TELEPHONE/MESSAGING TERM & CONDITIONS

These Terms & Conditions were last revised on February 17, 2022.

 

UNDER THESE TERMS & CONDITIONS YOU ARE AGREEING TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN A CLASS ACTION FORMAT.

 

These Telephone/Messaging Terms & Conditions (“Terms & Conditions”) govern all communications to or from Avery+Madisson, their subsidiaries, affiliates, parents, and entities with which they are affiliated now or in the future, and their respective representatives, agents, successors, assigns, employees, officers and directors (collectively referred to herein as “Avery+Madisson,” “A+M,” the “A+M Parties,” “we,” “us” or “our”), including, without limitation, communications made through the use of short messaging service (“SMS”), multimedia messaging service (“MMS”), or successor protocols or technologies (collectively, “text messages”), and telephone communications of any kind (text messages and telephone communications of any kind are collectively referred to as “communications”), and constitute an agreement between you and us. These Terms & Conditions are considered “Additional Terms” to A+M’s Terms of Use and your participation in any of our Program(s) (defined below) constitutes your acceptance and agreement to A+M’s Terms of Use. To the extent there is a conflict between these Terms & Conditions and the A+M Terms of Use, these Terms & Conditions will control unless otherwise expressly stated below.

AGREEMENT DETAILS & NOTICES

Your Consent to Receive Automated Communications

You acknowledge that by voluntarily providing your telephone number(s) in conjunction with an account or transaction or by opting in to a A+M-sponsored text messaging program (“Program(s)”), you expressly agree to receive artificial voice messages, prerecorded voice messages, and/or autodialed communications from us, including, without limitation, communications regarding marketing, offers, promotions, your account(s), your transaction(s), notifications, appointments, alerts, news, other information about A+M, personalized content, reminders, content for any Program(s) you opt-in to, and/or your relationship with us. You acknowledge that automated communications may be made to your telephone number(s) even if your telephone number(s) is registered on any state or federal Do Not Call list. You agree that we may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, and/or phone numbers provided by you or your representative at any time or obtained through other lawful methods, such as skip tracing, caller ID capture, or other means. You agree to receive automated communications from us, even if you cancel your account or terminate your relationship with us, except if you expressly change your consent status or opt out (see below). You understand that you do not have to agree to receive automated promotional communications as a condition of purchasing any goods or services.

Providing Telephone Numbers and Other Contact Information

You verify that any contact information provided to us, including, but not limited to, your name, mailing address, email address, your residential or business telephone number(s), and/or your mobile telephone number(s), is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide, and that you are authorized to provide consent for that telephone number. You are strictly prohibited from providing a phone number that is not your own. If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or terminate your participation in any relevant Program(s). Should any of your contact information change, including ownership of your telephone numbers, you agree to immediately notify us before the change goes into effect by texting STOP to any text message that you have received from us, or opting out by following the instructions described in the “Changes to Consent” section below.

Changes to Consent

If you do not consent to receiving automated communications, or at any time you wish to revoke your consent to be contacted at a particular number, you may contact us through one of the contact methods identified at www.averymadisson.com. To opt out of a specified text message Program, please see the Text Message Opt-Out Instructions below.

It is your sole responsibility to notify us if you no longer want to receive automated communications. You waive any rights to bring claims for unauthorized or undesired communications by failing to opt out immediately or by failing to follow these instructions.

Please allow up to thirty (30) days to process any opt-out request. Please note that if even you opt out of all automated communications, we reserve the right to make non-automated communications to you for transactional, informational, and/or operational purposes. It is possible that third parties may have your contact information and you may continue to receive communications from these third parties despite an opt-out request. We are not responsible for unwanted contact from third parties. Please contact third parties directly to inform them of your communication preferences.

Text Message Opt-Out Instructions

Your consent to receive automated text messages is completely voluntary. You may opt out at any time. To opt out of text messages, follow the instructions in each Program for opting out; text STOP to any text message you receive from us; or contact our team through one of the contact methods identified at www.averymadisson.com and specify the Program(s) for which you want to opt out of text messages. In some cases, you may also reply HELP to a text message for help. You acknowledge and agree to accept text messages confirming your opt-out. You acknowledge and agree that if you text or reply START to re-start communications from which you previously opted out, the Terms & Conditions that apply to the Program(s) from which you opted out will continue to apply to such re-started communications, and your prior consent to receipt of communications under such Program(s) will be reinstated.

We have different text message Programs and may use different shortcodes for different messaging purposes. Thus, texting STOP to one shortcode or opting out of one text message Program will not effectuate a stop request for all shortcodes or text message Programs to which you are subscribed. If you would like to stop messages from multiple shortcodes or Programs, text STOP to each shortcode or follow the opt-out instructions of each Program for which you would like to unsubscribe. Please note that even if you opt out of any Program(s), you will continue to receive communications for transactional, informational and/or operational purposes unless and until you make changes to your consent as described in the “Changes to Consent” section above.

Fees and Charges

There is no fee to receive automated communications from us. However, you may incur a charge for these communications from your telephone carrier, which is your sole responsibility. Message and data rates may apply. Check your telephone plan and contact your carrier for details. You represent and warrant that you are authorized to incur such charges and acknowledge that we are not responsible for such charges.

Unauthorized Use of Your Telephone Device

You must notify us immediately of any breach of security or unauthorized use of your telephone device. Although we will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for our losses due to such unauthorized use.

Call Recording and Monitoring

You acknowledge that telephone communications to or from us may be monitored and recorded and you agree to such monitoring and recording.

Your Indemnification to Us

You agree to indemnify, defend and hold us harmless from and against any claims, including, without limitation, privacy, tort or other claims, suits, demands, damages, actions, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to the Federal Telephone Consumer Protection Act, or its state law equivalents, or relating to your voluntary provision of a telephone number that is not owned by you and/or your failure to notify us of any changes in your contact information, including telephone number. You will cooperate as fully required by us in the defense of any such claims. Notwithstanding the foregoing, we retain the exclusive right to settle, compromise, and pay any and all claims. We reserve the right to assume the exclusive defense and control of any claims and you will not settle any claims without, in each instance, the prior written consent of an officer of an A+M Party.

Release of Claims

By agreeing to receive communications from us, you agree to release us from any and all claims, causes of action, lawsuits, injuries, damages, losses, liabilities or other harms based on any alleged violations of the Federal Telephone Consumer Protection Act, Truth in Caller ID Act, Telemarketing Sales Rule, Fair Debt Collection Practices Act, and/or any similar state and local acts or statutes.

Technical Issues

You are responsible for obtaining and maintaining all telephone devices and other equipment and software, and all internet service provider, mobile service, and other services needed to receive communications, including, without limitation, telephone communications and text messages. Text messaging may only be available with select carriers with compatible handsets.

Survival

Your obligations under these Terms & Conditions will survive termination of your relationship with A+M.

Privacy Policy

Please review our Privacy Policy which may be found at online at www.averymadisson.com.

Dispute Resolution

PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING ARBITRATION, AMONG OTHER THINGS.

A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to communications sent or received by you or us or otherwise in connection with these Terms & Conditions, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of A+M’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section (D) below), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section. Your notice to us must be sent via email to: info@averymadisson.com. For a period of sixty (60) days from the date of receipt of notice from the other party, A+M and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or A+M to resolve the Dispute or Excluded Dispute on terms with respect to which you and A+M, in each of our sole discretion, are not comfortable. If you reside in the U.S. (and as applicable to U.S. residents), certain portions of this Section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and A+M agree that we intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act (“FAA”).

B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section (A) above (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND A+M (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. For U.S. residents, the FAA, not state law, shall govern the arbitrability of all disputes between A+M and you regarding these Terms & Conditions and the communications, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. A+M and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section (H) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and A+M regarding these Terms & Conditions and communications, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles.

Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of A+M consent to in writing. If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted in Forsyth County, Georgia. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require A+M to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then A+M will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms & Conditions, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of these Terms & Conditions. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org; and JAMS: 800.352.5267 and http://www.jamsadr.com.

C. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION (A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section (A); (b) filing for arbitration as set forth in Section (B); or (c) filing an action in state, Federal or provincial court.

D. Injunctive Relief. The foregoing provisions of this Section will not apply to any legal action taken by A+M to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to A+M’s intellectual property rights (including any that A+M may claim are in dispute), A+M’s operations, and/or A+M’s products or services.

E. No Class Action Matters. YOU AND A+M AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section (B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section (F). Notwithstanding any other provision of this Section, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.

F. Jurisdictional Issues. Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in Forsyth County, Georgia. Accordingly, you and A+M consent to the exclusive personal jurisdiction and venue of such courts for such matters.

G. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.

H. Governing Law. These Terms & Conditions will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of Georgia, without regard to its conflicts of law provisions.

Severability

If any provision of these Terms & Conditions is held in an arbitration proceeding or by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remainder of the Terms & Conditions will not be affected. If such provision would cease to be illegal, invalid or unenforceable if some part of that provision were modified or deleted, the provision in question will apply with the least such modification or deletion as may be necessary to make the provision legal, valid and enforceable.

TERMS & CONDITIONS: DATE WHEN CHANGES ARE EFFECTIVE, AND REVISIONS

These Terms & Conditions may change at any time. We will post the revision date with the revised Terms & Conditions. The revised Terms & Conditions will apply to you for any communications you receive after the revision date. So please check back from time to time. Remember, you may always opt out of or unsubscribe from communications by following the instructions in the “Changes to Consent” or “Text Message Opt-Out Instructions” sections above.