Last Updated: April 4, 2022
Welcome, and thank you for your interest in Telemetry Finance, Inc. (“Telemetry,” “we,” or “us”) and our website at www.telemetry.fi, along with our related websites, hosted applications, downloadable applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Telemetry regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 18, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND TELEMETRY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
The Service consists of Telemetry’s financial automation and collaboration platform, which consolidates data from a variety of data sources, including through the use of Telemetry’s downloadable plugins.
By agreeing to these Terms, you represent and warrant to us that: (a) neither you nor any other user in your organization have previously been suspended or removed from the Service and (b) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3.1 Accounts. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at firstname.lastname@example.org.
3.2 Authorized Users. If permitted by your current subscription to the Service, you may grant other users in your organization (“Authorized Users”) the ability to access the Service by creating an authorized user account. When Authorized Users register for an account, they may be required to provide us with some information about themselves, such as their name, email address, or other contact information. You are responsible for the accuracy and completeness of all information provided by Authorized Users. When Authorized Users register, they will be asked to create a password. You are solely responsible for ensuring Authorized Users maintain the confidentiality of their account and password, and you accept full responsibility for all actions of your Authorized Users as if they were your own. We will have no liability to Authorized Users under any circumstances.
4.1 Generally. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable unless otherwise specifically provided for in these Terms.
4.2 Price. Telemetry reserves the right to determine pricing for the Service. Telemetry will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our pricing page periodically for current pricing information. Telemetry may change the fees for any feature of the Service, including additional fees or charges, if Telemetry gives you advance notice of changes before they apply. Telemetry, at its sole discretion, may make promotional offers with different features and different pricing to any of Telemetry’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.3 Authorization. You authorize Telemetry to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Telemetry, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then Telemetry may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.4 Subscription Service. The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize Telemetry or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee”, please see our pricing page. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service before the next Subscription Period begins in order to avoid billing of the next periodic Subscription Fee to your account. Telemetry or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service by contacting us at email@example.com.
4.5 Delinquent Accounts. Telemetry may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then Telemetry reserves the right to delete your account and any information or Customer Content (defined below) associated with your account without any liability to you.
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Telemetry grants you, solely for your internal business purposes, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use a reasonable number of object code copies of the downloadable plugins included in the Service on a device that you own or control and (b) access and use the Service. If documentation is provided to you, you may copy and use the documentation solely for your internal reference purposes.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
5.3 Feedback. We respect and appreciate the thoughts and comments from our customers. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Telemetry an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
5.4 Publicity. You grant us a non-exclusive, fully-paid, royalty-free right and license use your name, logo, and trademarks solely to identify you as our customer on our website and in other marketing materials and in accordance with any trademark usage guidelines supplied by you.
The Service is owned and operated by Telemetry. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Telemetry (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Telemetry or its third-party licensors. Except as expressly authorized by Telemetry, you may not make use of the Materials. There are no implied licenses in these Terms and Telemetry reserves all rights to the Materials not granted expressly in these Terms.
7.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8.1 Customer Content Generally. Certain features of the Service permit users to submit, upload, or otherwise transmit (“Upload”) content to the Service, including messages, photos, images, folders, data, text, and any other works of authorship or other works (“Customer Content”). Customer Content also includes any additional information we collect that is stored in the systems or documents that you integrate with the Service. You retain any copyright and other proprietary rights that you may hold in the Customer Content, subject to the licenses granted in these Terms.
8.2 Limited License Grant to Telemetry. By Uploading Customer Content to or via the Service, you grant Telemetry a worldwide, non-exclusive, irrevocable (subject to termination of these Terms), royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to use, host, store, transfer, display, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your Customer Content for the purposes of providing and improving the Service. We may also deidentify Customer Content and use it for any purpose.
8.3 You Must Have Rights to the Content You Upload. You must not Upload Customer Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that Customer Content. Telemetry disclaims any and all liability in connection with Customer Content. You are solely responsible for your Customer Content and the consequences of providing Customer Content via the Service.
8.4 Customer Content Representations and Warranties. By providing Customer Content via the Service, you affirm, represent, and warrant to us that:
8.5 Customer Content Disclaimer. We are under no obligation to edit or control Customer Content that you or other users Upload and will not be in any way responsible or liable for Customer Content. Telemetry may, however, at any time and without prior notice, screen, remove, edit, or block any Customer Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Telemetry with respect to Customer Content. If notified by a user or content owner that Customer Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the Customer Content, which we reserve the right to do at any time and without notice. For clarity, Telemetry does not permit infringing activities on the Service.
8.7 Respect of Third-Party Rights. Telemetry respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
8.8 Data Security. We will implement and maintain reasonable and appropriate administrative, physical, and technical security measures appropriate to the nature of the information in order to secure Customer Content from unauthorized access, destruction, use, modification, or disclosure. We will comply with the measures identified below with respect to such Customer Content and keep documentation of such measures to facilitate audits. Such measures will include:
9.1 Definition. All non-public, confidential, or proprietary information of either party, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by one party to the other, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the provision of the Service is confidential, and will not be disclosed or copied by the receiving party without the prior written consent of the disclosing party. Confidential Information does not include information that is:
9.2 Non-Use and Non-Disclosure. Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under these Terms. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees and contractors who do not have a need to know. Notwithstanding, a receiving party may disclose such Confidential Information that is required by law to be disclosed if the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. Neither party shall reverse engineer, disassemble, or decompile any software or other embodiments of the other party’s Confidential Information and which are provided to the party hereunder. Each party will be entitled to injunctive relief for any violation of this Section 9.
9.3 Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and contractors who have access to Confidential Information of the other party are under a duty of non-use and non-disclosure agreement similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees and contractors. Neither party shall make any copies of the Confidential Information of the other party unless the same are previously approved in writing by the other party or as otherwise authorized under these Terms. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
10.1 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
11.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
11.2 violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
11.3 access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Telemetry;
11.4 interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
11.5 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
11.6 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission;
11.7 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
11.8 attempt to do any of the acts described in this Section 11 or assist or permit any person in engaging in any of the acts described in this Section 11.
We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing customers, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should terminate your account and remove your Customer Content by contacting firstname.lastname@example.org and discontinue your use of the Service. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
13.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.
13.2 Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Telemetry may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at email@example.com.
13.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Telemetry any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 13.3, 14, 15, 16, 18, and 19 will survive. If we terminate these Terms for any reason other than for your violation or breach of these Terms, you are entitled to a pro-rata refund of any prepaid fees. You are solely responsible for retaining copies of any Customer Content you Upload to the Service since upon termination of your account, you may lose access rights to any Customer Content you Uploaded to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address, or other forms of account verification.
13.4 Modification of the Service. Telemetry reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Telemetry will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any Customer Content you Upload to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to Customer Content you Uploaded to the Service.
14.1 By Us. We will defend, indemnify, and hold you harmless from any third-party claim against you arising out of your use of the Service as permitted hereunder alleging that the Service infringes or misappropriate a third party’s valid patent, copyright, trademark, or trade secret. We will, at our expense, defend such claim and pay damages finally awarded against you in connection therewith, including the reasonable fees and expenses of the attorneys engaged by us for such defense, provided that (a) you promptly notify us of the threat or notice of such claim; (b) we will have the sole and exclusive control and authority to select defense attorneys, and defend or settle any such claim; and (c) you fully cooperate with us in connection therewith. If your use of the Service has become, or, in our opinion, is likely to become, the subject of any such claim, we may, at our option and expense, (i) procure for you the right to continue using the Service as set forth hereunder; (ii) replace or modify all or part of the Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by us, terminate these Terms and repay, on a pro-rata basis, any pre-paid fees paid to us by you. We will have no liability or obligation under this Section 14.1 with respect to any claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions, or specifications provided by you; (y) modification of the Service by anyone other than us; or (z) the combination, operation or use of the Service with other hardware or software where the Service would not otherwise be infringing. The provisions of this Section 14.1 state our sole, exclusive, and entire liability to you and constitute your sole remedy with respect to an infringement claim brought by reason of access to or use of the Service by you or your Authorized Users.
14.2 By You. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend, indemnify, and hold harmless Telemetry, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Telemetry Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15.1 We warrant that the Service will be provided materially in accordance with any applicable documentation provided to you. If the Service fails to comply with this warranty, we will, at your reasonable request, either: (i) repair or replace the Service or (ii) terminate these Terms and provide you with a pro-rated refund of any pre-paid fees. This will be your exclusive remedy under this warranty.
15.2 EXCEPT AS PROVIDED IN SECTION 15.1, THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TELEMETRY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TELEMETRY DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND TELEMETRY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
15.3 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR TELEMETRY ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE TELEMETRY ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING CUSTOMER CONTENT.
15.4 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Telemetry does not disclaim any warranty or other right that Telemetry is prohibited from disclaiming under applicable law.
16.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE TELEMETRY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TELEMETRY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
16.2 EXCEPT AS PROVIDED IN SECTIONS 18.5 AND 18.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE TELEMETRY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO TELEMETRY FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$1,000.00.
16.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17.1 Trial Term and Access. If you registered for a free trial of the Service, we will provide access to the Service on a trial basis free of charge from the date indicated on the trial registration web page until the earlier of: (a) the end of the Free Trial Period for which you registered (typically 30 days) or (b) termination by us in our sole discretion (the “Free Trial Period”).
17.2 Free Subscription Tier. If you meet the requirements of our free subscription tier (the “Free Tier”) as indicated on our pricing page, you may use the Service wihtout a paid subscription. By signing up for our Free Tier, you represent and warrant to us that you meet the qualifications of the Free Tier and that you will notify us immediately if you no longer meet these qualifications.
17.3 WARRANTIES; INDEMNIFICATION; LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, DURING THE FREE TRIAL PERIOD OR WHILE YOU ARE USING THE SERVICE UNDER THE FREE TIER, ACCESS TO THE PLATFORM ASSETS IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, AND WE WILL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICE DURING THE FREE TRIAL PERIOD OR WHILE YOU ARE USING THE SERVICE UNDER THE FREE TIER UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE OUR LIABILITY WITH RESPECT TO YOUR ACCESS TO THE SERVICE PROVIDED DURING THE FREE TRIAL PERIOD OR WHILE YOU ARE USING THE SERVICE UNDER THE FREE TIER WILL NOT EXCEED, IN THE AGGREGATE, US$100.00. WITHOUT LIMITING THE FOREGOING, WE DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE DURING THE FREE TRIAL PERIOD OR WHILE YOU ARE USING THE SERVICE UNDER THE FREE TIER WILL MEET YOUR REQUIREMENTS, (B) YOUR ACCESS TO THE PLATFORM ASSETS DURING THE FREE TRIAL PERIOD OR WHILE YOU ARE USING THE SERVICE UNDER THE FREE TIER WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, OR (C) ANY DATA PROVIDED DURING THE FREE TRIAL PERIOD OR WHILE YOU ARE USING THE SERVICE UNDER THE FREE TIER WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS YOU WILL BE FULLY LIABLE UNDER THESE TERMS TO US FOR ANY DAMAGES ARISING OUT OF YOUR ACCESS OR USE OF THE SERVICE DURING THE FREE TRIAL PERIOD OR WHILE YOU ARE USING THE SERVICE UNDER THE FREE TIER, ANY BREACH BY YOU OF THESE TERMS, AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
18.1 Generally. Except as described in Section 18.2 and 18.3, you and Telemetry agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TELEMETRY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
18.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 within 30 days after the date that you agree to these Terms by sending a letter to Telemetry Finance, Inc., Attention: Legal Department – Arbitration Opt-Out, 344 20th St, Oakland, CA 94612 that specifies: your full legal name, the email address associated with your main account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Telemetry receives your Opt-Out Notice, this Section 18 will be void and any action arising out of these Terms will be resolved as set forth in Section 19.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
18.4 Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the JAMS under the rules applicable to consumer disputes (collectively, “JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.org, by calling the JAMS at +1-800-352-5267.
18.5 Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Telemetry’s address for Notice is: Telemetry Finance, Inc., 344 20th St, Oakland, CA 94612. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Telemetry may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Telemetry will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the JAMS Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules and the other party may seek reimbursement for any fees paid to JAMS.
18.6 Arbitration Proceedings. Any arbitration hearing will take place in Alameda County in the State of California unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing in the location specified above. During the arbitration, the amount of any settlement offer made by you or Telemetry must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
18.7 Confidentiality. The arbitrator will honor all evidentiary privileges recognized at law and will enter orders as appropriate in order to protect each parties’ trade secrets or confidential information. Each party agrees to maintain either party’s trade secrets or proprietary business information as confidential and to protect the confidentiality of any other information (such as private customer information) that is legally protected from disclosure. However, we may each disclose these matters, in confidence, to our respective accountants, auditors, and insurance providers.
18.8 Arbitration Relief. Except as provided in Section 18.9, the arbitrator can award any relief that would be available if the claims had been brough in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Telemetry before an arbitrator was selected, Telemetry will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
18.9 No Class Actions. YOU AND TELEMETRY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Telemetry agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
18.10 Modifications to this Arbitration Provision. If Telemetry makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Telemetry’s address for Notice of Arbitration, in which case your account with Telemetry will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
18.11 Enforceability. If Section 18.9 or the entirety of this Section 18 is found to be unenforceable, or if Telemetry receives an Opt-Out Notice from you, then the entirety of this Section 18 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 19.2 will govern any action arising out of or related to these Terms.
19.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Telemetry submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Alameda County, California for resolution of any lawsuit or court proceeding permitted under these Terms.
19.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
19.5 Contact Information. The Service is offered by Telemetry Finance, Inc., located at 344 20th St, Oakland, CA 94612. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
19.6 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
19.7 International Use. The Service is intended for users located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
19.8 Force Majeure. If we are prevented, hindered or delayed in the performance or observance of any of our obligations under these Terms due to any circumstance beyond our reasonable control, including but not limited to fire, flood, earthquake, extraordinary weather conditions not reasonably foreseeable by us, riots, civil disorders, epidemics, acts of war, rebellions, or revolutions in any country (“Force Majeure”), we will be excused from any further performance or observance of the obligations so affected for as long as such Force Majeure circumstances prevail, provided that we continue to use all commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay. We will notify you in reasonable detail of the event (including the estimated duration) as promptly as practicable and keep you reasonably informed of progress in resolving the event.