Terms and Conditions

The Terms and Conditions (“Terms“) form a legal agreement between Surprise.com, Inc. (“SDC“, “we” or “us“) and you (“you” or “User“) and applies to your use of the Surprise.com™ app (“App”) and website (collectively with the App, the “Service”) on all electronic devices (web, mobile, tablet and any other device).

Please review the Terms carefully. They include a provision waiving the right to pursue any class, group or representative claim and requiring you to pursue certain disputes through individual arbitration unless you opt-out within the specified time frame. See Section 14 for more information. 

In addition to these Terms, additional terms and conditions may be posted to applicable in-app notification of Sweepstakes (as defined below) or at SDC’s website at https://surprise.com/tos, each of which may be updated by SDC in its sole discretion from time to time without prior notice to the User, and which are incorporated into and are deemed part of these Terms.  You will be provided notice of material changes to the Terms through in-app notification, and all changes will be reflected in the Terms on SDC’s website.  You agree that you bear the responsibility to check the relevant websites for updates.  You agree that clicking “accept” or “agree” to the Terms has the same effect as a physical signature and constitutes express agreement to the Terms.

BY USING THE SERVICE OR CREATING AN ACCOUNT WITH US, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT INSTALL, CONNECT TO, ACCESS OR USE (OR CONTINUE TO USE) THE SERVICE.

NO PURCHASE NECESSARY TO ENTER OR WIN. A PURCHASE WILL NOT INCREASE YOUR CHANCES OF WINNING.  

1. ELIGIBILITY

The Service is open only to legal residents of the fifty (50) United States and the District of Columbia who are at least 18 years of age and the eligible age to participate in their jurisdiction. Void where prohibited.  

For any Sweepstakes Product, as defined below, the following persons are not eligible to enter or win: employees of SDC, the Sweepstakes Products’ promotional partners (if any), and their respective parents, affiliates, subsidiaries and advertising and promotion agencies, along with each of their immediate families (parent, child, spouse or sibling and their respective spouses, regardless of where they reside) and those living in their same households, whether or not related.  Sweepstakes Products are subject to all applicable federal, state and local laws. 

Each Sweepstakes has its own entry period (the “Prize Period”).  The entry periods for each Sweepstakes are listed on the SDC-hosted page for that Sweepstakes in the App (“Prize Page”).

2. YOUR ACCOUNT

In order to access or use some of the features of the Service, you may be required to register by opening an account (“Account“) or by signing in via a third-party tool (such as Facebook) (“Third Party Tool“).  If you open an Account, you may be required to provide details and select a password or to otherwise allow us to access your account information through a Third Party Tool (“Login Information“).  You must safeguard and not disclose your Login Information and you must supervise the use of such Account.  You will be responsible for all uses of your Login Information, including purchases, whether or not authorized by you.  In the event you become aware of or reasonably suspect any breach of security, including any loss, theft or unauthorized disclosure of your Login Information or unauthorized access to your Account, or otherwise discover security or vulnerability issues related to the Service you must immediately notify us at hello@surprise.com and modify your Login Information.  

Your profile photo and other profile information including, but limited to, your User name, name, online status and prizes won or purchased will be viewable by other users of the App.

You must provide accurate and complete information when creating an Account and update your information (including any contact information) promptly upon any change. You also agree not to misrepresent your identity or age to open an Account on behalf of someone other than yourself.

You undertake to monitor your Account and to restrict use by anyone who is not an eligible User.  You accept full responsibility for any use of the Service using your Login Information, including any use of your credit card or other payment instrument.

We reserve the right to remove or reclaim any username at any time and for any reason, including in case of claims by a third party that a username violates any third party’s rights or otherwise violate these Terms.  We also reserve the right to take other actions in connection with your Account when necessary to investigate or resolve technical issues or other problems related to the Service.

If you wish to terminate or close your Account, you may do so by contacting us at hello@surprise.com. Your Account will be terminated within a reasonable timeframe following our receipt of your written request, and from the date of termination you will no longer be able to access your Account.

3. LICENSE TO USE THE SERVICE

SDC retains any and all rights in the Service (including applications, software, computer codes, themes, objects, characters, character names, animations, stories, concepts, designs, graphics, content, materials, texts, information, pictures, logos, video, recording, games, titles, sound, music, audio-visual effects, methods of operations, moral rights, documentations, character profile information and other files, and their selection and arrangement) (collectively, “Service Content“), and all intellectual property rights or other proprietary rights in connection therein and the foregoing together with any and all upgrades, updates, enhancements, improvements, modifications and derivative works are owned, controlled and licensed by SDC.  The Service and all Service Content are protected by applicable copyright, trade dress, patent, and trademark laws, international conventions, and other laws protecting intellectual property and related proprietary rights. 

Subject to your agreement and compliance with these Terms, SDC grants you a personal, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, limited scope license to use the Service, through a supported web browser or mobile device, only for your own, private, non-commercial entertainment purposes and for no other purpose whatever and only pursuant to these Terms, any other rules or terms published by SDC from time to time on its website or mobile application and applicable laws.  If you violate or if, at any point, you do not agree with any of these Terms, your license to use the Service will be immediately revoked, and you will immediately stop using the Service.  If the Service or any part thereof is determined to be illegal under the laws of the jurisdiction in which you reside, this license shall be treated as null and void, and you must refrain from using the Service.

These Terms convey only a limited revocable right to use the Service in accordance with the Terms. You shall not, nor shall you cause any other party to, modify, decompile, disassemble, reverse engineer, copy, transfer, create derivative works from, rent, sub-license, distribute, reproduce framed, republish, scrape, download, display, transmit, post, lease or sell in any form or by any means, in whole or in part, use for any purpose other than for using the Service pursuant to these Terms or otherwise exploit any of the Service Content without SDC’s explicit, prior written permission.

4. GUARANTEED PRIZE PRODUCTS

SDC offers an annual subscription service for surprise boxes (“Surprise Box”), payable in monthly installments of $39.99 per month plus $4.99 in shipping and handling fees.  While the value of individual boxes will vary, over the course of the annual subscription, the average retail value of the contents of the boxes collectively for every subscriber will be approximately $39.99 each (or about $480 in total).  Each subscriber is guaranteed to receive a box, though the content of the box is not disclosed to subscribers in advance and no specific item is guaranteed to be included in each box.  Subscribers can respond to in-app questions about preferences to influence the items in each box.  In certain instances where the choice of a specific item or product is offered, the Surprise Box will contain the Surprise Box Subscriber’s selection.  The Surprise Box will be shipped to the Surprise Box Subscriber’s shipping address subject to the conditions below.

Currently, SDC only ships Surprise Boxes to addresses in the U.S., U.S. Territories, and APO/FPO addresses.  Applicable taxes are calculated based on the subscriber’s shipping address and disclosed prior to payment. We do not allow returns or substitutions of items in the Surprise Box. All sales are final.

You will be advised of the price, duration and all applicable terms before subscription purchase.    You can cancel your subscription by following the instructions within the Service or by sending a cancellation request email to hello@surprise.com.  Subscriptions must be canceled at least five (5) days before of the end of the month to avoid charges for the following month’s Surprise Box.  Any subscription canceled within the last five (5) days of the month will be processed the following month; users will receive the next Surprise Box and will be charged the $39.99 installment and $4.99 shipping and handling fee.  

4.2 Surprise Elite Subscription

SDC offers a monthly digital subscription service for virtual in-app goods (“Surprise Elite”), payable in monthly installments of $24.99 per month. Surprise Elite Subscribers receive a variety of in-app benefits that are redeemable digitally.  In-app benefits for Surprise Elite Subscribers are disclosed in advance of subscription purchase.

4.3 Surprise Eggs

Surprise Eggs cost different prices ranging from $0.99 to $499.99.  The cost of the Surprise Egg corresponds to a set of prizes within a price range up to the cost of the Surprise Egg (“Prize Tier”).  You will be advised of the price of each Surprise Egg before purchase.  Each Surprise Egg, when opened, will award the User a guaranteed Prize of equal or greater retail value than the purchase price of the Surprise Egg.  Prizes vary in retail value.  Each Surprise Egg awards the user a Prize, however, the exact item and brand is not known to the User in advance of opening the Surprise Egg.  Any difference between the total retail value of the prize(s) and the cost of the Surprise Egg will be provided to the User in the form of Coins or Gems.  A complete catalog of potential prizes in each price tier is available in the app.  Users will have the opportunity to exchange prizes received from Surprise Eggs for other items from the catalog at the same Prize Tier.

5. SWEEPSTAKES AND EXPEDITED PRIZE PRODUCTS

The Service offers Users various products providing chances to win prize(s) (“Sweepstakes Products”) or other things of value (“Expedited Prize Products”).  Sweepstakes Products may include, but are not limited to, Match-3 Minigame and the Surprise Raffle.  Expedited Prize Products may include, but are not limited to, “Wildcard” Surprise Eggs and Wheels.  Each of the Sweepstakes Products and Expedited Prize Products are either entirely free to enter or offer a free alternative method of entry (“AMOE”), as described below. 

5.1 Sweepstakes Products

5.1.1 Generally

The following terms govern Sweepstakes Products generally.  If a specific Sweepstakes Product has different, conflicting terms, the product-specific terms apply. 

Drawing:  The date of the drawing will be specified for each Sweepstakes Product.  SDC reserves the right not to offer the Sweepstakes Product if certain minimum participation levels are not reached.  The minimum participation levels for each Sweepstakes Product will be disclosed in advance of the proposed drawing.  Odds of winning a Sweepstakes Product depend on the number of eligible entries received for the applicable Sweepstakes Product. 

Winner Notification: Potential winners will be notified of their prize eligibility within the App and also via the email address associated with the Account.  Prizes may be delivered electronically if the nature of the prize permits electronic delivery, mailed via U.S. mail to the address provided by the prize winner or by such other reasonable means that SDC may elect.

Potential winners may be required to execute and return an affidavit of eligibility, a liability release and, where lawful, a publicity release within seven (7) days of date of issuance.  Prizes over $49 also require identity verification in the App before the User can claim the prize.  If such documents and/or identity verification, if applicable, are not returned within the specified time period, a prize or prize notification is returned as undeliverable, SDC is unable to contact a potential winner or a potential winner is not in compliance with these Terms, the prize will be forfeited and, at SDC’s sole discretion, an alternate winner selected.

5.1.2 Weekly Raffle

The Service offers Users a chance to win various prizes in a weekly contest (“Weekly Raffle”).  Each User automatically receives one free entry per Weekly Raffle.  Users may enter a maximum of forty (40) entries per weekly raffle, regardless of how the entries are obtained.    

Users answer trivia questions or complete real-world challenges, and other games of skill in the App (collectively, “Challenges”) to receive entries for Weekly Raffles.  Completing the Challenges is free and does not require payment.

Users who connect a social media account to their Account will receive five (5) entries each week that the social media account is connected to their Account.  The social media account must be connected continuously to the Account during the week preceding the Weekly Raffle to receive the additional entries.

Surprise Elite Subscribers automatically receive an additional thirty-nine (39) entries.  Completion of Challenges or connecting a social media account does not grant Surprise Elite Subscribers additional Weekly Raffle entries.  All users, including Surprise Elite Subscribers, are limited to forty (40) entries per weekly raffle.

Free AMOE: No purchase necessary.  Purchases do not increase a User’s chances of winning.  Users can receive forty (40) free entries by mailing a hand-printed entry including Your name, email address associated with Your account, complete address, daytime and evening telephone numbers (area code included), and date-of-birth in a properly stamped envelope to: 300 Fayetteville St, PO Box 1660, Raleigh, NC 27602.  Within 7 days of receipt, SDC will credit the User with forty (40) entries into that week’s raffle, up to a maximum of forty (40) entries per User.  Limit one (1) mailed entry per User per week.  A second entry received in any week may be counted toward the next week, but any entries thereafter received from a User in that week will be void.

5.1.3 Match-3 Minigame

Match-3 Minigames are available for purchase through the Surprise Store.  Each Match-3 Minigame costs $0.99.  Each Match-3 Minigame, when used, gives the User a chance to win a prize.  Users are limited to using one hundred (100) Match-3 Minigame per month.

Free AMOE: No purchase necessary.  Users can receive one hundred (100) Match-3 Minigames per month without purchase by mailing a hand-printed entry including Your name, email address associated with Your account, complete address, daytime and evening telephone numbers (area code included), and date-of-birth in a properly stamped envelope to: 300 Fayetteville St, PO Box 1660, Raleigh, NC 27602.  Within 7 days of receipt, SDC will credit the User with 100 Match-3 Minigames.  Limit one (1) mailed entry per User per month.  A second entry received in any month may be counted toward the next month, but any entries thereafter received from a User in that month will be void.

Drawing: Prizes will be awarded randomly.  Odds of winning a prize through a Match-3 Minigame depend on the number of eligible entries received. 

5.2 Interaction Prizes and Expedited Prize Products

Each User has a predetermined number of interactions with the App required to win prizes (“Interaction Prizes”).  No purchase is necessary.  Interactions may include, but are not limited to, logging into the App and playing Games.  Logging into the App and playing Games are completely free and no purchase is necessary.  However, Users can choose to pay for Expedited Prize Products to increase the number of interactions with the App and effectively expedite the process of receiving the Interaction Prize.  Each Expedited Prize Product has a free AMOE, as described below. 

Drawing: Interaction Prizes will be awarded after a set number of User interactions.  The number of required interactions are set according to the SDC prize algorithm.  

Winner Notification: Potential winners will be notified of their prize eligibility within the App.  Prizes may be delivered electronically if the nature of the prize permits electronic delivery, mailed via U.S. mail to the address provided by the prize winner or by such other reasonable means that SDC may elect.

Potential winners may be required to execute and return an affidavit of eligibility, a liability release and, where lawful, a publicity release within seven (7) days of date of issuance.  Prizes over $49 also require identity verification in the App before the User can claim the prize.  If such documents and/or identity verification, if applicable, are not returned within the specified time period, a prize or prize notification is returned as undeliverable, SDC is unable to contact a potential winner or a potential winner is not in compliance with these Terms, the prize will be forfeited and, at SDC’s sole discretion, an alternate winner selected.

5.2.1 “Wildcard” Surprise Eggs

Each “Wildcard” Surprise Egg costs $0.99.  Each “Wildcard” Surprise Egg, when opened, expedites the timing until receipt of the next prize.  Users are limited to opening twenty (20) “Wildcard” Surprise Eggs per month.

Free AMOE: No purchase necessary.  Users can receive twenty (20) “Wildcard” Surprise Eggs per month without purchase by mailing a hand-printed entry including Your name, email address associated with Your account, complete address, daytime and evening telephone numbers (area code included), and date-of-birth in a properly stamped envelope to: 300 Fayetteville St, PO Box 1660, Raleigh, NC 27602.  Within 7 days of receipt, SDC will credit the User with 20 “Wildcard” Surprise Eggs.  Limit one (1) mailed entry per User per month.  A second entry received in any month may be counted toward the next month, but any entries thereafter received from a User in that month will be void.

5.2.2 Wheels

Players earn Wheel spins after a set number of interactions within the application.  Players can purchase additional Wheel spins for $0.99 per spin.  Users are limited to spinning the Wheel one hundred (100) times per month. 

Free AMOE: No purchase necessary.  Users can receive one hundred (100) Wheel spins per month without purchase by mailing a hand-printed entry including Your name, email address associated with Your account, complete address, daytime and evening telephone numbers (area code included), and date-of-birth in a properly stamped envelope to: 300 Fayetteville St, PO Box 1660, Raleigh, NC 27602.  Within 7 days of receipt, SDC will credit the User with 100 Wheel spins.  Limit one (1) mailed entry per User per month.  A second entry received in any month may be counted toward the next month, but any entries thereafter received from a User in that month will be void.

6. PRIZES, GENERALLY

All prizes awarded under Section 4 or 5 (“Prizes”) are awarded “as is” with no warranty or guarantee, either express or implied by SDC.  Prizes are not guaranteed to be available in all jurisdictions.  Unless otherwise specified, winners may not substitute, assign or transfer Prize or redeem Prize for cash, but SDC reserves the right, at its sole discretion for any reason, to substitute Prize (or portion thereof) with one of comparable or greater value.  Winners are responsible for all applicable federal, state and local taxes, if any, as well as any other costs and expenses associated with Prize acceptance and use not specified herein as being provided.  All Prize details are at SDC’s sole discretion.  

For cash prizes, registration with SDC’s payment provider may be required in order to claim a Prize. 

For gift cards the the gift cards may be subject to certain terms and conditions as specified by the issuer.

For vehicles, all Prize details, including color and options, will be determined solely by SDC in its sole discretion.  Winners must take delivery of vehicle from the dealership designated by SDC, or as otherwise instructed by SDC.  All costs and expenses related to Prize acceptance and use not specified herein as being awarded are the responsibility of winner, including, but not limited to, all federal state and local taxes (including income taxes), title, insurance, license and registration fees.  Winners will be required to present a valid driver’s license and proof of appropriate insurance as a condition of receiving Prize.  Open to winners in the U.S. only.  Winners outside the U.S. will receive the actual estimated retail value of the vehicle in cash.  Registration with SDC’s payment provider may be required in order to claim a cash Prize.

For prizes that involve travel, unless otherwise specified, trips consist of roundtrip, coach class air transportation from a major U.S. gateway airport nearest winner’s residence to the designated location, the specified nights standard hotel accommodations (one room, double occupancy) and, if applicable, a specified number of days’ car rental.  Any car rental is subject to car rental company terms and conditions.  If winner resides within a 100-mile radius of destination, ground transportation will be provided in lieu of air transportation and no compensation or substitution will be provided in lieu thereof. The approximate retail value of the Prize will be stated in the particular Contest rules, but the actual value of Prize may vary based on point of departure.  Any difference between stated value and actual value will not be awarded.  Trip must be taken on dates specified by SDC, or the Prize will be forfeited and SDC will have no further obligation to such winner.  SDC reserves right to change dates.  Winner and guest must travel together on the same itinerary.  Guest must be of legal age of majority in his/her jurisdiction of residence (and at least 18), unless the child or legal ward of winner, and must sign a liability/publicity release prior to issuance of travel documents.  If guest is a child or legal ward of the winner, the winner must sign and return the release on behalf of such child or legal ward.  Travel must be made through SDC’s agent, on a carrier of SDC’s choice and is subject to availability.  Certain blackout dates and travel restrictions may apply.  All federal, state and local taxes and all other costs associated with Prize acceptance and use not specified herein as being provided, including meals, souvenirs and gratuities, are the sole responsibility of the winners.

For prizes that are event tickets, tickets are subject to certain terms and conditions as specified thereon. Seat locations will be determined by SDC.  Winner and guest must comply with all venue rules and regulations.  Failure to do so may result in forfeiture of Prize. In the event SDC is unable to provide the tickets or if the event is canceled or postponed, no compensation or substitution will be provided in lieu thereof; however, the remainder of the Prize package (if any) will be awarded and SDC will have no further obligation to winner.

Refer to specific Prize Pages for more information and additional terms for specific Prizes.

7. OTHER PRODUCTS FOR PURCHASE

SDC may, in its discretion, offer additional products for purchase, including but not limited to: 

7.1 Coins

Coins can be used for additional in-App actions directly related to gameplay.  Coins cannot be transferred to other Users.  Coins cannot be exchanged for cash or any other real-world value.   

7.2 Gems

Gems can be used for additional in-App actions directly related to gameplay.  Gems cannot be transferred to other Users.  Gems cannot be exchanged for cash or any other real-world value. 

7.3 Avatars

Avatars are solely related to gameplay aesthetics.  Avatars cannot be transferred to other Users.  Avatars cannot be exchanged for cash or any other real-world value.   

7.4 Other Products

SDC may sell various brands and products (“Merchandise”) through the Surprise Store.  The price and method of delivery for the Merchandise will be disclosed prior to purchase. 

8. PLATFORM PROVIDERS RULES

In the event that you are using the Service through a third-party website or application, social network, platform or store (“Platform“), you must comply with the terms of use or services of such Platform (the “Platform Terms“), in addition to these Terms, and the Platform’s privacy policy will apply to any of your interactions with the Platform.  The Platform Terms are incorporated into these Terms by reference such that a violation by you of the Platform Terms shall be deemed a violation of these Terms.  In the event of a conflict between these Terms and the Platform Terms, the Platform Terms shall control solely to the extent the conflict relates to the rights or obligations of the Platform and not of us.

If you have downloaded the App from the Apple, Inc. (“Apple”), App Store or if you are using the Service on an iOS device, you acknowledge that you have read, understood and agree to the following notice regarding Apple.  This Agreement is between you and SDC only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatever to furnish any maintenance and support services with respect to the Service.  In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you.  To the maximum extent permitted by applicable law, Apple has no other warranty obligation whatever with respect to the Service.  Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service infringes that third party’s intellectual property rights.  You agree to comply with any applicable third-party terms, when using the Service.  Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary of this Agreement.  You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

9. RESTRICTIONS ON USE OF THE SERVICE

You shall not, and shall not permit or cause any other party, to:

  1. Create an Account with or access the Service if you are not an eligible User;
  2. Use the Service in an illegal manner or encourage or promote any illegal activity;
  3. Fail to pay any amounts due (to the extent applicable);
  4. Interfere with or violate Users’ rights to privacy and other rights, or harvest, post, solicit or collect personally identifiable information about Users without their express consent, whether manually or through the use of any robot, spider, crawler, any search or retrieval application, or other manual or automatic device, process or method to access the Service and retrieve, index or data-mine any information;
  5. Interfere with or disrupt the operation of the Service or the servers or networks that host the Service, or disobey any laws or regulations or requirements, procedures, policies, or regulations of such servers or networks;
  6. Advertise, solicit or transmit any commercial advertisements or SPAM;
  7. Violate the intellectual property or other rights of any party, including SDC;
  8. Create false personas, multiple identities or multiple Accounts; set up an Account on behalf of someone other than yourself; use bots or other automated software programs to defraud or which otherwise violate these Terms or the terms and conditions of any third-party applications or social networks through which the Service is accessed;
  9. Upload or transmit (or attempt to upload or to transmit), without our express permission, any material that acts as a passive or active information collection or transmission mechanism, including clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”);
  10. Exploit, distribute, develop or publicly inform other Users or the public of any Service (including any Contest) error, miscue or bug which provides an unintended advantage, or of “auto” software programs, “macro” software programs or other “cheat utility” software programs or applications;
  11. Engage in any fraudulent activity with respect to payment methods or advertiser tracking mechanisms;
  12. Attempt to use the Service on or through any service that is not authorized by SDC.  Any such use is at your own risk and may subject you to additional or different terms.  SDC takes no responsibility for your use of the Service through any service that is not authorized by it;
  13. Rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without our written permission;
  14. Attempt to interfere with, hack into or decipher any transmissions to or from the servers for the Service; or interfere with the ability of others to enjoy using the Service, including by disrupting, overburdening or aiding the disruption or overburdening of the Service servers, or by taking actions that interfere with or materially increase the cost to us of providing the Service for the enjoyment of all its users;
  15. Engage in any act that SDC deems to be in conflict with the spirit or intent of the Service, including circumventing or manipulating these Terms, the Contests or our policies;
  16. Without our express written consent, modify or cause to be modified any files, codes or any other component which is part of the Service;
  17. Institute, assist or become involved in any type of attack, including distribution of a virus, a denial of service attack upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
  18. Attempt to gain unauthorized access to the Service, Accounts registered to others or to the computers, servers or networks connected to the Service by any means other than the user interface provided by SDC, including by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Service;
  19. Use any unauthorized third party software that accesses, intercepts, “mines” or otherwise collects information from or through the Service or that is in transit from or to the Service, including any software that reads areas of RAM or streams of network traffic used by the Service to store information about the Service, including the Contests.  SDC may, at its sole and absolute discretion, allow the use of certain third party user interfaces;
  20. Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Service, whether through the use of a network analyzer, packet sniffer or other device;
  21. Copy or adapt the Service software including Flash, PHP, HTML, JavaScript or other code;
  22. Use, facilitate, create or maintain any unauthorized connection to the Service, including (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Service, (ii) any connection via a device to a platform (such as a desktop computer) for which the Service is not designed, or (iii) any connection using programs, tools, or software not expressly approved by SDC;
  23. Except where permitted by law or relevant open-source licenses, reverse engineer, decompile, disassemble, decipher, modify or otherwise attempt to derive the object code or source code for any underlying software or other intellectual property used to provide the Service, or to obtain any information from the Service using any method not expressly permitted by SDC;
  24. Copy, distribute, modify, alter, adapt, make available, translate, port, reverse-engineer, decompile or disassemble any portion of any Service, or publicly display, reproduce, create derivative works from, perform, distribute or otherwise use any Service content, other than to participate in the Contests as permitted under these Terms and applicable Contest rules;
  25. Sell, rent, transfer, lend, process, compile, reverse engineer, combine with other software, translate, modify or create derivative works of any material that is subject to SDC’s proprietary rights;
  26. Sell, license or exploit for any commercial purposes any use of or access to the Service;
  27. Frame or mirror any part of the Service without our prior express written authorization;
  28. Create a database by systematically downloading and storing all or any of the Service content, including the Contests;
  29. Improperly use support channels to make false reports to SDC or use profane, defamatory or abusive language in your communications with our support personnel;
  30. Infringe or violate any of these Terms or the terms of any third-party applications or social networks through which the Service is accessed.

10. USER CONTRIBUTIONS

The Service contains various fora, chat functions, third-party integrations (including “Sync Your Videos” social media integration), a contact email address and interactive features that allow you to post, submit, publish, display or transmit to SDC and other users, content or materials on or through the Service, including feedback on the Services features or content (collectively “User Contributions”).

By submitting or posting User Contributions, you agree to comply with the following:

  1. You shall not, and shall not permit or cause any other party, to post, upload or submit to the Service any User Contributions, including any content or materials submitted via any interactive features available from within the Service that violates these Terms or that contains or links to Objectionable Content.  “Objectionable Content” means content that promotes or links to content that is (i) offensive, harassing, threatening, abusive, inflammatory or racist, (ii) sexually explicit or obscene; (iii) illegal, fraudulent, deceptive, contrary to public policy or that could facilitate the violation of any applicable law, regulation or government policy, (iv) libelous or defamatory, (v) violates the intellectual property, privacy, publicity, moral or any other right of any third party (such as by way of misrepresenting your identity or impersonating a third party), or otherwise injurious to third parties or objectionable, and (vi) software viruses, commercial solicitation, chain letters, mass mailings, or any form of “spam”.
  2. You represent and warrant that you own or otherwise control all of the rights to the User Contributions that you post or upload at the time of posting, that the User Contributions are accurate and not fraudulent or deceptive, and that the User Contributions do not violate these Terms or the rights of any third party, and will not cause injury to any person or entity.
  3. Any User Contribution that you upload or post will be considered non-confidential and non-proprietary, and you grant SDC a nonexclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such User Contribution throughout the world in any media.
  4. You understand that your User Contributions may be copied by other of the Service users and discussed on and outside of the Service, and if you do not have the right to submit User Contributions for such use, it may subject you to liability.  SDC takes no responsibility and assumes no liability for any content posted by you or any third party. SDC has the right (but not the obligation) to monitor and edit or remove any User Contributions.
  5. By using “Sync Your Videos” social media integration, you consent to upload videos from the connected social media site or sites for use on the Service, which includes displaying the content on the Service’s in-app video and media feed.   All content uploaded via the Sync Your Videos function are User Contributions subject to the terms and conditions in this section.

11. GENERAL CONDITIONS

SDC,its promotional partners, and their respective parents, affiliates, subsidiaries and advertising and promotion agencies and all of their respective officers, directors, employees, representatives and agents (collectively, “Released Parties”) are not responsible for lost, late, incomplete, inaccurate, stolen, misdirected, undelivered, garbled, illegible or postage-due mail, entries or email; or for lost, interrupted or unavailable network, server, Internet Service Provider (ISP), website, or other connections, availability or accessibility or miscommunications or failed computer, satellite, telephone or cable transmissions, lines, or technical failure or jumbled, scrambled, delayed, or misdirected transmissions or computer hardware or software malfunctions, failures or difficulties, or other errors or difficulties of any kind whether human, mechanical, electronic, computer, network, typographical, printing or otherwise relating to or in connection with the sweepstakes, including, without limitation, errors or difficulties which may occur in connection with the administration of the Contests, the processing of entries, the announcement of the prizes or in any related materials.  Released Parties are also not responsible for any incorrect or inaccurate information, whether caused by other entrants or Users, tampering, hacking or by any equipment or programming associated with or utilized in the Contests.  Released Parties are not responsible for injury or damage to participants’ or to any other person’s computer related to or resulting from participating in the Contests or downloading materials from or use of the Service.  Persons who tamper with or abuse any aspect of the Service or who are in violation of these Terms, as solely determined by SDC, will be disqualified and all associated entries will be void.  Should any portion of the Contests be, in SDC’s sole opinion, compromised by virus, worms, bugs, non-authorized human intervention, technical glitches or other causes which, in the sole opinion of the SDC, corrupt or impair the administration, security, fairness or proper play, or submission of entries, SDC reserves the right at its sole discretion to suspend, modify or terminate the affected Contest and, if terminated, at its discretion, select the potential winners from all eligible, non-suspect entries received prior to action taken or as otherwise deemed fair and appropriate by SDC.  You, by participating, agree that the Released Parties will have no liability whatever for, and shall be held harmless by You against, any liability, for any injuries, losses or damages of any kind, including death, to persons, or property resulting in whole or in part, directly or indirectly, from acceptance, possession, misuse or use of any prize, including any travel/activity related thereto or any harm/injury caused from the use of a vehicle, or participation in the Contests.  By accepting a prize, except where legally prohibited, you grant permission for SDC and its designees to use Your name, address (city and state), photograph, voice and other likeness and prize information for advertising, trade and promotional purposes without further compensation, in all media (including digital media) now known or hereafter discovered, worldwide in perpetuity, without notice or review or approval.  In the event of a dispute regarding entries received from multiple Users having the same e-mail address, the authorized subscriber of the e-mail account at the time of entry will be deemed to be the entrant and must comply with these Terms.  Authorized e-mail account subscriber is the natural person who is assigned the e-mail address by the Internet Service Provider (ISP), on-line service provider, or other organization responsible for assigning e-mail addresses. CAUTION: ANY ATTEMPT TO DAMAGE THE SERVICE OR TO UNDERMINE THE LEGITIMATE OPERATION OF A CONTEST IS A VIOLATION OF CRIMINAL AND CIVIL LAWS AND SHOULD SUCH AN ATTEMPT BE MADE, SDC WILL DISQUALIFY ANY SUCH INDIVIDUAL AND RESERVES THE RIGHT TO SEEK DAMAGES (INCLUDING ATTORNEYS’ FEES) AND OTHER REMEDIES FROM ANY SUCH INDIVIDUAL TO THE FULLEST EXTENT PERMITTED BY LAW.

12. TERMINATION

Breach of any of these Terms may subject you to suspension or termination of your Account and right to use the Service, in whole or in part, and may subject you to civil or criminal penalties.  SDC has the right to terminate the Service or any particular contest at any time for any or no reason.

13. GOVERNING LAW AND JUDICIAL FORUM

These Terms will be interpreted in accordance with the laws of the State of Delaware without regard to conflict- or choice-of-law principles, but subject to the Federal Arbitration Act.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply.  In the event that you have opted out of arbitration (as set out in Section 14 below) or that the agreement to arbitrate is otherwise found not to apply to you or your claim, you and SDC consent to the exclusive jurisdiction of, and venue in, the state and federal courts of Wake County, North Carolina, U.S.A.  Notwithstanding the foregoing, you and SDC may bring an action in any court of competent jurisdiction (i) to compel arbitration pursuant to Section 14 below or (ii) to enforce an arbitral award issued thereunder.

14. DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS. PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT MAY REQUIRE YOU AND SDC TO ARBITRATE CERTAIN DISPUTES AND CLAIMS ON AN INDIVIDUAL BASIS AND LIMITS THE MANNER IN WHICH YOU AND SDC CAN SEEK RELIEF FROM EACH OTHER

14.1. By agreeing to these Terms, and to the extent permitted by applicable law, you and SDC agree that any and all past, present and future disputes, claims or causes of action between you and SDC arising out of or relating to these Terms, the Service, the enforceability or scope of these Terms, or any other dispute between you and SDC or any of SDC’s licensors, distributors, suppliers or agents (including any application store or platform from which the Service is accessed or downloaded), and whether arising prior to or after your agreement to this Section, (collectively, “Dispute(s)“) will be governed by the procedure outlined below. 

14.2. Informal Dispute Resolution. SDC wants to address your concerns without the need for a formal legal dispute. Before filing a claim against SDC, you agree to try to resolve the Dispute informally by contacting legal@surprise.com. Similarly, if you have provided an email address to us as part of your Account registration, SDC agrees to contact you via email to resolve the Dispute informally.  If a Dispute is not resolved within 30 days after the email noting the Dispute is sent, you or SDC may initiate an arbitration proceeding as described below.

14.3. We Both Agree To Arbitrate. By agreeing to these Terms, and to the extent permitted by applicable law, you and SDC each and both agree to resolve any Disputes – including any Dispute concerning the enforceability, validity, scope or severability of this agreement to arbitrate – through final and binding arbitration as discussed herein.

14.4. Opt-out of Agreement to Arbitrate. You may decline this agreement to arbitrate by contacting legal@surprise.com within 30 days of first accepting these Terms and stating that you (include your first and last name, User name, and email address used to create an account in the App) decline this arbitration agreement.  By opting out of the agreement to arbitrate, you will not be precluded from using the Service, but you and SDC will not be permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.

14.5. Arbitration Procedures and Fees.  Any Dispute must be arbitrated before a single arbitrator who is jointly selected and mutually approved by the Parties or, if the Parties are unable to or fail to agree on the selection of the arbitrator within fifteen (15) days of the demand for arbitration being served, who is appointed by Judicial Arbitration and Mediation Services (JAMS) in accordance with its rules.  The arbitrator shall serve as a neutral, independent and impartial arbitrator.  The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (and in accordance with its Streamlined Rules and Procedures), in their then-current form, currently available at www.jamsadr.com.  The arbitration shall take place at the nearest Metropolitan Statistical Area to your place of residence, or, at your election, will be conducted telephonically or via other remote electronic means.  The JAMS rules will govern payment of all costs of arbitration. The arbitrator shall be authorized to award any remedies, including injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law. Notwithstanding any language to the contrary in this Section 14.5, if a party seeks injunctive relief that would significantly impact other SDC users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators.  Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel.  That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes.  In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section shall make that determination.  If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel.  The arbitrator shall have the discretion to award reasonable attorneys’ fees incurred by the prevailing party.  Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential.  Any arbitration decision rendered will be final and binding, and judgment thereon may be entered in any court of competent jurisdiction.  

14.6. Arbitration Shall Proceed Individually.  You and SDC agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor SDC may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration“).  Without limiting the generality of the foregoing, a claim to resolve any Dispute against SDC will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.  Without prejudice to any other rights or remedies that may be available pursuant to this provision (including dismissal of any arbitration initiated in violation thereof), in the event Collective Arbitrations are attempted, you and we agree that those arbitrations deemed to be Collective Arbitrations each will be initiated and resolved sequentially, with each subsequent arbitration delayed until the prior arbitration has been completed, and with no arbitration filing or other fee, and no action by JAMS or the arbitrator, required until each arbitration is ready to commence.

14.7. Class Action and Collective Arbitration Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR SDC SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR PARTICIPATE IN ANY COLLECTIVE ARBITRATION (AS DEFINED ABOVE) OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY OR OTHERWISE SEEK TO RECOVER FOR LOSSES INCURRED BY A THIRD PARTY.  IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN THE EVENT ALL OR ANY PORTION OF SECTIONS 14.6 OR 14.7 ARE FOUND TO BE INVALID OR LESS THAN FULLY ENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION 14 MAY BE DEEMED VOID AND AS HAVING NO EFFECT UPON EITHER PARTY’S ELECTION.