Terms & Conditions
Terms of Service
Last Updated on October 11, 2020
PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED. WE BELIEVE MEDIATION AND ARBITRATION ARE THE FAIREST AND LEAST EXPENSIVE APPROACH FOR BOTH OUR COMPANY AND YOU, AND AS SUCH THIS TERMS OF SERVICE INCLUDES A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER.
'You' and 'your' refer to you, as a user of the Service who accesses, browses, crawls, scrapes, or in any way uses the Service. 'We', 'us', and 'our' refer to The Good Kitchen.
'Content' means text, images, photos, audio, video, location data, and all other forms of data or communication.
'Your Content' means Content that you submit or transmit to, through, or in connection with the Service, such as offers, posts, ratings, comments, and information that you publicly display or is displayed in your account profile.
'User Content'' means Content that users submit or transmit to, through, or in connection with the Service.
'The Good Kitchen Content' means Content that we create and make available in connection with the Service.
'Third Party Content' means Content that originates from parties other than The Good Kitchen or its users, which is made available in connection with the Service.
'Service Content' means all of the Content that is made available in connection with the Service, including Your Content, User Content, Third Party Content, and The Good Kitchen Content.
2. SERVICE DESCRIPTION
The ordering process is simple.
1. Tell us more about your meal preferences.
2. Choose the specific meals you want to receive in your first shipment or tell us to choose them for you.
3. Create your customer profile.
4. You're all set!
The menu is set in advance. Each Monday you'll receive an email reminding you to select your meals by 5 pm Thursday for shipment the following Monday. If for some reason you miss the meal selection cutoff, we'll select an assortment of meals for your box based on your saved Meal Preferences.
MEMBERSHIP & SUBSCRIPTION CANCELATION
You may cancel your subscription at any time. We do not require a contract or a minimum number of orders to use our service. Canceling your subscription will not affect any processing or shipped orders. We will not be able to issue refunds for any orders that were processed or shipped before a cancelation was processed or requested.
Shipping is FREE on orders over 10 meals. For orders of less than 10 meals, shipping is $6.99. For all locations not in the 48 contiguous US states, additional charges will be added. All orders will ship via UPS (or another similar service) and arrive as follows:
First orders placed by Sunday at 8p EST will arrive by Wednesday. First orders placed after Sunday 8p EST cutoff will arrive by the following Wednesday.
All subsequent orders will arrive on Fridays each week, unless you set a different delivery day with Customer Service. Cutoff to choose your meals is Thursdays at 5p EST.
Please refrigerate (or freeze) upon arrival. You will receive a tracking email when your box has left our facility. All shipments include insulated liners and ice packs to keep meals at a safe temperature until they arrive at your door. All shipping materials are recyclable so please help us reduce our footprint by recycling your box and insulated liner, emptying the ice pack gel into the trash and recycle the ice pack plastic where you recycle plastic bags.
When your order leaves our facility, control and responsibility for the package are transferred completely to UPS (or similar service). If you notice an issue with your scheduled delivery, including a delay or an incorrect delivery address, please reach out to UPS at 1 (800) 742-5877. If the issue is not resolved, contact our Membership Team at firstname.lastname@example.org. We will either help resolve it or issue a TGK credit for use on a future order.
It is the responsibility of the customer to ensure the delivery address is correct at checkout and provide any additional instructions or details prior to the shipment leaving the TGK facility. If a delivery issue is reoccurring and the customer has failed to updated or change their address, the responsibility for a failed delivery fails on the customer.
Our subscription plans are sized from 5 meals to 35 meals and are available for shipments weekly, every other week, or monthly. You can opt to select your individual meals for each delivery or let us select your meals based on your Meal Preferences if you miss the meal selection cutoff time.
You may not impersonate someone else, create or use an account for anyone other than yourself, or provide an email address other than your own. You are responsible for maintaining the confidentiality of your account password. You are also responsible for all activities that occur in connection with your account. You agree to notify us immediately of any unauthorized use of your account. We reserve the right to close your account at any time for any or no reason.
You will be charged for your purchases. As part of using the Service, you agree that The Good Kitchen may immediately authorize your credit card (or other approved payment vehicle) for payment for any charges incurred under your account. You are fully responsible for all activities that occur under your account, and you agree to be personally liable for all charges incurred under your account. Your liability for such charges shall continue after termination of this Agreement. If you have a question about any The Good Kitchen charge on your credit card statement, please contact email@example.com.
As each of our meals is unique and requires slightly different directions for serving, please refer to the label on each individual meal and follow the instructions for maximum flavor and experience! Our meals are served in a microwave-ONLY, BPA-free recyclable plastic trays. DO NOT place any meals in the oven without first transferring the contents to an oven-safe container.
We only use real, wholesome ingredients in our meals. All meals are gluten free, soy free, processed sugar free and all ingredients are sourced from folks we know and trust. We take great pride in sourcing our products with integrity and providing a product that contains only real foods that you will recognize. Each meal that you select each week will include a list of ingredients on the online menu as well as nutritional information*. Please be mindful of the listed ingredients if you have any special dietary needs or allergies. Since we cook our meals in small batches, the ingredients listed cannot be substituted in any way. Thanks for your understanding.
*The nutritional information provided is taken from the USDA nutritional database. However, our analysis has not been verified by an independent laboratory.
We make every effort to identify all ingredients in every meal and list common allergens. Our production staff is well-trained to recognize and respect the severity of food allergies. In addition, each meal is clearly labeled with a detailed list of ingredients, and you can also find them in the description under each meal on our website. The Good Kitchen cannot assume any liability for adverse reactions to food consumed or items one may come into contact with while eating our meals. Please be aware that our facility prepares foods and uses ingredients in our products that may contain dairy, eggs, tree nuts, tree nut oils, and shellfish.
The Good Kitchen meals are prepared in our kitchen daily with well-sourced proteins and produce. We work with a network of trusted purveyors to bring high-quality, well-balanced meals to your table. Our meals are prepared with grass-fed, grass-finished, pastured beef and pork. All chicken is antibiotic-free and hormone-free and we use only good fats. All meals are cryo-vacuumed in reusable, recyclable, BPA-free trays that are microwave safe. Our meals are frozen immediately following portioning. Each meal is shipped frozen and can be stored in the freezer for up to six months for optimal freshness. Your weekly delivery can be frozen upon delivery or stored in the refrigerator and consumed within 10 days. Please refer to the individual meal for specific reheating instructions. Frozen, thawed and cooked veg dishes may contain water as a byproduct. Once the food is thawed, it is safe to refreeze without cooking, although there may be a loss of quality due to moisture lost through thawing. If previously cooked foods are thawed in the refrigerator, you may refreeze the unused portion. See the USDA site for more on frozen foods.
RETURNS & REFUNDS
At The Good Kitchen, we have a commitment to 100% customer satisfaction. We love our customers and want to do everything in our power to make things right should a problem arise. If you have an issue with our product, please contact Customer Service. Due to the prepared nature of our meals, we cannot accept returned meals. Should there be an issue with your delivery due to weather or other unforeseen circumstances, our staff will work in conjunction with UPS as diligently as possible to correct those issues.
Every effort will be made to ensure that your order is sufficiently filled. However, due to the nature of our inventory, there may be times when a substitution will need to be made. In the event that a product is unavailable, we will select a similar product within your known dietary preferences.
For your snacking pleasure, we also offer trusted products from companies we believe in. These items are delivered with your meals.
3. CHANGES TO THE TERMS OF SERVICE
We may modify the Terms from time to time. When changes are made, we will notify you by making the revised version available on this webpage, and will indicate at the top of this page the date that revisions were last made. You should revisit these Terms on a regular basis as revised versions will be binding on you. Any such modification will be effective upon our posting of new Terms. You understand and agree that your continued access to or use of the Service after any posted modification to the Terms indicates your acceptance of the modifications.
4. USAGE GUIDELINES
We request that you follow some basic rules that make The Good Kitchen a rewarding experience for all our customers.
A. You agree not to, and will not assist, encourage, or enable others to use the Service to:
- Violate our content guidelines;
- Violate any third party's rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
- Threaten, stalk, harm, or harass others, or promote bigotry or discrimination;
- Promote a business or other commercial venture or event, or otherwise use the Service for commercial purposes;
- Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not; engage in keyword spamming, or otherwise attempt to manipulate the Service's search results or any third party website;
- Solicit personal information from minors, or submit or transmit pornography; or
- Violate any applicable law.
B. You also agree not to, and will not assist, encourage, or enable others to:
- Violate the Terms;
- Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Service or Service Content (other than Your Content), except as expressly authorized by The Good Kitchen;
- Use any robot, spider, Service search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of the Service or any Service Content;
- Reverse engineer any portion of the Service;
- Remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Service or on any materials printed or copied from the Service;
- Record, process, or mine information about other users;
- Access, retrieve or index any portion of the Service for purposes of constructing or populating a searchable database products;
- Reformat or frame any portion of the Service;
- Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on The Good Kitchen's technology infrastructure or otherwise make excessive traffic demands of the Service;
- Attempt to gain unauthorized access to the Service, user accounts, computer systems or networks connected to the Service through hacking, password mining or any other means;
- Use the Service or any Service Content to transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature;
- Use any device, software or routine that interferes with the proper working of the Service, or otherwise attempt to interfere with the proper working of the Service;
- Use the Service to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Service or Service Content; or
- Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of Service Content, or features that enforce limitations on the use of the Service.
5. CONTENT GUIDELINES
A. Responsibility for Your Content
You assume all risks associated with Your Content, including anyone's reliance on its quality, accuracy, or reliability, or any disclosure by you of information in Your Content that makes you personally identifiable. You represent that you own, or have the necessary permissions to use and authorize the use of Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by The Good Kitchen.
B. Our Right to Use Your Content
We may use Your Content, including any feedback provided on the Service and products. As such, you hereby irrevocably grant us world-wide, non-exclusive, royalty-free, sublicensable, transferable rights to use Your Content for any purpose and irrevocably waive, and cause to be waived, against The Good Kitchen and its users any claims and assertions of moral rights or attribution with respect to Your Content.
User Content does not necessarily reflect the opinion of The Good Kitchen. We reserve the right to remove, screen, edit, or reinstate User Content from time to time at our sole discretion and without notice to you.
Please let us know about inappropriate content. If you find something that violates our content guidelines, please let us know at firstname.lastname@example.org.
6. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
YOU, AND NOT THE GOOD KITCHEN, ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE PREPARATION, STORAGE, AND HEATING OF THE MEALS.
OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 2 REGARDING RETURNS AND REFUNDS: (I) WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE PLATFORM, THE SERVICE, THE MEALS, THE CONTENT, THE TRADEMARKS, THE PRODUCTS ON THE PLATFORM, AND ALL OF THE FOREGOING ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND; (II) WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (III) YOU AGREE THAT YOU USE THE PLATFORM AND THE SERVICE AT YOUR OWN RISK.
IN NO EVENT SHALL WE BE LIABLE FOR ANY INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM YOUR PURCHASE OF THE MEALS OR YOUR USE OR INABILITY TO USE THE PLATFORM OR THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN ALL CASES, OUR MAXIMUM LIABILITY TO YOU (AND ANYONE CLAIMING RIGHTS THROUGH YOU) SHALL BE CAPPED AT THE MONIES PAID BY YOU TO THE GOOD KITCHEN IN THE ONE (1) MONTH PERIOD PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE.
THE GOOD KITCHEN HAS MADE EVERY EFFORT TO DISPLAY THE MEALS, THE PRODUCTS, COLORS, AND OTHER THINGS YOU SEE ON THE PLATFORM AS ACCURATELY AS POSSIBLE. HOWEVER, THE FINAL MEALS AND PRODUCTS DELIVERED MAY VARY FROM THE IMAGES VIEWED ON THE PLATFORM DUE TO A NUMBER OF FACTORS THAT ARE NOT WITHIN OUR CONTROL. ALTHOUGH WE WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO HELP ENSURE THAT THE MEALS AND PRODUCTS CONFORM TO YOUR EXPECTATIONS, VARIATIONS SOMETIMES OCCUR. ALL MEAL AND PRODUCT PRICING, SPECIFICATIONS, AND OFFERINGS ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE PLATFORM MAY CONTAIN INFORMATION ON MEALS, THE SERVICE, AND PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS.
7. THIRD PARTIES
The Service may include links to other websites or applications (each, a 'Third Party Service'). We do not control or endorse any Third Party Service. You agree that we are not responsible for the availability or contents of such Third Party Services. Your use of Third Party Services is at your own risk.
You agree to indemnify, defend, and hold The Good Kitchen, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them (collectively, the 'The Good Kitchen Entities') harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party arising out of or relating to (i) your access to or use of the Service, (ii) your violation of the Terms, (iii) any products or services purchased or obtained by you in connection with the Service, or (iv) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. The Good Kitchen reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of The Good Kitchen. The Good Kitchen will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
9. COMPLIANCE WITH APPLICABLE LAWS
The Service (and their servers) are all based and operated in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Service, or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
10. TERMINATION OF THE AGREEMENT
A. Your Right To Terminate
You may terminate the Terms at any time by closing your account, discontinuing your use of the Service, and providing The Good Kitchen with a notice of termination by emailing us at email@example.com.
B. Our Right To Terminate
We may close your account, suspend your ability to use certain portions of the Service, and/or ban you altogether from the Service for any or no reason, and without notice or liability of any kind. Any such action could prevent you from accessing your account, the Service, Your Content, Service Content, or any other related information.
C. Terms That Survive
The Terms shall survive termination of this Agreement and your use of the Service.
11. DISPUTE RESOLUTION; ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW
Please read this Section ("Arbitration Agreement") carefully. By agreeing to this Terms of Service, you agree to MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Arbitration Exclusive Dispute Resolution: Any controversy or claim arising out of or relating to this Agreement, or to the interpretation, breach or enforcement thereof, shall be submitted to arbitration in Charlotte, North Carolina, in a manner agreed upon by the parties then in interest, or in default of such agreement, in accordance with the commercial rules of the American Arbitration Association. The arbitrator will decide the rights and liabilities, if any, of you and us, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial: THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement.
Waiver of Class or Consolidated Actions: ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Modification: Notwithstanding any provision in these terms to the contrary, we agree that if The Good Kitchen makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to The Good Kitchen.
Small Claims Court: Notwithstanding the foregoing, either you or The Good Kitchen may bring an individual action in small claims court.
Courts: In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court or should this Arbitration Agreement be deemed invalid or unenforceable, the parties hereby agree to submit to the personal jurisdiction of the courts located in Mecklenburg County, North Carolina for resolution of the dispute.
Choice of Law: North Carolina law will govern these Terms, as well as any claim, cause of action or dispute that might arise between you and The Good Kitchen, without regard to conflict of law provisions.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE MEALS OR THE SERVICES MUST BE COMMENCED BY YOU WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Further: We reserve the right to modify, update, or discontinue the Service at our sole discretion, at any time, for any or no reason, and without notice or liability. We may provide you with notices, including those regarding changes to the Terms by email, regular mail or communications through the Service.
The Terms: Terms contain the entire agreement between you and us regarding the use of the Service, and supersede any prior agreement between you and us on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in these Terms.
Any failure on The Good Kitchen's part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
If any provision of the Terms is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable.
The Terms are not assignable, transferable or sublicensable by you except with The Good Kitchen's prior written consent, but may be assigned or transferred by us without restriction. Any assignment attempted to be made in violation of the Terms shall be void.
SMS MOBILE MESSAGE MANAGEMENT PROGRAM TERMS AND CONDITIONS
Last revised: February 1, 2021
User Opt In
The Program allows Users to receive SMS 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 predetermined 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, STOPALL, 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.
Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the management of the users digital subscription, 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.
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.
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.
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.
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.
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.
In the event that there is a dispute, claim, or controversy between you and Us, or between you and ReChargeSMS 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 ReChargeSMS’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.