrapers, or manual equivalents, for any purpose;

(vii) impersonate any person or entity, misrepresent yourself, or attempt to use another user’s account without the user’s permission; or

(viii) accept payment or anything of value in exchange for performance of any activity on or through the Services.If Telmate believes, in its sole discretion, that you have violated these Terms, we may report such violation to law enforcement and correctional facility administrators, and refuse or restrict access to all or any portion of the Services.

7. CONSENT TO MONITOR AND SHARE BIOMETRIC DATA.

Telmate collects personal information through its services, including your location, voiceprint and facial geometry, and shares such data (and access to such data) with law enforcement and correctional facilities. By accepting these Terms of Use, you are providing your consent for Telmate, the applicable correctional facility, and government agents to:

(i) monitor or record voice and video calls made through the Services;

(ii) obtain the location of your device from which you access the Service; and

(iii) monitor and collect messages, emails, text and other data sent and received using the Service and all other activity related to the Services. Your voice, image, and data transmitted in connection with the Services are subject to Telmate’s Privacy Policy .

8. CONTENT SUBMITTED.

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

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

You represent and warrant that your activities through the Services do not and will not violate these Terms of Use 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.

9. USER CONTENT IS NOT PRESCREENED.

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

10. FEES, PAYMENT, AND REFUNDS.

You may be required to pay fees for access. These fees may include monthly subscription fees and/or usage-based fees charged at a “per minute” or “per usage” type of rate. Additional taxes and fees may be assessed for certain actions (such as balance transfers). Fees are subject to change. Current fees will be displayed before you engage with the Services. Monthly subscription fees may be changed with thirty (30) days advanced notice to you (by email or posting within the Service) or upon any new or renewed subscription term. 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. The monthly subscription fee will also be withdrawn from the stored account balance.

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.

You are solely responsible for all charges (fees) incurred through your account. At this time, a Telmate fee may not be paid in any other form than in cash paid at a Telmate Kiosk located within a facility or by credit card.

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 [email protected]

The monthly subscription fee, once assessed, is not refundable. If your account is deactivated, new monthly subscription charges will cease within five (5) business days thereafter. However, fees that have already been paid or charged (or any portion thereof) will not be refunded.

Service fees, once assessed, are non-refundable under any circumstance. If the Service ends up not being performed due to activity by a third party and unrelated to your own actions or behavior (e.g., power outage, temporary rules change), the facility may, at its discretion, request Telmate to issue you a credit for the Service, such that the same Service may be used at a later time.

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).

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. This refund policy does not affect your statutory rights.

11. PERSONAL COMMUNICATION DEVICES.

The Services offered by Telmate may require the usage of a personal communication device (“Device”) such as a smartphone, mobile phone, personal computer, etc. You are solely responsible for any fees, charges, or other expenses associated with the use of any such Device. These include any charge associated with purchasing or leasing a Device, any monthly, weekly, daily or prepaid charges for network access and/or data usage required for operation of Services on the Device, and any charges associated with receiving text messages, alerts, push notifications, emails, etc. on the Device.

12. VIDEO VISITATION POLICY.

When you schedule a video visit through Telmate, the video kiosk is reserved for that period of time and may not be used by any other inmate at the facility. If you are unable to attend the visit as originally reserved, please log into your Telmate account and cancel your scheduled visit reservation with at least 24 hours’ notice to Telmate.

No refunds are provided for cancelled Video Visitations. Credits for future visits may be available, but only if you provide 24 hours’ advance notice of cancellation to Telmate. Visits that are not cancelled at least 24 hours in advance, or that did not take place because the visitor or the inmate either did not attend or attended late, will not be credited.

If your visit is cancelled by the correctional facility staff more than 24 hours in advance, you will receive credit for a future visit reservation. If it is cancelled less than 24 hours prior to your scheduled visit you may be eligible for a credit, but you will need to contact our 24-hour support staff at 866-516-0115 within 2 hours of your scheduled visit to request a credit.

If the facility staff cancelled the visit due to inappropriate behavior or other rules violation, it will not qualify for a credit.

Any visitation credits remaining when an inmate is released will automatically be converted to prepaid phone time and subject to Telmate’s prepaid refund policy as noted in Section 10.

13. LINKS TO OUR WEBSITE.

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

14. TERMINATION.

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

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

15. REPRESENTATIONS AND WARRANTIES.

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

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

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

16. WARRANTY DISCLAIMER.

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

17. LIMITATION OF LIABILITY AND DAMAGES.

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

18. INDEMNITY.

You agree to defend, indemnify and hold harmless Telmate; its affiliates, licensors and service providers; and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use 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 of Use; or your use of any information obtained from the Services.

19. THIRD PARTY APPS and SITES.

The Services may contain links to websites, applications or other products or services operated by other companies, and offers provided by third parties (“Third Party Sites”). We do not endorse, monitor or have any control over these Third Party Sites, which are governed by separate terms and privacy policies. We are not responsible for the content or policies of Third Party Sites and you access such Third Party Sites at your own risk. We expressly disclaim any liability for these Third Party Sites.

20. ARBITRATION.

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; or(iv) 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 award any relief which he 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. In the event that a court or arbitrator determines that the immediately preceding sentence is invalid or unenforceable, then this entire Section 18 will be deemed invalid or unenforceable.

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

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

21. MISCELLANEOUS.

  1. Survival.
    The terms that by their nature may survive termination shall remain in effect and survive the termination of these Terms of Use, including without limitation Content Submitted, Acceptable Use Policy, Services Are Monitored, Indemnity, Warranty Disclaimer, Limitation of Liability and Damages, Arbitration, and Miscellaneous.
  2. Assignment.
    These Terms of Use are personal to you, the user. You may not assign these Terms of Use or any rights and licenses in these Terms of Use to another party. These Terms of Use may be assigned by Telmate without restriction.
  3. Disputes.
    These Terms of Use shall be governed by the laws of the state of Delaware, without giving effect to its conflict of laws provisions. You agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and agree you will not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. To the extent it may be applicable, you agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act.
  4. Limitations on Claims.
    Any cause of action or claim you may have with respect to Telmate or the Services must be commenced within one (1) year after the claim or cause of action arises, or such claim or cause of action is barred.
  5. No Waiver.
    Our failure to exercise or enforce any right or provision of the Terms of Use 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 the terms in these Terms of Use.
  6. Severability.
    If any provision in these Terms of Use is determined by a court to be invalid or unenforceable, the remaining provisions of these Terms of Use shall continue to be valid and enforceable.
  7. Entire Agreement.
    These Terms of Use constitute the entire agreement between you and us and govern your use of the Services. These Terms of Use supersede any prior agreements, communications, representations, or understandings between you and us, including without limitation any prior versions of these Terms of Use.