EFFECTIVE SEPTEMBER 2021
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2. YOUR ACCEPTANCE OF THESE MESSAGING TERMS. These Messaging Terms constitute a binding contract between you and Omaze. By signing-up and using the Messaging Services, you agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages (e.g., cart reminders, information updates, and marketing messages) from Omaze and its service provider, including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. Consent to receive automated marketing text messages is not a condition of receiving any goods or services. Message and data rates may apply.
If you do not wish to be bound by these Messaging Terms, you may not sign-up for, access, or use the Messaging Services and, if applicable, cancel the Messaging Services in accordance with Section 7.
3. CHANGES TO THESE MESSAGING TERMS: Omaze may modify these Messaging Terms at any time, in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Messaging Services thereafter. Your continued use of the Messaging Services following the posting of revised Messaging Terms means that you accept and agree to the changes. You are responsible for checking these Messaging Terms regularly to ensure that you understand the Messaging Terms that apply at the time of your access to or use of the Messaging Services.
4. AGE REQUIREMENT: You must be at least 18 years old, or the age of legal majority in your jurisdiction of residence, to use the Messaging Services, access or use the Website, and/or participate in any Experiences.
5. APPLICABILITY OF THE MESSAGING SERVICES. Message frequency will vary. Omaze reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. Omaze also reserves the right to change the short code or phone number from which messages are sent and we will notify you when we do so. Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. Omaze, its service providers and the mobile carriers supported by the Messaging Services are not liable for delayed or undelivered messages.
6. CARRIERS. We are currently able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless).
7. CANCELLATION. Text the keyword STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode to cancel the Messaging Services. After texting STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode you will receive one additional message confirming that your request has been processed. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands and agree that Omaze and its service providers will have no liability for failing to honor such requests. If you unsubscribe from one of our Messaging Services, you may continue to receive text messages from Omaze through any other programs you have joined until you separately unsubscribe from those programs.
8. CUSTOMER CARE. Omaze utilizes a service provider, Attentive, to provide the Messaging Services. If you are experiencing any problems with the Messaging Services, you may (a) text the keyword HELP to our shortcode to receive customer care contact information, (b) visit https://support.attentivemobile.com/help/ and submit the form with details about your problem or your request for support, or (c) email firstname.lastname@example.org. You may also contact Omaze directly at email@example.com.
10. ACCESS TO THE MESSAGING SERVICES: The Messaging Services are offered only for your personal, non-commercial use, and not for the use or benefit of any third-party. We may, in our sole discretion, change, modify and/or refuse to offer some of all the Messaging Services to any person and change the eligibility criteria at any time. Any right to access and use the Messaging Services is automatically revoked where these Messaging Terms, or use of the Messaging Services, is prohibited or conflicts with any applicable law, rule, or regulation.
(A) LIMITING OR MODIFYING THE MESSAGING SERVICES: We reserve the right to withdraw, limit or otherwise modify the Messaging Services, in our sole discretion without notice. We will not be liable if for any reason all or any portion of the Messaging Services are unavailable at any time or for any period.
(B) ACCESS: You are solely responsible for making all arrangements necessary for you to have access to the Messaging Services, including, without limitation, securing connections, and for any telecommunication fees.
11. OMAZE INTELLECTUAL PROPERTY: The contents of any text messages, including the Omaze trademark and logo, designs, text, artwork, graphics, images, buttons, user interfaces, information, and other content, and any compilation of the foregoing (“Omaze Intellectual Property”) are the property of Omaze, except where otherwise noted, and are protected from copying, imitation, communication, or simulation under United States and international laws and may not be reproduced, modified, communicated, displayed, distributed, or transmitted without the prior written permission of Omaze. You understand and acknowledge that, by using the Messaging Services, you do not acquire or obtain by implication or otherwise, any license or right to use any of the Omaze Intellectual Property in any manner not expressly permitted under these Messaging Terms.
12. GENERAL PROHIBITIONS AND OMAZE’S ENFORCEMENT RIGHTS: You may use the Messaging Services only for lawful purposes and in accordance with these Messaging Terms. Additionally, you agree that you will not do any of the following:
(A) Interfere, or attempt to interfere, with the proper working of the Messaging Services.
(B) Use the Messaging Services, or any portion thereof, for any commercial purpose or for the benefit of any third-party or in any manner not permitted by these Messaging Terms or permitted expressly in writing by Omaze.
(C) Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Messaging Services.
(D) Access, tamper with, or use non-public areas of the Messaging Services, Omaze’s computer systems, or the technical delivery systems of Omaze’s service providers.
(E) Attempt to probe, scan or test the vulnerability of any Omaze system or network or breach any security or authentication measures.
(F) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Omaze or any of Omaze’s service providers or any other third-party (including another user) to protect the Messaging Services, systems, or other content.
(G) Bypass any territorial restrictions, including IP address-based restrictions, that may be applied to the Messaging Services.
(H) Collect or store any personally identifiable information from other users of the Messaging Services.
(I) Use any device, software, or routine that interferes with the proper working of the Messaging Services.
(J) Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
(K) Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the any server, computer, or database connected to the Messaging Services.
(L) Attack any server, computer, or database connected to the Messaging Services, via a denial-of-service attack or a distributed denial-of-service attack.
(M) Use, display, mirror or frame Omaze’s name, any Omaze trademark, logo or other proprietary information.
(N) Use any meta tags or other hidden text or metadata utilizing a Omaze trademark, logo URL or product name without Omaze’s express written consent.
(O) Send any forged, altered, deceptive, or false source-identifying information.
(P) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation.
(Q) Encourage or enable any other individual to do any of the foregoing to otherwise violate these Messaging Terms.
Although we’re not obligated to monitor access to or use of the Messaging Services, we have the right to do so for the purpose of operating the Messaging Services, to ensure compliance with these Messaging Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Messaging Services and Omaze’s systems. We have the right to investigate violations of these Messaging Terms or conduct that affects the Messaging Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
13. DISCLAIMER OF WARRANTIES: THE MESSAGING SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. OMAZE MAKES NO WARRANTY AS TO THE QUALITY, ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE MESSAGING SERVICES. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE MESSAGING SERVICES IS AT YOUR SOLE RISK. OMAZE DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE MESSAGING SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE OPERATION OF THE MESSAGING SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE MESSAGING SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OMAZE PROVIDES NO WARRANTY OR GUARANTY OF ANY KIND THAT THE MESSAGING SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
14. INDEMNIFICATION: You agree to defend, indemnify, release, and hold harmless Omaze and its parents, subsidiaries, and affiliated companies, and all of their respective past and present officers, directors, employees, agents, and representatives (collectively, the “Released Parties”) from and against any and all claims, expenses, and liability, including but not limited to negligence and damages of any kind to persons or property, including but not limited to invasion of privacy (under appropriation, intrusion, public disclosure of private facts, false light in the public eye or other legal theory), defamation, slander, libel, violation of right of publicity, infringement of trademark, copyright or other intellectual property rights, property damage, or death or personal injury arising out of or relating to (i) your use or misuse of the Messaging Services, (ii) your breach or alleged breach of these Messaging Terms, including, but not limited to a breach or alleged breach of any representation or warranty by you in these Messaging Terms; or (iii) your violation of any law, rule, regulation, or rights of others in connection with your use of the Messaging Services.
15. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY: TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE RELEASED PARTIES ARE NOT RESPONSIBLE AND WILL HAVE NO OBLIGATION OR LIABILITY RESULTING FROM (I) INCORRECT OR INCOMPLETE INFORMATION, WHETHER CAUSED BY YOU OR OTHERWISE, TECHNICAL ERRORS, OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED BY OMAZE; (II) TECHNICAL FAILURES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO OUTAGES, MALFUNCTIONS, INTERRUPTIONS, OR DISCONNECTIONS IN PHONE LINES OR NETWORK HARDWARE OR SOFTWARE OR SCHEDULED OR UNSCHEDULED MAINTENANCE; (III) THE USE OR THE INABILITY TO USE THE MESSAGING SERVICES; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; (VI) ANY OTHER MATTER RELATING TO THE MESSAGING SERVICES; (VI) THE COST OF PROCURING SUBSTITUTE GOODS, MESSAGING SERVICES OR TECHNOLOGY; OR (VII) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE MESSAGING SERVICES, EVEN IF OMAZE AND/OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, OMAZE’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY BREACH OF THESE MESSAGING TERMS AND ANY PROBLEMS OR DISSATISFACTION MESSAGING SERVICES IS TO CANCEL AND DISCONTINUE USE OF THE MESSAGING SERVICES. Because some jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such jurisdictions, the liability of Omaze and its affiliates hereunder shall be limited to the fullest extent permitted by law.
16. BINDING ARBITRATION, NO CLASS ACTION:
Please read this section carefully. you understand and agree that you waive your right to sue or go to court to assert or defend your rights connected with these Messaging Terms.
(A) MANDATORY ARBITRATION OF DISPUTES: We each agree that any dispute, claim, or controversy arising out of or relating to these Messaging Terms or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Messaging Services, including the determination of the scope or applicability of this arbitration provision, (each, a “Claim”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Omaze agree that the U.S. Federal Arbitration Act (or equivalent laws in the jurisdiction in which the Omaze entity that you have contracted with is incorporated) governs the interpretation and enforcement of these Messaging Terms and that this arbitration provision shall survive termination of these Messaging Terms.
(B) CLASS ACTION WAIVER: You and Omaze each agree that either of us may bring claims against the other only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, if the parties’ dispute is resolved through arbitration, neither JAMS nor the arbitrator may consolidate another person’s claims with your claims or otherwise preside over any form of a representative or class proceeding for any purpose. If this specific provision is found to be unenforceable, then the entirety of this Section 16 shall be null and void.
(C) LIMITED REMEDIES: Additionally, except as may be provided for in Subsection 16(D), below, or prohibited by law, we each agree that, for any dispute, claim, or controversy arising out of or relating to these Messaging Terms or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Messaging Services, our remedies are limited to a claim for money damages (if any) and we each irrevocably waive any right to seek injunctive or equitable relief.
(D) EXCEPTIONS AND OPT-OUT: Notwithstanding Subsections 16(A) and (B) above, we each retain the right to:
(i) seek to resolve a Claim in small claims court if it qualifies; and
(ii) seek injunctive or other equitable relief from a court of competent jurisdiction to prevent (or enjoin) the infringement or misappropriation of our respective intellectual property rights.
In addition, you will retain the right to opt out of arbitration entirely and litigate any Claim if you provide us with written notice of your desire to do so by regular mail sent to the attention of Omaze’s Legal Department at the Omaze address set out in Section 19(C), below, within 30 days following the date you first agree to these Messaging Terms. If Omaze changes any of the terms of this Section 16 after the date you first accepted these Messaging Terms (or accepted any subsequent changes to these Messaging Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Effective” date above. By rejecting any change, you are agreeing that you will arbitrate any Claim between you and Omaze in accordance with the terms of this Section 16 as of the date you first accepted these Messaging Terms (or accepted any subsequent changes to these Messaging Terms).
(E) DISPUTE RESOLUTION AND NOTIFICATION OF CLAIMS: Prior to bringing a Claim you and Omaze each agree to notice the other party and attempt, in good faith, to negotiate an informal resolution. To begin this process, before initiating any arbitration proceeding, the party seeking to bring a Claim must send a Notice of Claim (“Notice”) by certified mail to the other party. All Notices to Omaze must be sent to the Omaze address set out in Section 19(C) below. The Notice must describe the nature and basis of the Claim and the relief sought. If we are unable to resolve the potential Claim within 45 days after receipt of the Notice, then you or Omaze may initiate arbitration proceedings as set out below.
(F) ARBITRATION PROCESS AND RULES: Any arbitration will be conducted by JAMS pursuant to its procedural rules for commercial disputes (“JAMS Rules”), using the Optional Expedited Arbitration Procedures when applicable. The JAMS Rules are available at https://www.jamsadr.com. A party who wishes to start arbitration must submit a written Demand for Arbitration to JAMS and give notice to the other party as specified in the JAMS Rules. JAMS provides a form Demand for Arbitration at www.jamsadr.com. JAMS will appoint an arbitrator. When practical, the arbitrator should have prior subject matter knowledge and familiarity with sweepstakes and/or fundraising laws in the jurisdiction in which the Omaze entity that you have contracted with is incorporated. The arbitration may be conducted via video-conference or in-person in the county (or other municipality) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement. During the arbitration, both you and Omaze may take one deposition of the opposing party, limited to 4 hours. If we cannot agree on a time and location for a deposition, the arbitrator will resolve any scheduling disputes. The arbitrator shall provide a decision explaining his or her findings and conclusions, and the ruling may be entered in any court having jurisdiction thereof. The arbitrator’s decision shall be final and binding upon the parties to these Messaging Terms.
(G) ARBITRATION COSTS: Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If you assert a claim against Omaze, you will be responsible for paying the consumer filing fee. Omaze will pay for all other JAMS-issued fees (including filing, administration, and arbitrator fees and expenses). Each party shall pay its own attorneys’ fees and any other costs it incurs. If any party prevails on a statutory claim that affords a prevailing party attorneys’ fees and costs, or if there is a written agreement providing for attorneys’ fees and costs, the arbitrator will award such costs and fees per the applicable statute or written agreement. The arbitrator shall resolve any dispute regarding the reasonableness of any fee or cost that may be awarded under this paragraph.
(H) CONFIDENTIALITY: To the extent permitted by law, the existence of the arbitration, the arbitration proceedings, and the outcome of the arbitration will be treated as confidential and will not be disclosed by either party. You and Omaze agree that an award, and any judgment confirming it, only applies to the arbitration in which it was awarded and cannot be used in any other proceeding except to enforce the award itself and any post-arbitration action seeking to enforce an arbitration award or action seeking equitable or injunctive relief shall be brought exclusively in the courts in Wilmington County, Delaware, or the United States District Court for the District of Delaware (or in the jurisdiction in which the Omaze entity that you have contracted with is incorporated).
(I) SEVERABILITY: If any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.
17. CONTRACTING ENTITY, GOVERNING LAW; JURISDICTION: Users of the Messaging Services or the www.Omaze.com website are contracting with Omaze, Inc.
All matters relating to the Messaging Services and/or these Messaging Terms, and any dispute or Claim arising therefrom or related thereto (in each case, including non-contractual disputes or Claims), shall be governed by and construed in accordance with United States federal law and the law of the State of Delaware, without giving effect to the conflict of laws rules thereof.
Subject to the arbitration provision and class action waiver in Section 16, above, exclusive jurisdiction for all Claims that are not required to be arbitrated will be in the state and federal courts located in Wilmington, Delaware, United States and you consent to the jurisdiction of those courts.
18. LIMITATION ON TIME TO FILE CLAIMS: ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE MESSAGING TERMS OR THE MESSAGING SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
(A) RELATIONSHIP OF PARTIES: You agree that no joint venture, partnership, employment, or agency relationship exists between you and Omaze because of these Messaging Terms or your use of the Messaging Services.
(B) ASSIGNMENT: Omaze may assign these Messaging Terms, in whole or in part, to any person or entity at any time with or without your consent. You may not assign these Messaging Terms without Omaze's prior written consent, and any unauthorized assignment by you shall be null and void ab initio.
(C) NOTICES: All notices given by you or required under these Messaging Terms shall be in writing and addressed to: Omaze, Inc., c/o General Counsel’s Office, PO Box 866, 9942 Culver Blvd, Culver City, CA 90232.
(D) EQUITABLE REMEDIES: You hereby agree that Omaze would be irreparably damaged if the terms of these Messaging Terms were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Messaging Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.
(E) FORCE MAJEURE: Neither you or Omaze will be liable for any failure or delay in performance under these Messaging Terms for causes beyond the other party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-performing party through the use of commercially reasonable, alternate sources.
(F) WAIVER AND SEVERABILITY: Our failure to enforce any provision of these Messaging Terms shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each such provision thereafter. The express waiver by us of any provision, condition or requirement of these Messaging Terms shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. If any of the provisions of these Messaging Terms is found to be invalid or unenforceable, then that provision will be construed in a manner consistent with applicable laws to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions shall remain in full force and effect.
Copyright ©2021 Omaze, Inc. All third-party names and trademarks are the property of their respective owners.