TextMe, Inc. End User License Agreement (“EULA”) 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 “Products and Services”). For purposes of this Agreement, TextMe, Inc., its subsidiaries, affiliates (if any), and all product lines are interchangeably designated as “TextMe”, “We,” “Our” or “Us”.
If you are downloading one of Our apps, by clicking “AGREE TO” 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 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 email@example.com.
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 guardian’s 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.
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.
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 firstname.lastname@example.org.
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.
PAYMENTS AND ACCOUNTS
In order to use TextMe Products and Services, you will be required to provide data about yourself (thereafter “Account Data”), 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.
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 TextMe’s 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 partners’ designs, notices, logos or any other proprietary rights displayed or used in the context of TextMe’s 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 “TextMe Commercial Partners”) 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 “lifetime no ad” or “no ad” feature, TextMe’s right to advertise will lapse during your personal usage of the said TextMe product to which you have subscribed. You acknowledge that TextMe’s right to advertise will remain unchanged on any TextMe products without the “lifetime no ad” or “no ad” feature to which you have subscribed.
RIGHT TO DELIVER AND SEND COMMERCIAL MESSAGES
Commercial messages are messages sent to your TextMe telephone number, account or email addresses for commercial purposes for TextMe or TextMe Commercial Partners’ 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 TextMe’s 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 “AS IS” and “AS AVAILABLE” 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.
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 attorneys’ fees, arising out of your use of TextMe’s 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.
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.
TextMe’s 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
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:
Š 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
Š Comply with all applicable laws and regulations.
You will not use the TextMe Products and Services to do any of the following:
Š 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
Š Violates any third-party’s legal rights such as, but not limited to, copyrights, rights of privacy or rights of publicity;
Š Operate TextMe Products and Services under a false identity or by impersonating any person or third-party entity;
Š 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.
Š 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.
Š 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;
Š 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;
Š 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);
Š 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;
Š Generate, download, upload or transmit, whether by voice or text message, any kind of advertisement or solicitations of commercial activities;
Š 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 users’ usages of TextMe Products and Services. Examples of usages inconsistent with normal use include, but are not limited to:
Š Operation of a business, a marketing campaign, a non-profit organization or a governmental organization, a call center;
Š Resale or attempt to resell TextMe voice features to third parties;
Š 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.
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 (“PSAP”). 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.
TextMe acts as an intermediary that allows you to add prepaid credit to another person’s mobile telephone plan through their mobile telephone operator (thereafter “Top-up”). The person sending the prepaid credit is defined as “User”. The person who receives the prepaid credit to their mobile telephone plan is defined as “Recipient”. The prepaid credit amount and denomination of the Top-Up is defined as “Top-up Amount”.
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 “Recipient Information”). 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 Recipient’s telephone plan is in the hands of the mobile telephone operator. In some cases the Top-up is added to the Recipient’s 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 Recipient’s 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 “Promotion”) 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
If you have any questions about these Wi-Fi Terms or the Wi-Fi Services please contact Devicescape at email@example.com, +1 (650) 249-6565, Suite 125, 333 Bryant Street, San Francisco, California, 94107.
TextMe partners with Devicescape Software, Inc. (jointly, “our” or “we”). We make available a curated Wi-Fi hotspot-based service that we call the Curator Service (“Curator Service”). A high-level description of the Curator Service is provided under “Description of Curator Service” below and additional information regarding the Curator Service may be found at www.devicescape.com (the “Devicescape Site”). We also make available a Wi-Fi hotspot-related proximity marketing service that we call PopWiFi (“PopWiFi”). A high-level description of PopWiFi is provided under “Description of PopWiFi” below and additional information regarding PopWiFi may be found on our website located at www.popwifi.com (the “PopWiFi Site”).
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 (“Wi-Fi Terms”). To indicate that you agree to be bound by these Wi-Fi Terms, click on “Accept” or “I Agree” or on a similar prompt that is displayed. To indicate that you don’t agree to be bound by these Wi-Fi Terms, click on “Reject” or “Decline” 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 “Wi-Fi Services User”.
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, we’ll 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. It’s important that you review the modified Wi-Fi Terms because if you continue to use the Wi-Fi Services after we’ve 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 don’t 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.
When you access either the Curator Service for the first time the Curator Service will register your mobile device by collecting and storing on Devicescape’s server the mobile device’s 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 “UUID”) 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 “Curated Virtual Network”). 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 “Agreement to Terms” 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 “Account-free Wi-Fi Provider”), 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 Provider’s 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 Provider’s 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 “off-line”, e.g., by means of a physical sign or documentation that is posted in the Account-free Wi-Fi Provider’s 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 Provider’s hotspot network (such physical sign or documentation, the “Off-line Terms”). 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 Devicescape’s 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 “Account-based Wi-Fi Provider”). 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 Provider’s 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 Provider’s 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 Devicescape’s 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 Provider’s 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
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, “VoIP Phones”). 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 “Venue Owner”) to send communications in the form of electronic notifications, messages, or other such end user media to customers who access and use the Venue Owner’s 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 Owner’s Wi-Fi hotspot network.
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.
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.
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 “Settings” 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.
THE WI-FI SERVICES ARE PROVIDED “AS IS,” 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.
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.
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.
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, “Disputes”) 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 party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). 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 person’s 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 “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Wi-Fi Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” 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.
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 AAA’s 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.
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.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s 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 arbitrator’s award of damages must be consistent with the of the “Limitation of Liability” 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 claimant’s individual claim.
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)).
Notwithstanding the provisions of the “Changes to Wi-Fi Terms or Wi-Fi Services” section above, if TextMe and Devicescape change this “Dispute Resolution” 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 firstname.lastname@example.org within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of TextMe and Devicescape’s 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 “Dispute Resolution” section as of the date you first accepted these Wi-Fi Terms (or accepted any subsequent changes to these Wi-Fi 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 TextMe’s and Devicescape’s 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.
TextMe’s and Devicescape’s 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 email@example.com.