Last Updated: March 1, 2022
These Terms constitute an agreement between you and BOLDR Beverages LLC d/b/a BOLDR (“BOLDR” or “we” or “us”).
Notice Regarding Dispute Resolution: These Terms contain provisions governing how any claims that may arise between you and BOLDR will be resolved (see Legal Disputes and Arbitration Section below), including an obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit any claims you might have against us to binding arbitration, unless you opt-out in accordance with the Arbitration Section below.
LIST OF SPECIFIC TOPICS:
Users and Accounts
Responsible Use of Online Services
Content Submission Terms
Provision or Suspension/Withdrawal of the
Social Media Access
United States Online Services
Purchases from BOLDR
Indemnity, Disclaimers and Limits of Liability
Legal Disputes and Arbitration Agreement
Copyright and Trademark
Errors and Inaccuracies
Notice to California Residents
Certain services offered by through the Online Services, such as referral programs, loyalty programs, gift cards, sweepstakes and other similar offers, will be subject to additional terms. Those terms will be presented in conjunction with the particular program or offer and will be binding on those who participate in those programs or offers. These Terms will apply equally. Without limitation, the additional terms include product & service descriptions, prices, and restrictions posted on the Online Services, which are subject to change from time to time and should be reviewed by you each time you submit content or place an order.
The Online Services are not intended for use by anyone under age 13. YOU MUST BE AT LEAST AGE 13 TO ACCESS AND USE THE ONLINE SERVICES. By accessing, using and/or submitting information to or through the Online Services, you represent that you are at least age 13. Anyone between age thirteen (13) and eighteen (18) may only use the Online Services under the supervision of his/her parent or a legal guardian. IF YOU ARE A PARENT/LEGAL GUARDIAN AND YOU PROVIDE YOUR CONSENT TO YOUR TEENAGER’S ACCESS TO AND USE OF THE ONLINE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS
USERS AND ACCOUNTS
To use certain Online Services, such as the online store, you may need to create an account. You may also have the option of creating an account in anticipation of making future purchases. If you create an account, you agree you will: (a) create only one account; (b) provide honest, accurate, current and complete information regarding yourself; (c) keep your information updated and accurate; and (d) notify BOLDR if you discover or suspect that your account has been hacked or its security breached.
You agree to take responsibility for all activities on or under any account registered to you and you accept all risks for any unauthorized use of your account. You are responsible for providing the equipment and services that you need to access and use the Online Services. We do not guarantee that the Online Services will be accessible on any particular equipment or device or with any particular software or service plan.
We reserve the right, without notice and in our sole discretion at any time, to terminate your right to access and use the Online Services or any component of the Online Services, and to block or prevent future access to and use of the Online Services and to delete your account and any related information. Any obligation or liability incurred prior to termination of your access to the Online Services will survive such termination.
RESPONSIBLE USE OF THE ONLINE SERVICES
You may use the Online Services for lawful purposes and in accordance with these Terms. No other use is permitted. Without limiting the foregoing, you may not use the Online Services:
(a) for any purpose that is unlawful or prohibited by these Terms;
(b) to cause harm or damage to any person or entity;
(c) to interfere with the proper operation of the Online Services; or
(d) to upload, post or transmit any material that violates any law, infringes on the rights of any third party or contains defamatory, libelous, abusive, obscene or otherwise objectionable material (as determined by BOLDR in its sole discretion) or viruses or other malware which may harm the operation of the Online Services or anyone else’s computer.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS BOLDR AND ITS PARENTS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, BUSINESS ASSOCIATES, AND SUPPLIERS FROM AND AGAINST ANY ACTUAL OR THREATENED CLAIMS, ACTIONS OR DEMANDS, LIABILITIES AND SETTLEMENTS (INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES) RESULTING (OR ALLEGED TO RESULT) FROM YOUR USE OF ANY ONLINE SERVICES IN ANY MANNER THAT VIOLATES OR IS ALLEGED TO VIOLATE APPLICABLE LAW OR THESE TERMS.
CONTENT SUBMISSION TERMS
You are solely responsible for all content you may submit (“User Content”). You warrant and represent that your User Content does not contain any material or content that is unlawful, harmful, threatening, abusive, vulgar, harassing, defamatory, obscene, pornographic, indecent, inflammatory, libelous, tortious, hateful, or racially, ethnically or otherwise objectionable, or invasive of another's rights including but not limited to rights of copyright, celebrity, publicity, privacy and intellectual property, or otherwise in violation of any federal, state or local law, rule or regulation.
We have no obligation, but reserve the right, to monitor, flag, delete, or refuse to reproduce any User Content we believe may be in violation of these Terms, and to cancel any order(s) based on such User Content. Under no circumstances will BOLDR be liable in any way for any loss of any User Content. The Site is not intended as a storage depository for User Content. You are responsible for retaining copies of your User Content.
You retain ownership of all User Content you submit, and you grant us and our designees the non-exclusive right to use such on the Site and elsewhere in our discretion.
PROVISION OR SUSPENSION/WITHDRAWAL OF THE ONLINE SERVICES
You understand and agree that: (a) the Online Services may change from time to time without notice to you. Any new feature that augments, enhances or modifies the current Online Services is subject to these Terms; (b) we may decline to provide access to the Online Services or stop (permanently or temporarily) providing the Online Services (or any feature, program or content within the Online Services) to you or other users at our sole discretion, without notice or liability to you; and (c) if we disable access to your account, you may be prevented from accessing the Online Services, your account details, or any files or other content which are contained in your account.
SOCIAL MEDIA ACCESS
If you use a mobile device to access the Online Services, you acknowledge and agree that: (a) you are solely responsible for all message and data charges that apply to use of your mobile device to access the Online Services; and (b) all such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status and details. You further understand that service may not be available in all areas at all times and may be affected by product, software, coverage or service changes made by your mobile service provider or otherwise. By accessing or using any Online Services via a mobile device, you agree to these Terms and to any applicable terms of a mobile app you may use.
UNITED STATES ONLINE SERVICES
The Online Services are owned and operated by us in the United States. You are responsible for compliance with any local laws if you access or use the Online Services from anywhere else. All prices displayed on the Online Services are quoted in U.S. Dollars and are valid and effective only in the United States.
PURCHASES FROM BOLDR
From time to time, BOLDR may offer products for purchase through the Online Services (“Products”). We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities or Products purchased per person, per household or per order. These restrictions may include orders placed by or under the same account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email, billing address and/or phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
Prices for Products are subject to change without notice. All prices for Products are in U.S. dollars, and are exclusive of any applicable local, state, or federal taxes. Shipping and handling fees, if any, will be reviewable prior to submitting your order.
If you wish to purchase a Product or any other services made available through the Online Services, you may be asked to supply certain information relevant to your transaction, including without limitation your credit card number, the expiration date of your credit card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT OR DEBIT CARD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant us or the third party collecting that information on our behalf the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any transaction. All payments through the Service are processed using a third-party processor. You agree to pay all charges incurred by users of your credit card, debit card, or other method of payment.
BOLDR currently ships only to locations within the United States, excluding Alaska, Hawaii, and Puerto Rico. Shipments will be made via standard ground service unless otherwise specified at the time of purchase. The time period from order to delivery will vary depending on location. Title to all products and risk of loss or damage will pass to the buyer upon shipment from BOLDR.
REFUNDS AND REPLACEMENTS
If you are dissatisfied with one of our Products for any reason, please let us know by sending an email to firstname.lastname@example.org with your name, order confirmation number, and reason for the request, within 30 days of when you receive your product. We may require proof of purchase if we can’t verify your order. If needed we will adjust this policy as required by the laws of the state in which you live. Because of food safety laws we unfortunately can’t accept the return of food products.
If the product you received expires within 3 months, was damaged in transit, or is otherwise defective, we will replace it with a similar version of the product at no cost to you. If the product doesn’t agree with you we will (at our discretion) refund your order. Refund policy subject to change without notice.
You understand that Products may contain materials that could be dangerous if handled improperly, and you acknowledge that BOLDR is not liable for any personal injury or property damage arising from any misuse of any Products offered through the Service. You further acknowledge that Products may not be suitable for use by children, and you expressly assume sole liability for providing any individual under the age of 18 with access to any Products. You hereby agree not use Products for any illegal purpose and you assume all liability for any action you take for any action that is contrary to any law, rule, or regulation of any territory.
INDEMNITY, DISCLAIMERS AND LIMITS ON LIABILITY
You agree to indemnify, defend, and hold harmless BOLDR, its affiliated companies (collectively “BOLDR”), and their respective affiliates, officers, directors, shareholders, employees, contractors, licensors, licensees, agents, and representatives (the “Covered Entities”) against all liability, claims, costs, damages, settlements, and expenses (including interest, penalties, attorney fees and expert witness fees) (“Liabilities”) incurred by any Covered Entity in any way arising out of or relating to your breach of these Terms or our other policies referenced in these Terms, including but not limited to any use of any of your User Content that infringes the rights of third parties. BOLDR reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and if BOLDR assumes defense and control, you agree to cooperate with our defense of an applicable claim. You agree not to settle any matter related to the Online Services, including indemnified claims, without our prior written consent. We will use reasonable efforts to inform you of any indemnified matter.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COVERED ENTITIES MAKE NO WARRANTY OF ANY KIND ABOUT THE ONLINE SERVICES OR ANY PRODUCTIONS CREATED VIA THE ONLINE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NON- INFRINGEMENT. THE COVERED ENTITIES HAVE NOT MADE ANY REPRESENTATION AS TO THE POTENTIAL BENEFITS YOU MAY REALIZE BY USING THE ONLINE SERVICES OR ANY PRODUCTIONS CREATED VIA THE ONLINE SERVICES. THE ONLINE SERVICES AND ALL PRODUCTIONS ARE PROVIDED AS IS, WITH ALL FAULTS, AND AS AVAILABLE. THE COVERED ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING THOSE MENTIONED ABOVE.
THE COVERED ENTITIES ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY A THIRD PARTY OR BY YOU OR ANYTHING ACCESSED VIA ANY LINKS TO THIRD PARTY WEBSITES, SERVICES, OR SOFTWARE. THE COVERED ENTITIES UNDERTAKE NO OBLIGATION TO ENFORCE THEIR POLICIES OR RIGHTS AGAINST ANY THIRD PARTY. YOU BEAR ALL RISKS ASSOCIATED WITH USING THIRD PARTY LINKS, WEBSITES, ETC. THE COVERED PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR THE CONDUCT OF ANY USER OF THE ONLINE SERVICES.
LIMITATIONS ON LIABILITY
THE COVERED ENTITIES SHALL NOT BE LIABLE FOR (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, STATUTORY DAMAGES OR PENALTIES, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION), EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES, OR (B) LOSS OF OR DAMAGE TO REPUTATION ARISING IN CONNECTION WITH, OUT OF, OR AS A RESULT OF (I) THESE TERMS OR THE ONLINE SERVICES, AND (II) ANY ACTS OR OMISSIONS OF ANY OF THE COVERED ENTITIES IN CONNECTION WITH THESE TERMS OR THE ONLINE SERVICES. THE MAXIMUM REMEDY AVAILABLE TO YOU UNDER THESE TERMS AND IN CONNECTION WITH THE ONLINE SERVICES IS REIMBURSEMENT OF ANY AMOUNTS YOU HAVE PAID TO US DURING THE SIX MONTHS IMMEDIATELY PRIOR TO ANY CLAIM.
In the event that you have a dispute with one or more other users, you hereby release the Covered Entities from any and all claims, demands, damages (actual and consequential), losses and liabilities of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to these disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
Exceptions to Disclaimers and Exclusions of Damages
If you live in a jurisdiction that does not allow disclaimer of warranties or exclusion of damages, the foregoing disclaimers and exclusions may not apply to you. For New Jersey residents, the limitations set forth above are inapplicable where attorneys’ fees, court costs, or other damages are mandated by statute.
Timing of Claims
You must bring any claim you have against BOLDR relating to these Terms or the Online Services within two years from the date of accrual of the applicable claim.
Legal Disputes and Arbitration Agreement
Initial Dispute Resolution
We are available by email at email@example.com to address any concerns you may have regarding your use of the Online Services. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
Terms of Service and Binding Arbitration Agreement
If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to the preceding paragraph, then either party may initiate binding arbitration. All claims arising out of or relating to this Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Online Services shall be finally settled by binding arbitration administered by JAMS on a non-confidential basis in accordance with the provisions of its then-effective rules, including its streamlined procedures, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The procedures and rules of the Federal Arbitration Act shall exclusively govern the interpretation and enforcement of this arbitration provision and the parties hereby reject, waive and disclaim the application of any state Arbitration Act.
The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/rules-streamlined-arbitration/, or by calling JAMS at 1.800.352.5267. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, BOLDR will pay the additional cost. A request for payment of fees should be submitted to JAMS along with your form for initiating the arbitration, and BOLDR will make arrangements to pay all necessary fees directly to JAMS. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception – Small Claims Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30 Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the preceding three paragraphs by sending written notice of your decision to opt-out to firstname.lastname@example.org. The notice must be sent within thirty (30) days of registering to use the Online Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those Sections. If you opt-out of these arbitration provisions, BOLDR also will not be bound by them.
Exclusive Venue for Litigation
Solely to the extent the arbitration provisions set forth above do not apply, or for purposes of either party enforcing an award granted to it pursuant to arbitration, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Los Angeles, California (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Los Angeles, California for any litigation other than small claims court actions. The Parties irrevocably consent to personal jurisdiction in Los Angeles, California for any litigation and hereby waive, for all purposes, their right to challenge the lack of personal jurisdiction of Los Angeles, California over any litigation arising in connection with, out of, or as a result of (a) these Terms or the Online Services, and (b) any acts or omissions of any of the Covered Entities in connection with these Terms or the Online Services.
COPYRIGHT AND TRADEMARK
Unless otherwise noted, all materials appearing on the Online Services for public viewing are protected as the copyrights, trade dress, trademarks and/or other intellectual property of BOLDR or its licensors. You may not remove or alter any copyright, trademark or other proprietary right notice in the Online Services. All rights not expressly granted are reserved
BOLDR is strongly committed to respecting intellectual property and other rights. As set forth in the following paragraphs, we have a policy of responding to notices of alleged copyright and trademark infringement that comply with applicable laws, including the Digital Millennium Copyright Act in the United States, and terminating accounts of repeat infringers in appropriate circumstances. To report a problem other than copyright or trademark infringement, please email email@example.com. We may, in our sole discretion, limit, suspend, or terminate and user’s access or account, delay or remove Content, and take technical and legal steps to keep users from using the Online Services, if we think that they are creating problems or possible legal liabilities, infringing the intellectual property rights of third parties, or acting inconsistently with the letter or spirit of our policies (for example, and without limitation, circumventing temporary or permanent suspensions or harassing our employees or other users).
DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) POLICY
BOLDR will respond to proper notifications of claimed copyright infringement with respect to material posted by users, and will take appropriate action including removing and disabling access to the allegedly infringing material. We also will, in appropriate circumstances, terminate the accounts of registered users whom we find to be repeat infringers. We also may, in our discretion, suspend and/or terminate the account of any registered user who infringes another’s intellectual property right, whether or not there is repeat infringement.
If you believe your copyright has been infringed, you should submit notice to:
Any such notice should include the following:
Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If a notice of copyright infringement has been filed against material posted by you, you may make a counter-notification with our Designated Agent listed above, provided that such counter-notification must be in writing and contain the following requisite information:
Your physical or electronic signature.
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
A statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which you are located (or in the State of Maryland, U.S.A., if you reside outside of the U.S.A.), and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.
If we receive a valid counter-notification, we may reinstate the removed or disabled material in accordance with the DMCA.
Links provided within the Online Services will allow you to connect to other websites and services that are not under BOLDR control. We do not endorse and are not responsible for the content of such websites and/or services. You access such websites and use such services at your own risk.
ERRORS AND INACCURACIES
The Online Services may contain errors, inaccuracies or omissions related to product descriptions, pricing, promotions, offers, availability and other information. If any information in the Online Services is inaccurate, incomplete or out of date, we reserve the right to correct, change or update such information or to cancel orders related to such information (including after you have submitted an order) without prior notice and issue a refund for amounts paid.
NOTICE TO CALIFORNIA RESIDENTS
Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information: The provider of the Online Services is BOLDR Beverages LLC, d/b/a BOLDR. To file a complaint regarding the Online Services or to receive further information regarding use of the Online Services, send a letter to the above address or contact BOLDR via e-mail (with “California Resident Request” as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
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 BOLDR 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 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.
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 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 BOLDR’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.
We will notify you of changes to these Terms by posting the amended terms on the Online Services and providing any advance notice required by law. If you have provided us with your email address, we will also notify you of material changes to these Terms by sending an email before the effective date of the changes to the email address you most recently provided to us. We encourage you to keep the email address you provide to us current, and to promptly notify us of any changes to your email address, so that you may receive any notices we send to you regarding material changes to these Terms. If you do not agree to the new Terms, you should stop using the Online Services, and if you are a registered user, you may cancel your account with us within the notice period we specify by contacting us at email@example.com, and you will not be bound by the new Terms. Otherwise, the new terms will take effect on the date listed in the notice we provide. BOLDR employees do not have the right to modify these Terms orally or otherwise. If any employee of BOLDR offers to modify the provisions of these Terms except using the process described above, he or she is not acting as an agent for BOLDR or speaking on our behalf.
These Terms constitute a contract made solely over the Internet and you agree that the laws of the State of California, without regard to principles of conflict of laws, will govern these Terms and any claim or dispute that has arisen or may arise between you and BOLDR relating to use of any aspect of the Online Services.
These Terms of Service and the terms and conditions incorporated in these Terms of Service by reference are the entire agreement between you and BOLDR.
Except as provided in the Arbitration provisions above, if any provision of these Terms is unenforceable, the validity and enforceability of the remaining provisions will not be affected.
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of these Terms.
If you have questions regarding any of these Terms, you can write to us care of BOLDR Customer Service, firstname.lastname@example.org.