Welcome to the Predicto™ website located at ca.predicto.com (the "Website"). The Website and Predicto service (the “Service”) are each owned and operated by Predicto Mobile, LLC ("Predicto" "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 Predicto Member Terms, as well as the Predicto Privacy Policy, Predicto Sweepstakes Rules and any other Predicto 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 Predicto. 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 $3.00 a week 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 Canada and have the mobile phone account holder's consent to subscribe. The Service is not available to users under 13 years of age. If you are between the ages of 13 and 19 years of age, a parent must subscribe on your behalf. We also offer a no-charge web only 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 800-218-2518. You can get customer service by texting “HELP” to 654654, by visiting ca.predicto.com or by emailing cs_support_ca@predicto.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, whether via text message or for Basic Members, online, 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 gifts such as ringtones, email gift codes or physical gifts.
Mobile Phone Safety; Messaging Charges; International
Predicto 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 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. 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 Canada and have the mobile phone account holder's consent to subscribe. The Service is not available to users under 13 years of age. If you are between the ages of 13 and 19 years of age, 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 Member 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 $3.00 per week (“Weekly Fee”) that will be billed to your mobile phone account or deducted from your prepaid account; (ii) the Weekly Fee will appear on your monthly mobile phone bill as “Predicto” (this may vary depending on your mobile phone carrier, however, please be advised that Predicto 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 federal Personal Information Protection and Electronic Documents Act and the provincial Electronic Commerce Acts and Electronic Transactions Acts (and any similar legislation). These laws may specifically preempt provincial 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 Weekly 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, a “Captcha” security code and a two digit number from the range of 00 to 99 which will be your “Grand Prize Key” and hit the submit button on the Basic Membership sign-up page. The Grand Prize Key may be used to determine if you are a winner if your entry is selected in certain Sweepstake per the applicable Sweepstakes Rules. 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: Predicto 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 gifts ("Gifts") selected by the Member from a catalog made available on the Website ("Catalog"). In addition, we may award Members Loyalty Points and/or specific Gifts, from time to time, for taking specific actions such as completing an online registration form. Please check the Website for special promotions and the “Frequently Asked Questions” for other circumstances where we may award Loyalty Points. The award of Gifts and Loyalty Points, the process of redeeming Loyalty Points for specific Gifts and the delivery of those Gifts to Members, comprises the "Loyalty Point System." Loyalty Points are not redeemable for cash and have no cash value.
We may terminate the Loyalty Point 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 "Gift 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 Gift Point. After expiration, expired Gift Point balances will be deducted from your Account and will not be available for redemption for Gifts.
Members’ Loyalty Point balances will be displayed on the "MyProfile" page of the Website, as well as on the Gift 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.
Gifts featured in the Catalog, or in any advertisement or marketing material ("Advertisement"), are subject to availability and we may change or remove a Gift at any time without notice and may also change the number of Loyalty Points required to redeem a particular Gift. We reserve the right to substitute out-of-stock, discontinued or otherwise unavailable Gifts with articles of equal or greater value.
When a Member redeems a Gift, we will deduct the corresponding number of Loyalty Points from that Member’s Account. If a Member redeems a Gift for which they have a Gift-specific Loyalty Point, any applicable Gift-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). Gifts may be: (a) downloadable directly to the Member’s mobile phone ("Downloadable Gifts"); (b) in the form of codes sent to the Member’s email account ("Email Gift Codes"); or (c) physical goods ("Physical Gifts").
Downloadable Gifts Not all carriers or mobile phone models support our Downloadable Gifts. We will use our reasonable efforts to let you know whether your mobile phone can receive Downloadable Gifts. If you elect to receive a Downloadable Gift and it does not load on your mobile phone, please contact Customer Service.
Email Gift Codes: Members should ensure the accuracy of their email addresses on file at all times, as misdirected Email Gift Codes will not be replaced. Members are responsible for ensuring that they are able to receive email from Predicto at the email address provided by the Member on the MyProfile page. We assume no responsibility for properly directed email containing Email Gift 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 Gifts: We will pay all shipping and handling fees associated with Physical Gifts. You will be asked to provide a shipping address when you redeem Loyalty Points for a Physical Gift.
The Gifts featured in the Catalog, the Advertisements, the Website and otherwise: (a) are provided by the applicable Gift manufacturer, distributor or retailer ("Gift Manufacturer"); and (b) contain descriptions that are provided directly by such Gift Manufacturer. As a result, we have no control over: (i) the quality, safety or legality of the Gifts; and/or (ii) the truth or accuracy of the Gift listings. We do not represent or warrant that the descriptions of the Gifts are accurate or complete. Warranty claims, requests for technical or customer support, and returns for malfunction or damage to Gifts should be communicated to the applicable Gift Manufacturer and not to us.
Trademarks associated with any of the Gifts 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
3
We may offer sweepstakes from time to time including, currently, a monthly sweepstakes and a grand prize sweepstakes (“Sweepstakes”). We may also offer “FastPrize” Sweepstakes in the future. All Sweepstakes are offered in our exclusive discretion. With each vote on a Survey whether via text message or online at no cost on the Website, Basic and Premium Members will be automatically entered into each then-current Sweepstakes. A Members’ participation in a Sweepstakes is governed by the applicable Sweepstakes Rules published on the Website. Sweepstakes are not open to Quebec residents. Please refer to the applicable Sweepstakes Rules for eligibility, how to enter including no cost means of entry and other terms and conditions of the Sweepstakes.
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://ca.predicto.com/support; (iii) calling our toll free number: 800-218-2580; or (iv) emailing us at cs_support_ca@predicto.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 Weekly 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 Weekly 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 Weekly 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) contacting us on the customer service section of the Website located at
ca.predicto.com/support (ii) calling our toll free number: 800-218-2580; or (iii) emailing us at cs_support_ca@predicto.com. 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 ca.predicto.com or via email at cs_support_ca@predicto.com. Premium Members may also get support by calling toll free, 1-800-218-2580 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: cs_support_ca@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, , provincial 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 where applicable Canadian laws and regulations. It is intended for access for use only from Canada. You agree that you will not access the Website or use the Service outside Canada.
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 personal 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 parent entities, 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 any ; provincial and/or federal laws, rules or regulations (existing now or in the future) prohibiting the transmission or telecommunication 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, GIFTS, 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, GIFTS, SWEEPSTAKES, SUBMISSIONS AND/OR CONTENT WILL MEET YOUR REQUIREMENTS; (ii) THE WEBSITE, SERVICE, SURVEYS, LOYALTY POINT SYSTEM, GIFTS, 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, GIFTS, 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, GIFTS, 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, GIFTS, 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, GIFTS, 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.
s
6.6
Limitations 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 Predicto 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 Predicto 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. For Canadian residents these Member Terms may be subject to the applicable provisions of Canadian consumer protection laws that cannot be derogated from by private agreement or which may prohibit the application of any provision or stipulation herein. To the extent that any stipulation or provision is so prohibited it: (i) shall be construed as if it had been omitted from these Member Terms; (ii) will not affect the legality, validity or enforceability of that provision in any other jurisdiction; and (iii) the remaining Member Terms shall remain in full force and effect. Without limiting the generality of the foregoing and notwithstanding anything to the contrary contained herein, for residents of Quebec, British Columbia and Ontario the waiver set out in this section 6.7 does not apply and you retain the right to litigate disputes before a court, including the right, subject to the rules of your jurisdiction, to litigate claims on a class-action basis.
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.
