THESE TERMS OF SERVICE (“AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU (“YOU”, “YOUR”, “MEMBER”), VAPEJOOSE, INC. (“WE”), AND THE OWNER AND OPERATOR OF THE WWW.VAPEJOOSE.COM AND/OR WWW.SHOPJOOSE.COM WEBSITE (THE “SITE”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND THE PRODUCTS SOLD ON IT. BY ACCESSING AND USING THE SITE, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SITE OR PURCHASE PRODUCTS FROM THE SITE.
By purchasing products from the Site (as defined below), you represent, acknowledge and agree that you are at least 18 years of age, and are of legal age to buy nicotine products in your city, state, and country. It is your responsibility to ensure you follow all local, state, and federal laws regarding purchase of nicotine products.
1 – CHANGES TO TERMS; PERSONAL INFORMATION/PRIVACY
1.1 – Changes to the site
Vapejoose, Inc. may add to, change or remove any part of the Site, including, without limitation, any Promotions, Products, and/or Content (as defined below) therein, at any time without prior notice to you.
1.2 – Personal Information/Privacy
2 – PASSWORDS; USE OF SITE
2.1 – Passwords
You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify Vapejoose, Inc. if there is any unauthorized use of your password on this Site or if you know of any other breach of security in relation to this Site.
2.2 – Use of Site; Prohibitions
Subject to your compliance with this Agreement, Vapejoose, Inc. hereby grants you a limited, personal, revocable, non-transferable, non-sublicensable, and non-exclusive license to access the Site and use the content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed on the Site (collectively, the “Content”), solely for your personal, non-commercial use. You may not copy, modify, reproduce, publicly display or perform, distribute, or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term of this Agreement, your authorization to use the Site and Content automatically terminates without notice to you.
You hereby represent and warrant that you will not, and will not induce any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site or Content or otherwise attempt to gain unauthorized access to any portion of the Site or Content or any other systems or networks connected to the Site, or to any server of Vapejoose, Inc. or its third party service providers, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Content; (c) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Site or with any other person’s use of the Site; (d) track or seek to trace any information on any other person who visits the Site; (e) use the Site or Content for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations; or (f) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to the Site or Content.
3 – TERMS OF SALE
3.1 – Sales of Products to End Users Only
Vapejoose, Inc. sells premium flavored e-liquids and vaping accessories (the “Product(s)”) from the Site to end-user customers only for their own personal, non-commercial use. You may not purchase Products for further distribution or resale or for any other commercial or business purpose, unless you have received prior authorization from Vapejoose, Inc.
3.2 – Pricing
Vapejoose, Inc. reserves the right to change the prices for Products at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
3.3 – Refund Policy
Vapejoose, Inc. reserves the right to offer refunds only at the sole discretion of Vapejoose, Inc. If there are any issues with the quality of service, products or charges to your account, please contact customer service by email at email@example.com or by phone at 1-844-MY-JOOSE (1-844-695-6673). In order to be eligible for a refund or replacement you must maintain possession of the product in question and you may be asked to ship the item back to Vapejoose, Inc.
3.3.1 – Return Policy
If you are simply not satisfied with the flavor of any Vapejoose brand e-liquid (“Vapejoose”, “Vapejoose High Nicotine”, “Vapejoose Pre-Steeped”, “The Dapper Donut”, “Eneos & Iris by Cloud Nectar”, “Foggy Bottle Boy”, “Jungle Juice”, “LemonDrips”, “LemonDrips High Nicotine”, “Rewind”, “The Triad Project”) please contact firstname.lastname@example.org or call 844-MY-JOOSE to see if you are eligible for a replacement bottle. Bottles must contain 75% or more of the original e-liquid. Customers may be asked to send product back, in which case we will provide a return shipping label.
If you ever suspect a defect in quality, purity, or flavor please let us know by contacting email@example.com or calling 844-MY-JOOSE.
Hardware may be returned within 30 days from order receipt as long as it is in new and unused condition. Used hardware may be returned within 30 days from receipt if there is a manufacturer defect that warrants the product unusable or unsafe. Vapejoose does not warranty any product that has signs of damage (including, but not limited to, water damage, damage from batteries, damage from falls, or any other cosmetic damage that is not normal wear and tear).
All returns must be accompanied by a Return Authorization Form issued by our customer service department. To request a Return Authorization Form please contact firstname.lastname@example.org or call 844-MY-JOOSE.
If you received the wrong product, please contact us to resolve the issue. You may be asked to return the incorrect product, in which case a shipping label will be provided.
Coils and other consumable items may not be returned. If your consumables are not working properly, taste burnt, fail to produce vapor, or if you have questions about your coils or consumables please contact our support team to help troubleshoot. If you suspect a manufacturer defect in your consumable products please contact us to see if you are eligible for a replacement.
3.4 – Payment Method
Vapejoose, Inc. accepts credit card payments only. You agree to pay all fees charged to your account based on Vapejoose, Inc.’s fees, charges, and billing terms in effect as shown on the payment page of the Site. You are also responsible for paying any sales and use taxes and shipping and handling fees that may apply to your purchase of Products based on the address that you provide as the shipping address, and you authorize Vapejoose, Inc. or the third party payment processing service provider that we engage to charge your credit card for any such taxes and fees. All payments shall be made by credit card in advance prior to shipping the Products. If you do not pay on time or if your credit card cannot be charged for any reason, Vapejoose, Inc. reserves the right to either suspend or terminate your account and terminate these Terms of Service. All sales and payments will be in US Dollars.
Vapejoose, Inc. and Vapejoose Inc.'s third party payment service provider may receive updated credit card information from your credit card issuer. The disbursement of the updated credit card information is provided to Vapejoose, Inc. and Vapejoose, Inc.'s third party payment service provider at the election of your credit card issuer. Neither Vapejoose, Inc. nor Vapejoose, Inc.'s third party payment service provider are responsible for the distribution of your credit card information. It is at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt out of the update service. It is your responsibility to contact your credit card issuer with regards to your right to opt out of the update service.
3.5 – Shipping and Product Acceptance
The shipment date will be determined according to the Customer’s purchase date. Shipping dates are estimates only. The risk of loss and title for all Products purchased via the Site pass to the Customer upon delivery of the item to the carrier. It is the Customer’s responsibility to ensure that Products can be shipped to their respective country, and that it will pass through Customs. If, for any reason, your shipment is seized by customs, you accept responsibility for the shipment, and no refund will be issued.
3.6 - Age Verification
Effective August 8, 2016 Vapejoose, Inc. must verify the age and identity of all US Citizens to ensure compliance with minimum age requirements. By agreeing to these Terms of Service you are authorizing Vapejoose, Inc. to share your personal data with a third party age verification service to ensure you are of legal age to purchase nicotine products in your state. If you are not of legal age to purchase nicotine products in your state, you are not authorized to use the Site to purchase nicotine products.
4 – PROPRIETARY RIGHTS
You hereby acknowledge and agree that Vapejoose, Inc. or its licensors own all legal right, title and interest in and to the Site and Content, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the Site and Content, whether such rights are registered or unregistered, and wherever in the world those rights may exist.
“Vapejoose” and “LemonDrips” are registered trademarks of Vapejoose, Inc. “The Dapper Donut”, the Dapper Donut Logo, “Iris and Eneos by Cloud Nectar”, the Iris logo, the Eneos logo, the Cloud Nectar logo, “Every Thing You Need”, and the Vapejoose Logo are trademarks of Vapejoose, Inc. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in this Agreement, all information and screens appearing on this Site, including Content, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Vapejoose, Inc, Copyright © 2014-2018 Vapejoose, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted or trademarked material is strictly prohibited without the express written consent of the copyright owner or license.
5 – THIRD PARTY SITES; INDEMNIFICATION
5.1 – Third Party Web Sites
5.2 – Indemnification
You hereby agree to defend, indemnify and hold each of the Vapejoose, Inc. Parties (as defined below in Section 6) harmless from and against, any and all losses, liabilities, damages, and/or claims (including, without limitation, attorneys’ fees and costs) arising from your breach of this Agreement, or otherwise arising from your use or misuse of the Site, Content or Products.
6 – DISCLAIMER OF WARRANTIES
THE SITE, CONTENT, AND PRODUCTS ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. VAPEJOOSE, INC., ON BEHALF OF ITSELF AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “VAPEJOOSE, INC. PARTIES”): (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, OR PRODUCTS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE OR CONTENT WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE; (C) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, OR PRODUCTS WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OF THE SITE, CONTENT OR PRODUCTS IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, CONTENT, OR PRODUCTS IS ENTIRELY AT YOUR OWN DISCRETION AND RISK AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, CONTENT, AND PRODUCTS.
THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND VAPEJOOSE, INC. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VAPEJOOSE, INC. OR ANY PERSON ON BEHALF OF VAPEJOOSE, INC. SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
NOTHING IN THIS SECTION 6 SHALL EXCLUDE OR LIMIT THE VAPEJOOSE, INC. PARTIES’ WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
7 – LIMITATION OF LIABILITY
7.1 –IN NO EVENT SHALL ANY VAPEJOOSE, INC. PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF VALUE OF THE PRODUCTS OR LOSS OF USE OF THE PRODUCTS, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF A VAPEJOOSE, INC. PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 –IF, NOTWITHSTANDING THE FOREGOING, A VAPEJOOSE, INC. PARTY IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, CONTENT, OR PRODUCTS, THE RELEVANT VAPEJOOSE, INC. PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID VAPEJOOSE, INC. FOR THE PRODUCTS, AS APPLICABLE; AND (B) THE SUM OF ONE HUNDRED US DOLLARS (US$100).
7.3 –NOTHING IN THIS SECTION 7 SHALL EXCLUDE OR LIMIT ANY VAPEJOOSE, INC. PARTY’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH VAPEJOOSE, INC. PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
8 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW
8.1 – Dispute and Arbitration; Class Action Waiver
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at email@example.com or calling us at 1-844-MY-JOOSE(1-844-695-6673). In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction (or if we have not been able to resolve a dispute we have with you after attempting to do so informally), we each agree to resolve those disputes ARISING OUT OF THIS AGREEMENT (OTHER THAN THOSE RELATED TO VAPEJOOSE, INC.’S ENFORCEMENT AND PROTECTION OF ITS NAME AND INTELLECTUAL PROPERTY RIGHTS) through binding arbitration or small claims court instead of in courts of general jurisdiction. This includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. The arbitrator must follow this Agreement and can award the same damages and relief that a court can award.
We each also agree that this Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply (despite the choice of law provision.) ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Neither you nor Vapejoose, Inc. has the right to act as a class representative or class representative or participate as a member of a class of claimants with respect to any claim.
All disputes relating in any way, directly or indirectly, to Vapejoose, Inc. for breach of contract, breach of fiduciary duty, negligence, personal injury, including any dispute about the scope of this arbitration agreement, and including all questions about the types of disputes that are subject to this arbitration agreement, all of which you agree will be decided by the arbitrators, whose decision will be final and binding on you. Any issue concerning the extent to which a dispute is subject to arbitration, or concerning the applicability, interpretation or enforceability of this Agreement, including any contention that all or part of this agreement is invalid or unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrators. You acknowledge and agree that, in any arbitration proceeding, no depositions will be taken, and all other forms of discovery of facts will be limited to those things that the arbitrators determine, in their sole discretion, to be necessary. Further, in any arbitration proceeding, (i) there shall be no award of punitive, exemplary, incidental or consequential or other special damages, (ii) all damages claims and awards will be governed by the provisions of the California Civil Code, and (iii) the parties will conduct the arbitration confidentially and expeditiously and will pay their own costs and expenses of arbitration, including their own attorneys’ fees. If you are unable to afford the AAA fee, you agree to notify all persons against whom you have an arbitrable claim and give such persons the opportunity individually and as a group to pay such fee. The proceeding and the decision shall be kept confidential by the parties.
9 – Choice of Law
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of Michigan, without regard to its conflicts of laws rules. Foreign laws do not apply. Arbitration or court proceedings must be in Kent County, Michigan. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
10 – ELECTRONIC COMMUNICATIONS; GENERAL TERMS
10.1 – Electronic Communications
Whenever you visit our Site or send emails to us, you are communicating with us electronically. For that reason, you also consent to receive communications from us electronically. We will communicate with you by email (if you have provided your email address to us), by posting notices on our Site or by such other means as we may determine from time-to-time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.
10.2 – General Terms
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of e-liquid and electronic cigarette devices.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at firstname.lastname@example.org. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in [COMPANY’S CITY, STATE] before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which [COMPANY NAME]’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. 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 this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.