Effective date: 7/11/2023
Welcome to Telly, the ultimate free television upgrade for the living room.
Please read on to learn the rules and restrictions that govern your reservation of our free internet-connected television (a “Telly,” “Telly Device” or Device) and use of our website, website reservation system, and mobile application (collectively, the “Services”). For clarity, these terms only govern your reservation of a Telly Device and not your acquisition or use of a Telly Device. If we notify you that you have been selected to receive a Telly Device, your acquisition and use of the Telly Device will be governed by the Telly Product Terms of Service and any other terms and policies made available by us to you during the sign-up process. Telly Product Terms of Service may vary depending upon the version of the Telly Device that you will receive, your state of residence, and other factors.
If you have any questions, comments, concerns regarding these terms or the Services, or the process to receive a Telly Device generally, please contact us at: support@freetelly.com.
These Terms of Service (the “Terms”) are a binding contract between you and TELLY, INC. (“Telly,” “we” and “us”). Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document as well as those in the Telly Website, App and Reservations Privacy Policy [www.freetelly.com/reservation-privacy-policy] and any other relevant policies. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.
Please read these Terms carefully. They cover important information about Services provided to you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will do so by placing a notice on our website located at freetelly.com, sending you an email and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services and your reservation will be canceled. If you use the Services in any way after a change to the Terms is effective or wish to maintain your reservation, that means you understand and agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
Telly takes the privacy of its users very seriously. For the current Telly Website, App and Reservations Privacy Policy, please visit [www.freetelly.com/reservation-privacy-policy].
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from individuals under 18 years of age; if you are under 18 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. Our Terms prohibit anyone under 18 years of age from signing up for the Services. If we learn we have collected personal information from an individual under 18 years of age, we will delete that information as quickly as possible. If you believe that an individual under 18 years of age may have provided us personal information, please contact us at support@freetelly.com.
What are the basics of reserving a Telly?
By accepting these Telly Reservations Terms, you hereby confirm that you wish to reserve a Telly with us.
To reserve a Telly, you will be required to provide us with certain information or data, such as your name, address and a valid US mobile phone number. You will also be required to download the Telly mobile application and sign up for an account, select a password and username (“Telly User ID”) and complete a survey. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Telly User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are an individual of legal age (18 years or older) to form a binding contract.
You will not share your Telly User ID, account or password with anyone, and you must protect the security of your Telly User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your Telly User ID and account.
Priority and availability
Joining the reservation list confirms your interest in receiving a Telly Device. But due to high demand, quantities are limited and joining the reservation list does not guarantee that you will receive a Telly Device. We reserve the right to modify the sequence of the reservation list at our discretion. We will notify you if you are selected to receive a Telly Device and provide you with instructions on next steps to receive and begin using Telly. You may not transfer or assign your reservation to another party.
What about messaging?
A mobile phone (US) number is required to sign up for the Services. As part of the Services, you may receive communications through the Services, including messages that Telly sends you (for example, via email or SMS). Telly may send you messages in connection with its transactional and marketing campaigns. When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages (e.g., “to opt-out, reply STOP to cancel”). By signing up for the Services and providing us with your wireless number, you confirm that you want Telly to send you information that we think may be of interest to you, which may include Telly using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from Telly, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from Telly. Messaging frequency may vary and messaging and data rates apply. Carriers are not liable for delayed or delivered messages. You agree to indemnify and hold Telly harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing. If you have any questions, comments, concerns regarding these terms contact us at: support@freetelly.com.
Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not provide or contribute anything, including any Content (as that term is defined below), to the Services, or otherwise use or interact with the Services, in a manner that:
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Telly's) rights.
Will Telly ever change the Services?
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services.
What if I want to stop using the Services?
You’re free to do that at any time by contacting us at support@freetelly.com; please refer to our Telly Website, App and Reservations Privacy Policy at [www.freetelly.com/reservation-privacy-policy] as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.
Telly is also free to terminate (or suspend access to) your use of the Services or your account for any reason at our discretion, including your breach of these Terms. Telly has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
We will provide you with reasonable notice of any change, suspension, or discontinuation of our Services, unless it is urgently required, in which case we will notify you at the same time as the change, suspension, or discontinuation. To the maximum extent permitted by Applicable Law, we will not be liable to you or to any third party if we exercise such rights.
Account termination may result in the destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at support@freetelly.com – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What about Mobile Applications?
You acknowledge and agree that the availability of our mobile application is dependent on the third-party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms of Service, the more restrictive or conflicting terms and conditions in these Terms of Service apply.
Telly App available via the Apple and Android App Stores
These Terms apply to your use of all the Services, including our iOS and Android applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store and Google Play (“Google Play”) Store, but the following Additional Terms also apply to the Application:
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE TELLY PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF ONE-HUNDRED ($100) DOLLARS OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the Telly Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate, or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Telly's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
ARBITRATION AGREEMENT. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Telly and limits the manner in which you can seek relief from Telly. Both you and Telly acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Telly's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, then, notwithstanding section (c), “Small Claims Court; Infringement,” ALL DISPUTES WITH TELLY ARISING IN ANY WAY FROM THESE TERMS SHALL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION IN LOS ANGELES, CALIFORNIA, AND NOT BE A COURT OR JURY. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Telly will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Telly will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Telly may assert claims, if they qualify, in small claims court in Los Angeles, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND TELLY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Telly are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Telly over whether to vacate or enforce an arbitration award, YOU AND TELLY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Telly is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt-out of the provisions of this Section by sending written notice of your decision to opt out to the following address: support@freetelly.com within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Telly to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Telly agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Los Angeles, California, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Telly.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Telly may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Telly agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Telly, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Telly, and you do not have any authority of any kind to bind Telly in any respect whatsoever.
Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, you and Telly agree there are no third-party beneficiaries intended under these Terms.
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