SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND
CONDITIONS
COMBAT FLAGS, LLC, (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 Combat Flags and associated content (such as, but not limited to, the Combat Flags Podcast, Just a Few Things and BlogOps).
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 [COMPANY’S
CUSTOMER SERVICE EMAIL ADDRESS]. 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 317 LABS, INC. 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 Charlotte, North Carolina before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association (“AAA”)
then in effect. Except as otherwise provided herein, the arbitrator shall apply the
substantive laws of the Federal Judicial Circuit in which [COMPANY NAME]’s
principle place of business is located, without regard to its conflict of laws rules.
Within ten (10) calendar days after the arbitration demand is served upon a party,
the parties must jointly select an arbitrator with at least five years’ experience in
that capacity and who has knowledge of and experience with the subject matter
of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar
days, a party may petition the AAA to appoint an arbitrator, who must satisfy the
same experience requirement. In the event of a dispute, the arbitrator shall
decide the enforceability and interpretation of this arbitration agreement in
accordance with the Federal Arbitration Act (“FAA”). The parties also agree that
the AAA’s rules governing Emergency Measures of Protection shall apply in lieu
of seeking emergency injunctive relief from a court. The decision of the arbitrator
shall be final and binding, and no party shall have rights of appeal except for
those provided in section 10 of the FAA. Each party shall bear its share of the
fees paid for the arbitrator and the administration of the arbitration; however, the
arbitrator shall have the power to order one party to pay all or any portion of such
fees as part of a well-reasoned decision. The parties agree that the arbitrator
shall have the authority to award attorneys’ fees only to the extent expressly
authorized by statute or contract. The arbitrator shall have no authority to award
punitive damages and each party hereby waives any right to seek or recover
punitive damages with respect to any dispute resolved by arbitration. The parties
agree to arbitrate solely on an individual basis, and this agreement does not
permit class arbitration or any claims brought as a plaintiff or class member in
any class or representative arbitration proceeding. Except as may be required by
law, neither a party nor the arbitrator may disclose the existence, content, or
results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is
invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or
unenforceability shall not affect any other term or provision of this Section or
invalidate or render unenforceable such term or provision in any other
jurisdiction. If for any reason a dispute proceeds in court rather than in
arbitration, the parties hereby waive any right to a jury trial. This arbitration
provision shall survive any cancellation or termination of your agreement to
participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary
rights, power, and authority to agree to these Terms and perform your obligations
hereunder, and nothing contained in this Agreement or in the performance of
such obligations will place you in breach of any other contract or obligation. The
failure of either party to exercise in any respect any right provided for herein will
not be deemed a waiver of any further rights hereunder. If any provision of this
Agreement is found to be unenforceable or invalid, that provision will be limited or
eliminated to the minimum extent necessary so that this Agreement will
otherwise remain in full force and effect and enforceable. Any new features,
changes, updates or improvements of the Program shall be subject to this
Agreement unless explicitly stated otherwise in writing. We reserve the right to
change this Agreement from time to time. Any updates to this Agreement shall be
communicated to you. You acknowledge your responsibility to review this
Agreement from time to time and to be aware of any such changes. By
continuing to participate in the Program after any such changes, you accept this
Agreement, as modified.