Last Updated on July 31, 2020
NO PURCHASE NECESSARY. SEE CONTEST RULES FOR HOW TO PLAY.
The PromoStar website at www.PromoStar.app (the “Site”) and the Promostar application (the “App”; and collectively with the Site, the “Services”) are owned and operated by FomoYolo LLC (“FomoYolo”, “we”, “our” or “ us”). The Services include all games, contests, features, activities, applications, and content, including without limitation any titles, computer code, themes, objects, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, chat transcripts, profile information, recordings of contests, server software, and other features, products and services available or accessible through the Site and the App.
These Terms of Service, or Terms, constitute a legal agreement between the user (“you”, “your”) and FomoYolo and they govern your use of the Services. These Terms are not between you and Apple Inc. or Google Inc., as applicable, despite your download of the App from the Apple Store or Google Play Store, as applicable. By downloading or installing the App, accessing the Services, creating an Account, using the Services, or, where the option exists, by clicking to accept or agree to these Terms of Service, you represent that you are eligible to use the Services in accordance with these Terms and you agree to be bound by these Terms of Service, as modified by us from time to time. If you are not eligible to use the Services or if you do not agree with the Terms of Service, you may not use the Services.
3. Use of the Services
3.1 Limited Access Right
3.2 Restrictions and Limitations
You acknowledge and agree that you will not, directly or indirectly:
a. Partake in any activity or action that is unlawful or that is against the spirit or intent of the Services;
b. Use the Services for or in connection with any commercial purpose;
c. Copy, modify, edit, create derivative works of, publicly display, publicly perform, republish, transmit, or distribute any material obtained through the Services;
d. Lease, sell, rent, or otherwise exploit for commercial purposes any part of the Services, including without limitation access to or use of the Services;
e. Delete, alter, or obscure any intellectual property rights or other proprietary rights notices from copies of materials from the Services;
f. Attempt to harass, threaten, bully, embarrass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, group, or FomoYolo;
g. Organize or participate in any activity or group that is hateful, harmful, or offensive towards a race, sexual orientation or preference, religion, heritage or nationality, disability or other health class, gender, age, or similar classes determined by FomoYolo;
h. Initiate, assist, or become involved in any form of attack or disruption to the Services, including without limitation distribution of a virus, worm, spyware, time bombs, corrupted data, denial of service attacks upon the Services, or other attempts to disrupt the Services or other person's use or enjoyment of the Services;
i. Use robots, spiders, crawlers, man-in-the-middle software, or any other automated process to access, use, reverse engineer, or manipulate the Services, Accounts, or FomoYolo;
j. Use of access services to obtain, generate, harvest, infer, or manipulate any business information about FomoYolo, including without limitation information about sales or revenue, staff, technical stack, or statistics about users;
k. Promote, encourage, or participate in any activity involving cheating, hacking, phishing, distribution of counterfeit Services, or taking advantage of or creating exploits, cheats, bugs, errors, undocumented features, or other software designed to modify the Services, Contests, or user’s experiences, except for the sole purpose of privately and directly notifying FomoYolo;
l. Make available through the Services any material or information that infringes any intellectual property right, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation celebrities and FomoYolo employees, without the consent of such person or entity;
m. Attempt to gain unauthorized access to Services or Accounts not belonging to you;
n. Conspire or work with others to violate any of the foregoing restrictions; and
o. Use the Services where it is prohibited by law.
3.3 User Content
To the maximum extent permissible by law, FomoYolo assumes no responsibility or liability for your conduct in submitting to or transmitting through the Services any User Content, and assumes no responsibility or liability for pre-screening or monitoring the Services for inappropriate or illegal User Content or conduct. You are solely responsible for any User Content that you post. User Content means any and all data that you upload, transmit, or create through the Services, including without limitation character skins, buildings, forum posts, Account personas, profile information, software, sound, images, videos, precise and imprecise location data, EXIF data, timestamps, metadata, and any other content contributed by you to the Services. All User Content will be considered non-confidential, and FomoYolo may use or disclose such User Content without restriction, except as otherwise stated herein.
3.4 Third Party Content
Links in the Services may lead to third-party websites and/or services that are not owned or operated by FomoYolo. FomoYolo has no control of and makes no representation or warranty and takes no responsibility with respect to such third-party websites or services. A link or reference to a third-party website or service is not an endorsement of that website or service. Likewise, if our Service is linked or referenced in a third-party website or social media, we are not liable for any information provided on or through such website or social media. Any use you make of the information provided in the Services, or any website linked to by the Services, is at your own risk.
4.1 Account Creation; Collection of Information
4.2 Usernames and Passwords; Security
To create an Account, you may be asked to create a username and a password. Your username and password must comply with these Terms and must conform to the security and other requirements of the Site, App, and Services at all times. You are responsible for maintaining the confidentiality of your Account information including usernames, passwords, personal information, and billing information. You must notify us immediately of any unauthorized use, breach or theft or suspected use, breach or theft of your Account or your username, password or other Account information and promptly change your username or password to prevent any further unauthorized use of your Account. We will not be liable for any loss that you may incur as a result of someone else using your Account, either with or without your knowledge. You are responsible for the activities occurring under your Account, including all purchases, and you will be liable for any losses or damages incurred by you, us or another party due to someone else using your Account. Your Account is personal to you and you may not transfer or make available your Account to others or use anyone else’s account at any time. Any actual or attempted transfer of your Account to any other person may result in cancellation of your Account without refund.
4.3 Inactive Accounts; Deletion of Accounts
We may permanently delete Accounts that are deemed inactive. Accounts shall be deemed inactive when they have not been accessed or used for one hundred and eighty (180) days. You acknowledge that if your Account is deleted, then you may lose access to any information, including User Content and Prizes, associated with that Account. If you wish to delete your Account, or you believe that your child under eighteen may have created an Account, please alert us by sending notice to the following email: firstname.lastname@example.org.
4.4 Account Rights
Notwithstanding anything contrary in these Terms, you expressly acknowledge and agree that you have no right, title, or interest to or in any Account you create through our Services, and your Account is not your property. Your Account is owned by FomoYolo and your right to access your Account is limited as set forth in these Terms. We reserve the right to limit, suspend, modify or terminate your Account or your access to any or all of the Services at any time, with or without providing notice to you, if we believe you are in breach or violation of these Terms of Service or if we believe you are engaged in any illegal or improper use of the Services. In the event your Account or access to the Services is suspended or terminated due to breach of these Terms of Service or due to actual suspected fraud or abuse, we reserve the right to retain any funds in the Account pending the outcome of our investigation. If we determine that there was a breach of the Terms of Service, fraud or abuse we will retain the funds in the account and apply them against the costs of our investigation or apply them to other games or contests on the Site. In the event your Account or access to the Services is terminated by you or us for any reason, we will refund the amounts in the Account per the procedures for withdrawal of funds described above.
5.1 Contests and Rules
FomoYolo may, through the Services, host and make available for your participation certain skill and knowledge-based contests (the “Contests”), which are sponsored by advertisers, celebrities, influencers, or other users, including FomoYolo (the "Contest Sponsor(s)"). These Contests may be in the form of quizzes with multiple choice answers where you compete with other users of FomoYolo for cash and/or other prizes and virtual in-app rewards (collectively, the “Prizes”). The specific rules governing every Contest, including how winners are determined and ties are broken (“Contest Rules”), will be posted and available for your review when the Contest is published in the Service. If you choose to participate in a Contest, you must be eligible, as set forth below, and you must comply with all Contest Rules. Failure to comply with all Contest Rules and with these Terms in connection with a Contest may disqualify you from such Contest.
5.2 Eligibility to Participate
Participation in Contests is open only to legal residents of the fifty (50) United States and Washington, D.C., who are eighteen (18) years or older, or age of majority in their jurisdiction, whichever is older, and are registered members of FomoYolo with a valid Account. While we may restrict your ability to create an Account or participate in certain games and activities if you are using the Services in certain states, it is your responsibility to comply with all laws, regulations and rules of the jurisdictions in which you reside or that apply to you. You agree that you are responsible for ensuring that you comply with all applicable laws and that we cannot be held liable if laws applicable to you restrict or prohibit your participation in a Contest. The Contests are not available and are void in all U.S. Territories (e.g., Guam and Puerto Rico), all foreign territories not specifically included herein, and where prohibited or restricted by law and subject to all applicable federal, state, local and municipal laws and regulations.
5.3 Contest Results and Prizes
The results and winners of the Contests will be determined by us in accordance with the Contest Rules, and our determinations shall be final. By participating in a Contest, you agree to be bound by our final determinations, and you understand that you have no right to appeal such determinations. The available Prizes in connection with a Contest will be posted together with the Contest Rules. Prizes are provided by the Contest Sponsors and may include cash prizes, commercial products and/or services, or other offerings as offered by the Contest Sponsors and approved by FomoYolo. We will inform you if you win a Contest within a reasonable period following the conclusion of the Contest. We will make reasonable efforts to facilitate all Prizes to you directly, but you agree that the Contest Sponsor is ultimately responsible for delivering your Prize, and you agree not to hold FomoYolo responsible in connection therewith. We reserve the right to substitute any Prize with another Prize of equal or greater value if the advertised Prize is not available. If a winner cannot be contacted or fails to claim the Prize or if the Prize is returned as undeliverable, or if a winner fails to comply with any of the provisions of these Terms, such winner will be considered to have forfeited the Prize. In such case, the Prize may be awarded to the individual who submitted the next best entry as previously determined by FomoYolo. In addition to specific Prizes that you may win if you win a specific Contest, you may also earn cash prizes and in-app rewards (“Rewards”) for simply participating in Contests. Such Rewards are provided in our sole discretion and may be modified or terminated by us as any time.
5.4 Disclaimer of Endorsement
FomoYolo’s hosting of Contests does not constitute or imply an endorsement by FomoYolo of the Contest Sponsor, nor any product, process, or service, or its producer or provider, in connection with a Contest. The views and opinions expressed in a Contest do not necessarily state or reflect those of FomoYolo, and you agree that FomoYolo shall not be responsible therefor. FomoYolo is not liable to you for any losses or damages in connection with your use of any product, process, or service provided as a Prize by a Contest Sponsor hereunder. Your use of such product, process, or service is between you and the Contest Sponsor, and FomoYolo disclaims any and all liability in connection therewith.
6. Fees; Refunds; Withdrawals; Taxes
6.1 Fees, Purchases, and Refunds
Except as otherwise stated herein, your use of the Services and participation in Contests is free of charge. However, you may purchase certain in-app rewards and benefits at cost. To do so, you must provide and maintain a valid credit on file with your Account. ALL PAYMENTS YOU MAKE IN CONNECTION WITH THE SERVICES ARE NONREFUNDABLE. It is FomoYolo's sole and complete discretion to offer for any reason at any time any refunds or credits to you in connection with your use of the Services.
You may request a withdrawal of funds from your Account at any time. Any amounts in your Account in excess of any amounts that you owe to us will be eligible to be withdrawn; provided that we may freeze amounts in your Account pending the outcome of an investigation of any breach of these Terms of Service. Amounts withdrawn will be either: (a) deposited to your Paypal account, or (b) paid by check mailed to the address provided. We may establish and modify from time to time minimum withdrawal amounts.
6.3 Account Fees
We reserve the right to charge fees for deposits and withdrawals, check processing and mailing, and for deposit and/or withdrawal transactions that exceed limits we may establish. All in-app purchases are handled by the Google Play and Apple stores, as applicable, and you agree that such purchases will be handled in accordance with the terms and conditions of Google Inc. and Apple Inc. (the “Payment Processor”), as applicable. We may also charge you fees to the extent Google, Apple, or any other third party charges us any amounts in connection with any withdrawals or other transactions you initiate. You hereby authorize us to charge any such fees against the funds in your Account.
You are responsible for reporting and payment of all applicable taxes incurred in connection with any transactions using the Services. In compliance with U.S. Internal Revenue Service regulations, we may send an IRS Form 1099-MISC or other appropriate form to any person who wins in excess of $600 in connection with the Services in any year. Depending on the jurisdiction in which you reside we may also send you a W-9 or other tax forms. You may be required to provide us with your social security number or other tax id number in order to prepare and provide you with the necessary tax forms. If you fail to do so, we may withhold payment of any amounts in excess of $600. We reserve the right to withhold from any Prizes or deduct from your Account any amounts required to be withheld or deducted by law.
The Services, including without limitation all computer code used to provide the Services, all games and other works published or provided through the Services and all game-play or game-play recordings created using the Services are copyrighted works owned by FomoYolo. FomoYolo reserves all right, title, and interest in and to the Services, including without limitation all intellectual property rights and other proprietary rights, that are not explicitly granted to you in these Terms. Your permitted use of the Services is limited by the intellectual property rights of FomoYolo and these Terms of Service.
8. Modification to Services
We reserve the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
9. DISCLAIMER OF WARRANTIES
The Services are provided "AS IS" and "AS AVAILABLE" and to the maximum extent permitted by applicable law, WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR ANY PARTICULAR PURPOSE OR USE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND COURSE OF PERFORMANCE. Without limiting the foregoing, we do not warrant that the Services will operate uninterrupted or error-free, that defects will be corrected, or that the Services will be free of viruses or other harmful components. Your access and use of the Services is at your own risk.
10. DISCLAIMER OF CERTAIN TYPES OF DAMAGES
11. LIMITATION OF LIABILITY
12. The foregoing disclaimer of warranties, disclaimer of certain damages and limitation of liability will apply to the maximum extent permitted by applicable law. The laws of some states/jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of certain damages. To the extent that those laws apply to these Terms of Service, the exclusions and limitations set forth above may not apply to you.
You agree to defend, indemnify, and hold us harmless from and against any claim, liability, loss, injury, damage, cost, or expense (including reasonable attorneys' fees) incurred by Us arising out of or from (a) your access and use of the Services, or (b) your violation of these Terms of Service.
14. DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT
14.1 Initial Dispute Resolution
If a dispute arises between you and FomoYolo, the party raising the dispute must notify the other party in writing, or in your case, you may notify FomoYolo through its customer service and support features in the Services. For a period of at least forty-five (45) days following such notification, the parties shall use good faith efforts to settle such dispute, which shall be a condition to either party initiating a lawsuit or arbitration.
14.2 Binding Arbitration
a) If the parties do not reach a resolution to a dispute after at least forty-five (45) days of good faith efforts with FomoYolo’s customer service, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms of Service (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. Any arbitration hereunder will be held exclusively in the state of Washington, United States.
b) The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to any claim that all or any part of these Terms of Service are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
c) The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
d) The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND FOMOYOLO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes arising hereunder, as set forth above.
e) Notwithstanding the parties' agreement to resolve all disputes through arbitration, either party may bring an action in U.S. state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
f) For any dispute not subject to arbitration, you and FomoYolo agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in the state of Washington, United States. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
15. General Provisions
15.1 Waiver, Severability.
15.2 Injunctive Relief.
You acknowledge that any breach by you of any obligations under these Terms of Service may irreparably harm us and may not be adequately compensated by money damages such that we shall be entitled to seek injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you.
15.3 Controlling Law. These Terms of Service and any action related thereto will be governed by the laws of the State of Delaware without regard to its conflict of law provisions to the contrary.
15.4 Other Jurisdictions. We publish and deliver the Services from our locations in the United States. We make no representation that this application is appropriate or available in other locations. The information provided on the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country.
No gambling is allowed within the Services. The Contests enabled through the Services utilize skill and/or knowledge-based games, meaning the outcome of all relevant games are based predominantly upon the skill of participants, not chance. FomoYolo does not have knowledge of the probability of any particular participant winning a Contest and makes no representations about an individual user’s chances of winning.
15.6 Entire Agreement.
15.7 Term and Termination
These Terms of Service, as modified or amended by FomoYolo from time to time, shall be in effect and shall remain in effect at any time that you use the Services. Termination of any rights granted by FomoYolo under these Terms does not affect any other provisions of these Terms. You may terminate these Terms at any time by discontinuing your use of the Services. We may terminate these Terms, including your right to access the Service, at any time in our sole discretion. All terms contained herein, which by their nature are intended to survive the termination of these Terms of Services, shall so survive.
15.8 Legal Compliance
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
15.9 Supplemental App Store Terms
a) If you are accessing the Service through the Google Play Store, you agree to the supplemental Google Play Terms of Service located at https://play.google.com/intl/en-us_us/about/play-terms/index.html or another URL as determined by Google. In the event of a conflict between these Terms and the Google Play Terms of Service, the Google Play Terms will govern. You understand and agree that Google is not involved in any way with the Contests. To the maximum extent permitted by applicable law, Google will have no warranty obligation whatsoever with respect to the Service, and Google will not be responsible for any product claims or claims of intellectual property infringement with respect to the Service. Google is a third-party beneficiary of these Terms.
b) If you are accessing the Service through the Apple Store, you agree to the supplemental Licensed Application End User License Agreement located at https://www.apple.com/legal/internet-services/itunes/dev/stdeula/ or another URL as determined by Apple. In the event of a conflict between these Terms and the Licensed Application End User License Agreement, the Licensed Application End User License Agreement will govern. You understand and agree that Apple is not involved in any way with the Contests. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the Service, and Apple will not be responsible for any product claims or claims of intellectual property infringement with respect to the Service. Apple is a third-party beneficiary of these Terms.
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