AUTO REFILL END USER SERVICES AGREEMENT
BY LOGGING ON TO THE WWW.AUTOREFILL.COM AND/OR BY USING ANY APPLICATION CONTAINED THEREIN, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT LOG ON TO OR USE ANY APPLICATION
CONTAINED IN WWW.AUTOREFILL.COM
|1.||PARTIES. This Auto Refill End User Services Agreement (the “Agreement”) is made and entered into as of the date of End User’s (defined below) initial registration into www.AutoRefill.com (the “Effective Date”), by and between The Preferred Prepaid, Inc. doing business as Auto Refill (“Auto Refill”), and the user and/or subscriber to the Auto Refill service(s) described herein (“End User”), each a “Party” and together the “Parties”.|
|2.||SCOPE OF SERVICES: Auto Refill agrees to provide automatic monthly prepaid wireless recharge services for End User’s designated prepaid wireless plan(s) at End User’s expense (“Refill Services”) via use of www.AutoRefill.com (the “Auto Refill Application”). End User understands and affirms that the Refill Services are the specific and only services for which End User has retained Auto Refill. No other services may be inferred by this Agreement. If End User requests Auto Refill to perform additional services not otherwise identified in this Agreement, a new written agreement must be executed and additional fees may be required. Auto Refill reserves the absolute right to terminate End User’s use of the Refill Services as well as the Auto Refill Application at any time without advance notice.|
|3.4.||FEES: There are no fees for the Refill Services. However, End User may incur standard SMS and/or MMS messaging fees and charges.LIMITED AND TEMPORARY USE LICENSE. The Auto Refill Application is temporarily and non-exclusively licensed to End User solely for the End User’s own purpose of accessing the Refill Services. Auto Refill shall have the right to determine, in its sole discretion, whether End User use of the Auto Refill Application constitutes a valid use thereof. Auto Refill owns and shall retain all rights, title and interest in and to the Auto Refill Application. All other rights not expressly granted to End User herein are retained by Auto Refill. End User’s use shall be in accordance with Auto Refill’s applicable restrictions concerning privacy and intellectual property rights, all as stated herein.|
|5.||END USER’S OBLIGATIONS: a) End User shall, with ten (10) days advance written notice, inform Auto Refill of any specific month or time period during which End User seeks to suspend, cancel or modify its Refill Services.b) End User shall immediately and in writing inform Auto Refill with regards to any changes in its address, credit card, billing or any other payment information.
c) End User shall solely determine and be responsible for setup of the wireless service provider rate plan and next recharge date for Auto Refill to start the Refill Services.
d) End User shall not alter, translate, decompile, or attempt to reverse engineer the Auto Refill Application and/or remove, modify or alter any proprietary notices or marks on any part of the Auto Refill Application.
|6.||LIMITS OF LIABILITY: a) AUTO REFILL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE REFILL SERVICES. UNDER NO CIRCUMSTANCE, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND/OR BREACH OF CONTRACT, WILL AUTO REFILL BE LIABLE TO END USER OR TO ANY THIRD-PARTY FOR ANY LOST PROFITS, LOST SAVINGS, OR OTHER INDIRECT, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE USE OR INABILITY TO USE THE AUTO REFILL SERVICES. IN NO EVENT WILL AUTO REFILL’S TOTAL LIABILITY FOR DAMAGES, LOSSES, OR CAUSES OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, EITHER JOINTLY OR SEVERALLY, EXCEED THE DOLLAR AMOUNT PAID BY END USER TO AUTO REFILL FOR THE PARTICULAR SERVICE, PROJECT AND/OR JOB AGAINST WHICH THE CLAIM IS RAISED. b) Auto Refill shall not be liable for interruption of or delays in transmission or termination/cancelation of the any service(s) required by this Agreement which are caused by acts of third-parties, God, fire, water, riots, acts of Government, national emergency, acts or omissions of Internet backbone providers, or any other causes beyond Auto Refill’s direct and actual control.
c) Auto Refill shall not be liable for any damages arising out of or related to interruption of, or defects in transmission of the Refill Services, including, without limitation, interruptions or defects due to inability to access the Internet or any part thereof, equipment modifications, upgrades, relocations or repairs.
d) Auto Refill shall not be liable for the: (i) accuracy, truthfulness, or validity of any data End User enters or provides through the website platform designated by this Agreement; or (ii) loss, destruction or compromise of any of End User’s data.
e) End User’s sole and exclusive remedy, if dissatisfied with the service or with any terms, conditions, rules, policies, guidelines, or practices of Auto Refill, is to immediately discontinue using the service and advise Auto Refill in writing as to same.
f) The remedies provided in the foregoing provisions allocate the risks under this Agreement, some of which may be unknown or undeterminable. Such limitations nonetheless serve as a material inducement for present of services provided by Auto Refill.
|7.||INTELLECTUAL PROPERTY: “Intellectual Property Rights” means all forms of intellectual property rights and protections of Auto Refill and may include, without limitation, all right, title and interest arising under U.S. common and statutory law, and laws of other countries in and to all: (i) letters patent and all filed, pending or potential applications for letters patent, including, without limitation, any reissue, reexamination, division, continuation or continuation-in-part applications throughout the world now or hereafter filed; (ii) trade secret rights and other proprietary rights in the know-how, methodologies, source code, object code, concepts, database, database structuring, processes and general knowledge and techniques developed or used by Auto Refill; (iii) copyrights, other literary property or authors rights, whether or not protected by copyright or as a mask work; (iv) proprietary indicia, trademarks, trade names, service marks, symbols, domain names, URLs, logos and/or brand names; and (v) confidential information of Auto Refill. Auto Refill owns and will continue to own all right, title and interest, including, without limitation, Intellectual Property Rights in the Auto Refill Application and any derivative thereof.|
|9.||INDEMNIFICATION: End User, for itself as well as its affiliates, parent companies, subsidiaries, directors, officers, shareholders, employees, agents, successors, and assignees (if any), shall defend, hold harmless, and indemnify Auto Refill, including its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, successors and assignees, from any and all liability, loss, claim and demand, including without limitation attorneys’ fees and other legal expenses resulting from: (i) any breach by End User of this Agreement; (ii) any negligent act or omission of End User with respect to this Agreement; (iii) any third party claim due to or arising from End User’s use of the Refill Services; and/or (iv) End User’s infringement of any intellectual property or other right of any person or entity.|
|11.||END USER BILLING INFORMATION: End User shall provide accurate and complete information as it otherwise appears on its billing credit card.|
|a) End User authorizes Auto Refill to transmit SMS and/or MMS messages for account alert and/or marketing purposes. Standard messages fees shall apply. However, End User may opt out at any time (see below).|
|b) Auto Refill alerts End Users about their prepaid mobile phone plan billing information. Subsequently, End User can manage its account automatically to ensure continuous service. The number of messages varies per End User. To opt-out at any time, send STOP to 64085. To receive more information, send HELP to 64085.c) Message and data rates may apply. End User authorizes charges to appear on the wireless bill or be deducted from the prepaid balance. A list of supported carriers includes: AT&T, Metro PCS, Sprint Nextel, T-Mobile USA (includes Suncom), U.S. Cellular, Verizon Wireless, and more.
By signing up with Auto Refill pursuant to this Agreement, End User opts-in to receive these alerts. By clicking “Submit” or similar assent, End User also agrees to the Terms and Conditions of Clickatell SMS Alerts which can be found at http://clickatell.us/alerts/alerts/tnc.php.
|a) This Agreement constitutes the complete and exclusive understanding of the Parties relating to the subject matter hereof and supersedes all prior or contemporaneous understandings, agreements and communications, whether written or oral, relating thereto.b) Auto Refill may amend, alter, change or modify the terms and conditions of this Agreement without prior notice.
c) In the event that any provision of this Agreement is held to be unenforceable, such provision will be construed as nearly as possible to reflect its original intent and the remainder of this Agreement will remain in full force and effect.
d) End User’s rights in this Agreement are personal and not otherwise transferable or assignable. However, Auto Refill may fully or partially transfer and/or assign its rights and/or obligations under this Agreement.
e) Any controversy, dispute, or claim arising out of or relating to the interpretation, performance or breach of this Agreement, shall be resolved by binding arbitration (through the American Arbitration Association) conducted by an arbitrator mutually selected by the Parties. If the Parties cannot agree to an arbitrator, one shall be appointed as provided for under the then existing Rules of the American Arbitration Association. Any arbitration proceeding shall be conducted according to the Rules of the American Arbitration Association and take place in Orange County, California. Further the arbitrator shall have power to enter any award, order or judgment for damages as well as issuing injunctive relief and such award shall be binding with no right of appeal. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO A JURY TRIAL.
f) This Agreement shall be governed in all respects by the laws of the State of California without regard to its conflict of law provisions. Should any action be commenced in order to enforce or challenge the arbitration provision contained herein or if the arbitration provision is found to be unenforceable for any reason, the courts in and for Orange County, California shall have exclusive venue and jurisdiction for any dispute arising from this Agreement. This Agreement is deemed to have been entered into in Orange County California and the Parties submit to the exclusive jurisdiction of the courts of Orange County, California for all purposes. The foregoing, however, shall not limit the right of either Party to serve process in any jurisdiction or to commence any legal action/proceeding in any jurisdiction in order to obtain entry or execution on a judgment or any other judicial order.
g) No person or entity who is not a party to this Agreement will derive any rights whatsoever hereunder as a third-party beneficiary.
h) The Parties agree to take all further actions, including the execution of documents, which are reasonably necessary to effectuate the transaction(s) contemplated by this Agreement.
i) Any electronic copy of this Agreement shall be considered an original document.