For purposes of the SMS Terms, “eMerchantClub,” “the Company,” “we,” or “us” shall mean eMerchantClub. and any of its subsidiaries, divisions, or affiliates.
By opting in to any eMerchantClub promotional text program, you expressly consent to receive recurring marketing text messages that may be sent using an automatic telephone dialing system, by or on behalf of eMerchantClub, at the cell phone number you provide us. To opt in to eMerchantClub promotional text messaging programs, please follow the instructions provided by the specific program from which you wish to receive marketing text messages.
By voluntarily providing your cell phone number to eMerchantClub, you consent to receive transactional, operational, or informational text messages at that phone number, including but not limited to order confirmations; shipping and delivery notifications; and appointment reminders, training, or marketing services. Please note we may not be able to deliver messages to all mobile carriers.
Consent to receive texts is not a condition of purchasing any goods or services, and you understand and agree that all text messages may be sent using automated technology.
To stop receiving text messages from eMerchantClub, you agree to reply STOP to the text message. After texting STOP, you may receive additional communications confirming that your request has been received and processed, and you may continue to receive text messages for a short period while eMerchantClub or automations processes your request(s). If you opt out of one eMerchantClub’s text messaging program, you will remain opted in to other eMerchantClub text messaging programs (if applicable) unless you opt out of those programs separately.
Below is more information on the types of text messages you may receive, and opting out of text messages from eMerchantClub:
Message and data rates may apply for any messages sent to you from or on behalf of eMerchantClub, and messages sent to eMerchantClub from you. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
By opting in to eMerchantClub’s promotional text messaging program or by otherwise providing your cell phone number to eMerchantClub, you warrant that you are 18 years of age or older. You further warrant that you are the current subscriber or authorized user of the phone number you have provided. You agree that you will not initiate messages to the mobile phone of any other person or entity without authorization. If you change, forfeit, or deactivate the phone number you have provided to eMerchantClub, you agree to notify eMerchantClub immediately.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY PRE-DISPUTE RESOLUTION, BINDING ARBITRATION AND A CLASS ACTION WAIVER.
IRRESPECTIVE OF ANY LAW TO THE CONTRARY, YOU MUST PROVIDE NOTICE TO EMERCHANTCLUB, PURSUANT TO THE PROCEDURES SET FORTH IN THIS SECTION, OF ANY CLAIM WITHIN ONE YEAR OF ITS ACCRUAL OR YOUR CLAIM SHALL BE WAIVED AND TIME-BARRED.
Should you and eMerchantClub have a Dispute (as defined below), eMerchantClub is committed to engaging with you to resolve it. Therefore, for any Dispute that arises between you and eMerchantClub, the parties agree that they will first make a good faith effort to resolve it informally. This informal dispute resolution process is a condition precedent to commencing any formal proceeding in arbitration or small claims court. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this process.
For your Disputes with eMerchantClub, you must first send your name, address, telephone number, email address, and sufficient information for eMerchantClub to identify any transaction at issue; a detailed description of your Dispute; and the nature and basis of your claims and the relief sought to the following email address: email@example.com. You and eMerchantClub agree to negotiate in good faith about the Dispute, including through an informal and individualized telephone conference between you and eMerchantClub. If either party to the Dispute is represented by counsel, that party’s counsel may participate, but the party also must personally appear at and participate in the conference. This process should lead to resolution of the Dispute, but if the matter is not resolved within sixty (60) days after eMerchantClub’s receipt of the written description detailed above, you and eMerchantClub agree to the further dispute resolution provisions below. This time period will start to run upon receipt of the information referenced above.
You and eMerchantClub agree that any and all controversies, disputes, demands, counts, claims, or causes of action between you and the Company, or the Company’s employees, agents, affiliates, subsidiaries, successors, representatives, or assigns (“Dispute(s)”), shall be resolved through binding and confidential arbitration, except that you or the Company may elect to have a Dispute heard in small claims court if it qualifies for hearing by such a court. In addition, each party retains the right 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. “Dispute” shall be interpreted broadly and shall also include all Disputes that arose before your agreement to these SMS Terms, and which arise after the termination of this agreement.
Notwithstanding the foregoing, issues related to the scope, validity, and/or enforceability of this arbitration agreement are for a court to decide.
There is no judge or jury in arbitration and arbitration procedures are simpler and more limited than rules applicable in court. YOU ACKNOWLEDGE AND AGREE THAT, APART FROM THE NARROW EXCEPTIONS ABOVE, YOU AND EMERCHANTCLUB ARE EACH WAIVING YOUR RIGHTS TO SUE IN COURT, INCLUDING RIGHTS TO RECEIVE A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.
THE ARBITRATOR 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. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY TO THE ARBITRATION PROCEEDING. FURTHER, UNLESS BOTH YOU AND EMERCHANTCLUB AGREE OTHERWISE, 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. IF A COURT DETERMINES THAT PUBLIC INJUNCTIVE RELIEF MAY NOT BE WAIVED AND ALL APPEALS FROM THAT DECISION HAVE BEEN EXHAUSTED (OR THE DECISION IS OTHERWISE FINAL), THEN THE PARTIES AGREE THAT THE PARTICULAR CLAIM FOR PUBLIC INJUNCTIVE RELIEF SHALL BE SEVERED AND STAYED PENDING ARBITRATION OF THE REMAINING CLAIMS. IF THIS SPECIFIC PARAGRAPH IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION PROVISION (EXCEPT FOR THE JURY TRIAL WAIVER) SHALL BE NULL AND VOID.
Arbitration shall be subject to the Federal Arbitration Act and federal arbitration law, and shall be conducted by Judicial Arbitration Mediation Services, Inc. (“JAMS”) pursuant to the JAMS Streamlined Arbitration Rules & Procedures (the “JAMS Rules”) as modified by this arbitration agreement. The JAMS Rules, including instructions for bringing arbitration, are available on its website at www.jamsadr.com/rules-streamlined-arbitration. If JAMS is unable to administer a proceeding under this arbitration provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this arbitration provision as written and applying the selected arbitration organization’s consumer rules.
eMerchantClub will pay its arbitration costs as required by JAMS rules, and in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, eMerchantClub will pay as much of your arbitration filing and hearing fees as the arbitrator deems is necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation. Each side shall pay their own attorneys’ fees, costs, and arbitration fees unless the arbitrator finds, among other grounds, (1) that either the substance of a claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), or (2) the claim(s) at issue permit the prevailing party to be reimbursed its fees and litigation costs, and in such instances, the fees and costs awarded shall be determined by the arbitrator consistent with applicable law and with the JAMS Rules. The arbitrator may consider whether a party had previously offered full relief to the other party or whether the proceeding is part of multiple case filings.
The arbitration may be conducted by telephone, based on written submissions, or in person at a mutually agreed-upon location convenient for you. You agree to appear at an initial conference with the arbitrator and at any hearing, along with your counsel if you are represented.
As referenced above, this dispute resolution section shall be governed by the Federal Arbitration Act. It shall survive any termination or cancellation of these SMS Terms. Any amendments to this dispute resolution section shall be prospective only and shall not affect any pending Dispute for which eMerchantClub has notice or pending arbitration proceeding.
YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND EMERCHANTCLUB ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION TO THE MAXIMUM EXTENT PERMITTED BY LAW.
OPT-OUT OF AGREEMENT TO ARBITRATE: eMerchantClub’s updates to these SMS Terms do not provide you with a new opportunity to opt out of arbitration if you previously agreed and did not validly opt out of arbitration. eMerchantCLub will continue to honor any valid opt outs if you previously opted out of arbitration with eMerchantClub. To opt out of arbitration, you must send a notice via U.S. Mail to eMerchantClub at: eMerchantClub, 7227 N 16th street 170 phx 85020, or via email to firstname.lastname@example.org, and you must provide the following information: (1) your name, (2) your address, (3) your phone number, and (4) a clear statement that you wish to opt out of this arbitration provision. This opt-out notice must be received no later than thirty (30) days after the date you first become subject to this arbitration agreement. If you opt out of this agreement to arbitrate, all other provisions of these SMS Terms will continue to apply to you. Opting out has no effect on any other arbitration agreements that you may have entered into with eMerchantClub or may enter into in the future with eMerchantClub.
These SMS Terms may be updated by eMerchantClub at any time without prior notice. By continuing to be enrolled in any eMerchantClub promotional text messaging program, or by providing your cell phone number for transactional, operational, or informational text messages, you agree to any changes.
For questions about these SMS Terms or eMerchantClubs text messages, please contact eMerchantClub customer service at (877) 384-4691 or email@example.com.