YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE "I AGREE" OR "I ACCEPT" BUTTON, OR ACCESSING OR USING THE WEBSITE OR SERVICE, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE GUESSSMS MEMBER TERMS, WHETHER OR NOT YOU HAVE REGISTERED TO USE THE WEBSITE OR SERVICE. IF YOU DO NOT AGREE TO THESE GUESSSMS MEMBER TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE WEBSITE OR SERVICE. If you accept or agree to these GuessSMS Member Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these GuessSMS Member Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
We reserve the right, in our sole discretion, to modify, discontinue or terminate the Website or Service or to modify these GuessSMS Member Terms, at any time and without prior notice. If we modify these GuessSMS Member Terms we will post the modification on the Website or provide you with notice of the modification. We will also update the "Last Updated Date" at the top of these GuessSMS Member Terms. By continuing to access or use the Website or Service after we have posted a modification on the Website or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified GuessSMS Member Terms. If the modified GuessSMS Member Terms are not acceptable to you, your only recourse is to cease using the Website and Service.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE WEBSITE AND SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE WEBSITE AND SERVICE. YOU UNDERSTAND THAT GUESSSMS DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE WEBSITE AND SERVICE, NOR DOES GUESSSMS MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE WEBSITE OR SERVICE. GUESSSMS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE WEBSITE OR SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE WEBSITE OR SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE WEBSITE OR SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE WEBSITE OR SERVICE, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
GuessSMS urges you to never use your mobile phone to access the Service or to otherwise send text 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 or a Mobile Basic Member, you should be aware that we will regularly be sending you text messages. As messaging and data charges may 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.
1.1 Membership Types; Registration Information:
We offer three types of memberships: Premium Memberships and two basic memberships, Web Basic Memberships and Mobile Basic Memberships. Each household can only establish and maintain one account at any given time. You must be a legal resident of the U.S. and have the mobile phone account holder's consent to subscribe. 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.
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. 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.
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.
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.
1.2 Premium Member:
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. The Service is not available on all carriers and requires a handset capable of sending and receiving text messages.
If we are unable to collect payment from you for your use of the Website and Service, we reserve the right to cancel and may cancel your Account, in our sole discretion. We also reserve the right to downgrade and may downgrade any Premium Membership to a Basic Membership in the event that we are unable to collect payment from you.
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 his/her Membership, we will not refund any fees that have already been paid in accordance with the Refund Policy outlined in Section 3.
1.3 Web Basic Membership Sign-Up:
1.4 Mobile Basic Member:
If you sign-up for a Web Basic Membership and you provide your mobile phone number on the Web Basic Membership sign-up page, you will have the option of opting-in to the Mobile Basic Membership by checking the box where you agree to receive weekly surveys via text message sent by GuessSMS. You may also become a Mobile Basic Member if you sign-up for a Premium Membership and we are no longer able to bill the Monthly Fee to your mobile phone account for three consecutive months. You may opt-out of your Mobile Basic membership at any time by texting "STOP" to 321321 or by contacting us as provided below. As Mobile Basic Member, you expressly consent to receive Surveys from us, via text message.
1.5 Text Messages and Other Communications:
By providing your mobile telephone number, you expressly consent to receive a sign-up text message from us. In most circumstances, the text message that you receive in connection with the sign-up process will contain a unique, four digit personal identification number which is used to set up your account. By subscribing for a Premium Membership or Mobile Basic Membership, you expressly agree to receive messages from Snak Media, LLC. Snak Media, LLC. and/or its Affiliates may deliver messages (e.g., SMS text messages) related to Services you have ordered to your mobile phone. These may include (without limitation) responses to messages you send to us (e.g., if you text STOP or HELP), delivery of content that you have requested (e.g., ringtones, daily jokes, etc.), or messages related to the status of your account with us (e.g., confirmation of your order, notification of up-coming renewals, etc.). Snak Media, LLC. may present advertisements and promotional materials on or through the Website and Services, but will not deliver marketing messages to your mobile phone without your prior express written consent. Your participation in any such promotional event is subject to any applicable Rules associated with that event as described on the Website. Other third party charges, such as from your Carrier, may apply when you participate in such an event. Please review your agreement with your Carrier or contact your Carrier for more details. Your correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through the Website or Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third-party. You agree that neither Snak Media, LLC. nor its Affiliates shall be responsible or liable, directly or indirectly, for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on the Website or Services. As a Premium Member, you may control the frequency with which you receive communications by changing your account preferences on the Website. By registering for a Mobile Basic Membership, or if your Membership is downgraded from a Premium Membership to a Mobile Basic Membership, you expressly consent to receive Surveys via text message. You can opt-out from receiving any further text messages by replying via text message with the word "STOP."
2.1 Service Description:
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 Mobile Basic Members; and (ii) via the Website for Web Basic Members and Mobile Basic Members. Premium Members and Mobile Basic Members may make predictions in response to any Survey that they receive by following the instructions in the applicable text message. When you sign up as a Premium or Mobile Basic member you will receive one survey per week, although you can change this frequency as detailed below; if you convert from Premium to Mobile Basic, we will continue sending surveys at whatever frequency you have then established. Mobile Basic Members and Web Basic Members can also make predictions on Surveys on the Website. When a Premium Member make a prediction on a Survey, weíll send them a text alert to let them know the aggregate predictions made by the rest of the Members who responded to the Survey and a subsequent text alert letting them know whether their prediction was correct ("Alerts", and together with the Surveys, the "Content"). Premium Members and Mobile Basic Members 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 responds 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 dayís 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 Memberís then-current Loyalty Point balance is definitive and final provided that we may make adjustments if there is an error. As each household can only establish and maintain one Account at any given time, we may terminate the Account of any Member who has established multiple Accounts and void any Loyalty Points earned by such person. We may also terminate the Account and void the Loyalty Points of any person who we reasonably believe is accumulating or attempting to accumulate Loyalty Points by using any means or device such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to respond to Surveys and/or appear like an individual or otherwise "game" the Loyalty Point System.
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 Memberís 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 Memberís 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 in accordance with Section 4.4 below.
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 GuessSMS 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. All Physical Rewards are non-returnable. GuessSMS will not replace any lost or stolen Physical Rewards. You are solely responsible for any and all federal, state, provincial and local taxes, if any, that apply to Physical Rewards.
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 or that such descriptions reflect the exact color or manufacturer model of the Rewards. 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. Any Rewards in the form of gift cards or gift certificates are not replaceable if lost, stolen, destroyed or expired, cannot be extended beyond any expiration date. Please also note that blackout dates may apply.
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.
Sprint users are not eligible for Loyalty Points, the Loyalty Points System, Rewards, the Rewards Catalog, Downloadable Rewards, Email Reward Codes, or Physical Rewards.
3.1 Termination - Premium Members:
A Premium Member may cancel his/her Premium Membership at any time by: (i) texting "STOP" to 321321; (ii) contacting us on the customer service section of the Website located at http://guesssms.com/support; (iii) calling our toll free number: 1-800-203-0370; or (iv) emailing us at email@example.com. There is no charge to cancel a Premium Membership. A cancelled Premium Membership will automatically be converted into a Web Basic Membership, unless the former Premium Member opts to convert to a Mobile Basic Membership instead. A Premium Member who has been converted to a Mobile Basic Membership may opt-out at any time by texting "STOP" to 258258 or by contacting us as stated above. Converting to a Web Basic Membership enables former Premium Members to access and redeem their accumulated Loyalty Points until they expire and to continue to respond to Surveys via the Website. Converting to a Mobile Basic Membership enables former Premium Members to access and redeem their accumulated Loyalty Points until they expire and to continue to respond to a reduced number of Surveys via text messaging. Upon conversion to a Web Basic Membership, Web Basic Members will no longer be able to access the Service by mobile phone. If your Premium Membership is cancelled (unless we cancel your Premium Membership for convenience as noted below), we will refund Monthly Fees that you, as a Premium Member, have paid prior to the cancellation date only in accordance with the Refund Policy, outlined below in Section 3. Notwithstanding the foregoing, Premium Members shall remain liable for any unpaid charges that we have previously billed to the Premium Member prior to the cancellation date, regardless of the reason for cancellation. We reserve the right to cancel any Premium Member's Membership at any time for convenience 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.
Refund Policy: If you purchase the Premium Membership and are not satisfied with the Service for any reason during the first 90 (ninety) days after commencement of the Service (“Refund Period”) or if you cancel your Premium Membership within the Refund Period, then you may receive a refund of the fees that you paid for the particular Premium Membership for one billing period only – i.e. one month’s fees. You will not receive a refund of any other fees paid for the Premium Membership. You may notify us to cancel the Premium Membership and request a refund: by telephone 800-203-0370 or by email at firstname.lastname@example.org. Emails should have the subject line “refund request” and include the mobile phone number of the account that is being charged with the Premium Membership Monthly Fees. Refunds will be issued via check and sent to a mailing address you designate upon requesting your refund. Cancellation and refund as set forth in this Section are your sole and exclusive remedies in the even that you are not satisfied with the Premium Membership. Once the Refund Period has ended, all fees (including those fees paid for the Refund Period) are non-refundable for any reason, including but not limited to technical issues or interruptions with the Service. 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 his/her 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 Web Basic Membership. After we receive notice of the transfer, we will not be able to contact the Premium Member via text message. The Premium Member may reinstate his/her Premium Membership without loss of voting history or Loyalty Points eligibility by upgrading their Web Basic Membership to a Premium Membership at the Website with his/her new carrier; provided, that enrolling as a Premium Member through any means other than the Website may result in a loss of that Premium Member's voting history and/or Loyalty Point balance.
Please note that, upon any expiration or termination of these GuessSMS Member Terms, GuessSMS has no obligation to provide the Website or Service, and all permissions and licenses granted to you hereunder will terminate. GuessSMS will have no obligation to make your Content available to or accessible by you upon termination or expiration of these GuessSMS Member Terms. Provisions of these GuessSMS Member Terms related to intellectual property ownership, indemnity and limitations of liability will survive any termination or expiration of these GuessSMS Member Terms.
3.2 Termination - Basic Members:
A Web Basic Member may cancel his/her Web Basic Membership at any time by: (i) clicking the "Cancel My Account" link on the applicable MyProfile page; or (ii) calling, toll free, 1-800-203-0370.
A Mobile Basic Member may opt-out of or cancel his/her Mobile Basic Membership at any time by: (a) texting "STOP" to 321321; (b) clicking the "Cancel My Account" link on the applicable MyProfile page; or (c) calling, toll free, 1-800-203-0370.
Where a Basic Member terminates his/her Basic Membership, his/her 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.
3.3 Termination For Cause; Disputes:
If you breach any of these GuessSMS Member Terms, GuessSMS will have the right to suspend or disable your Account or terminate these GuessSMS Member Terms, at its sole discretion and without prior notice to you. 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 Memberís sole recourse with respect to any dispute with us is to cancel their Membership.
3.4 Customer Service:
Members may obtain support at any time through the Website at www.guesssms.com/support or via email at email@example.com. Premium Members may also get support by calling toll free, 1-800-203-0370 or by texting "HELP" to 321321 at any time to receive summary information about their Accounts and instructions on how to access additional customer service.
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: firstname.lastname@example.org. GuessSMS will have the right to investigate and prosecute violations of any of these GuessSMS Member Terms to the fullest extent of the law. GuessSMS may involve and cooperate with law enforcement authorities in prosecuting users who violate these GuessSMS Member Terms.
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 Websiteís 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 worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Submissions and any quotations or comments for promotional purposes and in connection with publishing the statistics and scores of our Survey participants, should you qualify, all without further consideration or compensation.
You acknowledge and agree that you are solely responsible for all Submissions that you make available through the Website and Service. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Submissions that you make available through the Website and Service or you have all rights, licenses, consents and releases that are necessary to grant to GuessSMS and to the rights in such Submissions, as contemplated under these GuessSMS Member Terms; and (ii) neither the Submissions nor your posting, uploading, publication, submission or transmittal of the Submissions or GuessSMSís use of the Submissions (or any portion thereof) on, through or by means of the Website and Service will infringe, misappropriate or violate a third partyís patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation
4.3 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.
4.4 Content: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. Except as expressly permitted herein, you may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer, distribute, publicly perform, publicly display, transmit, stream, broadcast, transfer or otherwise exploit 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.
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. GuessSMS is not responsible or liable for the availability or accuracy of third party websites or resources or any content, products or resources available therefrom. Links to third party websites or resources do not imply endorsement by GuessSMS and you assume all risk arising from use of the same. 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, or for any dispute between you and other Members or other third parties.
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. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices in, on or with the Website, Service or Content. All trademarks, service marks, logos, trade names and any other proprietary designations of GuessSMS used herein are trademarks or registered trademarks of GuessSMS. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
5.2 Copyright Policy:
GuessSMS respects copyright law and expects its users to do the same. It is GuessSMS's policy to terminate in appropriate circumstances members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see GuessSMS's Copyright Policy at http://guesssms.com/index.cfm/docs/dspCopyright, for further information.
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, 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.
THE WEBSITE, SERVICE, SURVEYS, LOYALTY POINT SYSTEM, REWARDS, 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, SUBMISSIONS AND/OR CONTENT WILL MEET YOUR REQUIREMENTS; (ii) THE WEBSITE, SERVICE, SURVEYS, LOYALTY POINT SYSTEM, REWARDS, 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, SUBMISSIONS AND/OR CONTENT WILL BE ACCURATE, COMPLETE OR RELIABLE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE, SERVICE, SURVEYS, LOYALTY POINT SYSTEM, REWARDS, 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, 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, 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.
5.5 Limitation of Liability:
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE WEBSITE, SERVICE AND CONTENT REMAINS WITH YOU. NEITHER GUESSSMS NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE WEBSITE, SERVICE OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE WEBSITE, SERVICE OR CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE WEBSITE, SERVICE OR CONTENTOR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE WEBSITE, SERVICE OR CONTENT WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUESSSMS HAS 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. IN NO EVENT WILL GUESSSMSíS AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE WEBSITE, SERVICE OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO GUESSSMS FOR USE OF THE WEBSITE, SERVICE OR CONTENT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM GIVING RISE TO LIABILITY, IF YOU ARE HAVE MADE ANY PAYMENTS TO GUESSSMS, OR FIFITY DOLLARS ($50), IF YOU HAVE NOT MADE ANY PAYMENTS TO GUESSSMS, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GUESSSMS AND YOU. 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.
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 "GUESSSMS AFFILIATE"), SHALL BE LIABLE TO YOU FOR NON-PERFORMANCE OF OUR OBLIGATIONS HEREUNDER. YOU AGREE NOT TO SUE ANY GUESSSMS AFFILIATE FOR OUR NON-PERFORMANCE.
5.6 Dispute Resolution:
You and GuessSMS agree that any dispute, claim or controversy arising out of or relating to these GuessSMS Member Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Website, Service or Content (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right 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. You acknowledge and agree that you and GuessSMS 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 GuessSMS 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 GuessSMS Member Terms.
Arbitration Rules and Governing Law. 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.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and GuessSMS 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 documents you and GuessSMS 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.
Arbitrator's Decision. 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 damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the 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. If you prevail in arbitration you will be entitled to an award of attorneysí fees and expenses, to the extent provided under applicable law. GuessSMS will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, GuessSMS will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the "Modification" section above, if GuessSMS changes this "Dispute Resolution" section after the date you first accepted these GuessSMS Member Terms (or accepted any subsequent changes to these GuessSMS Member Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the "Last Updated Date" above or in the date of GuessSMS's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and GuessSMS in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these GuessSMS Member Terms (or accepted any subsequent changes to these GuessSMS Member Terms).
5.7 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. 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.
You may not assign or transfer these GuessSMS Member Terms, by operation of law or otherwise, without GuessSMS's prior written consent. Any attempt by you to assign or transfer these GuessSMS Member Terms, without such consent, will be null and of no effect. GuessSMS may assign or transfer these GuessSMS Member Terms, at its sole discretion, without restriction. Subject to the foregoing, these GuessSMS Member Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
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.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these GuessSMS Member Terms, will be in writing and given by GuessSMS: (i) via email (in each case to the address that you provide); or (ii) by posting to the Website or via the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.