ePrize Commercial Terms of Service
Welcome to ePrize, provided by ePrize, Inc.
These Terms of Service apply to general commercial accounts (“Accounts”). Owners of Accounts shall be referred to as “Marketers.” By using your ePrize account and associated ePrize mobile features (as described further below), you agree to be bound by the Terms of Service listed below (the “Terms”).
- License. The ePrize service consists of mobile messaging, including sms, mms, mobile instant messaging or other messaging principally transmitted by Network Operators (as defined in Section 4 below) and online and mobile information aggregation and delivery services that make available information, data, text, graphics, messages and other materials from a wide variety of sources, including the Internet and third party sources (the “Service” or “Services”). ePrize grants Marketer a non-exclusive, non-transferable, limited license to use the Service for the time period Marketer is the owner of an Account subject to the terms and conditions set forth herein and any additional terms set forth in an addendum, service order or other agreement executed by both parties (a “Service Order”). Other than as set forth in Section c below, Marketer shall not grant access to the Service to third parties. Marketer will receive user names and passwords and accept responsibility for any use of the Service under the user names assigned to the Account. Marketer agrees to maintain the security of the user names and passwords and will promptly notify ePrize if there is any unauthorized use thereof by contacting ePrize at firstname.lastname@example.org or 888-281-7542.
- Restrictions on Use. Marketer will be given access to the Service to create mobile campaigns, including key words, interactive voice response and mobile web experiences (collectively, “Mobile Campaigns”) and to generate content to be associated with the Mobile Campaigns, and will be given the ability for end-users to receive mobile message broadcasts including text messages. Marketer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way (except for Platinum Marketers as provided in “Platinum Accounts” below); (ii) modify or make derivative works based upon the Service; or (iii) reverse engineer the Service. Marketer is responsible for all activity occurring under its Accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data in addition to those restrictions set by the Network Operators (as defined in “Network Operators” below) and available for review on the applicable websites. Marketer further agrees that Marketer shall not include any third party advertising, including without limitation, any sponsorship, hyperlink or other branding, in connection with the Service or any Content (as defined in “Content” below) without ePrize’s prior written consent.
- Platinum Accounts. Marketers that sign up for a Platinum Account may grant access to the Service to any of Marketers’ employees.
ePrize may establish general practices and limits concerning use of the Service, including, without limitation, the maximum number of days that Content will be retained by the Service, the maximum number of messages, comments, emails, or other postings that may be sent from or received by an Account, the maximum size of any message that may be sent from or received by an Account, the maximum disk space that will be allotted to the Marketer on ePrize’s servers, and the maximum number of times (and the maximum duration for which) Marketers may access the Service in a given period of time. Marketer agrees that ePrize has no responsibility or liability for the deletion or failure to store any messages and other communications or other content maintained or transmitted by the Service. Marketer acknowledges that ePrize reserves the right to terminate Accounts that are inactive for an extended period of time which shall be determined in ePrize’s sole discretion.
ePrize shall have the right to include third party advertising on mobile web pages (wap), voice messages and/or text messages sent to users with Marketer’s prior written consent. Further, ePrize shall have the right to include any and all types of ePrize branding on the ePrize website, mobile web pages and voice messages or text messages sent to end users, including without limitation, use of the ePrize trademarks and hyperlinks to the ePrize website.
Marketer acknowledges that the Service depends on the use of services of third party network operators (“Network Operator”), directly and indirectly, as well as service providers to a Network Operator known as “Aggregators”. ePrize provision of the Services depends on the terms of services provided by Network Operators and Aggregators, over which ePrize has no control. In the event of any changes in the services, prices, conditions or terms of services provided to ePrize by Network Operators or Aggregators (“Network Operator Changes”), ePrize will notify Marketer of Network Operator Changes that are material to the delivery of the Service as soon as reasonably practicable following ePrize’s notification of any Network Operator Change. ePrize may amend these Terms based on Network Operator Changes. ePrize is not responsible for any delays, delivery failures, or other damage resulting from any problems inherent in the use of the Network Operators, Aggregators, the Internet or electronic communications.
- Marketer Content. All information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials (“Content”) is the sole responsibility of the person from whom such Content originated. Marketer is entirely responsible for all Content that it uploads, posts, transmits or otherwise makes available via the Service. Further, Marketer will not use the Service to upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, obscene, libelous, invasive of another’s privacy, racially or ethnically derogatory, fraudulent or deceptive, or otherwise objectionable, as determined in ePrize’s sole discretion. Marketer is solely responsible for the promotion and marketing of any Mobile Campaign operated by Marketer on behalf of Marketer’s clients that use the Service. ePrize may publicly display or promote the Mobile Campaigns and any Content provided by the Marketer on the ePrize website, on any third party websites that may display a ePrize widget or in connection with any ePrize marketing and promotional materials with Marketer’s prior written consent. Marketer represents and warrants that it has the authority to grant ePrize the rights to use the Content provided by Marketer in accordance with this Section and that all Content provided by Marketer is accurate and truthful.
- Import of Mobile Phone Numbers. If Marketer provides one or more mobile phone numbers to ePrize for which the Service will be used, Marketer represents that Marketer (i) has all necessary permission from the consumer and (ii) has all proper legal authority to use such mobile phone numbers and (iii) has complied with all carrier guidelines, including the Mobile Marketing Association’s Best Practices Guidelines, and all laws, including the Telephone Consumer Protection Act and the Federal CAN-SPAM Act of 2003, in the collection and use of such mobile phone numbers. Further, Marketer represents that Marketer has consumer permission to use the Service with such numbers. Marketer assumes all liability associated with use of such numbers via the Service and shall indemnify and hold ePrize harmless for any claims related thereto.
- Calls to Action.For promotions of a Campaign launched by Marketer that appear anywhere other than on the ePrize website (i.e. promoted via banner ad, widget, in venue, third party website, etc.), Marketer must include the following applicable language in close proximity to the Call to Action or phone number input box:
- Disclaimers. ePrize does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. ePrize reserves the right to investigate and take appropriate legal action against anyone who, in ePrize’s sole discretion, violates this provision, including without limitation, removing the offending communication from the Service and terminating the Accounts of such violators.
- Prohibited Activity. Marketer will not:
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- intentionally or unintentionally violate any applicable local, state, national or international law, and any regulations or self-regulatory scheme having the force of law;
- provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
- copy the code for the ePrize system and embed it into other Content, web pages, documents, communications or transmissions or ask others to embed it into other Content, web pages, documents, communications or transmissions except as enabled by the use of ePrize widgets and data feeds designed to display Content on other web sites with the appropriate ePrize branding and hyperlinks to the Service;
- use any robot, spider, other automatic device or manual process to monitor or copy the Content or web pages, or use any device, software or routine to bypass ePrize’s robot exclusion headers or to interfere or attempt to interfere with the proper working of the ePrize site or any activities conducted thereon, including taking any action that imposes an unreasonably large load on the ePrize infrastructure.
Marketer acknowledges, understands and agrees that ePrize may access, preserve and disclose Account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Terms; (c) respond to claims that any Content violates the rights of third parties; (d) respond to requests for customer service; or (e) protect the rights, property or personal safety of ePrize, its users and the public.
Marketer acknowledges, understands and agrees that ePrize and its designees shall have the right in their sole discretion to moderate, pre-screen, or refuse any Content that is available via the Service. Without limiting the foregoing, ePrize and its designees shall have the right to prevent the publication of or remove any Content that violates the Terms or is otherwise objectionable. Further, ePrize shall provide Marketer with tools to moderate Content via the Service and Marketer agrees to use those tools to attempt to remove profanity from user-generated Content before including it in the Service. Despite ePrize’s screening efforts, using the Service may include Content and/or links to Content that some people find objectionable, inappropriate, or offensive. ePrize cannot guarantee that Content found in the Service will not include unintended or objectionable Content, and ePrize assumes no responsibility for the Content of any kind provided through the Service. Marketer agrees that it will evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
ePrize permits Marketers to initiate or receive live telephone conversations with end-users (“Conversations”). Marketer agrees that ePrize may record all such Conversations and grants ePrize a perpetual, irrevocable, nonexclusive, fully paid up, sublicensable right and license to reproduce, distribute, display, and perform the Conversations in connection with the Service and ePrize website. Marketer understands that ePrize does not guarantee the confidentiality, transmission, or accuracy with respect to any Conversations. Marketer warrants, represents and agrees that it will not engage in any Conversations that contain material otherwise prohibited by these Terms. ePrize reserves the right to terminate or disable access to any Conversations at any time, for any reason or for no reason at all. ePrize grants Marketer a license to access aggregated, non-personally identifiable data provided, in return Marketer also agrees that non-personally identifiable information generated by Marketer’s Mobile Campaigns, when aggregated, may be accessed by licensees of ePrize Connect accounts other than Marketer.
Suspension of the Service
ePrize and the Network Operators may access and review Content transmitted through the Service, as necessary to identify a potential breach of the Terms or a Service Order. To the extent that ePrize discovers an actual or potential breach, ePrize may suspend the Services for as long as it deems necessary. ePrize will use reasonable efforts to notify Marketer in advance of any suspension of the Services.
ePrize may in its reasonable discretion suspend or terminate any or all of the Services at any time in the event that:
- ePrize is obligated or advised to comply with an order, instruction, directive or request of a Governmental Body or Network Operator which necessitates that it do so, in the sole discretion of ePrize;
- ePrize has reason to believe that the Marketer is in breach of any of the obligations under these Terms or a Service Order and provides written notice of reasons; or
- One or more of the Network Operators upon which the provision of the Services is dependent suspends its provision of services to ePrize.
- Payment. Fees and additional payment terms and conditions may be set forth and accepted on the ePrize website or in a Service Order between Marketers and ePrize. Payment is to be made by providing either a valid credit card or other method approved by ePrize (each, a “Payment Method”). Payments are non-refundable. If for any reason ePrize is unable to charge the Payment Method for the full amount owed ePrize for the Service provided, or if ePrize is charged a penalty for any fee it previously charged to the Payment Method, ePrize may pursue all available remedies in order to obtain payment, which shall include but will not be limited to, immediate cancellation without notice of the Services. The Payment Method may be changed at any time by contacting ePrize or using any self-service interface provided on the ePrize website.
- Self-Service Accounts. By activating its ePrize account, Marketer is expressly agreeing that we are authorized to charge it a monthly fee, any applicable tax and any other charges Marketer may incur in connection with its use of the Service to the Payment Method it provided during registration (or to a different Payment Method if Marketer changes its account information). As used in these terms, “billing” shall indicate either a charge or debit, as applicable, against Marketer’s Payment Method. The account fee will be billed upon activation of Marketer’s account and on each monthly renewal thereafter unless and until Marketer cancels its account. Click on the Billing tab to see the commencement date for the next renewal period. We will automatically bill Marketer’s Payment Method each month on the calendar day corresponding to the activation of Marketer’s account. In the event Marketer’s account was activated on a day not contained in a given month, we will bill Marketer’s Payment Method on the last day of such month. For example, if Marketer became a paying user on January 31st, Marketer’s Payment Method would next be billed on February 28th. There are no refunds or credits for partially used months. ePrize may change the fees and charges in effect, or add new fees and charges from time to time, but will give Marketer advance notice of these changes by email. If Marketer wants to use a different Payment Method or if there is a change in Marketer’s credit card validity or expiration date, Marketer may edit its Payment Method information by clicking on the Billing tab at the top of Marketer’s home page. If Marketer’s Payment Method reaches its expiration date, its continued use of the Service constitutes Marketer’s authorization for ePrize to continue billing that Payment Method and Marketer remains responsible for any uncollected amounts.
- Cancellation. ePrize Accounts will remain active until Marketer cancels its account or ePrize terminates it. Marketer may cancel its account at anytime and cancellation will be effective immediately. However, Marketer must cancel its account before it renews each month to avoid billing of the next month’s fees to Marketer’s Payment Method. EPRIZE DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL MONTHS. To cancel, click the words “Cancel Account” on the Billing page and follow the instructions for cancellation. ePrize reserves the right to terminate an account for any or no reason.
Sweepstakes and Promotions
ePrize can assist Marketers with the set-up and administration of sweepstakes and promotions. In some cases, ePrize uses a third party sweepstakes service to assist with the legal aspects of administering a sweepstakes. In other cases, Marketer is responsible for this compliance. Whether or not ePrize uses a third party, Marketer acknowledges that ePrize accepts no liability for any claim related to compliance with sweepstakes laws and makes no representation or warranty that any sweepstakes complies with applicable law.
Changes in Commercial Terms and Conditions
ePrize may modify the Services from time to time, for any reason, and without notice, including the right to terminate with or without notice, without any liability. ePrize reserves the right to modify these Terms from time to time without notice, provided that we will prominently post the date of the most recent changes to these terms.
Intellectual Property Policy
Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works that is not considered fair use is an infringement of the copyright holders’ rights. Marketer shall not use the Service to infringe the intellectual property rights of others in any way. ePrize will terminate the Accounts, and will terminate making available through its site the Content of any persons or entities that infringe the copyrights, or other intellectual property rights, of others. In addition, ePrize reserves the right to terminate the Account upon any single infringement of the rights of others in conjunction with use of the Service, if ePrize believes that conduct of the Marketer or its user is harmful to the interests of ePrize, its affiliates, or other users, or for any other reason in ePrize’s sole discretion.
In accordance with the Digital Millennium Copyright Act of 1998 (the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/), ePrize will respond expeditiously to claims of copyright infringement committed using the Service that are reported to ePrize’s “Designated Copyright Agent.” If Marketer is a copyright owner, or authorized to act on behalf of an owner of the copyright or of any exclusive right under the copyright, please report a notice of infringement by sending an email to the Copyright Agent at email@example.com.
Disclaimer of Warranties
ePrize disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information or material displayed in the Services. ePrize disclaims any responsibility for the deletion, failure to store, misdelivery, or untimely delivery of any information, material or Content. ePrize disclaims any responsibility for any harm resulting from downloading or accessing any information or material on the Internet through the Service.
THE SERVICE, AND ALL CONTENT, MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED IN THE SERVICES ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. EPRIZE AND ITS LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. EPRIZE AND ITS LICENSORS DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES. EPRIZE AND ITS LICENSORS DISCLAIM ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE SERVICES. EPRIZE AND ITS LICENSORS DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED BY THE SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES.
MARKETER UNDERSTANDS AND AGREES ANY MATERIAL, DATA OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT MARKETER’S OWN RISK AND THAT MARKETER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ANYCOMPUTER SYSTEM AND/OR MOBILE PHONE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL EPRIZE OR ITS LICENSORS BE LIABLE TO ANY MARKETER ON ACCOUNT OF THAT MARKETER’S USE OR MISUSE OF OR RELIANCE ON THE SERVICES ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF EPRIZE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
- Force Majeure. Under no circumstances shall ePrize or its licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment and software failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
- Third Party Websites. The website contains links to third party sites (“Linked Sites”). These Linked Sites are not under the control of ePrize and ePrize shall not be responsible or liable for the availability, content or performance of any Linked Sites. Further, ePrize shall have no liability for any claims relating to any wireless, telecommunications or other carrier, regardless of whether such carrier is used by Marketer in connection with the ePrize website.
- Trademarks. “ePrize” and other related marks are the trademarks of ePrize, Inc. and are protected by law. All other names of companies and products displayed on the website may be trademarks of their respective owners and are used with permission. Marketer may not copy, display or use any of these marks without prior written permission of the mark owner. Notwithstanding the foregoing, ePrize shall have the right to use Marketer’s name and trademark(s) on the ePrize website and on ePrize’s customer list.
- Governing Law. These Terms and the terms and conditions of any Service Order will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions or your actual state or country of residence. If for any reason a court of competent jurisdiction finds any provision or portion of the Terms of Service to be unenforceable, the remainder of the Terms of Service will continue in full force and effect.
- Entire Agreement. These Terms and the terms and conditions of any Service Order constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Terms will be effective only if in writing and signed by ePrize.
Marketer agrees that the Terms will survive the expiration or termination of any Service Order.
Effective Date: October 31, 2011