JOHN VARVATOS ASSETS HOLDCO MOBILE MESSAGE SERVICE TERMS & CONDITIONS
We may modify or cancel the Service, or any of its features, at any time, with or without notice. We may also modify these terms at any time; provided, however, that certain material changes to these terms will only be implemented with your prior consent. The latest terms will be posted on the John Varvatos® website, and in those areas where we seek to obtain prior express consent (as defined below). You should review these terms in their entirety prior to using the Service. Other than where your consent to any changes is otherwise required, by your continued use of the Service, you agree to comply with all of the terms and conditions contained within the terms effective at that time. IF YOU DO NOT AGREE TO THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR OTHERWISE USE THE SERVICE.
Signing Up and Opting-In to the Service
John Varvatos® will send you certain types of Text Messages where you have provided “ prior express consent ,” within the meaning of the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission, as amended from time-to-time (“ TCPA ”), for John Varvatos® to contact you via Text Messaging through automated technology to the telephone number(s) that you provided (ie, the number listed on the opt-in form) (“ Active Telephone Number”). You will have the opportunity to provide that consent at Terms and Conditions and in such other areas as designated by John Varvatos® from time-to-time.
Please note that you are not required to provide consent to receive Text Messages in order obtain any John Varvatos® products and/or services.
Please be advised that by agreeing to these Terms, you are obligated to immediately inform us if and when your Active Telephone Number changes. Without limiting the foregoing, if you: (a) have your Active Telephone Number reassigned to another person or entity; (b) give up your Active Telephone Number so that it is no longer used by you; (c) port your Active Telephone Number to a landline or vice versa; or (d) otherwise stop using that Active Telephone Number for any reason (collectively “ Phone Number Change ”), you agree that you shall promptly notify John Varvatos® of the Phone Number Change via e-mail at: email@example.com
You shall indemnify and hold John Varvatos®, its members, directors, officers, partners, employees, and affiliates harmless from and against any and all losses, damages,
Liabilities, claims, demands, causes of action, lawsuits and/or expenses (including reasonable attorneys' fees and expenses) arising out of or related to your failure to provide adequate notice of a Phone Number Change.
By enrolling -in the Service, you:
Authorize John Varvatos® to use autodialer or non-autodialed technology to send recurring Text Messages to your Active Telephone Number.
Acknowledge that you do not have to agree to receive messages as a condition of purchase.
Represent that you are the line subscriber and primary user of the Active Telephone Number and, as such, have the authority to agree to receive Text Messages on the Active Telephone Number.
Consent to the use of an electronic record to document your opt-in to the Service. To request a free paper or email copy of your opt-in, or to update our records with your contact information, please contact us at (800) 780-5838. To view and retain an electronic copy of these Terms and/or your opt-in, you will need: (i) a device (such as a computer or mobile phone) with Internet access; and (ii) and either a printer or storage space on such device. For an email copy, you'll also need an email account that you can access from the device, along with a browser or other software that can display the emails.
You shall be responsible, at all times, for ensuring that you have a necessary Internet connection, computer/mobile device, mobile telephone number, applicable software, applicable hardware and/or other equipment to access the Service. John Varvatos® does not guarantee the quality, speed or availability of the Internet connection associated with your mobile device and/or computer. John Varvatos® does not guarantee that the Service can be accessed: (a) on all mobile devices; (b) through all wireless service plans; and/or (c) in all geographical areas.
Short Codes/Notification Numbers
In addition to sending messages from 35731 or 84247, we may also send you Text Messages from some or all of the following short codes/numbers:
Content You May Receive
Once you affirm your choice to opt-in to the Service on short code 84247, your Text Message frequency may vary, but we do not anticipate sending more than ten (10) Text Messages in a given calendar month other than where unusual circumstances exist. You may receive Text Message alerts about:
D. Cart reminders
Once you affirm your choice to opt-in to the Service on short code 35731, your Text Message frequency may vary depending on the number of orders that you place by and through the Site. You may receive Text Message alerts when:
A. An order has been placed
B. An order has been shipped
C. An order has been delivered
Charges and Carriers
We do not charge for the Service, but Standard Messaging, Data and Wireless Access Fees may apply. Please consult your service agreement with your wireless carrier or contact your wireless carrier to determine your wireless pricing plan and the charges that you may incur for sending and receiving text messages. You that you are fully responsible for any message, data or other charges incurred (usage, subscription, etc.) as a result of using the Service and acknowledge that John Varvatos® has no liability or responsibility to you, whatsoever, for any such charges billed by your wireless carrier.
The supported carriers are: AT & T, T-Mobile, Verizon Wireless, Sprint, Boost, Virgin Mobile, US Cellular, Cricket, Alltel, Cincinnati Bell, Cellcom, C-Spire, nTelos, MetroPCS, and other smaller regional carriers. The Service may not be available on all wireless carriers. John Varvatos® may add or remove any wireless carrier from the Service at any time without notice. John Varvatos® and mobile carriers are not responsible for any undue delays, failure of delivery, or errors in messages.
Opting-Out/Terminating the Service
To stop receiving text messages from John Varvatos, text the word “STOP” to 84247 or 35731 any time, reply “STOP” to any of the Text Messages that you have received from John Varvatos ® or contact us via email at customercare@johnvarvatos. com . After texting “STOP” to 84247 or 35731, you will receive one additional Text Message confirming that your request has been processed. If you have subscribed to other John Varvatos® mobile message programs and wish to cancel, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms.
We may change any short code or telephone number that we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any “STOP” or “HELP” requests, that you send to a short code or telephone number that we have changed may not be received and we will not be responsible for honoring requests contained in such messages.
For support, you can text “HELP” for help at any time to 84247 or 35731. You can also contact us by phone at (800) 780-5838, or by using the following form: https://johnvarvatosenterprises.zendesk.com /hc/en-us/requests/new?ticket_form_id=161268
Disclaimer of Warranties
THE SERVICE IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, JOHN VARVATOS® DOES NOT MAKE ANY WARRANTY THAT: (A) THE SERVICE WILL MEET YOUR REQUIREMENTS; (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE. THE SERVICE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING MOBILE CONNECTION ASSOCIATED WITH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM JOHN VARVATOS® SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT JOHN VARVATOS® SHALL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF JOHN VARVATOS® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR THE INABILITY TO USE THE SERVICE; AND (B) ANY OTHER MATTER RELATING TO THE SERVICE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND ANY AND ALL OTHER CAUSES OF ACTION. YOU HEREBY RELEASE JOHN VARVATOS® FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATION STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATION, THE MAXIMUM LIABILITY OF JOHN VARVATOS® TO YOU UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00). THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND JOHN VARVATOS®. THE ABILITY TO USE THE SERVICE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
WITHOUT LIMITING THE FOREGOING, THE WIRELESS CARRIERS SUPPORTED BY THE SERVICE ARE NOT LIABLE FOR DELAYED OR UNDELIVERED MESSAGES. YOU AGREE THAT WE WILL NOT BE LIABLE FOR FAILED, DELAYED, OR MISDIRECTED DELIVERY OF ANY INFORMATION SENT THROUGH THE SERVICE, ANY ERRORS IN SUCH INFORMATION, AND/OR ANY ACTION YOU MAY OR MAY NOT TAKE IN RELIANCE ON THE INFORMATION OR SERVICE.
Dispute Resolution Provisions
These Terms shall be treated as though they were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). The parties hereto, including John Varvatos® and you (“Covered Parties”), hereby agree to arbitrate all claims that may arise under these Terms. Without limiting the foregoing, should a dispute arise between the Covered Parties including, without limitation, any matter concerning the Service, the terms and conditions of these Terms or the breach of same by any party hereto: (a) the Covered Parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association (“AAA”) in New York, NY, in accordance with the then current Commercial Arbitration rules of the AAA; and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found here. The Covered Party(ies) named in your Initial Dispute Notice (collectively, the “Named Parties”) may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”). If the applicable Named Party(ies) provide(s) you with a Final Settlement Offer and you do not accept it, or such Named Party(ies) cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration before the AAA, in your county of residence, by filing a separate Demand for Arbitration, which is available here. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards you relief that is greater than the applicable Final Settlement Offer, then the Named Party(ies) will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, the Named Party(ies) will reimburse any reasonable attorneys' fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Although the Named Party(ies) may have a right to an award of attorneys' fees and expenses if Named Party(ies) prevail(s) in arbitration, the Named Party(ies) will not seek such an award from you unless the arbitrator determines that your claim was frivolous.
To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against any of the Covered Parties. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney's fees and court costs that any Covered Party incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (ii) is an independent agreement. You may opt-out of these dispute resolution provisions by providing written notice of your decision within thirty (30) days of the date that you first access the Service.
Should any part of these Terms be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Service is in conflict or inconsistent with these Terms, these Terms shall take precedence. Our failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision. The parties do not intend that any agency or partnership relationship be created through operation of these Terms. John Varvatos® may assign its rights and obligations under these Terms, in whole or in part, to any party at any time without any notice to you. These Terms may not, however, be assigned by you, and you may not delegate your duties under these Terms. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.