Last updated on October 10, 2013.
THESE TERMS OF SERVICE INCLUDE: (I) A WAIVER OF CLAIMS BY YOU AGAINST ANY ENTITY OTHER THAN SENDME (SECTION 19); (II) YOUR CONSENT THAT ANY DISPUTE WILL ONLY BE RESOLVED THROUGH BINDING ARBITRATION (SECTION 21); AND (III) YOUR CONSENT THAT NO CLASS ACTIONS MAY BE BROUGHT (SECTION 21).
1. WEBSITE AND SERVICES Welcome to WT411, provided by SendMe, Inc. ("SendMe" or "we"). By registering for, visiting or using any aspect of the Website (defined below) or registering, accessing or using the Services (defined below), you are agreeing to be bound by the following terms and conditions (the "Terms of Service"). "Website" means any websites owned and operated by SendMe, including the websites located at www.sendmemobile.com, www.sendme.com, and www.wt411.com, as well as any co-branded versions of those websites, but does not include any other web site linked to or from any of the foregoing. "Service" means any or all of the mobile content delivery services provided by SendMe which allows you to use your compatible mobile telephone or other device which you own or have control over, or for which you have permission to use and to incur charges for (the "Device") to download a variety of mobile entertainment content and to interact with SendMe or other users, via the Internet, SMS, MMS, WAP and other means of mobile content delivery. The term "Content" means (i) all content posted, transmitted, accessible or available for download or otherwise through the Website or Service, including, without limitation, in the form of software, content, design, text, images, photographs, illustrations, audio and video material, artwork, graphic material, or otherwise, such as ringtones, wallpapers, games, graphics, horoscopes, data, news, and other information, and (ii) any of the foregoing which you post, transmit or send on or through the Website or any Service (referred to as "User Provided Content"). On certain Services you may accrue or earn points ("Points"), which may be redeemed for Content or other items on the Website as described in these Terms of Service and in the Rules (as defined below) for such Service.
2. PERMITTED USERS The Website and Service are not directed to children under the age of 13. You must be at least 13 years of age to sign up for or use the Website or the Service and each user who signs up or uses the Website or any Service represents to SendMe that he/she is at least 13 years of age. If you are older than 13 but not yet the age of majority in your state, province or territory of residence, you agree that you have received parental permission to provide personal information to SendMe and to order any products or services through the Website and/or Service. Access to and use of the Website and Service is limited to users in the United States and Canada (except Quebec). Nevertheless, since use of the Internet and mobile devices is global in nature, it may be possible to access and/or use the Website and/or the Service outside of the United States and Canada. In the event of such access and/or use, you agree to comply with all local rules regarding online conduct and transmission of information, including, without limitation, all applicable laws regarding the transmission of technical data exported from the United States or any other jurisdiction. We make no representation that the Website, the Service and/or the Content are lawful in any jurisdiction outside the United States and Canada. Additional eligibility restrictions may apply as detailed in the Rules for a given Service. Please review the applicable Rules for any such Service to ensure you are eligible to participate.
4. USE OF WEBSITE AND SERVICE AND LOYALTY PROGRAM RULES To use the Service, you must have a mobile communications subscription with a participating carrier (a "Carrier") for your Device or otherwise have access to a mobile communications network for which SendMe makes the Service available and pay any service fees associated with any such access (for example, all standard or premium messaging fees charged by your Carrier). We make no representation as to compatibility of your Device with the Website, the Services or the Content. You are responsible for enabling certain functionalities of your Device, such as a data plan and text messaging, which are required in order to participate in various elements of the Service. In addition, you must provide all equipment and software necessary to connect to the Website and Service (as they exist today or as modified or upgraded), including, but not limited to, computer equipment, Internet access, a mobile hand set or other mobile access Device that is in working order and suitable for use in connection with the Service. Carriers may impose limitations on delivery of certain types of content, so you should check with your Carrier to determine whether any transmission limitations will apply to any Service you have or may decide to register for.
The Website, Service and Content are solely for your personal non-commercial use on the Device you designate in your registration or at the time you purchase an item of Content. You may not copy, distribute, transmit, broadcast, sell, resell or upload to any computer or other device, or create derivative works from any portion of the Website or any Service, including, without limitation, any Content. You may not, or otherwise attempt to, authorize, encourage or support other attempts to circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Website or Service, including, but not limited to, any Content.
Certain Services offered by SendMe, including without limitation the WT411 All Access program are provided on an automatically renewing subscription basis whereby you will receive certain types of Content on a periodic basis (e.g., jokes, trivia questions) or will be permitted to download a pre-set number of pieces of Content per month (e.g., ringtones, wallpaper) each for a pre-set monthly price ("Subscription Service"). In the case of the WT411 All Access program, you will receive a daily poll (unless you elect a different frequency) that will be sent to your Device via SMS and will be able to respond to that poll via a reply SMS from your Device. Other Services carry a separate price for each piece of Content (e.g., downloading an individual ringtone) that you select to receive ("A La Carte Service"). Unless otherwise stated in the Rules applicable to a Subscription Service, if you register for a Subscription Service entitling you to a fixed amount of Content per month, any unused Content items at the end of any month will not be carried over to any future period and you will lose your right to access or use those unused Content items. Billing for any Subscription Service begins when you subscribe or register for the Service and is automatically re-billed on the monthly anniversary of your subscription or registration, unless you cancel prior to the monthly anniversary. Billing for an A La Carte Service will be at the time you selected the A La Carte Service. Access to a Service for which you have subscribed may be provided by directly delivering to you the applicable Content (e.g., by delivering an SMS message with a joke) or by enabling you to download the applicable Content (e.g., by delivering a WAP-Push link that leads to a ringtone download).
Additional Rules govern your participation in the WT411 Loyalty Program (as defined herein) as follows: If you interact with the WT411 Service by submitting poll responses and/or become a member in the All Access SMS program, you will accrue Points that you can redeem (subject to certain limitations) for items on the WT411 site (the program by which you earn and redeem such points is the “WT411 Loyalty Program”). The WT411 Loyalty Program is void in Arizona, Iowa, Louisiana, Maryland, North Dakota, Tennessee and Vermont. Users in these states may read stories and participate in polls, but are ineligible to redeem points for merchandise. In addition, your right to redeem any unused Points will expire and those Points will be removed from your account if you cease to be an Active User of this Service. "Active User" means a registered user of a Service who has logged into the applicable Service at least once and submitted at least one vote in connection with an ongoing event on such Service during the 30 consecutive calendar days from the date on which such user BOTH logged into such Service AND submitted his/her last vote. In addition, to be an Active User, a user must submit at least one vote within 30 days after his/her initial registration for such Service. In other words, to remain an Active User, you must both log in to the applicable Service (including first time login after registration) and submit a vote at least one time during each 30 day period. For any Service where "Lifetime Points" are calculated, such Lifetime Points will not be affected by any failure to remain an Active User and Points will not be deducted from the Lifetime Points amount in such circumstance. SendMe shall determine when a user is no longer an Active User in its sole discretion, and such determination is final and binding. SendMe has the right to set the terms and conditions for, modify and/or eliminate the right to receive, use and/or redeem Points in the Services as it may determine in its sole discretion. SendMe is under no obligation to provide opportunities to earn Points. The number and type of opportunities made available is at the sole discretion of SendMe. Neither SendMe nor any Affiliate (as defined below) will have any liability to you in connection with any changes or the exercise of such rights, and you will not be entitled to any compensation therefore.
CERTAIN PRODUCTS MADE AVAILABLE THROUGH THE WEBSITE AND/OR SERVICE (THE "AUTHORIZED PRODUCTS") ARE THE PROTECTED, COPYRIGHTED MATERIALS OF THIRD PARTIES. AUTHORIZED PRODUCTS MAY ONLY BE USED FOR INDIVIDUAL, PERSONAL USE. AUTHORIZED PRODUCTS MAY NOT BE COPIED, TRANSFERRED OR DISTRIBUTED WITHOUT THE PRIOR WRITTEN CONSENT OF THE AUTHORIZED PRODUCTS RIGHT OWNERS. IN THE EVENT THAT A PRODUCT BEING REDEEMED IS OR BECOMES UNAVAILABLE AT THE TIME OF REDEMPTION FOR ANY REASON, SENDME MAY SUBSTITUTE THE PRODUCT FOR THE EQUIVALENT VALUE IN CASH.
5. TRANSMISSIONS, SUBMISSIONS AND POSTINGS You represent and warrant to SendMe that you own all of the rights in and for, or that you have a valid license to transmit, submit or post, any and all User Provided Content that you transmit, submit or post to the Website or through a Service. By transmitting, submitting or posting User Provided Content to the Website or through a Service, you grant SendMe and its Affiliates the worldwide, fully-paid, royalty-free, non-exclusive, sub-licensable right and license to use, copy, format, adapt, publish, sell, license, distribute and/or incorporate any or all of your User Provided Content in any media and for any purpose that SendMe may determine in its sole discretion.
You shall not transmit, submit or post any User Provided Content to the Website or through a Service if it:
- Infringes SendMe's or any third party's copyright, patent, trademark, trade secret or other proprietary rights;
- Violates any law, statute, ordinance or regulation;
- Is libelous, unlawfully threatening, unlawfully harassing, defamatory, obscene, explicit or vulgar, or otherwise injurious to SendMe or third parties or that infringes SendMe's or any third party's rights of publicity or privacy;
- Contains any viruses, worms, Trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots or other code or computer programming routines that contain contaminating or destructive properties or that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- Contains or constitutes chain letters, mass mailings, political campaigning, unsolicited or unauthorized advertising, or any form of "spam";
- Is false, inaccurate or misleading; or
- Is a commercial advertisement or solicitation.
6. CHARGES / BILLING You authorize SendMe to charge the appropriate fees for the Services (the "Fees") directly to your Carrier invoice for your Device, as selected by you, and if you select a Subscription Service, you authorize the continued billing each month at the then current rate until you cancel such subscription. If any of your billing information changes (e.g. Device Data or Carrier), you must promptly inform SendMe by updating your information via your My Mobile page.
When you register for a Service, information about the Fees applicable for such Service will be provided to you either as part of the signup process on the Website or via a confirmation message sent to the Device you provide. These Fees are also available to you on the Website under your account information. Unless otherwise indicated, the Fees will be included in your bill from your Carrier, and you agree to pay your Carrier all applicable Fees. The Fees shall be due immediately and in accordance with your agreement with your carrier. The Fees are non-refundable except as permitted during the Refund Period (as described below in this Section), unless otherwise indicated to you in writing by SendMe. For Subscription Services, the term of this agreement shall be monthly, renewing indefinitely or until the agreement is terminated. Fees are billed when you register for the Subscription Service and each month thereafter unless and until you cancel the Subscription Service.
Other third party charges, such as from your Carrier, may apply when you register for and/or use a Service. Please review your agreement with your Carrier or contact your Carrier for more details.
All Fees are subject to change and SendMe will provide you with reasonable notice of such change in Fees prior to the new Fees taking effect. Upon receipt of SendMe's notice of a change in Fees, you may cancel any Subscription Service for which Fees have been changed at the end of your then-current subscription period if you do not accept the new Fees. Continuation of a Service after notice of a change in Fees will constitute your agreement to the new Fees.
Refund Policy. If you purchase a Service and are not satisfied with such Service for any reason during the first 90 (ninety) days after commencement of the Service ("Refund Period"), and if you terminate your subscription to the Paid Service within the Refund Period, then you may receive a refund of the fees that you paid for the particular Paid Service for one Billing Period only -- i.e. one month's fees. You will not receive a refund of any other fees paid for the particular Paid Service. You may notify us in any of the following ways to terminate the Service and request the refund: by telephone at 877-277-9648 or by email to firstname.lastname@example.org, which email must include the subject line "Refund Request" or by completing and submitting the web form found at http://www.sendmemobile.com/help/contact/contactUs.do which must include "Refund Request" in the description field. Refunds will be issued via check and sent to a mailing address you designate upon requesting your refund. Termination and refund as set forth in this Section are your sole and exclusive remedies in the event that you are not satisfied with a Service. 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.
7. CHANGES TO THIS TERMS OF SERVICE SendMe reserves the right at any time and from time to time to amend, supplement or modify the terms of this Terms of Service. We will post or display notices of material changes on the Website and those changes will become effective ten (10) days after the date of posting. You are responsible for regularly reviewing the Terms of Service, including, without limitation, by checking the date of “Last Update” at the bottom of this document. Your continued use of the Website and/or Service after the changes become effective, signifies your agreement to bound by such modified Terms of Service. Other than our “90 Day Money Back Guarantee” detailed in Section 6, your only right with respect to any dissatisfaction with (1) these Terms of Service; (2) any policy or practice of ours in operating the Services; or (3) any content available through the Services, is to stop visiting and using the Services.
9. COPYRIGHT AGENT SendMe respects the intellectual property rights of others, and expects you to do the same. If you believe that any Content has been used on the Website or Service in a manner not authorized by you and that constitutes copyright infringement, please provide SendMe's Copyright Agent with a written notice that includes the following information:
- an electronic or physical signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed;
- a description of where the material that you claim is infringing is located on the Website or Service;
- your address, telephone number, and e-mail address;
- a statement by you that have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
SendMe's Copyright Agent for notice of claims of copyright infringement on the Website or any Service is:
c/o SendMe, Inc.
150 Spear Street
San Francisco, CA 94105
fax: (415) 978-5248
10. INTELLECTUAL PROPERTY RIGHTS The Website and Service, including, without limitation, all software, content, design, text, images, photographs, illustrations, audio and video material, artwork, graphic material, databases, proprietary information and all copyrightable or otherwise legally protectible elements of the Website and Service, including, without limitation, the "look and feel" of the Website and Service, the Content, all trademarks, service marks and tradenames, but excluding all User Provided Content (individually and/or collectively, the "Material") are the property of SendMe and/or its Affiliates (as defined below). The Website, Service and Material are owned by SendMe and/or its Affiliates, and are legally protected, without limitation, under U.S. Federal and State laws, as well as applicable foreign laws, regulations and treaties. Unless the context or service clearly requires otherwise or we explicitly say so in writing, the term "the Service" includes the Material as well. You must not alter, delete or conceal any copyright notices or other intellectual property notice contained on the Service. SendMe grants to you a limited, non-exclusive, non-transferable, revocable right to download the Content to your compatible Device solely for your own non-commercial, non-exclusive, non-assignable, non-transferable and limited personal use and for no other purposes. You understand, acknowledge and agree that you shall not, nor will you allow any third party (whether or not for your benefit) to, download, reproduce, modify, create derivative works from, display, publish, perform, transfer, broadcast, distribute or otherwise use the Website, Service or Content, except as expressly provided in this Terms of Service.11. MESSAGES, PROMOTIONS, GIVEAWAYS AND ADVERTISING WT411.com is a SendMe Mobile service. SendMe 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.). SendMe may present advertisements and promotional materials on or through the Website, but will not deliver marketing messages to your mobile phone without your prior express written consent. Your participation in any 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, 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 SendMe 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.
12. LINKS TO THIRD-PARTY SITES The Website and the Service may include links to third-party websites not owned or operated by SendMe (the "Third Party Websites"). These links are provided only as a convenience to you. Neither SendMe nor its Affiliates are responsible for the availability of such Third Party Websites or their contents, nor will SendMe or its Affiliates have any liability, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site. You should direct any concerns regarding Third Party Websites to those sites' administrators.
14. CHANGES TO OR TERMINATION OF WEBSITE AND/OR SERVICE SendMe reserves the right in its sole discretion from time to time, to modify, suspend or discontinue all or any portion of any Service, including distribution of a particular type or category of Content in a Service. In such event, SendMe will provide substitute Content or Services as it may determine to be appropriate, or may provide you with other alternatives, at SendMe's sole discretion. Except as set forth in Section 6, the foregoing is your sole remedy, and SendMe will have no liability, with respect to any changes to the Service or Content available through the Website or Service.
To cancel any Subscription Service for which you are registered, you should either send a text message with the text "STOP" to the short code for the Service you wish to cancel and then follow the instructions provided to you, or you may contact SendMe customer service via email at www.sendmemobile.com/help.html. Termination will become effective on the date you give notice of termination. Subject to Section 6, no refunds will be provided even if you elect to terminate prior to the end of your paid billing period.
15. DISCLAIMERS; NO WARRANTY YOUR USE OF THE WEBSITE, SERVICE AND CONTENT, IS SOLELY AT YOUR OWN RISK. THE WEBSITE, SERVICE AND CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND BY SENDME OR ITS AFFILIATES, AS APPLICABLE. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, EACH OF SENDME AND ITS AFFILIATES, EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT. THERE IS NO WARRANTY THAT THE WEBSITE, SERVICE OR CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE SAME WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. NEITHER SENDME NOR ANY OF ITS AFFILIATES, WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE, SERVICE OR CONTENT WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. YOU AGREE THAT YOU WILL NOT HOLD SENDME AND/OR ITS AFFILIATES, RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING OR USING THE WEBSITE, SERVICE OR CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY INFECTIONS OR CONTAMINATIONS OF YOUR DEVICES YOU USE TO ACCESS THE SAME. YOU AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO SENDME AND/OR ITS AFFILIATES.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTIES TO BE DISCLAIMED, THE ABOVE DISCLAIMER MAY NOT APPLY IN FULL TO YOU. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, SENDME AND/OR ITS AFFILIATES SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMER AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE.
16. LIMITATION OF LIABILITY UNDER NO CIRCUMSTANCES SHALL SENDME AND/OR ITS AFFILIATES, BE LIABLE TO YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, SERVICE OR CONTENT, OR ANY PERSON'S USE OR INABILITY TO USE THE SAME, EVEN IF SENDME AND/OR ITS AFFILIATES, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF SENDME AND ITS AFFILIATES TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED THE GREATER OF $100 OR THE FEES YOU PAID TO SENDME (AND/OR ITS AFFILIATES) PURSUANT TO THIS AGREEMENT OVER THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, PORTIONS OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, SENDME AND/OR ITS AFFILIATES, SHALL BE ENTITLED TO THE MAXIMUM LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE. WITHOUT LIMITING THE FOREGOING.
NEITHER SENDME NOR ANY OF ITS AFFILIATES WILL HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, INCLUDING THE OWNER OF THE DEVICE, FOR ANY CONTENT OR ANY OTHER ASPECT OF THE WEBSITE OR SERVICE THAT ANYONE MIGHT FIND OBJECTIONABLE.
17. BASIS OF THE BARGAIN The parties expressly acknowledge and agree that SendMe has set its prices and entered into these Terms of Service in reliance upon the limitations of liability specified herein, which allocate the risk and form a basis of the bargain between the parties.
18. REMEDIES You agree that any unauthorized use of the Website, Service or Content would result in irreparable injury to SendMe and/or its Affiliates for which money damages would be inadequate, and in such event SendMe and/or its Affiliates, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you. Nothing contained in this paragraph or elsewhere in this Terms of Service shall be construed to limit the remedies or relief available pursuant to statutory or other claims that SendMe or its Affiliates may have under separate legal authority, including but not limited to any claim for intellectual property infringement. The remedies of SendMe and/or the Affiliates under this Terms of Service shall be cumulative.
19. CLAIMS AGAINST THIRD PARTIES You expressly acknowledge and agree that any claim by you arising under or affecting these Terms of Service, whether based on contract, tort or other legal basis, will be brought only against SendMe and not any third party (including but not limited to any carriers or aggregators) and you waive, and do hereby waive any right you may have to bring such a claim.
20. GOVERNING LAW These Terms of Service will be interpreted and construed in accordance with the laws of the State of California without reference to its rules of conflicts of law.
21. DISPUTE RESOLUTION You and SendMe agree that any dispute, claim or controversy arising out of or relating to these Terms of Service or the breach, termination, enforcement, interpretation or validity thereof (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 with respect to any Dispute related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property or proprietary rights. You acknowledge and agree that you and SendMe 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 SendMe otherwise agree, 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 Terms of Service.
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_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 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 SendMe 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 SendMe 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 Service 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 attorneys’ fees and expenses, to the extent provided under applicable law. SendMe 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, SendMe 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 “Changes to this Terms of Service” section above, if SendMe changes this “Dispute Resolution” section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), 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 SendMe’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 SendMe in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
22. TRADEMARKS "Sendme", "Sendme Mobile", and "WT411" are trademarks of SendMe. Other marks, graphics, typefaces, trademarks and logos appearing on the Website are trademarks or trade dress of SendMe. All other trademarks appearing on the Website are property of their respective owners. Our trademarks and trade dress may not be used in any manner for any purpose without our express written consent.
The failure of a party, at any time or from time to time, to require performance of any obligations of the other party under this Terms of Service shall not affect its right to enforce any provision of this Terms of Service at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach. No waiver of any provision of this Terms of Service shall be effective unless it is in writing and signed by an authorized representative of SendMe.
Your rights under this Terms of Service are not assignable or transferable. You agree not to resell or transfer your right to access or use the Service, including, without limitation, the Content or any portion thereof.
Please direct any questions concerning the Website, the Service or any other issue related to SendMe, to www.sendmemobile.com/help.html. Except as expressly provided otherwise herein, all notices to SendMe shall be in writing and delivered via overnight courier or certified mail, return receipt requested to:
150 Spear Street
San Francisco, CA 94105
SendMe will give notices to you related to this Terms of Service by posting them on the Website or sending them as a text message to your Device, and you expressly agree to receive notices from SendMe in such manner. Notices posted on the Website or sent as a text message shall be deemed received on the weekday following the day they were posted or sent.
Copyright 2013 SendMe, Inc. All Rights Reserved.