Express Veterinary Pharmacy Terms and Conditions
Your access to and use of the Express Veterinary Pharmacy web site (the "Web Site") is subject to the provisions contained in these terms and conditions (“TCS”). By accessing or using this Web Site, you agree to all of these terms and conditions and enter into a legally binding agreement with MedMetrics, LLC, an Arizona limited liability company (the “Company”) to abide by the provisions of these terms and conditions as described herein. The Company reserves the right to modify these terms and conditions by posting such modifications to this Web Site. You can review the most current version of the TCS as any time by checking the Terms of Service listed at the home page. We recommend that you check the TCS periodically for changes. Your continued use of the Web Site following the posting of any changes to the TCS will mean that you agree to and accept such changes. In addition to the TCS, when using particular services on the Web Site, you and the Company will be subject to any posted guidelines or rules applicable to such services which may be posted from time to time. All such guidelines or rules are hereby incorporated by this reference into the TCS. The TCS apply to all sites, products and services provided by the Company. You can read more about the Company, and contact us at www.ExpressVetPharmacy.com.
Throughout these terms and conditions, the Company and this Web Site are sometimes referred to herein as "we," "us," or "our". References herein to "you" and "your" and the rest of the second-person nouns refer to users of the Website.
USE OF THIS WEB SITE
Content and Other Information: All of the content and information displayed or accessible on this Web Site, including without limitation the educational materials, scientific content, graphic designs, video, audio, photographic or literary content (collectively, "Information"), is owned by the Company, its business associates, or other third parties. This Information is provided to you solely for your personal use. You may not access or use this Information for commercial, competitive, or any other purposes. You may not modify, republish, post, transmit or distribute any Information without the express written consent of the Company. You may copy this information only to the extent necessary for your personal use. The Company expressly retains all right, title and interest in and to any proprietary Information. Failure to adhere to these provisions could subject you to serious penalties under federal copyright law.
Password and Security: You are solely responsible for maintaining the confidentiality of any user name and password you use to access the Web Site and are fully responsible for all activities that occur under your password or account. You agree to (i) immediately notify the Company of any unauthorized use of your password or account or any other breach of security, and (ii) ensure that you exit from your account at the end of each session. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with this provision.
You are responsible for ensuring that no unauthorized person has access to your online password or account. To keep your account secure, do not disclose your password to anyone, monitor access to your account, and promptly change your password if you feel it has been compromised. Inform the Company right away if you need to delete an account for security purposes. In addition, by using the Web Site, you make the following commitments to us:
- You agree not to use or permit the use of any data gathering tool or mechanism to access, view or obtain data from the Web Site or interfere with any user’s access to the Web Site.
- You will not gain unauthorized access to or attempt to obtain the underlying code or structure of the Web Site.
- You agree to use the Web Site only for lawful purposes and not to transmit material that infringes or violates intellectual property rights of others or the privacy rights of others. You agree not to transmit material that is unlawful, obscene, defamatory, predatory, threatening, harassing, abusive, slanderous, or hateful to any person or entity.
- You agree not to use our services in any way intended to harm a user or other individual or would likely result in harm.
- You agree not to collect information about others, including email addresses, using the Web Site.
- You agree not to transmit viruses or other computer code on the Web Site that is potentially harmful, invasive or intended to damage or hijack the operation or monitor the use of any hardware or software.
- You agree not to use this Web Site as a substitute for obtaining specific advice about medications or a health condition from a qualified health care professional such as a licensed veterinary.
All Information and materials available through the Web Site, other than your personal information, are the property of the Company or our third party partners and are protected by United States and International copyright laws. You may only access or use the Information and content of this Web Site for personal use. The compilation of all Information and content on the Web Site is exclusively ours. “Express Veterinary Pharmacy" and our logo are our trademarks. You agree not to use our trademarks in connection with any products or services that is not ours, or in any manner that could create confusion about the source of our products or services.
Links to Other Web Sites: The Web Site may provide links to the web sites or services of other third party web sites ("Third-Party Sites"). Links from our Web Site to such Third-Party Sites do not constitute an endorsement by the Company of such Third-Party Sites, or the products, content, materials or information presented or made available by such sites. You acknowledge and agree that the Company is not responsible for any damages or losses of you or any other person caused or alleged to have been caused by your use of any Third-Party Sites, or from the products, content, material or information presented by or available through those sites.
Disclosure of Affiliations: The Company works with a variety of third parties to provide the goods and services available on this Web Site, and to provide links to Third-Party Sites. These third parties include, for example, content providers, technology providers, and suppliers of medical products, information and services. These entities may supply information for posting on or access through this Web Site, and may set standards applicable to certain content, but they do not control the content or the operation of this Web Site.
Payment for Products and Services: All payments made for products or services offered by the Company will be paid to the Company, and will therefore be subject to the Company’s refund policy. The Company does not offer a refund for any or all of the products or services it provides or sells to its customers, unless otherwise expressly stated.
GENERAL TERMS AND CONDITIONS
No Medical Advice: This Web Site is not intended to provide, and disclaims any suggestion that it does provide, medical advice of any nature. The information made available through this Web Site should not be construed as medical advice by you or your patients and such information should not be used in place of seeking professional opinions by licensed practitioners. Only licensed medical professionals may offer medical advice, diagnosis and recommendations for treatment of medical conditions. The Company and its affiliates do not practice medicine or law, and do not offer any other professional advice or services. You assume full responsibility for appropriate use of the information available through this Web Site.
Disclaimer of Warranty: This Web Site and all services, goods and Information made available on or through this Web Site are provided on an "as is", "where is" and "as available" basis. OTHER THAN AS EXPLICITLY SET FORTH IN THESE TERMS AND CONDITIONS, THE COMPANY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS TO THE FULLEST EXTENT THAT SUCH DISCLAIMERS ARE LEGALLY PERMISSIBLE, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, SUITABILITY, ACCURACY OR FREE FROM ERROR, CURRENCY TIMELINESS, SECURITY, EFFICACY, AVAILABILITY, RELIABILITY, COMPLETENESS OR NON-INTERRUPTION OR THAT DEFECTS WILL BE CORRECTED.
Any information downloaded, or goods or services otherwise obtained through the use of this Web Site is done at your own discretion and risk. You shall be solely responsible for any damage or loss of data that results from the downloading or use of the information and for any results or lack of results from the use of such data.
Limitation of liability: Our liability regarding damages occurring from your use of the Web Site is limited and your use of the Web Site is at your own risk. In no event shall the Company or its affiliates, or their shareholders, Members, Managers, directors, officers, employees or agents, be liable for any claims or losses whatsoever of any kind, whether direct, indirect, special, incidental, consequential or punitive, and whether arising from an action in contract, tort, or otherwise, related to or in connection with this Web Site or any goods, services or information made available on or through this Web Site, or your use thereof. Without limiting the generality of the foregoing, the Company and its affiliates shall not be liable for any claims or losses in connection with errors, omissions, or inaccuracies of informational content, or any decision made in reliance on the Information contained on or accessible through the Web Site, including without limitation personal injury or death. Your sole remedy for any claims in connection with this Web Site is to discontinue using this Web Site and the related Information, goods and services. The foregoing limitation shall apply and survive notwithstanding any failure of essential purpose of any remedy. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.
Termination: You agree that the Company may, in its sole discretion, terminate your password, account (or any part thereof) or use of the services provided by the Web Site, and remove and discard any Information, for any reason, including, without limitation, for lack of use or if the Company believes that you have violated or acted inconsistently with the purpose or intent of the TCS. The Company may also, in its sole discretion, and at any time discontinue providing Information, goods or services, or any part thereof, with or without notice. You agree that any termination of your access to the Web Site under any provision of the TCS may occur without prior notice, and you acknowledge and agree that the Company may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or Information, goods or services. Further, you agree that the Company shall not be liable to you or any third-party for any termination of your access to the Web Site.
Indemnification: You agree to indemnify, defend and hold harmless the Company and its affiliates from any and all claims or losses arising from your use of or reliance on this Web Site or any goods, services or information made available on or through this Web Site.
Choice of Law: These terms and conditions and your use of the Web Site shall be governed by and interpreted in accordance with laws of the State of Arizona, without giving effect to any conflict of laws provisions. By using this Web site, you hereby consent to the exclusive jurisdiction of and agree that venue is proper and convenient in the state and federal courts situated in the State of Arizona.
Severability: If any provision of these terms and conditions is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to effectuate the intent of these terms and conditions, and the remainder of these terms and conditions shall continue in full force and effect.
Waiver: Our failure to exercise or enforce any right or provision of these terms and conditions will not constitute or be deemed a waiver of such right or provision.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
Express Veterinary Pharmacy (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.
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 businessmanager@expressvetpharmacy.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 Gilbert, Arizona 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 Express Veterinary Pharmacy’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.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
Express Vet (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy [Insert URL Link to your Privacy Policy] (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.
1. 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. Message frequency varies.
2. 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 acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that Express Vet and its service providers will have no liability for failing to honor such requests. 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.
3. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery and sale of [Describe company’s goods/service offerings - this should be broad and general to encompass any type of message you may send. Messages outside of this scope may not be allowed under the TCPA]. Messages may include checkout reminders.
4. Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
5. Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at customerservice@expressvetpharmacy.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.
6. MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
7. 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. Carriers are not liable for delayed or undelivered mobile messages.
8. 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.
9. Age Restriction: You may not use or 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.
10. 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.
11. Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. 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 Gilbert, Arizona 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 Express Vet’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 THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class 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.
12. Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
13. 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.
