You agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages (e.g. promotions, cart reminders) from us, including text messages that may be sent using an autodialer or non-autodialer technology, to the mobile telephone number you provided when signing up or any other number that you designate. Consent to receive automated marketing text messages is not a condition of any purchase. Message & Data rates may apply.
Message frequency will vary. We reserve the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. The short code we use for text messages is supported by U.S. mobile carriers (for example, AT&T, Verizon Wireless, T-Mobile). Please note, however, that the supporting mobile carriers may change without notice, and the particular message service you join, including those operated through a different number, may be limited to specific mobile carriers. We also reserve the right to change the short code or phone number from which messages are sent and we will notify you when we do so. Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. We, and our service providers and the mobile carriers supported by the program, are not liable for delayed or undelivered messages. You also agree to our Terms of Use and Privacy Policy.
Text the keyword STOP to our shortcode to cancel. After texting STOP to our shortcode you will receive one additional message confirming that your request has been processed. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP keyword commands and agree that we and our service providers will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from us through any other programs you have joined until you separately unsubscribe from those programs.
Text the keyword HELP to our shortcode to return customer care contact information or email us at accounts@smartmarketer.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.
If you are experiencing any problems, please visit www.smartmarketer.com and provide the details about your problem or your request for support, or email Ezra@smartmarketer.com.
This message program is a service of Mensch Products, LLC d/b/a Smart Marketer located at 982 Main Street, Suite 4-315, Fishkill, New York 12524.
THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER BELOW GOVERN THE RESOLUTION OF DISPUTES. PLEASE READ THEM CAREFULLY. IF YOU DO NOT AGREE WITH THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER, PLEASE DO NOT USE THE SERVICES.
You and we agree that any dispute arising out of or in any way related to these Messaging Terms or your receipt of text messages from us or our service providers will be resolved by binding arbitration. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Messaging Terms, or your receipt of text messages from us or our service providers whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of when a claim arises. YOU UNDERSTAND AND AGREE THAT, BY AGREEING TO THESE MESSAGING TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THESE MESSAGING TERMS SHALL BE SUBJECT TO AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. BY AGREEING TO ARBITRATION, YOU FURTHER UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO MAINTAIN OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION OR ADMINISTRATIVE PROCEEDING, TO SETTLE ANY DISPUTES OR CLAIMS. THE RULES IN ARBITRATION ARE DIFFERENT. THERE IS NO JUDGE OR JURY. ALTHOUGH REVIEW IS LIMITED, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS WOULD BE AVAILABLE IN COURT, AND MUST ENFORCE THE SAME LIMITATIONS STATED IN THESE TERMS AS A COURT WOULD.
Notwithstanding subsection (a) above, nothing in these Messaging Terms will be deemed to waive, preclude, or otherwise limit the right of you or we to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency, if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and we will be governed by the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Messaging Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting us. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration provision.
If you or we intend to seek arbitration, then the party seeking arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Our address for Notice is:
Mensch Products, LLC d/b/a Smart Marketer located at 982 Main Street, Suite 4-315, Fishkill, New York 12524 Attn: Chief Executive Officer. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). You and we will make good faith efforts to resolve the claim directly, but if you and we do not reach an agreement to do so within 30 days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or we must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
If you commence arbitration in accordance with these Messaging Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. If the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
You and we agree that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from you or we made within 14 days of the arbitrator’s ruling on the merits.
YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we 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.
Notwithstanding anything to the contrary in these Messaging Terms, if we make any future change to this arbitration provision, other than a change to our address for Notice, you may reject the change by sending us written notice within 30 days of the change to our address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and us.
If an arbitrator decides that applicable law precludes enforcement of any of the limitations above (addressing class, representative and consolidated proceedings) as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in court. If any other provision of these Messaging Terms is found to be unenforceable, the applicable provision shall be deemed stricken and the remainder of these Messaging Terms shall remain in full force and effect.
