BIGEyes Marketing Terms of Service

Welcome to BIGEyes Marketing and related group text messaging services! Before you use this site, please read these Terms of Service carefully as they govern your use of the services provided at BIGEyes Marketing (the "Services"). By using the Services you agree to the Terms of Service set forth below as they may be updated from time to time by BIGEyes Marketing, Inc. ("BIGEyes Marketing"). BIGEyes Marketing may modify or terminate the Services from time to time, for any reason, and without notice, without liability to you, any other user or any third party, provided that when BIGEyes Marketing does so, it will update these Terms of Service. You are advised to periodically check the website for changes in the Terms of Service.

1. Purpose and Description of Services.

BIGEyes Marketing provides users with a means of publishing information that can be retrieved from mobile phones and the Internet. If you create a textmark you will be able to select a unique keyword for it. The use of such keyword in the BIGEyes Marketing service does not grant you ownership of such keyword. BIGEyes Marketing retains ownership of all keywords in its service and might change the keyword associated with your textmark at any time. In such an event, BIGEyes Marketing would provide you with an alternative keyword. BIGEyes Marketing with no or minimal usage might expire. BIGEyes Marketing may determine, in its sole discretion, to limit the use of the Services, add data storage limitations, charge or change fees for the Services or otherwise modify the Services in the future. You acknowledge and agree that these changes may take place and that BIGEyes Marketing shall have no liability stemming from such changes.

Any additions or modifications to the Services shall be in the sole discretion of BIGEyes Marketing and will be subject to these Terms of Service. You are solely responsible for any fees, charges and expenses incurred by you in accessing and using the Services - including, but not limited to, standard text messaging charges that will depend on the plan that you have with your wireless carrier and may appear on your wireless bill or deducted from prepaid balance. BIGEyes Marketing uses reasonable efforts to ensure that the Services are available on a 24/7 basis. However, there will be occasions when the Service will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment that are beyond the control of BIGEyes Marketing. By using the Services you agree that BIGEyes Marketing shall not be liable to you for any modification, suspension or discontinuance of the Services.

All materials displayed on the Site including, but not limited to text, graphics, news articles, charts, presentations, User communications photographs, images and illustrations, shall be referred to herein as "Content." BIGEyes Marketing attempts to maintain a website that is absent of offensive, indecent or objectionable Content. You understand that by using BIGEyes Marketing, you may be exposed to this Content. Under no circumstances will BIGEyes Marketing be liable in any way for any Content, including, but not limited to, the subject matter of any Content, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via BIGEyes Marketing.

2. Types of Service. 

BIGEyes Marketing offers 2 types of Service: a free ad-supported service that allows for 120 characters per message (the "Free Service") and a paid premium service with no ads that allows for 160 characters per message (the "Pro Service"). More information on BIGEyes Marketing's Free Service and the Pro Service is available.

3. Restrictions on the use of the Services.

By using the Services you agree that you will not:

(a) Use the Services for any illegal purpose;

(b) Upload, email or otherwise transmit any User Content (as defined below) that is unlawful, obscene, harmful, threatening, defamatory or hateful or that contains objects or symbols of hate, invade the privacy of any third party, contain nudity or child erotica, or is otherwise objectionable.

(c) Upload, email or otherwise transmit any User Content that you do not have the lawful right to transmit (including any User Content that would violate any confidentiality or fiduciary obligations that you might have with respect to the content) or any User Content that infringes the intellectual or proprietary rights of any third party; or

(d) Interfere with or disrupt (or attempt to interfere with or disrupt) web pages available at the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site.

(e) Promote another text messaging service - or any other commercial venture - that is competitive with the Services. 

BIGEyes Marketing reserves the right at all times to terminate your account, and delete any and all Content at, in whole or in part, for any reason including, but not limited to, violations of these Terms of Service. If you do violate these Terms of Service, BIGEyes Marketing reserves the right to share any information with any third party. In addition, BIGEyes Marketing reserves the right at all times to disclose any User Content as necessary to satisfy any law, regulation, governmental request or partner request, in its sole discretion.

4. Age Requirements and Limitations on Use of Services.

Users of the Services must be at least 13 years of age.

Children under the age of 13 are not permitted to use the Service and no information of children under the age of 13 will be knowingly collected by BIGEyes Marketing. If BIGEyes Marketing determines that it has collected personal information of children under the age of 13, BIGEyes Marketing will immediately delete such information.

Users are limited to one account per person. BIGEyes Marketing reserves the right to terminate any account for non-use of longer than 90 days. Keywords managed by accounts using the free service are subject to termination after 30 days of non-use. You are solely responsible for all security information relating to your account, and are fully responsible for all activities that occur under your password or account. Use of the Services is also governed by the BIGEyes Marketing Privacy Policy. 

If you are between the ages of 18 and 13 and you use our Services, you promise and agree that you have your parent's permission to use the Services.

5. Trademarks and Copyrights

All trademarks, brands and service marks used in conjunction with the Services by BIGEyes Marketing shall be the property of BIGEyes Marketing. BIGEyes Marketing shall be the owner of all copyright and database rights in the Services. You may not publish, distribute, extract or reproduce any such content in any material form, except as it relates to the personal use of the Services. This license does not apply to any third party content stored at BIGEyes Marketing. Permission for use of such content must be obtained from the copyright owner. BIGEyes Marketing claims no ownership interest in the User Content.

User Content means any Content created or contributed to the Site by any user of the Services. You acknowledge and agree that if you contribute any User Content, including any widgets, you grant to BIGEyes Marketing a perpetual, non exclusive worldwide, royalty-free, transferable right and license to use in any way such User Content (including all related intellectual property rights) to provide the Services.

6. Copyright Infringement.

BIGEyes Marketing respects the intellectual property rights of others. However, you agree that BIGEyes Marketing is not responsible for any violations of any intellectual property rights in any User Content. If you believe that your intellectual property rights have been infringed by another party please contact BIGEyes Marketing via the email address:

Please provide:

a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

b. a description of the copyrighted work or other intellectual property that you claim has been infringed;

c. a description of where the material that you claim is infringing is located on the site;

d. your address, telephone number, and email address;

e. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

f. a statement by you, made under penalty of perjury, that the above information provided by you is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

Upon receiving your complaint, BIGEyes Marketing may, in its sole discretion, remove the User Content that you believe infringes your copyright. In addition, BIGEyes Marketing may terminate the account of the user who appears to be infringing your intellectual property rights.

7. Disclaimer of Warranty and Limitations of Liability.

BIGEyes Marketing expressly disclaims any responsibility or liability for the use of the Services by you.

THE SERVICES, CONTENT, SITE AND ANY SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

UNDER NO CIRCUMSTANCES SHALL BIGEYES MARKETING BE LIABLE TO YOU OR ANY USER ON ACCOUNT OF THAT USER'S USE OR MISUSE OF AND RELIANCE ON THE SITE OR SERVICES. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES (EVEN IF BIGEYES MARKETING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SITE OR SERVICES, FROM INABILITY TO USE THE SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES OR DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES. THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

FREE SERVICE USERS: YOU AGREE THAT THE AGGREGATE LIABILITY OF BIGEYES MARKETING TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE OR SERVICES IS LIMITED TO TEN ($10) U.S. DOLLARS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BIGEYES MARKETING AND YOU.

PRO SERVICE USERS: YOU AGREE THAT THE AGGREGATE LIABILITY OF BIGEYES MARKETING TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE OR SERVICES IS LIMITED TO LOWER OF THE AMOUNTS YOU HAVE PAID TO BIGEYES MARKETING DURING THE THREE MONTH PERIOD PRIOR TO SUCH CLAIM, FOR ACCESS TO AND USE OF THE SITE OR SERVICES, OR ONE-HUNDRED ($100) DOLLARS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BIGEYES MARKETING AND YOU.

8. Indemnification.

You agree to defend, indemnify, and hold harmless BIGEyes Marketing and its subsidiaries and other affiliated companies, and their employees, officers, directors, contractors, agents, licensors and suppliers, from all liabilities, losses, damages, claims, costs and expenses, including reasonable attorney's fees, that arise from (i) use or misuse of the Services or any person to whom you have granted access to the Services, (ii) your violation of any of these Terms of Service, or (iii) any other activity related to your account (including negligent or wrongful conduct). BIGEyes Marketing reserves the right, at it own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you, in which event you will cooperate with BIGEyes Marketing and its counsel in the conduct of such defense.

9. Forum and Choice of Law. 

These Terms of Service shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law rules. You expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to these Terms of Service or your use of the Service shall be filed only in the federal courts located in the State of California, or state courts located in the county of San Francisco and you further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.

10. Entire Agreement. 

These Terms of Service constitute the entire agreement between the you, the user, and BIGEyes Marketing with respect to the subject matter contained herein and supersedes any other agreement, proposals and communications, written or oral, between BIGEyes Marketing and you with respect to the subject matter hereof. If a court should find that one or more rights or provisions contained in these Terms of Service are invalid, you agree that the remainder of the Terms of Service shall be enforceable.