Terms of Use

Last Updated: January 23rd, 2023

Welcome to TellTail! We’re glad you’re here to read these Terms of Use. If you have any questions about any of this, you can contact us at: legal@telltail.com, and we’ll do our best to help. The TellTail website and mobile app are owned and provided by TellTail Holdings Inc.. In these Terms of Use, we won’t use the full corporate name. Instead, we’ll refer to the company as “TellTail.” And when we say “we,” “us,” or “our,” that’s also referring to the company. We encourage you to read these Terms of Use (the “Terms”) and our Privacy Policy carefully because they - along with other posted policies, rules, and guidelines - govern your use of and interaction with our website (www.telltail.com) (the “Site”), our mobile application (the “App”), the other features and software and technologies we provide, and our communications with you. To make these Terms easier to read, we use the word “Services” here to collectively describe and encompass our Site, the App, the other features and software and technologies we provide, and our communications with you. These Terms govern your access to and use of our Services, whether as a guest, Site visitor, App user, registered user, as applicable, including Account holders and non-Account holders (each a “User,” collectively “Users”). By using the Services, or otherwise indicating your consent to these Terms, you acknowledge that you have read and understood these Terms and you accept and agree to be bound and abide by these Terms. If you do not agree with any part of the Terms, you must not use the Services.

Important Notice Regarding Arbitration

PLEASE READ THESE TERMS OF USE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER THAT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST TELLTAIL ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.

Important Notice Regarding TellTail Certification Programs

By utilizing the Services or agreeing to these Terms, you acknowledge that you have read and understood and agree to the information contained in this section about our certification programs. TellTail may offer certain verification related services, whereby a User (whether a breeder or other member of the community) may choose to submit to an identity verification process conducted by a third party business with whom we partner for such purpose. This identity verification process entails the User uploading an image of their government ID, which is then compared with real time images of the User, as well as available database information that the third party partner has access to (including address, email address, and phone number), in order to help create extra assurance that the User is in fact the person that they purport to be. This check also verifies that the government ID is valid and is associated with the applicant. The third party partner also ensures that the applicant does not appear in a known dark web database, which can be an indicator of fraudulent or nefarious behavior. This identity verification process does not entail a detailed background check or other more detailed investigations into the User, and the certification that we may offer is not intended as an endorsement of the trustworthiness (or of any other characteristic) of the User in question. The intent is for the TellTail Certification Program to serve as an indicator that the individual appears to be who they say they are, and appears to be associated with the breeding program that they claim they are.

Changes to Terms and Services

Our Services are evolving, and hence we may update them and the Terms from time to time. If we modify the Terms, we’ll let you know either by posting the updated Terms within the Services or through other communications. It’s important that you review the Terms whenever we update them or when you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then you may not use the Services anymore and you are prohibited from doing so. We may, at our sole discretion, change or discontinue all or any part of the offerings we provide via our Services, at any time and without notice.

Accessing the Services

You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto. TellTail does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. TellTail reserves the right to modify, revise, or remove the Services we provide, including the Site and App, at TellTail’s sole discretion without notice. TellTail may restrict access to some parts of the Services. TellTail will not be liable for any outages to the Services that may occur, for whatever reason. You acknowledge that TellTail may establish general practices and limits concerning use of the Services, including the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on TellTail’s or its third-party service providers’ servers on your behalf. You agree that TellTail has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You acknowledge that TellTail reserves the right to terminate Accounts (as defined below) that are inactive for an extended period of time. You further acknowledge that TellTail reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

Who May Use the Services?

You may use the Services only if you are 18 years or older (or the legal age of majority in your jurisdiction), capable of forming a binding contract with TellTail, and are not barred from using the Services under applicable law. If you want to use certain features of the Services, you’ll have to create an account (“Account”). It’s important that you provide us with accurate, complete, and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we reserve the right to suspend or terminate your Account. You agree that you won’t disclose your Account login credentials to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.

TellTail reserves the right to disable any Account, username, password, functionality, or content at any time, in our sole discretion for any or no reason, including if, in our opinion, there has been a violation of any provision of these Terms or other posted policies, guidelines, or rules.

Feedback

We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at hello@telltail.com. You hereby grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, sub-licensable (through multiple tiers), fully-paid, royalty-free license to use, copy, modify, create derivative works based upon, and otherwise exploit for any purpose the Feedback you provide us.

Rights, License, and Terms Related to the TellTail App

Rights in App Granted by TellTail: Subject to your compliance with these Terms, TellTail grants you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on a mobile device that you own or control and to use the App solely for your own personal, non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; or (iii) make the functionality of the App available to multiple Users through any means. TellTail reserves all rights in and to the App not expressly granted to you under these Terms. This provision will be updated if and when any of our code is released under an open source license. For clarity, the foregoing is not intended to prohibit you from installing the App on another device on which you also agreed to these Terms. Each instance of these Terms that you agree to in connection with downloading the App grants you the aforementioned rights in connection with the installation and use of the App on one device.

Accessing App from App Store: The following terms apply to any App accessed through or downloaded from any app store or distribution Services (such as the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). If you obtain the App through an App Provider, you may be subject to additional terms of the App Provider. You acknowledge and agree that:

These Terms are concluded between you and TellTail, and not with the App Provider, and as between the App Provider and TellTail, TellTail (not the App Provider), is solely responsible for the App and the content thereof.

You may not use the App in any manner that is in violation of or inconsistent with the “Usage Rules” set forth in the Apple Media Services Terms and Conditions in, or otherwise be in conflict with, the Apple Media Services Terms and Conditions.

The App Provider has no obligation to furnish any maintenance and support services with respect to the App.

The App Provider is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be TellTail’s will be the sole responsibility of TellTail, to the extent it cannot be disclaimed under applicable law.

You and TellTail acknowledge that TellTail, not the App Provider, is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.

In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, TellTail will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.

The App Provider, and its subsidiaries, are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.

You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

You must comply with applicable third-party terms of agreement when using the App, e.g., your wireless data service agreement.

If you have any questions, complaints or claims with respect to the App, they should be directed to TellTail at legal@telltail.com.

Open Source

The Services may contain or be provided together with open source software. Each item of open source software is subject to its own license terms. If required by any license for particular open source software, TellTail makes such open source software, and TellTail’s modifications to that open source software (if any), available by written request to legal@telltail.com. Copyrights to the open source software are held by the respective copyright holders indicated therein.

Special Note for International Use; Export Control

TellTail is headquartered in the United States. If you access or use the Services from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction. Software available in connection with the Services and the transmission of applicable data, if any, is subject to United States export controls. No software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the App or any other software underlying the Services is at your sole risk.

Content Ownership, Responsibility and Removal

Definitions: For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that Users (including you) provide to be made available through the Services including without limitation, any reviews, ratings, and comments you provide. For clarity, Content includes without limitation User Content.

Our Content Ownership: TellTail does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, as between you and TellTail, TellTail is the sole owner of and will retain ownership of all right, title, and interest in the Services and Content, including all underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services, documentation, aggregate data related to the Services, all improvements, modifications or enhancements to (or derivative works of) the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.

Rights in User Content Granted by You: By making any User Content available through the Services you hereby grant to TellTail a perpetual, irrevocable, non-exclusive, transferable, worldwide, royalty-free, fully paid license, with the right to sublicense (through multiple tiers), to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services.

Your Responsibility for User Content: You are solely responsible for all your User Content. You represent and warrant that: (i) you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms, and (ii) neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by TellTail on or through the Services will infringe, misappropriate, or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

Rights in Content Granted by TellTail: Subject to your compliance with these Terms, TellTail grants you a limited, non-exclusive, non-transferable license, with no right to sublicense, to download, view, copy, display, and print the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.

Third-Party Content: Under no circumstances will TellTail be liable in any way for any content or materials of any third parties (including Users), including for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any such Content. You acknowledge that TellTail does not pre-screen Content, but that TellTail and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Services. Without limiting the foregoing, TellTail and its designees will have the right to remove any Content that violates these Terms or is deemed by TellTail, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.

Your Representations and Warranties

By using the Services, you expressly represent and warrant that your use of the Services is solely for your personal use. When using the Services, you agree to comply with all applicable laws. By using the Services, you agree, represent, and warrant that:

You are eligible to use the Services, based on the requirements outlined in the section entitled “Who May Use the Services.”

You will only use the Services for lawful purposes, using only authorized means; you will not use the Services for sending or storing any unlawful material or communications or for deceptive or fraudulent purposes.

You will not use the Services, or any Content accessible through the Services, for any commercial purpose not contemplated by these Terms or the nature of our Services, including but not limited to competing with TellTail services.

You will not create or compile, directly or indirectly, any collection, compilation, or other directory from the Content displayed through the Services except for your personal, noncommercial use.

You will keep secure and confidential your Account password or any identification credentials we provide you which allows access to the Services.

You will only use the Services for your own use and will not resell the Services to a third party.

You will not conduct any systematic retrieval of data or other Content from the Services, and you will not copy any Content displayed through the Services for republication in any format or media.

General Prohibitions and Enforcement Rights

You agree not to do any of the following:

use, display, mirror or frame the Services or any individual element within the Services, TellTail’s name, any TellTail trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without TellTail’s express written consent;

use the Services in any manner that violates federal, state, local, or international law or regulation, including, without limitation, any laws regarding related to the export of data or software to and from the US or other countries;

access, tamper with, or use non-public areas of the Services, TellTail’s computer systems, or the technical delivery systems of TellTail’s providers;

impersonate or attempt to impersonate TellTail, an TellTail employee, contractor or agent, another User, or any other person or entity;

attempt to probe, scan or test the vulnerability of any TellTail system or network or breach any security or authentication measures;

avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by TellTail or any of TellTail’s providers or any other third party (including another User) to protect the Services;

use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any material on the Services;

attempt to gain unauthorized access to, damage, disrupt, or interfere with any parts of the Services, or any server, computer or database connected to the Services;

attempt to decipher, decompile, disassemble or reverse engineer the Services (including the App) or any of the software used to operate the Services;

collect or store any personally identifiable information from the Services; and/or

encourage or enable any other individual to do any of the foregoing.

Electronic Signatures

For some activities related to the Services, TellTail may permit you to use a device equipped with an active connection to an internet service provider to access your TellTail Accounts and policies, and to perform certain transactions as available. To facilitate this, you may be given the option to sign, consent to, or agree to certain documents including, but not limited to, these Terms, policies, quotes, updates, notifications, or other information that you request, transaction receipts, documents requiring your signature, or any other documents (“Communications”) electronically by either checking the appropriate box or engaging in a similar online process as instructed online. You agree that by checking the appropriate box within or adjacent to the applicable Communication or engaging in a similar online electronic consent process, you are providing your electronic signature and agree to be bound by the terms and provisions in such Communication just as if you had signed your name to a paper document.

Payments and Payment Services

General Payment Terms. TellTail may allow Users to pay for access to certain features, products, or services (“Purchases”). When you make a Purchase we may allow payments through a variety of different methods that we choose to make available, including but not limited to debit cards, credit cards, and other third party payment methods (“Payment Methods”). When you choose to make a Purchase, your Payment Method will be charged for the amount (and, if applicable, on the schedule) that was presented to you at the time of Purchase, plus any sales or similar taxes that may be imposed on that payment. You hereby authorize us to charge your Payment Method for those Purchases. You understand and agree that, by signing up for a paid version of the Services (or by purchasing any other feature, product, subscription, credit or service that we may make available through the services), you will be authorizing TellTail and our payment processor to collect, store, transfer, and charge your payment method on file for the agreed upon amount of that transaction. If your primary Payment Method is determined to be expired, invalid, or otherwise not able to be charged, you agree that we may use a secondary payment method in your Account, if available. We reserve the right to revoke access to any feature, product, or service that you have purchased in the event that we are unable to charge your Payment Method for the Purchase that you made. Charges paid by you are final and non-refundable, unless otherwise determined by TellTail.

Subscriptions. Certain TellTail features and functionality are only available to individuals who have Purchased a paid subscription (“Subscriptions”). Subscriptions will consist of a one-time charge, followed by recurring charges (typically annual recurring charges) as disclosed to you at the time you Purchase the Subscription. No refunds are available once a Purchase is made. By Purchasing a Subscription, you acknowledge that there is an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. You agree that we may submit periodic charges (annual or otherwise, as disclosed) based on your elected subscription plan, without further authorization from you, until you provide notice (receipt of which is confirmed by us) that you have canceled your subscription, terminated this authorization, or wish to change your payment method. Such notice will not affect charges submitted before we reasonably could react to your notice. In order to cancel your subscription or terminate your authorization you can contact us at hello@telltail.com. Cancellation will take effect upon confirmation of intent to cancel. You will be responsible for payment of all services rendered during the subscription period. You may cancel at any time, but for subscriptions paid annually, the subscription will remain in effect until the end of the paid year and shall terminate at the completion of that period. Your non-termination of a Subscription reaffirms that we are authorized to charge your Payment Method for the applicable Subscription fees. We may submit those charges for payment, and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected your Subscription (or as your payment terms may be amended thereafter). Finally, you understand that recurring Subscription prices and billing periods (e.g. monthly v. annual) may change in the future, provided that TellTail will give you at least 30 days’ notice of such change with the option to cancel future payments.

Payment Processor. We use a third-party payment processor to bill you through the Payment Method linked to your Account on the Services. Notwithstanding any amounts owed to TellTail hereunder, TellTail does not process payments for any services. To facilitate payment for the Services (e.g. via credit card, debit card, Google Pay, Apple Pay) we use Shopify, Inc. and its affiliates (“Shopify”), a third-party payment processor. These payment processing services are provided by Shopify and are subject to the Shopify terms and conditions that you agree to when you make payments through Shopify. TellTail assumes no liability or responsibility for any payments you make through the Service. You must provide and maintain a current, complete and accurate Payment Method. You represent and warrant that you have the legal right to use any such Payment Method. By signing up for a Subscription, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for such Subscription in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your billing Account upon demand. You authorize us to attempt repeat charges on your Payment Method if an initial attempt to charge fails.

Promotions and Discounts. TellTail may offer discounted Subscriptions or other discounts or promotions (“Promotions”) from time to time, which may result in different amounts charged for the same or similar feature, product, or service. Any applicable sales and use taxes and services fees will be calculated based on the discounted value after the Promotion is applied. Certain Promotions may only be redeemed once you achieve a specified minimum fee threshold, and any sales or use taxes or service fees do not count towards achieving such threshold. Unless otherwise stated by us in writing, you may only use one Promotion at a time and cannot combine Promotions or any other discounted offers. You may not sell or transfer your Promotion. We may modify or cancel any Promotion at any time. If you violate these Terms, TellTail reserves the right to cancel your Promotion.

Copyright Policy

Under the Digital Millennium Copyright Act of 1998 (the "DMCA") if you believe in good faith that any content on the Services infringes your copyright, you may send us a notice requesting that the content be removed. The notice must include: (a) your (or your agent's) physical or electronic signature; (b) identification of the copyrighted work on our Site that is claimed to have been infringed (or a representative list if multiple copyrighted works are included in one notification); (c) identification of the content that is claimed to be infringing or the subject of infringing activity, including information reasonably sufficient to allow us to locate the content on the Services; (d) your name, address, telephone number and email address (if available); (e) a statement that you have a good faith belief that use of the content in the manner complained of is not authorized by you or your agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that you or your agent is authorized to act on behalf of the copyright owner. You may read more information about the DMCA here.

If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent (identified below): (a) your physical or electronic signature; (b) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (c) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and (d) your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal courts located within the state of California. and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, TellTail will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

Notices and counter-notices should be sent to our Copyright Agent, at 2708 Wilshire Blvd. PMB 603, Santa Monica, CA, 90403, Attn: Legal, or legal@telltail.com. There can be penalties for false claims under the DMCA. We suggest that you consult your legal advisor before filing a notice or counter-notice.

In accordance with the DMCA and other applicable law, TellTail has adopted a policy of terminating, in appropriate circumstances and at TellTail’s sole discretion, Users who are deemed to be repeat infringers. TellTail may also at its sole discretion limit access to the Services and/or terminate the registrations of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Disclaimers

The following disclaimers are made on behalf of TellTail, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE DO NOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. WE DO NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, OR ERROR-FREE, OR WILL MEET YOUR REQUIREMENTS, THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DISCLAIM LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, CONNECTIVITY AND AVAILABILITY OF THE SERVICES. WE ARE NOT RESPONSIBLE FOR ANY RESULTS OR ADVICE PROVIDED VIA THE SERVICES, INCLUDING FROM OTHER USERS, AND DISCLAIM ALL LIABILITY WITH RESPECT THERETO.

Indemnity

To the extent permitted by law, you agree to indemnify, protect and hold TellTail and its parents, subsidiaries, affiliates, and assigns, and their respective officers, directors, employees, agents, representatives and service providers harmless from any and all claims, demands, damages, suits, losses, liabilities and causes of action (including without limitation, the cost of defense, attorneys' fees, as well as the payment of any final judgment rendered against or settlement agreed upon by TellTail or its parent, subsidiary and/or affiliated companies) arising directly or indirectly from, as a result of, or in connection with: (i) your User Content; (ii) your failure to comply with any of these Terms; (iii) your violation of any applicable laws, rules, or regulations related to your use of the Services; and (iv) your use of the Services. TellTail reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with TellTail in asserting any available defenses. TellTail will provide notice to you of any such claim, suit, or proceeding. TellTail reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, and you agree to cooperate with any reasonable requests assisting TellTail’s defense of such matter. You may not settle or compromise any claim against the indemnified parties without TellTail’s written consent. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or releasing party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

Limitation of Liability

NEITHER TELLTAIL NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM YOUR USE OF, OR INABILITY TO USE, THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TELLTAIL OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL TELLTAIL’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED ONE HUNDRED US DOLLARS ($100). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TELLTAIL AND YOU.

IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMERS”, “INDEMNITY” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

Jurisdictional Issues

TellTail makes no representation that the Services are appropriate or available for use in your jurisdiction. If you choose to access the Services, you do so on your own initiative and are responsible for compliance with any applicable local, state, and federal laws, rules and regulations.

Reliance on Information Posted

The information presented throughout the Services is made available for general information purposes only. TellTail does not warrant the accuracy, completeness, or usefulness of the information. Any reliance you place on such information is at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor to, or User of, the Services, or by anyone who may be informed of any of its contents.

User Disputes

You agree that you are solely responsible for your interactions with any other User in connection with the Service, and TellTail will have no liability or responsibility with respect thereto. TellTail reserves the right, but has no obligation, to become involved in any way with disputes between you and any other User of the Service

Links to Third Party Websites or Resources

The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products, or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.

Telecommunications Consent

Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from TellTail or anyone calling on its behalf, you expressly consent to be contacted by TellTail and anyone calling on its behalf for any and all purposes arising out of or relating to this Agreement or your use of the Services, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using an auto-telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one via text. You consent to receive SMS messages (including text messages), calls and messages (including prerecorded and artificial voice and autodialed) from TellTail, its agents, representatives, affiliates or anyone calling on its behalf at the specific number(s) you have provided to TellTail, or numbers we can reasonably associate with your Account (through skip trace, caller ID capture or other means), with information or questions about your Account or use of the Services. You certify, warrant and represent that the telephone numbers that you have provided to us are your correct and current contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us and agree to promptly alert us whenever you stop using a particular telephone number. Your cellular or mobile telephone provider will charge you according to the type of plan you carry. You also agree that we may contact you by email, using any email address you have provided to us or that you provide to us in the future. We may listen to and/or record phone calls between you and our representatives without notice to you as permitted by applicable law. For example, we may listen to and record calls for quality monitoring purposes. You consent to receive communications from us in electronic form should we so elect, including any and all disclosures and other communications that are required by law.

Governing Law and Venue

Except as otherwise provided in the Dispute Resolution provision below, these Terms will be governed by the laws of the State of California, without regard to its conflict of laws provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and TellTail each hereby agree that each submit to the personal and exclusive jurisdiction of the state and federal courts located within the Southern District of California.

Dispute Resolution by Binding Arbitration

Please read this section carefully as it affects your rights.

a. Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and TellTail, whether arising out of or relating to these Terms (including any alleged breach thereof), the Service, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and TellTail are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

b. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND TELLTAIL AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND TELLTAIL AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.

c. Pre-Arbitration Dispute Resolution. TellTail is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at legal@telltail.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to TellTail should be sent to TellTail Holdings Inc. 2708 Wilshire Blvd. PMB 603, Santa Monica, CA, 90403 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If TellTail and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or TellTail may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by TellTail or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or TellTail is entitled.

d. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless TellTail and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, TellTail agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

e. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, TellTail will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, TellTail will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, TellTail will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.

f. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

g. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.

h. Future Changes to Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, TellTail agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a User of the Service, you may reject any such change by sending TellTail written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

Termination

You agree that TellTail, in its sole discretion, may suspend or terminate your Account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including for lack of use or if TellTail believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service, may be referred to appropriate law enforcement authorities. TellTail may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms may be effected without prior notice, and acknowledge and agree that TellTail may immediately deactivate or delete your Account and all related information and files in your Account and/or bar any further access to such files or the Service. Further, you agree that TellTail will not be liable to you or any third party for any termination of your access to the Service.

Notices

Any notices or other communications provided by TellTail under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Waiver of Rights

TellTail’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of TellTail. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

Entire Terms

Except as otherwise stated herein or otherwise amended and agreed to by you and TellTail, these Terms constitute the entire and exclusive understanding and agreement between TellTail and you regarding your use of the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between TellTail and you regarding the use of the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect - except as otherwise described in Dispute Resolution by Binding Arbitration section. You may not assign or transfer these Terms, by operation of law or otherwise, without TellTail’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will have no legal effect. TellTail may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notice for California Users

Under California Civil Code Section 1789.3, Users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted (a) via email at dca@dca.ca.gov; (b) in writing at: Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834; or (c) by telephone at (800) 952-5210 or (800) 326-2297 (TDD). Sacramento-area consumers may call (916) 445-1254 or (916) 928-1227 (TDD). You may contact us at: 2708 Wilshire Blvd. PMB 603, Santa Monica, CA, 90403, or at 213-322-0008.

Employment Opportunities

TellTail is committed to the principles of equal employment opportunity. Applications are considered for all positions without regard to race, sex, sexual orientation, ethnicity, religion, national origin, age, disability (so long as such disability can be reasonably accommodated), or any other status protected by applicable law. TellTail encourages all qualified applicants to apply.

Contact Us

If you have any questions about these Terms or the Services, please contact TellTail at: legal@telltail.com.