ThisBig.com - Term Of Use

Thank you for visiting our site at www.ThisBig.com ("Website"). Use and access of this Website, and the text message services described below (the "Service"), is subject to these terms and conditions of use (the "Terms") as well as our Privacy Policy.

** IF YOU DO NOT AGREE WITH ANY OF THE TERMS LISTED ON THIS WEBSITE, OR IF YOU DO NOT INTEND ON USING ThisBig.com WITH THE "USAGE POLICY" TERMS DESCRIBED BELOW, DO NOT UTILIZE THE SERVICE PROVIDED BY ThisBig, THANK YOU. **

Overview
ThisBig's acceptance of your registration for the use of the Service is expressly conditioned upon your assent to these Terms, and your use of this Website, as well as registration for, and use of, the Service represents your implicit acceptance and consent to be bound by these Terms. Please read these Terms carefully. As noted below, ThisBig reserves the right to modify and update these Terms from time to time, by posting any such new or modified Terms to the Website.

Services described in the Website may or may not be available in all countries or regions of the world, may be available under different trademarks in different countries and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries.

Definitions
In these terms and conditions unless the context otherwise requires:

"Account" means a business account for the Services (including a business information, log-in, and password).
"Text Message" means the text that when sent initiates the automated messaging that the Subscribers receive from ThisBig,
"Subscriber" means a person or business that receives a Text Message from THISBIG.
"Business User"/"User" means a person or entity using the Website that registers with THISBIG to use the Services pursuant to of these terms and conditions.
"Business Content"/"Content" means any message that a Business User creates or provides using the Services which is sent to a Subscriber when a Business User initiates a User's Text Message
"Website" means the websites identified by the domain name THISBIG.com.

The Service
The Service consists of one or more of the following: a web-based interface, messaging applications, data transmission, data access, data storage and, if applicable, synchronization software, as well as software maintenance and upgrades and customer support. We provide outbound messages through different routes, and the level of reliability and support for special features varies according to the route. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all access charges (e.g. ISP, telecommunications) incurred while using the Service.

ThisBig only provides that the text messages you send through the Service are processed correctly and delivered to the applicable network. ThisBig is not responsible for the final delivery of the message, as this is out of our control and is the responsibility of the mobile network operator.

ThisBig sends and receives text messages via major telecommunications companies and mobile network operators, and thus ThisBig's influence over the timing of the transmission of your messages is within the technical constraints imposed upon ThisBig. While ThisBig shall use commercially reasonable efforts to deliver your messages to the applicable network for final delivery to your designated recipients as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transportation of your messages across the networks. You should know that mobile network operators assign text messages with a default lifetime and any message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the mobile network operator without any notice. ThisBig is not liable for any loss incurred by the failure of a message to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from ThisBig for any such non-deliveries. Furthermore, you agree that message contents are deemed to have zero value.

Usage Policy
You represent and warrant that the owners of the telephone numbers you provide to ThisBig, to which outbound messages are sent through the Service, have consented or otherwise opted-in to the receipt of such messages. You acknowledge and agree that you will send messages only to individuals who have given you their express permission to be contacted and you will update your contacts list immediately in order to remove any phone number that has opted-out from receiving messages from the Service.
You agree to abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages transmitted through ThisBig. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, broadcasts and campaigns transmitted through ThisBig by visiting the following websites: Federal Trade Commission, http://www.ftc.gov, Federal Communications Commission, http://www.fcc.gov DoNotCall Registry Info, http://www.donotcall.gov, The Telephone Consumer Protection Act (TCPA) (http://www.fcc.gov), the Federal Trade Commission (http://www.ftc.gov), the Federal Communications Commission (http://www.fcc.gov), DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls.

ThisBig is in no way attempting to interpret the TCPA of 1991 or any other laws, rules or regulations. This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages, broadcasts and campaigns prior to using the Website or Service. You are ultimately responsible to make your own informed decisions regarding your messages, broadcasts and campaigns.

You further agree that any individual requesting "Do-Not-Call" ("DNC") status shall immediately be removed from your list of approved contacts used with the Services and the Website. You shall schedule campaigns responsibly and in a manner that is courteous to the recipients pursuant to local, state, national and international calling time rules and regulations. You are solely responsible for obtaining any rights or licenses to any data for inclusion in any outbound messages, broadcasts and campaigns. If you are unfamiliar or unclear on the legalities of any message, broadcast or campaign, you must consult with your attorney prior to your use of the Website or Service.

As part of the registration process you will select a unique username and password. You shall provide ThisBig with accurate, complete, and regularly updated member profile information. You agree to notify ThisBig of any known or suspected unauthorized use(s) of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. You shall be responsible for maintaining the confidentiality of your password. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your user account, at ThisBig's sole discretion, and you may be reported to appropriate law-enforcement agencies.

You accept that the Service is provided for professional use only, and you agree that your use of the Website or Service shall not include:

Sending unsolicited marketing messages or broadcasts (i.e. spam);

Sending any calls to life-line services, such as hospitals, fire, police, 911 or utility-related telephone numbers;

Using strings of numbers as it is unlawful to engage two or more lines of a multi-line business;

Harvesting, or otherwise collecting information about others, without their consent;

Misleading others as to the identity of the sender of your messages or broadcasts, by creating a false identity, impersonating the identity of someone/something else or by providing contact details that do not belong to you;

Transmitting, associating or publishing any unlawful, racist, harassing, libelous, abusive, threatening, demeaning, libelous, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind;

Transmitting any material that may infringe upon the intellectual property rights of third parties including trademarks, copyrights or other rights of publicity;

Transmitting any material that contains viruses, trojan horses, worm, time bombs, cancel-bots or any other harmful/deleterious programs;

Interfering with, or disrupting, networks connected to the Service or violating the regulations, policies or procedures of such networks;

Attempting to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means;

Interfering with another's use and enjoyment of the Service or Website; or

Engaging in any other activity that ThisBig believes could subject it to criminal liability or civil penalty/judgment.

You agree that ThisBig is, under no circumstances, responsible for the contents and/or accuracy of your messages or broadcasts and ThisBig will only transmit them on a basis of good faith that you use the Service in accordance with these Terms. ThisBig will not be liable for any misuse of the Service by you. ThisBig is not responsible for the views and opinions contained in any of your messages or broadcasts.

We may have copyrights, trademarks, patents, trade secrets, or other intellectual property rights covering subject matter in the Service, including the web pages that are part of the Service and the Website. Except as expressly provided in these Terms, the availability of the Service and such web pages to you does not give you any license to these patents, trademarks, copyrights, or other intellectual property. All copyrights, trademarks, patents, trade secrets and other intellectual proprietary rights contained in the Website are the sole property of ThisBig or its licensors, each of whom reserves all rights with regard to such materials. You acknowledge and agree that you may not modify, alter, create any derivative works, reverse engineer, decompile or disassemble any portion of the Service or Website, including any proprietary communications protocol used by the Service or Website.

You agree that you will include clear opt-out/unsubscribe information on at least every fifth text message you send through ThisBig's software systems that conforms to the general rules of the MMA (www.mmaglobal.com) governing opt-outs and by instructing users to reply STOP to any text message you send. It is your sole responsibility to ensure any opt-out/unsubscribe messages are processed and honored so that consumers who choose to opt-out do not receive further text messages from you.

Data Protection & Privacy
In order to ensure your compliance with these Terms and to ensure that ThisBig complies with national and international laws, we may, from time to time, randomly check the messages that you send. Nonetheless, we are committed to maintaining the privacy of your information, pursuant to our Privacy Policy provided on the Website. Except as otherwise required for your use of the Service as contemplated herein, ThisBig does not want you to, and you should not, send any confidential or proprietary information to ThisBig via the Website or the e-mail addresses referenced on the Website. You agree that any information or materials that you or individuals acting on your behalf provide to ThisBig (other than information required for your use of the Service as contemplated herein) will not be considered confidential or proprietary. By providing any such information or materials to ThisBig (other than information required for your use of the Service as contemplated herein), you grant to ThisBig an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works and distribute such information and materials, and you further agree that ThisBig is free to use any ideas, concepts or know-how that you or individuals acting on your behalf provide to ThisBig. You further recognize that ThisBig does not want you to, and you warrant that you shall not, provide any information or materials to ThisBig that is defamatory, threatening, obscene, harassing, or otherwise unlawful, or that incorporates the proprietary material of another.
Messages Expiration
Messages purchased as a part of a package or monthly plan, and not used within the month of purchase, expire at the end of the month. Additionally, sending messages is limited to the weekly amount specified on your plan. The value of Messaging Plans may change over time (as noted in the Pricing section).

Becoming a Business User

By registering as a Business User, you warrant that you can form a legally binding contract.

You warrant that you have provided complete, accurate and current information when registering as a Business User.

THISBIG may terminate your right to use the Services if a serious complaint or multiple complaints are received about you, if you breach these terms and conditions, or if THISBIG, at its sole discretion, deems your usage to be unacceptable.

A Business User's login may only be used by one person - a shared login used by multiple people is not permitted. You are responsible for keeping your login information, including your email address and password, confidential and secure.
Without limiting the foregoing, you agree:
(i) Not to permit any other person to use your User Name or Account; and
(ii) Not to disclose, or provide to any other person, your password, email address or any other information in connection with your Account that may allow other persons to gain access to your Account.

You are responsible for any unauthorized use of your Account, and for all losses or charges, including losses or charges that may result from unauthorized or fraudulent use of your Account.
THISBIG will send you emails relating to your Account, transactions and other activities using the Services, and to inform you of other THISBIG products and services. THISBIG may also send regular electronic newsletters. Newsletters will contain clear and obvious instructions for how to unsubscribe from the mailing list.

Purchase of Keywords and/or Plans; Payments
Your payment for keywords and/or plans (a portion of which also includes software maintenance and upgrades, as well as customer support) shall be deemed completed when ThisBig receives the full amount of payment owed for such plans. Thereafter, your account will be credited within 24 hours of ThisBig verifying receipt of your payment. If you have elected to make a payment by credit card and we do not receive payment from the credit card issuer, you agree to pay all amounts due immediately upon demand by ThisBig.

Price Adjustment
As we are dependent on other entities for the delivery of our messages, our plans price may require adjustment in order to account for costs that are not in our control. Accordingly, we may adjust our prices from time to time without prior notice.

No Warranty; Limitation of Liability
You acknowledge that text messages are transmitted unencrypted and that eavesdropping of cell phone communications by third parties is possible. ThisBig does not recommend transmission of sensitive and valuable information.

ThisBig shall use commercially reasonable efforts to make access to the Service available through the required access protocols, but makes no warranty or guarantee that (i) the Service will be available at any particular time; or (ii) you will be able to access the Service at any particular time or from any particular location. ThisBig will not be liable for any act or omission of any other company or companies furnishing a portion of the Service (including, without limitation wireless carriers), or from any act or omission of a third party, including those vendors participating in ThisBig offerings made to you, or for equipment that it does not furnish, or for damages that result from the operation of customer-provided systems, equipment, facilities or services that are interconnected with the Service. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE WEBSITE AND SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESSED OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANY STATEMENT TO THE CONTRARY CONTAINED IN THESE TERMS, THISBIG DOES NOT WARRANT THAT THE USE OF THE WEBSITE OR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE OR THAT THE WEBSITE OR SERVICE WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS, OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS. THISBIG MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICE, SOFTWARE, TEXT, GRAPHICS OR LINKS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

THISBIG SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF DAMAGE TO OR CORRUPTION OF DATA OR LOSS OF GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THESE TERMS, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE WEBSITE OR THE SERVICE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE OR DATA, THISBIG IS NOT RESPONSIBLE FOR THOSE COSTS. THISBIG'S TOTAL LIABILITY ARISING OUT OF YOUR USE OF THE WEBSITE OR SERVICE FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE MONTHLY TRANSACTION FEE PAID BY YOU IN THE MONTHLY PERIOD GIVING RISE TO THE FIRST CLAIM MADE.

User Warranties; Indemnification
You warrant and represent to ThisBig that you are and shall at all times remain in full compliance with all applicable laws, rules and regulations with regard to your use of the Website and Service, including without limitation the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, and all other laws and regulations concerning privacy, telemarketing and Internet marketing.
You agree to indemnify, hold harmless, and defend ThisBig and its affiliates and each of their respective officers, directors, shareholders, employees, agents, representatives, content providers and service providers, against any and all claims, liabilities, damages, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, attorneys' fees and disbursements) arising from or relating to any actual or threatened claim, suit, action or proceeding based upon or arising out of: (i) your breach of the above warranties; or (ii) any use by you, or an account or computer owned by you, of the Website or Service. You agree to cooperate as fully as reasonably required in the defense of any claim and we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. You acknowledge and agree to be held liable for any and all damages caused to ThisBig by you as a direct result of a violation of local, state, national or international laws and regulations.

Modification of Terms
We frequently update, modify and otherwise continually seek to improve the Service and such changes often require an update or revision to these Terms. Accordingly, we reserve the right to change or discontinue any aspect or feature of the Service, as well as modify, change and/or update these Terms, from time to time, as we deem appropriate. Any updates to these Terms shall be posted on this Website, from time to time. You acknowledge your responsibility to review these Terms from time to time and to be aware of any such changes and, should you request, we will be happy to keep you informed if/when such changes take place. If you do not agree with any such changes, your use of the Service may be cancelled in accordance with the procedures for cancellation set forth herein.

Termination, Cancellation and/or Suspension by ThisBig
If at any time you breach these Terms, we may elect to suspend, terminate and/or cancel your use of the Service and/or recover any damages from you arising from the event(s) giving rise to the suspension, termination or cancellation. We reserve the right to suspend your Service at any stage for any reason we may deem necessary to continue to provide our Service in a way that may be hindered by your status as being our client, your financial status or the content of the messages or broadcasts originating from you.

Upon any such termination, cancellation and/or suspension, you are still responsible for any obligations then accrued. Your obligation to pay all amounts accrued and owed by you shall continue even after any suspension or cancellation of your access to the Service (in whole or in part). Upon termination, for any reason, you agree to immediately cease using the Service and ThisBig shall have no obligation to you after any termination or cancellation of these Terms.

Should such a termination take place when you still have plan messages in your account, you shall receive back, at our discretion, a fair monetary value of such credits, save any expenses that may be incurred by ThisBig, including, without limitation, for payment of transfer duties, legal costs, third-party costs, or penalties.

The provisions regarding ownership, payments, warranties and indemnification will survive any suspension, termination or cancellation of your use of the Services or Website.

Termination by the User
You are free to terminate or cancel your use of the Service at any time, and for any reason, provided that you notify us, in writing, of any such termination. Notwithstanding the foregoing, unless due to a breach solely by ThisBig that it fails to cure within thirty (30) days of its receipt of your written notice, in no event shall ThisBig be obligated to refund to you the reasonable value of any unused plan messages previously purchased by you.

Links to other Websites
The Website may contain links to third party websites. These links are provided solely as a convenience to you and not as an endorsement by ThisBig of the contents on such third-party websites. ThisBig is not responsible for the content of linked third-party websites and does not make any representations regarding the content or accuracy of materials on such third-party websites. If you decide to access linked third-party websites, you do so at your own risk.

ThisBig cannot ensure that you will be satisfied with any products or services that you purchase from a third-party website that links to or from the Website, since these websites are owned and operated by independent third-parties. ThisBig does not endorse any of the products/services, nor has ThisBig taken any steps to confirm the accuracy or reliability of any of the information contained in such third-party websites. ThisBig does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against us with respect to such websites. ThisBig strongly encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online or off-line transaction with any of these third-parties.

All links to the Website must be approved in writing by ThisBig, except that ThisBig consents to links in which: (a) the link is a text-only link containing only the name "ThisBig, Inc."; (b) the link "points" only to www.ThisBig.com and not to deeper pages; (c) the link, when activated by a user, displays the Website's homepage in a full-screen and in a fully operable and navigable browser window and not within a "frame" on the linked website; and (d) the appearance, position, and other aspects of the link may neither create the false appearance that an entity or its activities or products are associated with or sponsored by ThisBig nor be such as to damage or dilute the goodwill associated with the name and trademarks of ThisBig or its affiliates. ThisBig reserves the right to revoke this consent to link at any time in its sole discretion, without notice.

Security Rules
You are prohibited from violating or attempting to violate the security of the Website and Service and from using the Website and Service to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measurers without proper authorization; (c) attempting to interfere with service to any user of the Website or Service, host or network, including, without limitation, via means of submitting a virus to the Website, overloading, "flooding", "spamming", "mailbombing" or "crashing"; (d) sending unsolicited messages, e-mail, including promotions and/or advertising of products or services; or (e) forging any ThisBig packet header or any part of the header information in any e-mail, instant message, text message or newsgroup posting. Violations of system or network security may result in civil or criminal liability. ThisBig may investigate violations of these Terms and Conditions, and may involve and cooperate with law enforcement authorities in prosecuting users of the Website who are involved in such violations.

Force Majeure
ThisBig shall not be liable for any failure or delay in performing its obligations hereunder, which such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of ThisBig. In addition, ThisBig shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any material necessary for the performance of the Service.

Miscellaneous
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.

No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind ThisBig in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys' fees.

All notices required hereunder shall be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. ThisBig may give notice to you by means of a general notice on the Website or Service, electronic mail to your e-mail address on record in ThisBig's account information, or by written communication sent by personal delivery, fax, overnight courier, or certified or registered mail to your address on record in ThisBig's account information.

These Terms shall be governed by and construed in accordance with the laws of the State of Florida notwithstanding its laws governing conflicts of laws. The parties agree that any action or proceeding brought to defend the rights or enforce the obligations of a party hereto shall be brought in the courts of the State of Florida.

The terms and conditions of Service are only those stated herein, which shall constitute the complete agreement between the parties. No terms and conditions stated in or attached to your communications to Texting are applicable to these Terms in any way and are not to be considered your exceptions to the provisions of these Terms.

Entire Agreement

These Terms, the ThisBig Rules and our Privacy Policy are the entire and exclusive agreement between ThisBig and you regarding the Services (excluding any services for which you have a separate agreement with ThisBig that is explicitly in addition or in place of these Terms), and these Terms supersede and replace any prior agreements between ThisBig and you regarding the Services.

All trademarks or tradenames are the property of their respective owners.

Last updated July 2011.