Tipsteria™ Member Terms
Last Updated: September 24, 2012
We may amend the Member Terms from time to time without specific notice to you except that any amendment or modification: (i) to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, "Dispute Resolution Provisions"); or (ii) to the pricing and/or billing provisions ("Billing Provisions"), won't apply to any disputes or charges incurred prior to the applicable amendment or modification. Your continued use of the Service or Website constitutes your agreement to any changes to the Member Terms in effect at that time other than changes to the Dispute Resolution Provisions or the Billing Provisions, which will apply only on a going forward basis as noted above. We will post the latest Member Terms on the Website. Therefore, you should regularly check the Website for any updates or changes.
Summary of Mobile Terms and Conditions
The following summary is intended to present certain important aspects of your relationship with Tipsteria. For complete details, please review the remainder of the Member Terms.
Tipsteria™ is an entertaining text alert mobile subscription service that provides its members with weekly text alerts containing useful tips. The Service costs Nine Dollars and Ninety-Nine Cents ($9.99) and is billed to your mobile telephone bill or deducted from your prepaid account on a monthly, recurring basis. Message and data rates may apply. We reserve the right to not accept prepaid mobile telephone accounts. You must be a legal resident of the U.S. and all purchases must be authorized by the account holder. The Service is not available to users under thirteen (13) years of age or to Florida State residents under eighteen (18) years of age. If you are between thirteen (13) and eighteen (18) years of age, a parent must subscribe on your behalf. You must have a mobile telephone capable of text messaging and a mobile plan that supports text messaging in order to utilize the Service.
When you subscribe ("Member" or "Membership"), we will send weekly alerts to your mobile telephone via text message. You can cancel your Membership at any time by texting STOP to 45259 or by calling 800-378-9850. You can get customer service by texting HELP to 45259 or by visiting www.tipsteria.com/support. By applying for a Membership, you expressly consent to us sending you at least two (2) text messages as part of the sign-up process even if you do not complete it. When you successfully sign-up for a Membership, you expressly consent to receive ongoing text messages from us until your Membership is cancelled.
Mobile Phone Safety; Messaging Charges; International
Tipsteria™ urges you to never use your mobile telephone 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 Membership, 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.
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 data or text messaging plan that provides unlimited text messaging for a fixed monthly fee to avoid per message charges.
If you travel internationally, you should also be aware that some wireless carriers impose extra charges for text messages received when you are outside of the country, even if you are on a text messaging plan that provides unlimited text messaging domestically for a fixed monthly fee. Please check with your wireless carrier if you plan to travel internationally.
Terms of Service
1.1 Membership; Registration Information: All purchases must be authorized by the account holder associated with the applicable mobile telephone, and you must be a legal resident of the U.S. to subscribe for a Membership. The Service is not available to users under thirteen (13) years of age or to Florida State residents under eighteen (18) years of age. If you are between thirteen (13) and eighteen (18) years of age, a parent must subscribe on your behalf.
To apply for Membership, you must provide us with a valid mobile telephone number or initiate your application from a WAP page on your mobile telephone which provides your mobile telephone number to us during the sign-up process ("Registration Information"). You agree to provide true and accurate Registration Information. If we determine that your Registration Information is untrue, inaccurate or not current, we may suspend or terminate your Membership.
To apply for a Membership, you must enter your mobile telephone number and hit the applicable "submit" button on the Membership sign-up page. By doing so, you expressly consent to receive a text message containing a PIN number as described below and one (1) or more follow-up text messages. Currently, you can also sign-up for a Membership via a WAP page (a browser page on your mobile telephone) or in response to television or print ads. We may use or develop other means of initiating Membership sign-ups for the Service in the future.
For sign-ups initiated on the Membership sign-up page, if your application is approved, we will send a confirmation PIN Number to the mobile telephone number that you provided with your application. For Membership sign-ups initiated on a WAP page, you must click the submit or "Continue" button on the first WAP page and the submit or "Get My Content," "Purchase" or "Subscribe" button on the WAP page that appears after the first WAP page refreshes. 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 telephone, by clicking on both WAP pages or by completing all steps of any other sign-up procedure that we may use from time to time, you acknowledge and agree that: (i) you will be enrolled in a subscription-based premium service at a monthly recurring cost of Nine Dollars and Ninety-Nine Cents ($9.99) for as long as your Membership remains active ("Monthly Fee") that will be billed to your mobile telephone account or deducted from your prepaid account (message and data rates may apply); (ii) the Monthly Fee will appear on your monthly mobile telephone bill as "Tipsteria" (this may vary depending on your mobile telephone carrier, however, please be advised that Tipsteria™ and your mobile telephone carrier are not affiliated); (iii) you have read, understood and agree to the Member Terms in their entirety; (iv) if we are unable to bill the Monthly Fee you agree that your Membership will be automatically cancelled; and (v) you expressly consent to receive a confirmation text message from us confirming your Membership and ongoing text messages from us as part of the Service until your Membership is cancelled. You acknowledge and agree that Tipsteria™ will not obtain any additional authorization from you for this recurring payment. Every time that you use the Service, you re-affirm that Tipsteria™ is authorized to bill to your mobile telephone account or deduct from your prepaid account and to have the Monthly Fees applied to same.
You are responsible for paying any sales, use or other taxes related to the Service. We obtain authorization to provide and bill for the Membership by your electronic signature. Once you confirm your application for a Membership by entering the PIN number, by replying to the confirmation text message, by completing both steps of the WAP sign-up process or by completing both steps of such other sign-up process that we may use from time to time, 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 and/or your completion of both steps of the sign-up process pursuant to the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act. Both of these laws specifically preempt state laws that recognize only paper records or handwritten signatures.
While you are a Member, you will be billed and will be responsible for paying, all applicable charges. Failure to use your Membership does not constitute a basis for refusing to pay any of the Monthly Fee. If a Member cancels their Membership, we will not refund any fees that have already been paid.
1.2 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 his/her Membership; and (iv) ensure, to the fullest extent possible, the accuracy and truthfulness of all Registration Information submitted by the minor.
Service Description: Tipsteria™ offers a mobile subscription Service that provides alerts for entertainment purposes. When you become a Member, we will send you weekly alerts ("Alerts") about useful tips to your mobile telephone via text messaging.
You understand and agree that we assume no responsibility for the timeliness, deletion, mis-delivery, non-delivery or failure to store any Alerts.
3. TERMINATION/CANCELLATION; CUSTOMER SERVICE:
3.1 Termination - Members: A Member may cancel his/her Membership at any time by: (i) texting STOP to 45259; (ii) contacting us on the customer service section of the Website located at www.tipsteria.com/support; or (iii) calling our toll free number: 800-378-9850. There is no charge to terminate a Membership. We will not refund Monthly Fees paid prior to the termination date and each Member will remain liable for any unpaid charges previously billed to that Member's mobile telephone bill or deducted from that Member's prepaid account.
We reserve the right to cancel any Member's Membership at any time by refunding any pre-paid Monthly Fees for the then-current month or by not renewing a Membership after the then-current billing period.
If at any time a Member fails or refuses to pay for the Service, or seeks or obtains a refund for Service previously rendered, then we have the right to terminate his/her Membership without prejudice to our other rights.
Any requests for refunds of Monthly Fees paid by a Member must be submitted to us and shall be granted in our sole discretion. If a Member obtains a refund for the Service from both his/her mobile telephone carrier and from us for the same period of Service, then the Member agrees to reimburse us for the duplicate refund by repaying to us the amount of any refund that the Member obtained from us that is in addition to a refund that the Member obtained from his/her mobile telephone carrier.
Where a Member transfers his/her mobile telephone number to a different carrier, we are required by carrier regulations to cancel that Member's Membership.
3.2 Termination For Cause; Disputes: If we believe that any Member is violating the Member Terms, we may terminate the Membership without notice and without further obligation to that Member. In addition, under such circumstances, 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.
3.3 Customer Service: Members may obtain support at any time through the Website at www.Tipsteria.com/support. Members may also get support by calling toll free, 800-378-9850 or by texting HELP to 45259 at any time to receive summary information about their Membership and instructions on how to access additional customer service.
3.4 Non-Member Activity: If you are not a Member but send us a text message such as “HELP” or “STOP,” you expressly consent to receive a reply “error” text message from us, which we are required to send under guidelines applicable to our service.
4. ACCEPTABLE USE
4.1 Use: You agree not to interfere, or permit the use of your Membership by another to interfere, with the normal processes or use of the Service by other Members. You agree to report any violation of the Member Terms by others that you become aware of by contacting us at: abuse@Tipsteria.com.
4.2 U.S. Compliant: The Website is hosted in the 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.
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: We are not responsible in any manner for, and do not guarantee the suitability, availability or non-infringement of, any Alerts or links to other content or services that may be distributed as Alerts or otherwise on or through the Website. The Alerts contain information and material provided by us and our third party suppliers. We undertake no responsibility to monitor or otherwise police the Alerts. You agree that we shall have no obligations and incur no liabilities to any party in connection with any material appearing within the Alerts. We do not represent or warrant that any content posted on the Website and/or any Alerts sent to you via text message 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 Alerts or for any dispute between you and other Members or other third parties.
5. GENERAL PROVISIONS
5.1 License Grant: As a visitor to the Website, you are granted a non-exclusive, non-transferable, revocable and limited license to access and use the Website (and its associated content), and as a Member, the Service and the Alerts 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 Alerts for your own personal, non-commercial use. No part of the Website, Service and/or Alerts 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, Alerts 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, or Alerts, 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 Alerts. 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 Alerts and to register for a Membership. Website visitors are not authorized to access any content and/or data available to Members.
5.2 Proprietary Rights: The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the Website, Service and/or Alerts 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 Alerts 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 Alerts. Our posting of information and/or material at the Website, Service and/or Alerts does not constitute a waiver of any right in such information and/or materials.
5.4 Indemnification: You agree to indemnify and hold us, our parents, subsidiaries and affiliates, and each of their respective members, officers, directors, employees, agents and/or other partners, harmless from and against any and all claims, expenses (including reasonable attorneys’ fees, costs and settlement costs), damages, suits, costs, demands and/or judgments whatsoever, made by any third party due to or arising out of: (i) your use of the Website, Service, Alerts or other 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.
5.5 Disclaimer: THE WEBSITE, SERVICE, ALERTS AND OTHER 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, ALERTS AND/OR OTHER CONTENT WILL MEET YOUR REQUIREMENTS; (ii) THE WEBSITE, SERVICE, ALERTS AND/OR OTHER CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE, SERVICE, ALERTS AND/OR OTHER CONTENT WILL BE ACCURATE OR RELIABLE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE, SERVICE, ALERTS AND/OR OTHER 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, ALERTS AND/OR OTHER CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US, OR THROUGH OR FROM THE WEBSITE, SERVICE, ALERTS AND/OR OTHER CONTENT, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE MEMBER TERMS. THE WEBSITE, SERVICE AND/OR ALERTS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING TELECOMMUNICATIONS SERVICE.
5.6 Limitation of Liability: YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. YOUR SOLE REMEDY UNDER THE MEMBER TERMS IS THE CANCELLATION OF YOUR MEMBERSHIP. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATION, OUR MAXIMUM LIABILITY TO YOU UNDER ANY AND ALL CIRCUMSTANCES WILL BE EQUAL TO THE AMOUNTS YOU PAID, IF ANY, FOR THE SERVICE AND CONTENT IN THE SINGLE MONTH PRIOR TO THE DATE THAT THE CAUSE OF ACTION AROSE. YOU HEREBY RELEASE US FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS SET FORTH IN THIS SECTION 5.6. 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 ALERTS 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 AN “AFFILIATE”), SHALL BE LIABLE TO YOU FOR NON-PERFORMANCE OF OUR OBLIGATIONS HEREUNDER. YOU AGREE NOT TO SUE ANY TIPSTERIA AFFILIATE FOR OUR NON-PERFORMANCE.
5.7 Disputes: The Website and Service are hosted in the U.S. New York State law, without regard to its conflict of law provisions, shall govern any dispute between us.
If you have a dispute concerning any aspect of the Service including the Monthly Fees or the Member Terms, you should first contact customer support on our Website at www.tipsteria.com/support or by calling toll free, at 800-378-9850 or by texting "HELP" to 45259. If Customer Support doesn't resolve your dispute to your satisfaction, you can start a formal dispute proceeding by completing a Dispute Notice which can be found at www.tipsteria.com/disputenotice. Completing a Dispute Notice will elevate your dispute and we will attempt to resolve the matter to your satisfaction within thirty (30) days of our receipt of your Dispute Notice. We may choose to provide you with a final written settlement offer during this process. If we provide you with a final written settlement offer and you don't accept it, or we can't otherwise satisfactorily resolve your dispute, you can submit your dispute for resolution by arbitration before the American Arbitration Association ("AAA") in the county where you live by filing a separate Demand for Arbitration online by following the instructions at http://www.adr.org/sp.asp?id=29041. You will need our mailing address to file online which is available here.
If we have a dispute, we will submit our dispute for resolution by arbitration before the AAA in New York, NY. If either party files for arbitration, it will be conducted in accordance with the then current AAA Commercial Arbitration Rules. The arbitrator will have exclusive authority to resolve any dispute including any claim that all or any part of the Member Terms, including this provision, are unenforceable. If you proceed to arbitration, we will pay all AAA filing, administration and arbitrator fees unless the arbitrator determines that your claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). For claims brought by you of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. The arbitrator may award any form of individual or equitable relief, including injunctive relief. Any award will be final and conclusive to the parties and may be entered in any court of competent jurisdiction.
If you initiate arbitration and the arbitrator awards you relief that is greater than our final written settlement offer made before an arbitrator was selected, then we will pay you a minimum recovery of One Thousand Dollars ($1,000.00), plus we will reimburse any reasonable expenses incurred by your attorney, if any, including fees reasonably accrued for investigating, preparing and pursuing the claim in arbitration. Although under some laws we may have a right to an award of attorneys' fees and expenses if we prevail in an arbitration, we agree that we will not seek such an award from you. You and your attorneys are not required to keep the results of the arbitration confidential. This provision shall not be construed to preclude any party from seeking injunctive relief to protect its rights pending an outcome in arbitration.
YOU ACKNOWLEDGE AND AGREE THAT, VIA YOUR ACCEPTANCE OF THESE DISPUTE RESOLUTION PROVISIONS, YOU WAIVE ANY RIGHT TO A JURY TRIAL, AS WELL AS YOUR RIGHT TO BRING, JOIN OR PARTICIPATE AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS ACTION SUIT BROUGHT AGAINST US, ANY PERSON RELATED TO US OR A SERVICE PROVIDER USED BY US TO PROVIDE THE SERVICE. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in such a suit. 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. You may opt-out of these Dispute Resolution Provisions by providing written notice of your decision within thirty (30) days of the date that you first register for Membership.
5.8 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. 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.
Please contact us through our support contact form with any questions regarding the Member Terms.