TextMe, Inc. End User License
Agreement (ÒEULAÓ) and Terms and Conditions
Last updated on May 25, 2018
GENERAL TERMS AND CONDITIONS
________________________________________________________________________________
TERMS OF SERVICE
TextMe, Inc. is a
company providing a range of communication products, services, including but
not limited to text messaging and calling services, and websites, which operate
under the names of TextMe, FreeTone, TextMeUp, and TopTopUp (thereafter
ÒProducts and ServicesÓ). For
purposes of this Agreement, TextMe, Inc., its subsidiaries, affiliates (if
any), and all product lines are interchangeably designated as ÒTextMeÓ, ÒWe,Ó
ÒOurÓ or ÒUsÓ.
All users of the
Products and Services are subject to the following Terms and Conditions and
Privacy Policy (thereafter ÒT&CÓ) without modification of any terms set
forth herein. As set forth below,
this Agreement is a binding contract between you and TextMe and it explains
your rights and obligations when you use or download any of Our Products and
Services and any information, text, graphics, photos or other materials
uploaded, downloaded, or appearing in the Products and Services (thereafter
ÒContentÓ).
If you are downloading
one of Our apps, by clicking ÒAGREE TOÓ language as
part of the installation process you acknowledge, accept and agree to be bound
by this Agreement in connection with your use of both the app and TextMe.
As detailed below, a key
component to Our Products and Services include advertisements, which may be
targeted to the Content or information you provide, the Services you use, or
other information. The types and extent of advertising are subject to
change. In consideration for your
use and access to TextMe Products and Services, you agree that TextMe and its
third party providers and partners may advertise in conjunction with your use
(subject to the restrictions below and in our Privacy Policy). See TextMeÕs
Privacy Policy at: Privacy Policy
As part of Our services, we may need to provide you with certain
communications, such as service announcements and administrative messages. Charges may apply from your telephone operator/carrier or Internet service provider and TextMe is
not responsible for such charges.
COMMENTS AND SUGGESTIONS
Any comments regarding
this T&C should be directed to contact@go-text.me.
AGREEMENT TO BE BOUND
Please take time to read
and familiarize yourself with these T&Cs as they will apply to your access
and use of TextMe Content, Products and Services and constitute a binding
agreement between you and TextMe.
YOU MAY ONLY USE OUR PRODUCTS AND SERVICES IF YOU ARE ABLE TO FORM A
BINDING CONTRACT WITH TEXTME. IF
YOU DO NOT AGREE TO THE TERMS OF SERVICE BELOW, PLEASE DO NOT USE THE TEXTME
WEBSITE, PRODUCTS OR SERVICES OR DOWNLOAND OR USE ANY TEXTME APPLICATIONS. TextMe may revise and update these
T&C at any time and without notice by publishing the new T&C on the
TextMe website or within TextMe Products and Services. Continued usage of TexMe
Products and Services constitutes acceptance of any amended terms in the
T&C. The version of the T&C
most currently published supersedes any prior T&C, and can be viewed at: http://www.textmeinc.com/
ABILITY TO ENTER INTO THIS AGREEMENT
Our Products and
Services are only available to individuals who are at least thirteen (13) years
old. If you are 13 or older but under 18 years of age,
you must have your parent or legal guardianÕs permission to use or purchase
products and services and to accept the T&C. By using Our Products and Services, you
represent that you are at least 13 years of age and otherwise able to enter
into a valid and binding legal agreement and acknowledge that the T&C constitute
a valid, binding agreement between you and Us, under and pursuant to California
law.
Additionally, by
clicking the Ç SignUp È button within any of Our Products and Services, you (a)
represent to Us that you are not a person barred from using TextMe services in
the United States, nor in any relevant jurisdiction for you; and (b) agree with
the T&C and TextMe Privacy Policy included for reference in the T&C;
and (c) become bound by the these agreements. Privacy Policy
If at any time you do
not agree with the T&C or Privacy Policy, or any amended or updated
versions thereof, or if you become dissatisfied with Our Products and Services
in any way, your sole remedy is to discontinue the use of TextMe Products and
Services. You can delete your
account and uninstall the TextMe application from your device. If you need assistance please contact Us at contact@go-text.me.
LICENSE
If you agree to these
T&C, We hereby grant you a non-transferable, non-exclusive license for the
access and use of Our Content, Products and Services. Any software application or product is
licensed, not sold to you. You
acknowledge the use of this license is subject to limitations listed in the
T&C and that if you do not comply with any of these limitations, TextMe may
terminate the license without notice, at no cost to TextMe, and without any
liability to TextMe.
You acknowledge and
agree that any and all copyrights, patents, trademarks, trade secrets and other
intellectual property rights associated with the license are, and shall remain,
the property of TextMe. You
acknowledge that the use of TextMe Products and Services does not grant any
title or property rights for any part of TextMe Products and Services.
You shall use any TextMe
application strictly in accordance with this and any other related
agreements. This limited license
does not include any right to modify, distribute, prepare derivative works of,
or grant sublicenses. Further, you
agree that you will not decompile, disassemble or reverse engineer any
software/licensed product of Ours.
COPYRIGHT, TRADEMARK AND OTHER PROPRIETARY
INFORMATION
The Content, Products
and Services provided by TextMe (including, but not limited to: all data,
software, IP, design, image, audio, video, and business process) are
protectable intellectual property of TextMe and protected by US and
international laws. You may only use the content, names, and other intellectual
property (including copyright and trademarks) provided by Us
for purposes directly related to your role as a customer, current or
prospective, of TextMe Products and Services.
You may not copy,
display, modify or use the TextMe, FreeTone, or TopTopUp name, logo, and
trademarks for commercial or non-commercial purposes without the express
written permission of TextMe.
You are not authorized
to use TextMe trademarks in any advertising, publicity, or in any other
commercial manner without Our prior written consent.
RIGHT TO IMPOSE FEES OR CHARGE
TextMe reserves the
right to charge for its Products and Services in its sole discretion. TextMe reserves the right to change
pricing and modify or discontinue any of its Products and Services, at any time
and without notice. TextMe commits
to notify you of the pricing at the time and before completion of
purchase. By using the Products and
Services, you are accepting the rates charged at the time of use.
SUBSCRIPTIONS
We may offer our
Products and Services via subscription billing. Subscriptions will be offered in
periodic intervals of time such as one month or one year. The subscription interval will be
displayed when you confirm your subscription. After you confirm your subscription, the
subscription will automatically renew on a periodic basis until canceled.
In order to cancel your
subscription, you must login to the App Store or iTunes (for iOS users) or
Google Play Store (for Android users).
Once you have subscribed, you cannot cancel your subscription from
within our Products and Services.
Subscriptions are billed
on a prepaid basis. Each
auto-renewal of a subscription is an acceptance of the terms of the
subscription for the prepaid period.
If you cancel your subscription, your access will end at the end of the
prepaid period. Subscriptions
cannot be refunded or pro-rated.
If you have any
questions regarding your subscription, please contact us at contact@go-text.me.
MODIFICATIONS TO AND TERMINATION OF ALL OR PART
OF THE SERVICES
TextMe reserves the
right, without any liability of any kind to TextMe, to modify, block or
terminate all or part of the Products and Services provided by TextMe to you at
any time, with or without cause, with or without notice, effective
immediately. TextMe also reserves
the right to periodically make updates or interrupt service
as it deems appropriate.
If at any time you do
not agree with the T&C, or Privacy Policy, or any amended or updated
versions thereof, or if you become dissatisfied with Our Products and Services
in any way, your sole remedy is to discontinue the use of TextMe Products and
Services. You can delete your
account and uninstall the TextMe application from your device. If you need assistance please contact Us at contact@go-text.me.
PAYMENTS AND ACCOUNTS
In order to use TextMe
Products and Services, you will be required to provide data about yourself
(thereafter ÒAccount DataÓ), including but not limited to your name, telephone
number, email address, location, payment information, device type, and a password
that you create. It is your
responsibility to keep your Account Data safe, secure, and confidential. It is your responsibility to select a
password that is secure and strong.
We recommend choosing a password that is difficult for others to predict
by creating an unlikely combination of letters, numbers, and symbols, and that
is unique from other passwords you may use online.
In the case of any
unauthorized use of your Account Data, including if the device from which you
use the Products and Services is lost of stolen, you agree to notify TextMe of
such occurrence immediately upon becoming aware.
TextMe does not store
credit card numbers on Our servers for any purpose.
You represent that any
Account Data you provide is true, complete, accurate, and is not
fraudulent. You commit to update
your Account Data as necessary. You
acknowledge and agree that TextMe may unilaterally suspend your access to Our
Products and Services, temporarily or indefinitely and at any time in the case
that We suspect the provided Account Information is not true, complete, and
accurate, or if We suspect that is may be fraudulent, as solely determined by
TextMe with good reason and under good faith.
You consent to the
disclosure of any such Account Information to legal authorities under a validly
issued subpoena. See TextMeÕs
Privacy Policy at: Privacy Policy
TextMe is not
responsible for: the security of your Account Data, unauthorized or fraudulent
use of your Account Data, or any authorized, unauthorized, or fraudulent
payments made with your Account Data.
TextMe is not
responsible for fraudulent use of your credit card under any
circumstances. Should a fraudulent
charge be made with your Account Information, TextMe is not responsible to
provide refunds. Please contact
your credit card issuer, or the app store where you made your purchase (Google
Play Store, Apple App Store, or the Amazon App Store).
USER RESPONSIBILITIES & CODE OF CONDUCT
By use of the Content,
Products and Services, you agree you will use TextMe Content, Products and
Services only for yourself and for lawful non-commercial purposes and in
compliance with any relevant law applicable to you.
You may only use the
Content, Products and Services in the course of your normal usage as a
customer, current or prospective.
Any Content or materials
distributed by you or any other user is not representative of Our opinions including those of Our employees. TextMe, in its sole discretion, may
refuse or remove any Content/materials that in TextMeÕs sole opinion violates
any TextMe policy or is objectionable, or may terminate or deny your access to
Our Products and Services.
You agree not to use any
automatic device to access TextMe Products and Services, nor use any device or
software to access TextMe Products and Services that may impair the proper
usage of TextMe Products and Services.
In addition, you will
not access nor use TextMe Products and Services to do any of the
following:
¥ Copy,
distribute, transfer in any manner, including, but not limited to, translating,
decompiling or disassembling the source code for TextMe Contents, Products and
Services;
¥ Circumvent
security features or usage rules of TextMe Contents, Products and
Services;
¥ Copy or
alter any of the TextMe or TextMe partnersÕ designs, notices, logos or any
other proprietary rights displayed or used in the context of TextMeÕs website,
or Products and Services.
You acknowledge and
agree that for purposes of the Telephone Consumer Protection Act (TCPA), you,
and not TextMe, are the call or text message initiator such that if a claim is brought under the TCPA, you, as the call or text message
initiator, would face potential liability for any alleged violations of the
TCPA.
RIGHT TO ADVERTISE
You acknowledge and
agree with the TextMe policy to provide you with advertisements, including
targeted advertisements, either directly or via its partnerships with
advertisement providers, such as ad networks, (thereafter ÒTextMe Commercial
PartnersÓ) to be displayed on any device you use to access and operate the
TextMe Products and Services.
You acknowledge and
agree that TextMe cannot be held liable for any characteristic of the
advertisement displayed by TextMe or any of Our Commercial Partners including
accuracy, appropriateness, or compliance with any rule and regulation you may
be subject to.
Should you subscribe to
any TextMe Product and Service with a Òlifetime no adÓ or Òno adÓ feature,
TextMeÕs right to advertise will lapse during your personal usage of the said
TextMe product to which you have subscribed. You acknowledge that TextMeÕs right to
advertise will remain unchanged on any TextMe products without the Òlifetime no
adÓ or Òno adÓ feature to which you have subscribed.
RIGHT TO DELIVER AND SEND COMMERCIAL MESSAGES
You agree to receive
commercial messages from TextMe or TextMe Commercial Partners on any device you
use to access and operate TextMe Products and Services and which may be based
on characteristics derived from information explicitly or implicitly provided
by you to TextMe, such as your location, and which will be treated according to
our Privacy Policy. See TextMeÕs
Privacy Policy at: Privacy Policy
Commercial messages are
messages sent to your TextMe telephone number, account or email addresses for
commercial purposes for TextMe or TextMe Commercial PartnersÕ products and
services. Commercial messages sent
by TextMe or TextMe Commercial Partners to your email address will include a
one-click opt-out option.
To the extent that administrative texts are sent by TextMe to any group members
relating to using and canceling TextMeÕs group texting service, they are to be
considered normal business communications under applicable law.
DISCLAIMER OF WARRANTIES
Your use and access to
Our Content, Products and Services is at your own risk. You acknowledge and agree that Our
Content, Products and Services are provided to you on an ÒAS ISÓ and ÒAS
AVAILABLEÓ basis.
TEXTME, ITS RELATED
ENTITIES, AFFILIATES AND SUBSIDIARIES, EMPLOYEES, AGENTS, OFFICERS AND
DIRECTORS, LICENSORS AND SUPPLIERS, SERVICE PROVIDERS, CONTENT PROVIDERS,
THIRD-PARTY PROVIDERS AND CONTRACTORS, AND ITS PARTNERS DISCLAIM ALL WARRANTIES
OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE, TITLE AND NON-INFRINGEMENT OF ANY
RIGHT, RULE, REGULATION, OR LAW.
TEXTME MAKES NO WARRANTY AND DISCLAIMS ANY RESPONSIBILITY AND LIABILITY
FOR AVAILABILITY, ACCURACY, SECURITY, RELIABILITY, AND UNINTERRUPTABILITY OF
CONTENTS, PRODUCTS OR SERVICES. YOU
ARE USING THESE SERVICES AND PRODUCTS AT YOUR OWN DISCRETION AND RISK AND YOU
WILL BE SOLELY RESPONSIBLE OR LIABLE FOR ANY LOSS OF DATA, DAMAGE OR HARM TO ANY
OF YOUR DEVICES USED TO USE OR ACCESS TO TEXTME CONTENTS, PRODUCTS OR
SERVICES. NO ADVICE OR INFORMATION,
WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TEXTME OR THROUGH OR FROM ITS
PRODUCTS OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS
AGREEMENT. SOME STATES MAY PROHIBIT
A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE
TO STATE.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, NEITHER TEXTME NOR ITS RELATED ENTITIES AND
SUBSIDIARIES, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS, AFFILIATES, LICENSORS
AND SUPPLIERS, SERVICE PROVIDERS, CONTENT PROVIDERS, THIRD-PARTY PROVIDERS AND
CONTRACTORS, NOR ITS PARTNERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENCIAL, OR EXAMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST
PROFITS, GOODWILL, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RESULTING
FROM YOUR USE OF TEXME PRODUCTS OR SERVICES, INCLUDING FAILING TO STORE,
FAILING TO TRANSMIT, DELETING OR FAILING TO DELETE ANY INFORMATION GENERATED,
DOWNLOADED, UPLOADED OR TRANSMITTED ON TEXTME PRODUCTS AND SERVICES. THIS ALSO INCLUDES ANY ALLEGED DAMAGES
ARISING IN CONNECTION WITH YOUR USE OF, OR FAILURE TO USE THE CONTENTS,
PRODUCTS AND SERVICES OF TEXTME OR ANY LINKED SITE.
IN NO EVENT WILL THE
COLLECTIVE LIABILITY OF TEXTME AND ITS RELATED ENTITIES AND SUBSIDIARIES,
EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS, AFFILIATES, LICENSORS AND SUPPLIERS,
SERVICE PROVIDERS, CONTENT PROVIDERS, THIRD-PARTY PROVIDERS AND CONTRACTORS,
NOR ITS PARTNERS, OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT
(REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE)
EXCEED THE AMOUNT YOU HAVE PAID TO TEXTME FOR THE APPLICABLE CONTENTS, PRODUCTS
OR SERVICES OUT OF WHICH LIABILITY AROSE OR ONE HUNDRED DOLLARS U.S. ($100). THE LIMITS OF LIABILITY SET FORTH HEREIN
APPLY EVEN IF ANY LIMITED REMEDY UNDER THIS AGREEMENT FAILS OF ITS ESSENTIAL
PURPOSE.
TO THE EXTENT THAT IN
ANY RELEVANT JURISDICTION ANY OF THE ABOVE TEXTME DISCLAIMERS OR LIMITATIONS OF
LIABILITY ARE NOT PERMITTED, YOU ACKNOWLEDGE AND AGREE THAT ANY LIABILITY (AND
DAMAGES) ASSESSED TO TEXTME WILL BE LIMITED TO THE LOWEST AMOUNT AND SCOPE
LEGALLY PERMISSIBLE IN THE RELEVANT JURISDICTION.
INDEMNIFICATION
You agree to indemnify
and hold harmless TextMe, its related entities and subsidiaries, employees,
agents, officers and directors, affiliates, licensors and suppliers, service
providers, content providers, third-party providers and contractors, and Commercial
Partners from and against any and all claims and expenses, including attorneysÕ
fees, arising out of your use of TextMeÕs Products and Services, including but
not limited to: (i) the text messaging and calling functionalities; and (ii) any
breach or violation of these T&C.
TextMe strongly
recommends against using the Contents, Product and Services while driving. You agree and hold harmless TextMe, its
related entities and subsidiaries, employees, agents, officers and directors, affiliates,
licensors and suppliers, service providers, content providers, third-party
providers and contractors, and Commercial Partners from and against any and all
damages resulting thereof.
THIRD PARTY SERVICES AND PRODUCTS
TextMe Products and
Services may interface or be used with third-party products and services. TextMe makes no representation or
warranty as to the reliability, security, or performance of any third-party
services or products. TextMe does
not endorse any of the contents, products or services made available by those
third parties and you acknowledge TextMe cannot not be held liable for use, or
failure to use, said contents, products or services.
Your use of such
third-party contents, products or services is subject to the relevant terms and
conditions to be entered into with each of those third parties. In the event action is needed to ensure
continuity of those said third-party services, it is your sole responsibility
to conduct those actions and you acknowledge TextMe cannot be held liable for
failure to conduct those actions.
THIRD PARTY RATE PLANS
TextMe is not
responsible for voice, messaging, data, Internet, or WiFi charges assessed by
mobile operators/carriers or Internet service providers and incurred when
accessing TextMe Products and Services.
Such charges are the sole responsibility of the user.
PRIVACY POLICY
TextMeÕs use of
information generated, downloaded, uploaded or transmitted in its Products and
Services is described in the Privacy Policy, which is the subject of a separate
document and incorporated herein by reference. PLEASE READ AS YOU ARE ALSO BOUND BY THE
PRIVACY POLICY - Privacy Policy
CHOICE OF FORUM AND APPLICABLE LAW
TextMe, Inc. is
incorporated in the State of Delaware and operates under the laws of the United
States. TextMe makes no representation that its Products and Services can be
used outside the United States. It
is your responsibility to assess whether you can use Our Products and Services
in any relevant jurisdiction and you agree to comply with the export and import
laws and regulations of the United States and other applicable countries.
The laws of California
shall govern the T&Cs and you agree to submit to the jurisdiction of
California courts, which shall be the exclusive venue and jurisdiction for any
and all disputes, claims or demands.
MISCELLANEOUS
The T&Cs constitute
the entire agreement between TextMe and you concerning the subject matter herein
and the T&Cs can only be modified by a written amendment signed by an
authorized executive of TextMe or by Our posting of a revised or amended
version of the T&Cs and Privacy Policy on our website at Privacy Policy. You agree that any
notice, agreements, disclosure or any other communications that we send you
electronically (including via text and email) will satisfy any legal
communication requirements. If any
part of the T&Cs is unenforceable, the unenforceable part shall be
construed to reflect, as nearly as possible, the original intentions and the
other provisions of these T&Cs shall remain in full force and effect.
TextMeÕs failure to
insist upon or enforce strict performance of any provision of the T&Cs
shall not constitute a waiver of the provision. Neither a course of dealing or conduct
between you and TextMe nor any trade practices shall be deemed to modify the
T&Cs. You agree that no joint
venture, partnership, employment, or agency relationship exists between you and
TextMe as a result of this agreement or use of TextMe Products and
Services. A printed version of this
agreement and of any notice given in electronic form shall be admissible in
judicial or administrative proceedings based upon or relating to this agreement
to the same extent and subject to the same conditions as other business
documents and records originally generated and maintained in printed form. Notwithstanding the foregoing, any
additional terms and conditions on this site will govern the items to which
they pertain. TextMe may revise the
T&Cs at any time by updating this posting.
VOICE & TEXTING SERVICES ADDENDUM
In addition to the
TextMe, Inc. End User License Agreement, Privacy Policy, and above Terms and
Conditions all of which are incorporated herein by reference the following
applies to those users who are or will subscribe to voice or texting Services
________________________________________________________________________________
USER RESPONSIBILITIES & CODE OF CONDUCT
You agree not to use any
automatic device to access Our Products and Services nor use any device or
software to access Our Contents, Products and Services that may impair the
proper usage of TextMe Contents, Products or Services.
You agree that if you
operate a group, post material to one, or otherwise make content / material
available by means of any TextMe Product or Service, you are entirely
responsible for the content of, and any harm or liability resulting from that
material. By using TextMe Products
and Services, you assume responsibility for said use and agree not to use it in
a manner not explicitly authorized by TextMe.
Using TextMe Products
and Services means that you will:
á
Only send messages
or call people from whom you have received prior express consent to receive
text messages or calls from you, including any members of any group; and
á
Comply with
all applicable laws and regulations.
You will not use the
TextMe Products and Services to do any of the following:
á
Transmit any
communication, content, or message that is obscene, violent, harassing,
indecent, fraudulent, defamatory, libelous, pornographic, or contains threats
or incites violence towards any person or entity
á
Violates any
third-partyÕs legal rights such as, but not limited to, copyrights, rights of
privacy or rights of publicity;
á
Operate
TextMe Products and Services under a false identity or by impersonating any
person or third-party entity;
á
Generate and
distribute bulk mail, spam, chain-linked messages, calls or any similar content
including any such activity that violates any FTC or FCC regulations.
á
Use or
landing any automated system, including without limitation, "robots,"
"spiders," "offline readers," etc. or "load testers"
such as wget, apache bench, mswebstress, httpload, blitz, Xcode Automator,
Android Monkey, etc., that accesses the Service in a manner that sends more
request messages to Our servers in a given period of time than a human can
reasonably produce in the same period by using any TextMe application, and you
are forbidden from ripping the content unless specifically allowed.
á
Use the
Products and Services to send automated queries to any website or to send any
unsolicited commercial email, unsolicited text message, whether commercial or
non-commercial, or to place unsolicited calls, whether commercial or
non-commercial;
á
Generate,
upload or transmit any kind of file containing a virus, worm, malware, Trojan
horses or other harmful or destructive content, or any data having for effect
to impair, limit, or affect the usage of TextMe Products and Services or any
third-party product or services;
á
Advocate
illegal activities, and more generally discuss an intent to commit illegal
activities including phishing or mislead recipients as to the source of the
material (such as spoofing);
á
Engage in
activities leading to, or intending to (a) collect data, including personal
information regarding other TextMe users without their consent, or TextMe
partners without their consent, and more generally, any data stored within
TextMe storage units and not made available to you by TextMe during the normal
use of our Products and Services; (b) deny, disrupt or impair the usage of
TextMe Contents, Products and Services by other TextMe users other than
yourself; (c) intercept content and material generated or transmitted to or
from TextMe users and not destined to you;
á
Generate,
download, upload or transmit, whether by voice or text message, any kind of
advertisement or solicitations of commercial activities;
á
Generate,
download, upload or transmit any data, file or software which cannot be
generated, downloaded, uploaded or transmitted within the United States or any
relevant jurisdiction for your usage of the TextMe Products and Services.
VOICE FEATURES AND LIMITATIONS
Calls and texts made to
other TextMe users within TextMe Products and Services may be free. Calls and texts made outside of the
TextMe network may require payment.
Payment required will be displayed at the time of the call or text.
In certain cases, our
Products and Services may offer unlimited free calls. Calls to Hawaii, Alaska,
and some specific carriers or territories may be excluded from the unlimited
free calls offer in the United States.
Credits used are applied
and charged in increments of one minute, and are rounded up to the next minute.
TextMe voice features
may be limited, suspended, blocked or restricted by geography, number,
duration, or other criteria as determined solely by TextMe at any time in its
sole discretion.
You acknowledge the
right for TextMe to suspend all or part of TextMe voice or texting feature
service at no liability to TextMe if your usage of TextMe Products and Services
is inconsistent with normal use.
TextMe will assess
whether your usage is inconsistent with normal use notably by comparing it with
other usersÕ usages of TextMe Products and Services. Examples of usages inconsistent with
normal use include, but are not limited to:
á
Operation of
a business, a marketing campaign, a non-profit organization or a governmental
organization, a call center;
á
Resale or
attempt to resell TextMe voice features to third parties;
á
Operation of
any automated operated service
USE OF TEXTME PRODUCTS AND SERVICES
You acknowledge that you
are solely responsible for any content you generate, download, upload or
transmit, and in particular, you are solely responsible for any of its
characteristics, including, but not limited to, its legality, appropriateness
and integrity.
By generating,
downloading, uploading or transmitting any content on TextMe Products and
Services, you acknowledge that you have full legal and moral rights to use this
content within TextMe Products and Services and you grant to TextMe the right
to use this content in any manner TextMe chooses.
Any opinion in any
content generated, uploaded, downloaded or transmitted by you on TextMe
Products and Services is solely your own and under your sole
responsibility. You acknowledge
TextMe cannot be held liable for any opinion generated, uploaded, downloaded or
transmitted by you on TextMe Products and Services.
TextMe reserves the
right to remove, at no liability to you, any content posted on TextMe Products
and Services at Our sole discretion.
You also acknowledge that TextMe does not have any liability or
responsibility to anyone for failing to remove any content from its Products
and Services.
You consent to allow
TextMe to associate personal information such as contact names, aliases,
telephone numbers, emails, or any unique identification tag from your device
for messages you send and receive, provided that TextMe will not use such
information for any other purpose, except as discussed herein and in Our
Privacy Policy. You consent to the
disclosure of any such information to legal authorities under a validly issued
subpoena. See TextMeÕs Privacy
Policy at Privacy Policy
SHORT MESSAGE SERVICE (SMS), MULTIMEDIA MESSAGE
SERVICE (MMS), VOLUME LIMITATIONS
In certain countries,
TextMe Products and Services may enable TextMe users to send and receive SMS
and MMS at no charge to TextMe users.
We do not make any representations as to what occurs or is offered in
other countries outside of the U.S.
TextMe users acknowledge
and agree that in case of excessive use of either SMS or MMS, TextMe may (a)
notify the user of the excessive use, and (b) unilaterally suspend temporarily
or indefinitely TextMe Product and Services at no cost to TextMe and without
TextMe being liable for the suspension or (c) propose to charge for the SMS and
MMS at a price to be decided by TextMe at the time.
Excessive use of SMS or
MMS is defined as (a) sending more than a total of five hundred SMS or MMS per
twenty-four-hour period; (b) an excess of more than one hundred SMS or MMS sent
by user compared to SMS or MMS received by the same user over a period of
thirty days; or (c) any other internal metric developed by TextMe in its sole
discretion to identify excessive use.
LIMITATIONS ON USE & CAPABILITIES OF TEXTME
PRODUCTS & SERVICES INCLUDING EMERGENCY 911 SERVICE
You acknowledge and
agree that TextMe and its Products and Services do not replace your fixed or
wireless telephone and that TextMe Products and Services may be limited,
suspended or restricted by geography, volume, duration or any criteria decided
by TextMe at Our sole discretion and without liability to TextMe. You
acknowledge that access to voice transmission networks is not provided by
TextMe.
You acknowledge and agree that TextMe Products
and Services cannot be relied upon for emergency calls (e.g., 911) and that it
is your sole responsibility to subscribe to such emergency call services if you
desire those services. You are
solely responsible for any and all emergency call issues.
You may receive one
telephone number attributed to you by TextMe for the use of TextMe Products and
Services. You agree to comply with
any United States law or regulation, as well as any law or regulation you may
be subject to any other country with regard to the use of the telephone number
allocated to you by TextMe. You
acknowledge and agree that the telephone number attributed to you by TextMe will
not be ported outside of the TextMe Products and Services. Number portability may result in
additional fees being charged to your account, to the extent legally possible.
TextMe may reclaim this
telephone number and discontinue its availability to you at any time and
without liability to TextMe.
Furthermore, in the event of termination of this T&C, and/or the
termination of use of Our Products and Services, TextMe will reclaim, without
notice and at no cost to TextMe, the telephone number attributed to you.
You acknowledge that
TextMe Products and Services will not support short code numbers and/or reverse
billing services.
Liability: You
acknowledge and understand that TextMe will not be liable for any service
outage and/or inability to dial 9-1-1 using TextMe products and services or to
access emergency service personnel due to the 9-1-1 dialing characteristics and
limitations listed herein. YOU
ACKNOWLEDGE AND AGREE THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN,
TEXTME, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND UNDERLYING
CARRIERS WILL NOT BE LIABLE FOR ANY CLAIMS, DEMANDS, ACTIONS, INJURY, DEATH OR
DAMAGE TO PERSONS OR PROPERTY, ARISING DIRECTLY OR INDIRECTLY OUT OF, OR
RELATING IN ANY WAY TO THE PROVISION OR NON-PROVISION OF 9-1-1 AND/OR EMERGENCY
9-1-1 SERVICE, INCLUDING, WITHOUT LIMITATION, ANY INABILITY ON YOUR PART TO
ACCESS 9-1-1 AND/OR EMERGENCY 9-1-1 SERVICE, AND YOU AGREE TO INDEMNIFY AND
HOLD HARMLESS TEXTME, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS AND UNDERLYING CARRIERS FROM ANY LIABILITIES, CLAIMS,
DAMAGES, LOSSES ARISING DIRECTLY FROM THE PROVISION OR NON-PROVISION OF 9-1-1
AND/OR EMERGENCY 9-1-1 SERVICE.
CANADA RESIDENTS AND USERS ONLY: 9-1-1
Alternative Service (Canada, Only)
This section is relevant
for the usage of TextMe Products and Services in Canada.
THIS SECTION CONTAINS
IMPORTANT PROVISIONS, INCLUDING THOSE REGARDING 9-1-1 SERVICE:
Description: VoIP services allow you to make or
receive telephone calls over the Internet to or from the public switched
telephone network. The nature of
VoIP telephone calls, while appearing similar to traditional telephone calling
services, create unique limitations and circumstances, and you acknowledge and
agree that differences exist between traditional telephone service and VoIP
telephone services, including the lack of traditional 9-1-1 emergency
services.
9-1-1 service: Because of the unique nature of VoIP
telephone calls, emergency calls to 9-1-1 through your VoIP service will be
handled differently than traditional telephone service. The following provisions describe the
differences and limitations of 9-1-1 emergency calls, and you hereby
acknowledge and understand the differences between traditional 9-1-1 service
and VoIP calls with respect to 9-1-1 calls placed to emergency services from
your account as described below.
Placing 9-1-1
calls: When you make a 9-1-1
emergency call, the VoIP service will attempt to automatically route your 9-1-1
call through a third-party service provider to a Public Safety Answering Point
(ÒPSAPÓ). Your call may be forwarded
to a third-party specialized call center that handles emergency calls. This call center is different from the
PSAP that would answer a traditional 9-1-1 call, and consequently, you will be
required to provide your name, address, and telephone number to the call
center.
How your information is
provided: The dispatcher receiving
the call will not be able to capture or automatically retain your name,
telephone number, or physical location as this information is not provided by you
to TextMe. Therefore, when making a
9-1-1 emergency call, you must immediately inform the dispatcher of your
location (or the location of the emergency, if different), and any other
relevant information as required by the dispatcher. If you are unable to speak, the dispatcher
may not be able to locate you if your location information is not up to
date.
Disconnections: You must not disconnect the 9-1-1
emergency call until told to do so by the dispatcher,
as the dispatcher may not have your number or contact information. If you are inadvertently disconnected,
you must call back immediately.
Connection time: For technical reasons, including network
congestion, it is possible that a 9-1-1 emergency call will produce a busy
signal or will take longer to connect when compared with traditional 9-1-1
calls.
9-1-1 calls may not
function: For technical reasons,
the functionality of 9-1-1 VoIP emergency calls may cease or be curtailed in
various circumstances, including, but not limited to: failure of service or your service
access device—if your system access equipment fails or is not configured
correctly, or if your VoIP service is not functioning correctly for any reason,
including power outages, VoIP service outage, suspension or disconnection of
your service due to billing issues, network or Internet congestion, or network
or Internet outage in the event of a power, network or Internet outage.
You may need to reset or
reconfigure the system access equipment before being able to use the VoIP
service, including for 9-1-1 emergency calls.
Alternate services: If you are not comfortable with the
limitations of 9-1-1 emergency calls, TextMe recommends that you terminate the
VoIP services or consider an alternate means for accessing traditional 9-1-1
emergency services.
Inform other users: You are responsible for notifying, and
you agree to notify, any user or potential users of your VoIP services of the
nature and limitations of 9-1-1 emergency calls on the VoIP services as described
herein.
Liability: You acknowledge and understand that
TextMe will not be liable for any service outage and/or inability to dial 9-1-1
using TextMe Products and Services or to access emergency service personnel due
to the 9-1-1 dialing characteristics and limitations listed herein. YOU ACKNOWLEDGE AND AGREE THAT
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TEXTME, ITS AFFILIATES,
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND UNDERLYING CARRIERS WILL NOT BE
LIABLE FOR ANY INJURY, DEATH OR DAMAGE TO PERSONS OR PROPERTY, ARISING DIRECTLY
OR INDIRECTLY OUT OF, OR RELATING IN ANY WAY TO THE PROVISION OR NON-PROVISION
OF 9-1-1 AND/OR EMERGENCY 9-1-1 SERVICE, INCLUDING, WITHOUT LIMITATION, ANY
INABILITY ON YOUR PART TO ACCESS 9-1-1 AND/OR EMERGENCY 9-1-1 SERVICE, AND YOU
AGREE TO INDEMNIFY AND HOLD HARMLESS TEXTME, ITS AFFILIATES AND THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND UNDERLYING CARRIERS FROM
ANY LIABILITIES, CLAIMS, DAMAGES, LOSSES ARISING DIRECTLY FROM THE PROVISION OR
NON-PROVISION OF 9-1-1 AND/OR EMERGENCY 9-1-1 SERVICE.
Additional Liability
Disclaimer: TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, TEXTME DISCLAIMS ANY REPONSIBILITY FOR THE
DELETION, THE FAILURE TO STORE, THE MISDELIVERY, OR THE UNTIMELY DELIVERY OF
ANY INFORMATION OR MATERIAL, INCLUDING, WITHOUT LIMITATION, ANY CONTENT. WE ALSO DISCLAIM ANY AND ALL
RESPONSIBILITY FOR ANY HARM OF ANY KIND RESULTING FROM DOWNLOADING ANY CONTENT
OR PRODUCTS THROUGH TEXME OR ITS APPS, BY USING ANY SUCH APPS.
TOP-UP SERVICES
In addition to the
TextMe, Inc. End User License Agreement, Privacy Policy and above Terms and
Conditions all of which are incorporated herein by reference the following
applies to those users who are or will subscribe to voice or Top-Up Services
________________________________________________________________________________
TextMe acts as an
intermediary that allows you to add prepaid credit to another personÕs mobile
telephone plan through their mobile telephone operator (thereafter ÒTop-upÓ). The person sending the prepaid credit is
defined as ÒUserÓ. The person who
receives the prepaid credit to their mobile telephone plan is defined as
ÒRecipientÓ. The prepaid credit
amount and denomination of the Top-Up is defined as ÒTop-up AmountÓ.
Depending on the mobile
telephone operator and country of operation, certain taxes and regulatory fees
may be deducted from the Top-up Amount, and by using TextMe you acknowledge
your understanding that the stated Top-up Amount is gross of any taxes and regulatory
fees deducted by the mobile telephone operator, as required by the mobile
telephone operator and country of operation. If you have questions about any taxes or
regulatory fees deducted from the Top-up Amount, please contact the mobile
telephone operator.
The mobile telephone
operators and prepaid credit denominations offered are subject to change and
availability. The cost of the
Top-Up will vary depending on the mobile telephone operator, denomination, and
payment method, and is subject to change at any time without prior
notification.
TextMe will request that
the User provide certain information about the Recipient, including but not
limited to their telephone number, email address, and mobile telephone operator
(hereafter ÒRecipient InformationÓ).
It is your responsibility to ensure the Recipient Information is correct
and accurate, which is required for the Top-Up transaction to be processed
correctly. Before the Top-Up
transaction is completed, you will be asked to confirm the transaction. Your confirmation via a click is an
acceptance and representation of the correctness of the Recipient Information
and Top-up Amount therein.
Once you confirm, a
series of processes are initiated, which cannot be canceled after you
confirm. The confirmation cannot be
canceled.
TextMe assumes no
liability if the Top-Up was sent to the wrong Recipient, which is why we ask
that you confirm the Recipient Information.
Once you confirm, a
series of processes are initiated, after which the responsibility to add the
Top-up to the RecipientÕs telephone plan is in the hands of the mobile
telephone operator. In some cases
the Top-up is added to the RecipientÕs telephone plan without delay. In some cases it may take up to a few
days, or longer, for the Top-Up transaction to be added to the RecipientÕs
telephone plan, even if the transaction status shows complete.
By using the TextMe
Products and Services, you acknowledge your agreement and understanding that
the respective mobile telephone operator is solely responsible and liable for
the provisioning` of the Top-up to the Recipient.
TextMe may offer
promotional rates (hereafter ÒPromotionÓ) from time to time, which may be
subject to additional terms and conditions that will be communicated along with
the Promotion. Promotions are
subject to change at any time and without notice.
TextMe users acknowledge
and agree that in case of excessive use that is not consistent with normal use,
TextMe may (a) notify the user of the excessive use, and (b) unilaterally suspend
temporarily or indefinitely TextMe Product and Services at no cost to TextMe
and without TextMe being liable for the suspension.
WI-FI SERVICES ADDENDUM
In addition to the TextMe, Inc. End User License
Agreement and Privacy Policy all of which are incorporated herein by reference
the following applies to those users who are or will subscribe to Wi-Fi
Services
________________________________________________________________________________
CONTACT INFORMATION
If you have any
questions about these Wi-Fi Terms or the Wi-Fi Services please contact
Devicescape at legal@devicescape.com, +1 (650) 249-6565, Suite 125, 333 Bryant
Street, San Francisco, California, 94107.
WI-FI TERMS
TextMe partners with
Devicescape Software, Inc. (jointly, ÒourÓ or ÒweÓ). We make available a
curated Wi-Fi hotspot-based service that we call the Curator Service (ÒCurator ServiceÓ). A high-level
description of the Curator Service is provided under ÒDescription of Curator
ServiceÓ below and additional information regarding the Curator Service may be
found at www.devicescape.com (the ÒDevicescape SiteÓ). We also make available a Wi-Fi hotspot-related
proximity marketing service that we call PopWiFi (ÒPopWiFiÓ). A high-level description of PopWiFi is provided under
ÒDescription of PopWiFiÓ below and additional information regarding PopWiFi may
be found on our website located at www.popwifi.com (the ÒPopWiFi SiteÓ).
Please read these Terms
of Service (the ÒWi-Fi TermsÓ)
and our Wi-Fi Privacy Policy (www.devicescape.com/privacy) carefully because they govern your access to
and use of: (i) the Curator Service, including an application component of the
TextMe Products and Services thereof that enables you to configure, access and
use of the various features of the Curator Service; and (ii) PopWiFi by means
of the TextMe Products and Services. The Curator Service via the TextMe
Products and Services, and PopWiFi are collectively called the ÒWi-Fi ServicesÓ.
AGREEMENT TO WI-FI TERMS
TextMe is willing to allow you to access and use the Wi-Fi Services only
upon the condition that you agree to be bound by these terms (ÒWi-Fi TermsÓ).
To indicate that you agree to be bound by these Wi-Fi Terms, click on ÒAcceptÓ
or ÒI AgreeÓ or on a similar prompt that is displayed. To indicate that you
donÕt agree to be bound by these Wi-Fi Terms, click on ÒRejectÓ or ÒDeclineÓ or
on a similar prompt that is displayed, in
which case activation of the Curator Service will stop. Upon your acceptance of these Wi-Fi Terms
the Wi-Fi Services will work automatically and you will be deemed a ÒWi-Fi
Services UserÓ.
CHANGES TO WI-FI TERMS OR
WI-FI SERVICES
We may modify the Wi-Fi
Terms at any time, in our sole discretion. If we do so, weÕll let you know
either by posting the modified Wi-Fi on the Devicescape Site or the PopWiFi
Site, as applicable, or through other communications via the TextMe Products
and Services. ItÕs important that you review the modified Wi-Fi Terms because
if you continue to use the Wi-Fi Services after weÕve let you know that the
Wi-Fi Terms have been modified, you are indicating to us that you agree to be
bound by the modified Wi-Fi Terms. If you donÕt agree to be bound by the
modified Wi-Fi Terms then you may no longer use the Wi-Fi Services. Because our
Wi-Fi Services are evolving over time we may change or discontinue all or any
part of the Wi-Fi Services, at any time and without notice, at our sole
discretion.
DEVICE REGISTRATION
When you access either the Curator Service for the first time the Curator Service
will register your mobile device by collecting and storing on DevicescapeÕs
server the mobile deviceÕs phone number (MDN), hardware identifier (IMEI/MEID)
and other hardware-specific data. Under some circumstances necessary to offer
service, we may also store the phone number (MDN). In addition, the Curator Service
will assign a unique universal identification number to your mobile device (a ÒUUIDÓ) and store the UUID on your
device. The UUID enables Devicescape to associate or track the device and its
interactions with our Wi-Fi Services and is necessary for our Wi-Fi Services to
function.
DESCRIPTION OF CURATOR
SERVICE
Curated Virtual Network
The primary feature of
the Curator Service enables users of mobile devices to have their devices
automatically connect to a network of publicly available curated Wi-Fi hotspots
maintained by Devicescape (the ÒCurated
Virtual NetworkÓ). In order to have a mobile device automatically
connect to the Curated Virtual Network, the TextMe Products and Services must
be installed and activated on your mobile device. The Curator Service will be activated
when you accept these Wi-Fi Terms in accordance with the provision ÒAgreement
to TermsÓ above. In addition to this automatic connection feature, the Curator
Service includes features that enable you to manage your access to and use of
Wi-Fi-by configuring how your mobile device detects and connects to Wi-Fi
hotspot networks. More detailed Information regarding these features may be
found on the Devicescape Site.
Connections to Account-Free Wi-Fi Providers
Some Wi-Fi providers offer access to their Wi-Fi hotspot network without
requiring you to create an account with them (each, an ÒAccount-free Wi-Fi
ProviderÓ), but certain Account-free Wi-Fi Providers may require you to agree
to their end user license agreement or terms of service. You acknowledge and
agree that in some instances you may be unable to view the Account-free Wi-Fi
ProviderÕs end user license agreement or terms of service and in some instances
the Account-free Wi-Fi provider may not have an end user license agreement or terms
of service. If you wish to connect to the Wi-Fi hotspot network of an
Account-free Wi-Fi Provider, you hereby authorize TextMe and Devicescape to
accept the Account-free Wi-Fi ProviderÕs end user license agreement or terms of
service on your behalf, if any, but that you will be solely responsible for
complying with any such end user license agreement or terms of service, as
applicable.
Account-free
Wi-Fi Providers with Offline Terms
Certain Account-free Wi-Fi Providers may have a terms of service that is
provided Òoff-lineÓ, e.g., by means of a physical sign or documentation that is
posted in the Account-free Wi-Fi ProviderÕs venue or furnished by the
Account-free Wi-Fi Provider to customers who connect (or request information
regarding connecting) to the Account-free Wi-Fi ProviderÕs hotspot network
(such physical sign or documentation, the ÒOff-line TermsÓ). TextMe and
Devicescape make no representation regarding whether any such Off-line Terms
apply, and you acknowledge and agree that it is your sole responsibility to
identify whether any such Off-line Terms apply to your use of the Curator
Service, and to comply with any such Off-line Terms.
Account-free
Wi-Fi Providers that Request Email Address
As a condition to connecting to their Wi-Fi hotspot network, certain
Account-free Wi-Fi Providers may request the Curator Service to provide a
limited amount of information regarding you, such as your email address. In
that event, the Curator Service may provide the Account-free Wi-Fi Provider
with DevicescapeÕs name and email address but will not provide your name or
email address. You acknowledge and agree that the Curator Service will not
enable you to establish a connection with any Account-free Wi-Fi Provider
hotspot network that requires verification of the email address.
Connections to Account-Based Wi-Fi Providers
Some Wi-Fi providers require you to have an account with them to access to
their Wi-Fi hotspot network (each, an ÒAccount-based Wi-Fi ProviderÓ).
Account-based Wi-Fi Providers typically are commercial network operators but
may also include free and community providers. If you wish to connect to the
Wi-Fi hotspot network of an Account-based Wi-Fi Provider, you may need to
obtain login credentials (e.g., a user ID and password) from the Account-based
Wi-Fi Provider. You may also be required to agree to an Account-based Wi-Fi
ProviderÕs end user license agreement or terms of service. If you would like to
have Devicescape automatically attempt to connect you to the Wi-Fi hotspot
network of an Account-based Wi-Fi Provider, after you have acquired such login
credentials from an Account-based Wi-Fi Provider and/or first agreed to the
Account-based Wi-Fi ProviderÕs end user license agreement or terms of service,
as applicable, you will provide such login credentials to Devicescape.
Devicescape will store your login credentials on DevicescapeÕs server and may
automatically attempt to connect to the Wi-Fi hotspot network of such
Account-based Wi-Fi Provider when you are in the vicinity of such hotspot
network. You hereby authorize Devicescape to accept the Account-based Wi-Fi
ProviderÕs end user license agreement or terms of service on your behalf, but
that you will be solely responsible for complying with any such end user
license agreement or terms of service, as applicable.
CERTAIN TERMS APPLICABLE TO
ACCOUNT-FREE WI-FI PROVIDERS AND ACCOUNT-BASED WI-FI PROVIDERS
Acknowledgement
Regarding Inability to Access Emergency Services
You acknowledge and agree that the Wi-Fi Services may enable a variety of
classes of wireless devices to connect to Wi-Fi hotspot networks. Such classes
may include devices that provide voice services over the Internet similar to
those that are provided to users of conventional mobile phone or fixed-line
telephones networks (such devices, ÒVoIP
PhonesÓ). If you use a VoIP Phone in connection with the Wi-Fi Services
you assume all risks and liability arising from any inability to connect to
such emergency services such as 911.
Acknowledgement Regarding Responsibility for Certain Charges
You acknowledge that one of the features of the Curator Service is to
continually check the quality of the different networks to which you have
connected or to which you may be able to connect to ensure that you are
connected to the network that provides the best service. Such networks may
include both cellular networks and Wi-Fi hotspot networks. If the Curator
Service determines that the network to which you are connected is not providing
you with a sufficient quality of service the Curator Service may disconnect you
from such network and connect you to an available cellular network or Wi-Fi
hotspot network, as applicable. If the Curator Service connects you to an
available cellular network, you will be solely responsible for any charges for
which you are billed by the operator of such cellular network, including
per-minute, roaming or premium charges, as well as any applicable taxes. In no
event will TextMe nor Devicescape be responsible for any such charges or taxes.
The Curator Service may also connect you to a Wi-Fi hotspot network or a
cellular network based on policies set by you, the operator or provider of such
network or Devicescape.
DESCRIPTION OF POPWIFI
PopWiFi enables owners of small and mid-sized venues such as cafes,
restaurants, bakeries, hair salons, hotels and theaters, that offer free Wi-Fi
to their customers (a ÒVenue OwnerÓ) to send communications in the form of
electronic notifications, messages, or other such end user media to customers
who access and use the Venue OwnerÕs Wi-Fi hotspot network by means of the
Curator Client. As a Curator Client Subscriber, you will have access to all the
features of PopWiFi that any such Venue Owner makes available to Curator Client
Subscribers who connect to and use the Venue OwnerÕs Wi-Fi hotspot network.
GENERAL PROHIBITIONS
You agree not to do any
of the following:
We have the right to
investigate and prosecute violations of any of the above to the fullest extent
of the law. We may involve and cooperate with law enforcement authorities in
prosecuting users who violate these Wi-Fi Terms. You acknowledge that we have
no obligation to monitor your access to or use of the Wi-Fi Services, but have
the right to do so for the purpose of operating the Wi-Fi Services, to ensure
your compliance with these Wi-Fi Terms, or to comply with applicable law or the
order or requirement of a court, administrative agency, or other governmental
body.
DMCA/COPYRIGHT POLICY
We respect copyright law and expect our users to do the same. It is our
policy to terminate in appropriate circumstances account holders or subscribers
who repeatedly infringe or are believed to be repeatedly infringing the rights
of copyright holders. Please see the Copyright and IP Policy at http://www.devicescape.com/copyright for further
information.
LINKS TO THIRD PARTY WEBSITES OR RESOURCES
The Wi-Fi 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
sites. You acknowledge sole responsibility for and assume all risk arising
from, your use of any third-party websites or resources.
TERMINATION
We reserve the right, at
our sole discretion, to modify, terminate or discontinue the Wi-Fi Services, at
any time and without prior notice. We may terminate your access to and use of
the Wi-Fi Services, at our sole discretion, at any time and without notice to
you. You may cancel the Wi-Fi Services at any time by: (i) contacting the
carrier, operator, or other provider from or through which you obtained access
to the Wi-Fi Services; (ii) uninstalling the TextMe Products and Services from
your mobile device; or (iii) disabling the Wi-Fi through the ÒSettingsÓ feature
of your TextMe Products and Services. If you cancel the Wi-Fi Services and have
paid fees to any such carrier, operator or other provider for the Wi-Fi
Services, or fees are payable for the Wi-Fi Services, your entitlement to a
refund of such fees and your obligation with respect to any such fees that are
payable will be determined solely by the terms of your agreement with the
carrier, operator or other provider, as applicable, and TextMe and Devicescape
will have no responsibility or liability of any kind related thereto. Upon any
termination or discontinuation of the Wi-Fi Services, all provisions of these Wi-Fi
Terms which by their nature should survive will
survive, including, without limitation, ownership provisions, warranty
disclaimers, limitations of liability, and dispute resolution provisions.
WARRANTY DISCLAIMERS
THE WI-FI SERVICES ARE
PROVIDED ÒAS IS,Ó WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING,
WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NON-INFRINGEMENT AND ANY WARRANTIES
ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that
the Wi-Fi Services will meet your requirements or be available on an
uninterrupted, secure, or error-free basis. Without limiting the foregoing, TextMe
and Devicescape makes no warranty regarding the uptime, availability or
reliability of the Wi-Fi Services.
INDEMNITY
You will indemnify and
hold harmless each TextMe and Devicescape and their officers, directors,
employees, and agents, from and against any claims, disputes, demands,
liabilities, damages, losses, and costs and expenses, including, without
limitation, reasonable legal and accounting fees, arising out of or in any way
connected with (i) your access to or use of the Wi-Fi Services, (ii) your breach
or violation of these Wi-Fi Terms; or (iii) any alleged or actual breach or
violation of any agreements, terms of service, policies or rights of any third
party, including without limitation any breach of violation of the end user
license agreement or terms of service of any Account-based Wi-Fi Provider or
Account-free Wi-Fi Provider.
LIMITATION OF LIABILITY
NEITHER TEXTME NOR DEVICESCAPE
NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE WI-FI
SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL,
SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR THE COST OF
SUBSTITUTE WI-FI SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE WI-FI TERMS
OR FROM THE USE OF OR INABILITY TO USE THE WI-FI SERVICES, WHETHER BASED ON
WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY
OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE 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 OUR
TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE WI-FI TERMS OR FROM
THE USE OF OR INABILITY TO USE THE WI-FI SERVICES EXCEED THE AMOUNTS YOU HAVE
PAID TO US FOR USE OF THE WI-FI OR TEN DOLLARS ($10), IF YOU HAVE NOT HAD ANY
PAYMENT OBLIGATIONS TO US, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH
ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU.
DISPUTE RESOLUTION
Governing Law
These Wi-Fi Terms and any action related thereto will be governed by the laws
of the State of California without regard to its conflict of laws provisions.
Agreement to
Arbitrate
You and TextMe and Devicescape agree that any dispute, claim or controversy
arising out of or relating to these Wi-Fi Terms or the breach, termination,
enforcement, interpretation, or validity thereof or the use of the Wi-Fi Services
(collectively, ÒDisputesÓ) will
be settled by binding arbitration, except that each party retains the right:
(i) to bring an individual action in small claims court and (ii) to seek
injunctive or other equitable relief in a court of competent jurisdiction to
prevent the actual or threatened infringement, misappropriation or violation of
a partyÕs copyrights, trademarks, trade secrets, patents or other intellectual
property rights (the action described in the foregoing clause (ii), an ÒIP Protection ActionÓ). The exclusive
jurisdiction and venue of any IP Protection Action will be the state and
federal courts located in the Northern District of California and each of the
parties hereto waives any objection to jurisdiction and venue in such
courts. You acknowledge and agree
that you and TextMe and Devicescape are each waiving the right to a trial by
jury or to participate as a plaintiff or class member in any purported class
action or representative proceeding. Further, unless both you and
Devicescape otherwise agree in writing, the arbitrator may not consolidate more
than one personÕs claims, and may not otherwise preside over any form of any
class or representative proceeding. If this specific paragraph is held
unenforceable, then the entirety of this ÒDispute ResolutionÓ section will be
deemed void. Except as provided in the preceding sentence, this ÒDispute
ResolutionÓ section will survive any termination of these Wi-Fi Terms.
Arbitration Rules
The arbitration will be administered by the American
Arbitration Association (ÒAAAÓ)
in accordance with the Commercial Arbitration Rules and the
Supplementary Procedures for Consumer Related Disputes (the ÒAAA RulesÓ) then in effect, except as
modified by this ÒDispute ResolutionÓ section. (The AAA Rules are available
at www.adr.org/arb_med or
by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern
the interpretation and enforcement of this Section.
Arbitration Process
A party who desires to initiate arbitration must provide the other party with a
written Demand for Arbitration as specified in the AAA Rules. (The AAA provides
a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California
residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge
or an attorney licensed to practice law and will be selected by the parties
from the AAAÕs roster of arbitrators. If the parties are unable to agree upon
an arbitrator within seven (7) days of delivery of the Demand for Arbitration,
then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location
and Procedure
Unless you and TextMe and Devicescape otherwise agree, the arbitration will be
conducted in the county where you reside. If your claim does not exceed
$10,000, then the arbitration will be conducted solely on the basis of the
documents that you and TextMe and Devicescape submit to the arbitrator, unless
you request a hearing or the arbitrator determines that a hearing is necessary.
If your claim exceeds $10,000, your right to a hearing will
be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator
will have the discretion to direct a reasonable exchange of information by the
parties, consistent with the expedited nature of the arbitration.
ArbitratorÕs Decision
The arbitrator will render an award within the time frame specified in the AAA
Rules. The arbitratorÕs decision will include the essential findings and conclusions
upon which the arbitrator based the award. Judgment on the arbitration award
may be entered in any court having jurisdiction thereof. The arbitratorÕs award
of damages must be consistent with the of the ÒLimitation of LiabilityÓ section
above as to the types and amounts of damages for which a party may be held
liable. The arbitrator may award declaratory or injunctive relief only in favor
of the claimant and only to the extent necessary to provide relief warranted by
the claimantÕs individual claim.
Fees
Your responsibility to pay any AAA filing, administrative and arbitrator fees
will be solely as set forth in the AAA Rules. However, if your claim for
damages does not exceed $75,000, Devicescape will pay all such fees unless the
arbitrator finds that either the substance of your claim or the relief sought
in your Demand for Arbitration was frivolous or was brought for an improper
purpose (as measured by the standards set forth in Federal Rule of Civil
Procedure 11(b)).
Changes
Notwithstanding the provisions of the ÒChanges to Wi-Fi Terms or Wi-Fi ServicesÓ
section above, if TextMe and Devicescape change this ÒDispute ResolutionÓ
section after the date you first accepted these Wi-Fi Terms (or accepted any
subsequent changes to these Wi-Fi Terms), you may reject any such change by
sending us written notice (including by email to legal@devicescape.com within
30 days of the date such change became effective, as indicated in the ÒLast
UpdatedÓ date above or in the date of TextMe and DevicescapeÕs notice to you of
such change. By rejecting any change, you are agreeing that you will arbitrate
any Dispute between you and TextMe and Devicescape in accordance with the
provisions of this ÒDispute ResolutionÓ section as of the date you first
accepted these Wi-Fi Terms (or accepted any subsequent changes to these Wi-Fi
Terms).
GENERAL TERMS
These Wi-Fi Terms
constitute the entire and exclusive understanding and agreement between TextMe
and Devicescape and you regarding the Wi-Fi Services, and these Wi-Fi Terms
supersede and replace any and all prior oral or written understandings or
agreements between TextMe and Devicescape and you regarding the Wi-Fi Services.
If for any reason a court of competent jurisdiction finds any provision of
these Wi-Fi Terms invalid or unenforceable, that provision will be enforced to
the maximum extent permissible and the other provisions of these Wi-Fi Terms
will remain in full force and effect.
You may not assign or
transfer these Wi-Fi Terms, by operation of law or otherwise, without TextMeÕs
and DevicescapeÕs prior written consent. Any attempt by you to assign or
transfer these Wi-Fi Terms, without such consent, will be null and of no
effect. TextMe and Devicescape may freely assign or transfer these Wi-Fi Terms
without restriction. Subject to the foregoing, these Wi-Fi Terms will bind and
inure to the benefit of the parties, their successors, and permitted assigns.
Any notices or other communications provided by TextMe and Devicescape under
these Wi-Fi Terms, including those regarding modifications to these Wi-Fi, will
be given: (i) by posting to the Devicescape Site; or (ii) by a message sent by TextMe
and Devicescape to you via the TextMe Products and Services.
TextMeÕs and DevicescapeÕs failure to enforce any right
or provision of these Wi-Fi Terms will not be considered a waiver of those
rights. The waiver of any such right or provision will be effective only if in
writing and signed by a duly authorized representative of TextMe or Devicescape.
Except as expressly set forth in these Wi-Fi Terms, the exercise by either
party of any of its remedies under these Wi-Fi Terms will be without prejudice
to its other remedies under these Wi-Fi Terms or otherwise.
We can be contacted
concerning these Terms & Conditions by emailing us at contact@go-text.me.