Welcome to the Predicto Mobile™ website located at www.predicto.com
(the "Website"). The Website and PredictoMobile™ service (the
“Service”) are each owned and operated by PredictoMobile, LLC ("PredictoMobile™,"
"we" or "us"). By using and/or accessing the Website and/or
Service, you are agreeing to comply with, and be bound by, the following PredictoMobile™
Member Terms, as well as the PredictoMobile™ Privacy Policy, PredictoMobile™
Sweepstakes Rules and any other PredictoMobile™ operating rules policies,
price schedules and other supplemental terms and conditions or documents that
may be published from time to time, which are expressly incorporated herein
by reference (collectively, "Member Terms"). Please review the Member
Terms carefully. If you do not agree to the Member Terms in their entirety,
you are not authorized to use the Website or the Service.
We may amend the Member Terms from time to time without specific notice
to you. Your continued use of the Service or the Website constitutes your agreement
to any changes to the Member Terms in effect at that time. We will post the
latest Member Terms on the Website. Therefore, you should regularly check the
Website for any updates or changes.
Summary
The following summary is intended to present certain important aspects of your
relationship with PredictoMobile. For complete details, please review the remainder
of the Member Terms.
The Service is a subscription service that gives you access to surveys, news
alerts and other content. We offer a premium mobile subscription membership
(“Premium Membership”) for $9.99 a month billed to your mobile phone
bill or deducted from your prepaid account. Standard messaging charges may apply.
We reserve the right to not accept prepaid mobile phone accounts. You must be
a legal resident of the U.S. and have the mobile phone account holder's consent
to subscribe. The Service is not available to users under 13 years of age or
to Florida State residents under 18 years of age. If you are between the ages
of 13 and 18 years old, a parent must subscribe on your behalf. We also offer
a no-charge basic membership (“Basic Membership” and together with
the Premium Membership, “Membership”).
You can cancel your Membership at any time by texting “STOP” to
654654 or by calling 800-360-0518. You can get customer service by texting “HELP”
to 654654, by visiting www.predicto.com/support
or by emailing cs_support@PredictoMobile.com.
When you subscribe, we will establish an account for you. For Premium Members,
we’ll send survey questions and selected news updates via text message
to their mobile phones. Basic Members can vote on surveys online. You can control
how often we contact you, and certain other aspects of the Service, through
text message commands or on the control panel located at the Website. When you
vote or respond to a survey, you will be automatically entered into the then-current
drawing or sweepstakes; no-cost alternative means of entry are available. We
also award loyalty points when you respond or vote on a survey. You may redeem
loyalty points for downloadable rewards such as ringtones, email rewards
codes or physical rewards.
Mobile Phone Safety; Messaging Charges; International
PredictoMobile urges you to never use your mobile phone to access the Service
or to otherwise send text message messages while operating a car or other motorized
vehicle or in any other situation where accessing the Service and/or sending
text messages is unsafe and you expressly agree, as a condition of your subscription
to the Service, that you will not do so. YOU EXPRESSLY UNDERSTAND AND AGREE
THAT WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INJURY, DIRECT
OR INDIRECT DAMAGES OR ANY OTHER LOSS THAT YOU MAY SUFFER OR INCUR AS A RESULT
OF USING THE SERVICE WHILE OPERATING A CAR OR OTHER MOTORIZED VEHICLE OR IN
ANY OTHER SITUATION WHERE ACCESSING THE SERVICE IS UNSAFE TO YOU OR ANY THIRD
PARTY.
If you are a Premium Member, you should be aware that we will regularly be
sending you text messages. As standard messaging charges apply to these text
messages, you may wish to consider a plan that provides unlimited text messaging
for a fixed monthly fee to avoid per message charges.
If you travel internationally, you should also be aware that some wireless
carriers impose extra charges for text messages received when you are outside
of the country even if you are on a text messaging plan that provides unlimited
text messaging domestically for a fixed monthly fee. Please check with your
wireless carrier if you plan to travel internationally.
Terms of Service
1. REGISTRATION
1.1 Membership Types; Registration Information: We offer two
types of memberships: Basic Memberships and Premium Memberships. You must be
a legal resident of the U.S. and have the mobile phone account holder's consent
to subscribe. The Service is not available to users under 13 years of age or
to Florida State residents under18 years of age. If you are between the ages
of 13 and 18 years old, a parent must subscribe on your behalf.
To apply for Membership, you must provide us with certain required information;
we also ask for other information that is optional ("Registration Information").
We collect some of the Registration Information via your mobile phone when you
sign-up for a Premium Membership and other Registration Information on the Website
for both Membership types. You agree to provide true and accurate Registration
Information, and to update that Registration Information as it changes. If we
determine that your Registration Information is untrue, inaccurate, not current
or incomplete, then we may suspend or terminate your Membership.
1.2 Premium Membership Sign-Up: To apply for a Premium Membership,
you must enter your mobile phone number and hit the submit button on the Premium
Membership sign-up page. Currently, you can also initiate sign-up via a WAP
page (a browser page on your mobile phone), in response to an IVR (integrated
voice response) or in response to television or print ads; we may use or develop
other means of initiating sign-ups for the Service.
For sign-ups initiated on the Premium Membership sign-up page or WAP page,
if your application is approved, we will send a confirmation PIN Number to the
mobile phone number that you provided with your application. By entering the
confirmation PIN Number on the PIN submit page on the Website, by replying “YES”
via text message to the confirmation text message that we sent to your mobile
phone or by completing all steps of the IVR or any other sign-up procedure that
we may use, you acknowledge and agree that: (i) you will be enrolled in a subscription-based
premium service at $9.99 per month (“Monthly Fee”) that will be
billed to your mobile phone account or deducted from your prepaid account; (ii)
the Monthly Fee will appear on your monthly mobile phone bill as “PredictoMobile”
(this may vary depending on your mobile phone carrier, however, please be advised
that PredictoMobile™ and your mobile phone carrier are not affiliated);
and (iii) you have read, understood and agree to the Member Terms in their entirety.
You are responsible for paying any sales, use or other taxes related to the
Service. We obtain authorization to provide and bill for the Premium Membership
by your electronic signature. Once you confirm your application for a Premium
Membership by entering the PIN number or by replying to the confirmation text
message, this electronic order constitutes an electronic letter of agency authorized
by your electronic signature in accordance with the Member Terms. We are relying
on your electronic signature on the registration page pursuant to the Uniform
Electronic Transactions Act and the Electronic Signatures in Global and National
Commerce Act. Both of these laws specifically preempt state laws that recognize
only paper records or handwritten signatures.
We reserve the right to change our pricing and/or billing practices at any
time. We will submit all increases in prices and material changes in our billing
practices to Premium Members for review prior to their taking effect. Each Premium
Member will have 10 days to cancel their Premium Membership where he/she does
not consent to any material change in our billing practices or pricing increase.
While you are a Premium Member, you will be billed and will be responsible for
paying, all applicable charges. Failure to use your Premium Membership does
not constitute a basis for refusing to pay any of the Monthly Fee. If a Premium
Member cancels their Membership, we will not refund any fees that have already
been paid.
1.3 Basic Membership Sign-Up: To apply for a Basic Membership,
you must submit your email address and a security code and hit the submit button
on the Basic Membership sign-up page. If your application is approved, we will
email you a unique confirmation link or URL. By activating the confirmation
link or visiting the URL, you acknowledge and agree that: (i) you will be enrolled
in a free, ad-supported, Internet-based Service without mobile access privileges;
(ii) we may integrate advertising messages in with the presentation of the Website
to you; (iii) you will receive delivery of email-based advertising content as
an integral part of your Basic Membership; and (iv) you have read, understood
and agree to the Member Terms in their entirety.
1.4 Minors: If you are a parent permitting a minor to use
the Website and/or Service, you agree to: (i) exercise supervision over the
minor's use of Website and/or Service; (ii) assume all risks associated with
the minor’s use of content received through the Website and/or Service,
as well as the minor’s transmission of materials, content or other information
to another person via the Internet; (iii) assume liabilities resulting from
the minor’s use of Service, including payment obligations associated with
their Premium Membership; and (iv) ensure, to the fullest extent possible, the
accuracy and truthfulness of all Registration Information submitted by the minor.
1.5 Your Account: Upon our approval of your Membership application,
we will establish an account for you (“Account”) to keep track of
your voting history and your Loyalty Points (defined below). Members will be
granted access to the Website by means of a user ID (“User ID”)
and password or their PIN (collectively, “Password”). You are responsible
for maintaining the confidentiality of your User ID, Password and Account. You
agree that you will not authorize and/or permit others to use your Account and
we will not be responsible for any unauthorized use of your Account. Although
we have no obligations arising from unauthorized use of your Account, you should
immediately notify us through our customer service contact information if there’s
any unauthorized use of your User ID, Password or Account.
2. SERVICE
2.1 Service Description: PredictoMobile™ provides surveys,
news alerts and other content. When you become a Member, we will post survey
questions (each, a "Survey") related to current events and other topics
to: (i) your mobile phone via text message for Premium Members; and (ii) via
the Website for Basic and Premium Members. Premium Members may vote on any Survey
that they receive by following the instructions in the applicable text message.
Premium and Basic Members can also vote or respond to Surveys on the Website.
Premium Members will receive selected news updates associated with topics that
the Premium Members have previously voted on or otherwise expressed an interest
in ("Updates", and together with the Surveys, the “Content").
Each Premium Member can control how often we communicate with him/her, and certain
other aspects of the Service, through text message commands and/or the control
panel located at the Website.
You understand and agree that we assume no responsibility for the timeliness,
deletion, mis-delivery, non-delivery or failure to store any Content.
2.2 Loyalty Points; Loyalty Point System: When a Member votes
on a Survey, we will grant loyalty points ("Loyalty Points"), which
may be redeemed for rewards ("Rewards") selected by the
Member from a catalog made available on the Website ("Rewards Catalog").
In addition, we may award Members Loyalty Points and/or specific Rewards,
from time to time, for taking specific actions such as referring a friend. Please
check the Website for special promotions and the “Frequently Asked Questions”
for other circumstances where we may award Loyalty Points. The award of Rewards
and Loyalty Points, the process of redeeming Loyalty Points for specific Rewards
and the delivery of those Rewards to Members, comprises the "Loyalty
Points System." Loyalty Points are not redeemable for cash and have no
cash value.
We may terminate the Loyalty Points System at any time: (i) for Premium Members,
upon thirty day’s advance notice via text message to the mobile phone
number that the Premium Member provided during registration; and (ii) for Basic
Members, by posting a notice on the "Rewards Catalog" page of
the Website thirty days prior to termination. Loyalty Points expire 550 days
(approximately 18 months) after the last date on which you receive a Loyalty
Point. After expiration, expired Reward Point balances will be deducted
from your Account and will not be available for redemption for Rewards.
Members’ Loyalty Point balances will be displayed on the "MyProfile"
page of the Website, as well as on the Rewards Catalog page when a Member is
logged into their Account. Our accounting of a Member’s then-current Loyalty
Point balance is definitive and final provided that we may make adjustments
if there is an error.
Rewards featured in the Rewards Catalog, or in any advertisement or marketing
material ("Advertisement"), are subject to availability and we may
change or remove a Reward at any time without notice and may also change
the number of Loyalty Points required to redeem a particular Reward. We
reserve the right to substitute out-of-stock, discontinued or otherwise unavailable
Rewards with articles of equal or greater value.
When a Member redeems a Reward, we will deduct the corresponding number
of Loyalty Points from that Member’s Account. If a Member redeems a Reward
for which they have a Reward-specific Loyalty Point, any applicable Reward-specific
Loyalty Point will be used first (i.e., where the Member has 3 Loyalty Points
and 2 ringtone Loyalty Points, and that Member elects to obtain 2 ringtones,
the 2 ringtone Loyalty Points will be redeemed first). Rewards may be:
(a) downloadable directly to the Member’s mobile phone ("Downloadable
Rewards"); (b) in the form of codes sent to the Member’s email
account ("Email Reward Codes"); or (c) physical goods ("Physical
Rewards").
Downloadable Rewards: Not all carriers or mobile phone models support
our Downloadable Rewards. We will use our reasonable efforts to let you
know whether your mobile phone can receive Downloadable Rewards. If you
elect to receive a Downloadable Reward and it does not load on your mobile
phone, please contact Customer Service.
Email Reward Codes: Members should ensure the accuracy of their email addresses
on file at all times, as misdirected Email Reward Codes will not be replaced.
Members are responsible for ensuring that they are able to receive email from
PredictoMobile at the email address provided by the Member on the MyProfile
page. We assume no responsibility for properly directed email containing Email
Reward Codes that are not received by Members due to email filtering or
restriction by a Member’s Internet Service Provider, email provider, email
software, spam filter software or other software, hardware or service outside
of our control.
Physical Rewards: We will pay all shipping and handling fees associated
with Physical Rewards. You will be asked to provide a shipping address
when you redeem Loyalty Points for a Physical Reward.
The Rewards featured in the Catalog, the Advertisements, the Website and
otherwise: (a) are provided by the applicable Reward manufacturer, distributor
or retailer ("Reward Manufacturer"); and (b) contain descriptions
that are provided directly by such Reward Manufacturer. As a result, we
have no control over: (i) the quality, safety or legality of the Rewards;
and/or (ii) the truth or accuracy of the Reward listings. We do not represent
or warrant that the descriptions of the Rewards are accurate or complete.
Warranty claims, requests for technical or customer support, and returns for
malfunction or damage to Rewards should be communicated to the applicable
Reward Manufacturer and not to us.
Trademarks associated with any of the Rewards are the intellectual property
of their respective owners, and mention or display of the trademarks does not
indicate endorsement, sponsorship or affiliation by the trademark owners of
or with us or any of our promotions.
3. SWEEPSTAKES: We may offer sweepstakes from time to time
including, currently, monthly sweepstakes, an annual grand prize sweepstakes
and periodic “Fast Prize” sweepstakes (“Sweepstakes”).
All Sweepstakes are offered in our exclusive discretion. With each vote on a
Survey, Basic and Premium Members will be automatically entered into each then-current
Sweepstakes. Both Basic and Premium Members are eligible to participate in all
Sweepstakes at no cost through the write-in mechanism described in the applicable
Sweepstakes Rules. A Members’ participation in a Sweepstakes is governed
by the applicable Sweepstakes Rules published on the Website. Please refer to
the applicable Sweepstakes Rules for eligibility, how to enter, no cost alternative
means of entry and other terms and conditions.
4. TERMINATION/CANCELLATION; CUSTOMER SERVICE:
4.1 Termination - Premium Members: A Premium Member may cancel
their Premium Membership at any time by: (i) texting "STOP" to 654654;
(ii) contacting us on the customer service section of the Website located at
http://predicto.com/support; (iii)
calling our toll free number: 800-360-0518; or (iv) emailing us at cs_support@PredictoMobile.com.
There is no charge to terminate a Premium Membership. A terminated Premium Membership
will automatically be converted into a Basic Membership enabling former Premium
Members to access and redeem their accumulated Loyalty Points until they expire.
Upon conversion, the Member will no longer be able to access the Service by
mobile phone. We will not refund Monthly Fees paid prior to the termination
date and the Premium Member shall remain liable for any unpaid charges previously
billed to the Premium Member’s mobile phone bill.
We reserve the right to cancel any Premium Member’s Membership at any
time by refunding any pre-paid Monthly Fees for the then-current month or by
not renewing a Premium Membership after the then-current billing period.
If at any time any Premium Member fails to or refuses to pay for the Service,
or seeks or obtains a refund for Service previously rendered, then we have the
right to terminate the Premium Member’s Account without prejudice to our
other rights.
Any requests for refunds of Monthly Fees paid by a Premium Member must be submitted
to us and shall be granted in our sole discretion. If any Premium Member obtains
a refund for the Service from both their mobile phone carrier and from us for
the same period of Service, then the Premium Member agrees to reimburse us for
the duplicate refund by repaying to us the amount of any refund that the Premium
Member obtained from us that is in addition to a refund that the Premium Member
obtained from their mobile phone carrier.
Where a Premium Member transfers their mobile phone number to a different carrier,
we are required by carrier regulations to cancel the Member’s Premium
Membership which will then be converted to a Basic Membership. After we receive
notice of the transfer, we will not be able to contact the Premium Member via
text message. The Member may reinstate their Premium Membership without loss
of voting history, Loyalty Points or Sweepstakes eligibility by upgrading their
Basic Membership to a Premium Membership at the Website; provided, that enrolling
as a Premium Member through any means other than the Website may result in a
loss of that Member’s voting history and/or Loyalty Point balance.
4.2 Termination – Basic Members: A Basic Member may
cancel their Basic Membership at any time by: (i) clicking the "Cancel
My Account" link on the applicable MyProfile page; or (ii) calling, toll
free, 1-800-360-0518. Where a Basic Member terminates their Basic Membership,
their Loyalty Points will expire immediately, he/she will no longer be able
to log on to the Website and the license to use the Service and Website will
immediately terminate.
4.3 Termination For Cause; Disputes: If we believe that any
Member is violating the Member Terms, we may terminate the Member’s Account
without notice and without further obligation to the Member. In that event,
the Member’s Loyalty Points will expire immediately, such Member will
no longer be able to log on to the Website and the license to use the Service
and Website shall immediately terminate.
Each Member’s sole recourse with respect to any dispute with us is to
cancel their Membership except that with respect to any Sweepstakes issue, the
applicable Sweepstakes rules shall prevail.
4.4 Customer Service: Members may obtain support at any time
through the Website at www.predicto.com/support
or via email at cs_support@PredictoMobile.com. Premium Members may also get
support by calling toll free, 1-800-360-0518 or by texting "HELP"
to 654654 at any time to receive summary information about their Accounts and
instructions on how to access additional customer service.
5. ACCEPTABLE USE
5.1 Use: You agree not to interfere, permit the use of your
Membership or Account by another to interfere, with the normal processes or
use of the Service by other Members, including by attempting to log in to the
accounts of other Members, attempting to access administrative areas of the
Website, attempting to systematically extract Content from the Service beyond
patterns consistent with personal use or by submitting text commands or Internet-based
requests in such a volume that is likely to overwhelm our servers or interfere
with the ordinary operation of the Service. You agree to report any violation
of the Member Terms by others that you become aware of by contacting us at:
abuse@Predicto.com.
5.2 Submissions: If you submit any quotations, photographs,
comments or other material or content to the Service, either through the Website
or via text messages (collectively, "Submissions"), you agree not
to: (i) submit libelous or defamatory Submissions; (ii) submit any Submissions
that violate any local, state or federal law; (iii) display any telephone numbers,
street addresses, last names, URLs, email addresses or any confidential information
of any third party; (iv) submit any audio files, text, photographs, videos or
other images containing confidential information or material that may be deemed
indecent or obscene in your community, as defined under applicable law; (v)
impersonate, “stalk” or harass any person or entity; (vi) transmit
any chain letters, spam, junk text or email; (vii) express or imply that any
statements that you make are endorsed by us, without our specific prior written
consent; (viii) harvest or collect personal information of visitors to the Website
or other Members whether or not for commercial purposes, without their express
consent; (ix) use any robot, spider, site search/retrieval application, or other
manual or automatic device or process to retrieve, index, "data mine"
or in any way reproduce or circumvent the navigational structure or presentation
of the Website or its contents; (x) post, distribute or reproduce in any way
any copyrighted material, trademarks or other proprietary information without
obtaining the prior consent of the owner of such proprietary rights; (xi) interfere
with or disrupt any of the Website’s functions, the Service and/or the
servers or networks connected to the Website; (xii) post, offer for download,
text, email or otherwise transmit any material that contains software viruses
or any other computer code, files or content designed to interrupt, destroy
or limit the functionality of any computer software or hardware or telecommunications
equipment or that is illegal or that violates the rights of a third party including,
but not limited to, spyware, adware, content designed to send unsolicited advertisements
(i.e. "spamware"), services that send unsolicited advertisements,
content designed to initiate "denial of service" attacks, mail bomb
content and content designed to gain unauthorized access to networks on the
Internet; and/or (xiii) modify, adapt, sublicense, translate, sell, reverse
engineer, decipher, decompile or otherwise disassemble any portion of the Website
or any software used on or for the Website.
By submitting any photograph(s) to us, you represent and warrant that: (a)
you have the exclusive copyright to the photograph(s); (b) you have the consent
of all individuals depicted in the photograph(s) (by parent or guardian in the
case of a minor) for use by us; and (c) we may use the photograph, in its original
or any edited, revised or retouched form, in any and all media, without further
compensation to you. You hereby grant us a perpetual, global and irrevocable
right to use any Submissions, Registration Information and any quotations or
comments for promotional purposes and in connection with publishing the statistics
and scores of our Survey participants as well as the winners of any applicable
Sweepstakes, should you qualify, all without further consideration or compensation.
5.3 U.S. Compliant: The Website is hosted in the United States
of America (“U.S.”), is intended to be compliant only with U.S.
laws and regulations, and is intended for use only in the U.S. You agree that
you will not access the Website or use the Service outside the U.S.
5.4 Necessary Equipment and Services: Use of certain aspects
of the Service requires a mobile phone capable of sending and receiving text
messages, and a mobile phone service plan that permits receiving premium text
messages for which a charge appears on your mobile phone bill. The Service is
not available on certain mobile phone service provider platforms. Use of other
aspects of the Service requires access to the Internet and the Website through
which your Service is configured, customized and controlled.
5.5 Content: We are not responsible in any manner for, and
do not guarantee the suitability, availability or non-infringement of, any Content
or Submissions by other Members, or links to other content or services that
may be distributed as Content or otherwise on or through the Website. The Content
contains information and material provided by our third party partners and the
Submissions contain material provided by other Members. We undertake no responsibility
to monitor or otherwise police the Submissions or Content. You agree that we
shall have no obligations and incur no liabilities to any party in connection
with any material appearing within the Submissions, Content, Surveys and/or
Updates. We do not represent or warrant that the Content and/or Submissions
posted on the Website and/or sent to you via text message, as applicable, is/are
accurate, complete or appropriate. You understand and agree that we are not
responsible or liable in any manner whatsoever for your inability to use the
Service and/or Surveys, Updates and/or Sweepstakes, or for any dispute between
you and other Members or other third parties.
6. GENERAL PROVISIONS
6.1 License Grant: As a visitor to the Website, you are granted
a non-exclusive, non-transferable, revocable and limited license to access and
use the Website (and its associated Content), and as a Member, the Service and
the Content in accordance with the Member Terms. We may terminate this license
at any time for any reason, whatsoever. You may use the Website, Service and/or
Content for your own personal, non-commercial use. No part of the Website, Service
and/or Content may be reproduced in any form or incorporated into any information
retrieval system, electronic or mechanical. You may not use, copy, emulate,
clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or
transfer the Website, Service, Content or any portion thereof. You may not use
any automated means or form of scraping or data extraction to access, query
or otherwise collect information from the Website, Service, Content except as
expressly permitted by us. We reserve any rights not explicitly granted in the
Member Terms. You may not use any device, software or routine to interfere or
attempt to interfere with the proper working of the Website, Service and/or
Content. You may not take any action that imposes an unreasonable or disproportionately
large load on our infrastructure. As a Website visitor, your license is provided
solely for access to the Website in order to obtain information about the Service
and/or Content and to register for a Membership. Website visitors are not authorized
to access any content and/or data available to Members.
6.2 Proprietary Rights: The content, organization, graphics,
design, compilation, magnetic translation, digital conversion, software and
other matters related to the Website, Service and/or Content are protected under
applicable copyrights, trademarks and other proprietary (including, without
limitation, intellectual property) rights. The copying, redistribution and/or
publication by you of any part of the Website, Service and/or Content is strictly
prohibited. You do not acquire ownership rights to any content, document, software,
services and/or other materials downloaded, previewed and/or viewed at or through
the Website, Service and/or Content. Our posting of information and/or material
at the Website, Service and/or Content does not constitute a waiver of any right
in such information and/or materials.
6.3 Privacy Policy: The Member Terms incorporates by reference
the terms and conditions of our Privacy Policy to which the use of the Website,
Service and/or Content is subject. We reserve the right, and you authorize us,
to use and assign all information regarding your use of the Website, Service
and/or Content and any and all other personal information provided by you in
any manner consistent with our Privacy Policy. To view our Privacy Policy, click
here.
6.4 Indemnification: You agree to indemnify and hold us, our
parents, subsidiaries and affiliates, and each of their respective members,
officers, directors, employees, agents and/or other partners, harmless from
and against any and all claims, expenses (including reasonable attorneys' fees,
costs and settlement costs), damages, suits, costs, demands and/or judgments
whatsoever, made by any third party due to or arising out of: (i) your use of
the Website, Service, Sweepstakes, Submissions or Content; (ii) your breach
of the Member Terms; (iii) your violation of any rights including, but not limited
to, intellectual property rights, of another Member, individual and/or entity;
(iv) your violation of the CAN-SPAM Act of 2003, as well as any state and/or
federal laws, rules or regulations prohibiting transmission of unsolicited email;
and/or (v) any deceptive, threatening, libelous, obscene, harassing or offensive
material contained in any of your email communications or other Submissions.
6.5 Disclaimer: THE WEBSITE, SERVICE, SURVEYS, LOYALTY POINT
SYSTEM, REWARDS, SWEEPSTAKES, SUBMISSIONS AND CONTENT ARE PROVIDED TO YOU ON
AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES,
EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT
TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES
OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS
FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING
OR COURSE OF PERFORMANCE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, WE
MAKE NO WARRANTY THAT: (i) THE WEBSITE, SERVICE, SURVEYS, LOYALTY POINT SYSTEM,
REWARDS, SWEEPSTAKES, SUBMISSIONS AND/OR CONTENT WILL MEET YOUR REQUIREMENTS;
(ii) THE WEBSITE, SERVICE, SURVEYS, LOYALTY POINT SYSTEM, REWARDS, SWEEPSTAKES,
SUBMISSIONS AND/OR CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE;
OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE, SERVICE,
SURVEYS, LOYALTY POINT SYSTEM, REWARDS, SWEEPSTAKES, SUBMISSIONS AND/OR CONTENT
WILL BE ACCURATE OR RELIABLE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED
THROUGH THE USE OF THE WEBSITE, SERVICE, SURVEYS, LOYALTY POINT SYSTEM, REWARDS,
SWEEPSTAKES, SUBMISSIONS AND/OR CONTENT IS DONE AT YOUR OWN DISCRETION AND RISK
AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR
LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. WE ASSUME
NO RESPONSIBILITY FOR THE DELETION OF, OR FAILURE TO STORE, EMAIL MESSAGES AND
ANY OTHER PERSONALIZATION SETTINGS IN RELATION TO THE WEBSITE, SERVICE, SURVEYS,
LOYALTY POINT SYSTEM, REWARDS, SWEEPSTAKES, SUBMISSIONS AND/OR CONTENT. NO ADVICE
OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US, OR THROUGH
OR FROM THE WEBSITE, SERVICE, SURVEYS, LOYALTY POINT SYSTEM, REWARDS, SWEEPSTAKES,
SUBMISSIONS AND/OR CONTENT, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN
THE MEMBER TERMS. THE WEBSITE, SERVICE AND/OR CONTENT MAY CONTAIN BUGS, ERRORS,
PROBLEMS OR OTHER LIMITATIONS. WE WILL NOT BE LIABLE FOR THE AVAILABILITY OF
THE UNDERLYING TELECOMMUNICATIONS SERVICE.
6.6 Limitation of Liability: YOU EXPRESSLY UNDERSTAND AND
AGREE THAT WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING,
BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER
INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, TO THE FULLEST EXTENT PERMISSIBLE
BY LAW. YOUR SOLE REMEDY UNDER THE MEMBER TERMS IS THE CANCELLATION OF YOUR
MEMBERSHIP. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATION, OUR MAXIMUM LIABILITY
TO YOU UNDER ANY AND ALL CIRCUMSTANCES WILL BE EQUAL TO THE AMOUNTS YOU PAID,
IF ANY, FOR THE SERVICE AND CONTENT IN THE SINGLE MONTH PRIOR TO THE DATE THAT
THE CAUSE OF ACTION AROSE. YOU HEREBY RELEASE US FROM ANY AND ALL OBLIGATIONS,
LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS SET FORTH IN THIS SECTION
6.6. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE
BASIS OF THE BARGAIN BETWEEN YOU AND US AND YOU ACKNOWLDGE THAT THE WEBSITE,
THE SERVICE AND/OR THE CONTENT WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NO OTHER COMPANY WITH WHICH WE HAVE
AN AFFILIATE OR PARTNERING RELATIONSHIP INCLUDING, BUT NOT LIMITED TO, CO-BRANDING,
CO-MARKETING, JOINT DEVELOPMENT, MERCHANT RELATIONSHIP, OR SUPPLIER RELATIONSHIP
(EACH A "PREDICTOMOBILE™ AFFILIATE"), SHALL BE LIABLE TO YOU
FOR NON-PERFORMANCE OF OUR OBLIGATIONS HEREUNDER. YOU AGREE NOT TO SUE ANY PREDICTOMOBILE™
AFFILIATE FOR OUR NON-PERFORMANCE.
6.7 Disputes: The Website and Service are hosted in the U.S
Any dispute hereunder shall be governed by the laws of the State of New York,
without regard to conflict of law provisions. Should a dispute arise concerning
the terms and conditions of the Member Terms or the breach of same by any party
hereto, the parties agree to submit their dispute for resolution by arbitration
before the American Arbitration Association in New York City, in accordance
with the then current Commercial Arbitration Rules of the American Arbitration
Association. Any award rendered shall be final and conclusive to the parties
and a judgment thereon may be entered in any court of competent jurisdiction.
Nothing herein shall be construed to preclude any party from seeking injunctive
relief in order to protect its rights pending an outcome in arbitration. To
the extent permitted by law, you agree that you will not bring, join or participate
in any class action lawsuit as to any claim, dispute or controversy that you
may have against PredictoMobile™ and its employees, officers, directors,
members, representatives and assigns. You agree to the entry of injunctive relief
to stop such a lawsuit or to remove you as a participant in the suit. You agree
to pay the attorney's fees and court costs that PredictoMobile™ incurs
in seeking such relief. The Member Terms do not constitute a waiver of any of
your rights and remedies to pursue a claim individually and not as a class action
in binding arbitration as provided above. This provision preventing you from
bringing, joining or participating in class action lawsuits is an independent
agreement.
6.8 General Provisions: The Member Terms constitutes the entire
agreement between the parties regarding the use of the Service and the Website
and supersedes all prior or contemporaneous communications between the user
and us with respect to the Website and the Service. Notwithstanding the foregoing,
to the extent there is a conflict between the applicable Sweepstakes rules and
other provisions of the Member Terms, the applicable Sweepstakes rules shall
govern as to the terms associated with the Sweepstakes. Our failure to exercise
or enforce any right or provision of the Member Terms shall not operate as a
waiver of such right or provision. The section titles in the Member Terms are
for convenience only and have no legal or contractual effect. If any provision
of the Member Terms is deemed unlawful, void or unenforceable, the remaining
provisions of the Member Terms will remain in full force and effect. Any aspect
of the Service is void where prohibited by law. Any obligation of the parties
relating to limitations on liability and indemnification shall survive termination
or expiration of the Member Terms. Each party acknowledges and agrees that it
has had the opportunity to seek the advice of independent legal counsel and
has read and understood all of the terms and conditions of the Member Terms.
The Member Terms shall not be construed against either party by reason of their
drafting.
A printed version of the Member Terms and of any notice given in electronic
form shall be admissible in judicial or administrative proceedings based upon
or relating to the Member Terms to the same extent and subject to the same conditions
as other business documents and records originally generated and maintained
in printed form.
Questions: Please contact us at: cs_support@PredictoMobile.com
with any questions regarding the Member Terms.
