Terms of Service
Please read Brightland Inc.’s (“Company”, “we”, “us” or “our”) Terms of Service (the “Agreement”) carefully. This Agreement constitutes a binding obligation between you and Brightland Inc. This Agreement applies to your use of: our website located at www.brightland.co (the “Site”), the products or services we may provide or offer through the Site or otherwise, and your member account if you choose to create one (collectively, the “Services”).
- Agreement to Terms: By using our Services, you agree to be bound by this Agreement. If you do not agree to be bound by this Agreement, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. In that case, “you” and “your” will refer to that company or other legal entity.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THIS AGREEMENT YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND COMPANY THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 18“DISPUTE RESOLUTION” FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
- Changes to Terms or Services: We may update this Agreement at any time, in our sole discretion. If we do so, we will deliver a notice either by posting the updated Agreement or through other communications deemed appropriate by us. It is important that you review this Agreement whenever we update them or you use the Services. If you continue to use the Services after we have posted an updated Agreement, you are agreeing to be bound by the updated Agreement. If you do not agree to be bound by the updated Agreement, then, except as otherwise provided in Section 18(a)(viii),you may not use the Services anymore. Because our Services are evolving over time, we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
- Who May Use the Services? The products we offer for sale through the Services are currently only available to residents of United States and Canada. THE SERVICES NOT AVAILABLE TO PERSONS UNDER THE AGE OF 13, or in certain jurisdictions, under 16 (“Minors”) and we do not knowingly collect information from Minors. If you are between ages 13 (or 16 in certain jurisdictions) and 18, you must have permission from your legal guardian before you are permitted to use the Services. If we learn that we have collected information of a Minor, we will take steps to delete such information from our files as soon as possible.
- Account: You do not need to have an account in order to use the Services. When purchasing items through the Services, you will be required to provide certain information such as your email address, delivery address, and payment details. You have the option of creating an account (the “Account”) when using the Services, in which case certain information that you input previous may be stored in your Account. As described below, our store is hosted in SquareSpace and Accounts are created and managed by SquareSpace. As part of using our Services, you agree to provide current, complete and accurate purchase and account information for all subscriptions and purchases made on our Site. You agree to promptly update your account and other information, including your email address and payment information, so that we can complete your transactions and contact you as needed.
- Description of the Services:
- Description. Our Services provide a platform for you to purchase and deliver to you pantry essentials. You can choose from a variety of different purchase packages and payment methods, including a one-time payment, through ongoing subscriptions, or through wholesale. We also post periodic newsletters, recipes and other content related to our products and mission on the Site. We will also send emails to you with (i) newsletters if you register with us and (ii) follow-up order information if you order products through the Services.
- Shopify. Our online shop is hosted on Shopify and uses Shopify's commerce function to take and process orders. They provide us with the online e-commerce platform that allows us to sell our products and services to you. Your data is stored through Shopify's data storage, databases and the general Shopify application. For more information, please read its Terms of Service at https://www.shopify.com/legal/terms and Privacy Statement at https://www.shopify.com/legal/privacy.
- Access to your Information by Third Party Providers. You acknowledge that Squarespace, Recharge, and Stripe may have access to your information as they support our Services in their authorized use of your information.
- Responsibility for Internet Charges. Access to the Services may require the use of your personal computer and/or mobile devices, as well as communications with or use of data and storage on such devices. You are responsible for any Internet connection or mobile fees and charges that you may incur when accessing the Services.
- Payment Options:
- General. You may make a one-time purchase, or you may purchase our products on a regular basis through a subscription. The Subscription provides shipments delivered to you at different intervals elected by you (such as monthly, every 2 months, or every 3 months) (such intervals, the “Subscription Interval”).
- Subscriptions. When you purchase a Subscription, you will be charged the Subscription fee, plus any applicable taxes, and other charges such as customs or import duties (“Subscription Fee”), at the beginning of your Subscription and each Subscription Interval thereafter, at the then-current Subscription Fee, using the Payment Information you have provided until you cancel your Subscription. By agreeing to this Agreement and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Company. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with this Agreement. Please note that Subscriptions are only available within the United States.
- Cancellation of a Subscription. Subject to Recharge’s terms of service, you may cancel a Subscription by following the cancellation instructions after purchasing a Subscription. YOU WILL NOT BE ABLE TO RECEIVE A REFUND OF YOUR PRE-PAID SUBSCRIPTION FEE FOR THE APPLICABLE SUBSCRIPTION PERIOD THAT HAS STARTED. You may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to receive purchased items through Subscription will continue until the end of your then current subscription period and will terminate without further charges. To the extent there is a conflict or inconsistency between this paragraph and Recharge’s terms of service, Company will work with you in good faith to resolve any cancellation matters.
- Refund. If something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction. For more information on our cancellation and return policies, please visit our cancellation and returns webpage on our Site.
- Order Acceptance:
- Order Cancellations or Refusals. You understand that we may be unable to accept certain orders. We reserve the right, at our sole discretion, to refuse or cancel any order for any reason. Some reasons that may cause your order to be canceled include limited stock of our products available for purchase, errors in product or pricing information, or issues of verification or accuracy related to your Payment Information. We may also require additional verifications or information from you before accepting any order. We will notify you if any or all of your order is canceled or if additional information is required for us to accept your order.
- Typographical Errors. If a product is listed at an incorrect price or with incorrect information due to typographical errors, we will have the right to refuse or cancel any orders placed for the product listed at the incorrect price. We will have the right to refuse or cancel any such orders whether or not the order has been confirmed and your payment methods charged. If you have already been charged for the order and your order is cancelled, we will issue a credit to your account or refund you in the amount of the charge.
- Feedback.We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing email@example.com. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
- Content Ownership, Responsibility and Removal:
- Definition. For purposes of this Agreement: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any information or materials you provide to us or to the Services in connection with your user of the Services.
- Responsibility for User Content. To the extent that you provide any User Content, you are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under this Agreement. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Company on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
- Rights in Content Granted by Company. Subject to your compliance with this Agreement, Company grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, to, during the term of this Agreement, access and view the Content solely in connection with your permitted use of the Services.
- General Prohibitions and Company’s Enforcement Rights:
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services or any individual element within the Services, Company’s name, any Company trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Company’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Company’s computer systems, or the technical delivery systems of Company’s providers;
- Attempt to probe, scan or test the vulnerability of any Company system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Company or any of Company’s providers or any other third party (including another user) to protect the Services or any Content;
- Attempt to access or search the Services or Content or download Content from the Services, through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Company or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Company trademark, logo URL or product name without Company’s express written consent;
- Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by this Agreement;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
- Although we are not obligated to monitor access to or use of the Services, we have the right to do so for the purpose of operating the Services, to ensure compliance with this Agreement and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including if we, at our sole discretion, consider any Content to be objectionable or in violation of this Agreement. We have the right to investigate violations of this Agreement or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
- Links to Third Party Websites or Resources: The Services (including the Content made available through the Services) may make available to you content provided by third parties, including links to third-party websites or resources (collectively, “Third-Party Content”). We do not control, endorse or adopt any Third-Party Content and will have no responsibility for Third-Party Content including material that may be misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. You acknowledge that we provide the Third-Party Content to you only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You further acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources and all your interactions with such third-party websites or resources.
- Cancellation, Suspension or Termination of Services:
- We may, in our sole discretion and without any cost or liability to you, with or without prior notice and at any time, suspend, modify or terminate, temporarily or permanently, all or any portion of our Services, with or without reason, including for any of the following reasons: (i) you create risk or possible legal exposure for us; (ii) our provision of the Services to you is no longer commercially viable; (iii) due to insolvency, bankruptcy, or termination; and (iv) if you breach any terms of this Agreement.
- Upon any cancellation, suspension or termination of the Services, the following Sections of this Agreement will survive:1, 2, 3, 9to 12, 13(b), 14to 19.
- We may require you to meet certain requirements for passwords and multi-factor authentication and we may change the requirements with or without prior notice. But, no matter how strong your password is, you must ensure that your account credentials, including the email account you use in connection with the Services, are secure. If they are not, people may compromise and take action on your account or interfere with your orders made through the Services. You should always use two-factor authentication when available, always avoid copying scripts into your browser address bar, and avoid clicking on links, opening attachments or visiting Internet resources you do not trust. You are responsible for maintaining adequate security and control of any and all IDs, passwords, hints, personal identification numbers (PINs), or any other codes that you use to access or in relation to the Services. We assume no responsibility for any losses resulting from the compromise of your account.
- WE WILL USE REASONABLE EFFORTS TO VERIFY THE ACCURACY OF ANY INFORMATION PROVIDED BY THE SERVICES BUT WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE CONTENT, THE SERVICES, INFORMATION AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SERVICES, ANY HYPERLINKS TO THIRD PARTY WEBSITES, OR THE SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE SERVICES.
- WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR AND WILL NOT BE LIABLE TO YOU FOR ANY USE OF OUR SERVICES (INCLUDING THE PRODUCTS YOU PURCHASE THROUGH THE SERVICES), INCLUDING ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE; (C) UNAUTHORIZED ACCESS TO APPLICATIONS OR YOUR THIRD PARTY ACCOUNTS; OR (D) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING THE USE OF VIRUSES, PHISHING, BRUTE FORCE OR OTHER MEANS OF ATTACK AGAINST THE SERVICES.
- WE WILL NOT BE LIABLE FOR ANY FAILURE TO PERFORM OUR OBLIGATIONS HEREUNDER WHERE THE FAILURE RESULTS FROM ANY CAUSES BEYOND OUR REASONABLE CONTROL.
- TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, WE MAKE NO WARRANTY THAT THE SERVICES (INCLUDING THE PRODUCTS YOU PURCHASE THROUGH THE SERVICES) ARE FREE OF ANY DEFECTS, THAT THE CONTENT IS ACCURATE, THAT IT WILL BE UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS OF ANY KIND, FROM ACTION TAKEN, OR TAKEN IN RELIANCE ON MATERIAL, OR INFORMATION, CONTAINED OR MADE AVAILABLE THROUGH THE SERVICES.
- WITHOUT LIMITING THE FOREGOING AND TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, OTHER THAN REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED HEREUNDER: (I) THE SERVICES (INCLUDING THE PRODUCTS YOU PURCHASE THROUGH THE SERVICES) ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND; and (II) WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services (including the products you purchase through the Services) will meet your requirements or be available on an uninterrupted, secure, defect-free or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Services (including the products you purchase through the Services) or Content.
- Indemnity: You will indemnify and hold harmless Company and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including reasonable legal and accounting fees arising out of or in any way connected with your access to or use of the Services or your violation of this Agreement.
- Limitation of Liability:
- NEITHER COMPANY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES (INCLUDING IN CONNECTION WITH THE PRODUCTS YOU PURCHASE THROUGH THE SERVICES), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- SUBJECT TO SECTION 16(A),IN NO EVENT WILL COMPANY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES (INCLUDING IN CONNECTION WITH THE PRODUCTS YOU PURCHASE THROUGH THE SERVICES) EXCEED ONE HUNDRED DOLLARS ($100).
- THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
- Governing Law and Forum Choice: For users of our Services, this Agreement and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 18,the exclusive jurisdiction for all Disputes (defined below) that you and Company are not required to arbitrate will be the state and federal courts located in the Southern District of California, and you and Company each waive any objection to jurisdiction and venue in such courts
- Dispute Resolution: Company believes that most disagreements can be resolved informally and efficiently by contacting Company’s customer support. If the dispute is not resolved through Company customer support, you and Company agree that any such dispute, claim or controversy arising out of or relating in any way to the Services or this Agreement (each, a “Claim”), will be determined by binding arbitration or small claims court, instead of in courts of general jurisdiction, in accordance with the following(including the procedure to opt out of arbitration), except that each party retains the right: (i) to bring an individual action in small claims court as further described in Section 18(b)below; and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (an “IP Protection Action”) as further described in Section 18(c)below.
- Arbitration. 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. Arbitrators can award the same damages and relief that a court can award. You agree that, by agreeing to this Agreement, the U.S. Federal Arbitration Actgoverns the interpretation and enforcement of this arbitration provision, and that you and Company are each waiving the right to a trial by jury or to participate in a class action.
- Opt-out. You may opt out of arbitration entirely and litigate any Claim if you provide us with written notice of your desire to do so by email at firstname.lastname@example.org within thirty (30) days following the date you first agree to this Agreement.
- Notice of Claim. If you elect to seek arbitration, you must first send to Company, by email, a written notice of your Claim (the "Notice of Claim"). The Notice of Claim to Company should be sent to email@example.com and should be prominently captioned “NOTICE OF CLAIM”. The Notice of Claim should include both the mailing address and email address you would like Company to use to contact you. If Company elects to seek arbitration, it will send, by certified mail, a written Notice of Claim to your billing address on file. A Notice of Claim, whether sent by you or by Company, must (a) describe the nature and basis of the claim or dispute; (b) set forth the specific amount of damages or other relief sought (the "Demand"); and (c) whether you reject any subsequent modification of the Dispute Resolution section by Company.
- Arbitration Proceedings. If you and Company do not reach an agreement to resolve the claim within thirty (30) days after the Notice of Claim is received, you or Company may commence an arbitration proceeding (or, alternatively, file a claim in small claims court or an IP Protection Action). You may download or copy a form of notice and a form to initiate arbitration at www.adr.org. The arbitration will be governed by the Consumer or Commercial Arbitration Rules, as appropriate, of the American Arbitration Association ("AAA") (collectively, the "AAA Rules"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision.
- Arbitration Location and Procedure. Unless Company and you agree otherwise, any arbitration hearings will take place in the county (or parish) of either your residence or of the mailing address you provided in your Notice of Claim. If your claim is for U.S. $10,000 or less, Company agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
- Injunctive and Declaratory Relief. Except as set forth in Sections 18(b)and 18(c),the arbitrator will determine all issues of liability on the merits of any Claim asserted by you or Company, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent that you or Company prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the general public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief will be stayed pending the outcome of the merits of any individual claims in arbitration.
- Arbitration Fees. If your claim for damages does not exceed $10,000, Company will pay all fees imposed by the AAA to conduct the arbitration, including reimbursement of your initial filing fee, unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If your claim for damages exceeds $10,000, standard AAA Rules will govern the payment of all AAA fees, including filing, administration and arbitrator fees.
- Class Action Waiver. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.Further, if you have elected arbitration, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section will be null and void.
- Modification of Dispute Resolution Section. Notwithstanding Section 3,if Company changes this “Dispute Resolution” section after the date you first accepted this Agreement, and you have not otherwise affirmatively agreed to such changes, you may reject any such change by so stating within your Notice of Claim. By failing to reject any changes to this “Dispute Resolution” section in your Notice of Claim, you agree to resolve any Claim between you and Company in accordance with the terms of the Dispute Resolution section in effect as of the date of your Notice of Claim.
- Severability. With the exception of any of the provisions in Section 18(a)(vii)of this Agreement (Class Action Waiver), if an arbitrator or court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.
- Small Claims Court. Notwithstanding Section 18(a),you may elect to litigate your Claim in small claims court if all the requirements of the small claims court are satisfied, including any limitations on jurisdiction and the amount at issue in the dispute. You agree to bring a Claim in small claims court in your county of residence
- IP Protection Action. Notwithstanding Sections 18(a)or 18(b),the exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Southern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
- General Terms:
- Entire Agreement. This Agreement constitutes the entire and exclusive understanding and agreement between Company and you regarding the Services, and this Agreement supersedes and replaces any and all prior oral or written understandings or agreements between Company and you regarding the Services. If any provision of this Agreement is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. You may not assign or transfer this Agreement, by operation of law or otherwise, without Company’s prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null. Company may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
- Notices. Any notices or other communications provided by Company under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Services (including on the Site). For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
- Waiver of Rights. Company’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Company. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
- Interpretation. For purposes of this Agreement: (i) the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. The parties also agree that the normal rule of construction that an agreement will be interpreted against the drafting party does not apply to this Agreement.
- Contact Information: If you have any questions about this Agreement or the Services, please contact Company at firstname.lastname@example.org
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 digital and physical products, services, and events.
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 email@example.com. 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 Los Angeles, California 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 Brightland’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.