SMS Terms & Conditions

End User Agreement

 

  1. Introduction – Please read these terms and conditions carefully as they create a legally binding contract

By enrolling or otherwise agreeing to receive text messages from or on behalf of the automotive dealer to which you have provided your phone number to (the “Dealer”), you expressly consent to receive non-marketing and marketing text messages from the Dealer and others texting on its behalf, including text messages made with an autodialer, at the telephone number(s) that you provide.  You may opt-out of these communications at any time, and consent to receive marketing text messages is not required to purchase any goods or services.  You also accept and agree to be bound by these SMS Terms and Conditions (the Agreement”), the Dealer’s Terms of Use, and any other applicable terms and agreements related to your use of the Dealer’s services.  You therefore agree that this Agreement creates a binding agreement between you, as the end user, the Dealer, and Fixed Ops Digital, LLC (“Fixed Ops Digital”). 

  1. Program Description 

Dealer and Fixed Ops Digital may use an automatic telephone dialing system (“autodialer”) to deliver Dealer text messages to you.  Dealer text messages are intended to provide you with information about upcoming appointments and other goods and services provided by the Dealer. 

  1. Cost 

Message and data rates may apply to each text message sent or received in connection with Dealer text messages, as provided in your mobile telephone service rate plan (please contact your mobile telephone carrier for pricing plans), in addition to any applicable roaming charges.  Dealer and Fixed Ops Digital do not impose a separate fee for sending Dealer text messages.

  1. Opting in to Receive Communications 

By voluntarily enrolling or otherwise providing your phone number to the Dealer’s website, you expressly consent and agree to receive recurring non-marketing and marketing text messages, alerts, offers, advertisements, phone calls, transactional communications, information, notifications, reminders, and other commercial communications via text message or phone call, by or on behalf of Dealer, at the phone number inputted and submitted to the Dealer’s website or provided to the Dealer (the “Communications”).  In order to opt in to receiving the Communications follow the instructions provided by the initial text message sent to you.  By opting in to receiving Communications or by otherwise providing your phone number to the Dealer, you warrant that you are 18 years of age or older.  You further warrant that you are the current subscriber or authorized user of the phone number you have provided.  You agree that you will not initiate messages to the phone number of any other person or entity without authorization.  If you change, forfeit, or deactivate the phone number you have provided to the Dealer, you agree to notify the Dealer and/or Fixed Ops Digital immediately.  Failure to do so constitutes a material breach of these Terms.

 

  1. Opting Out of Receiving Communications

To stop receiving Communications from the Dealer, text “STOP” in the text message communication initiated by the Dealer (the “Opt Out”).  You may Opt Out at any time.  After you Opt Out, you may receive additional communications confirming that your request has been received and processed, and you may continue to receive Communications for a short period while the Dealer processes your request(s).  You may re-enroll in receiving Communications at any time by voluntarily enrolling or otherwise providing your phone number to the Dealer and following the instructions provided by the Dealer.  

  1. Privacy Rights

Do you have a privacy policy? 

  1. Mandatory Dispute Resolution, Mediation, and Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.  IT CONTAINS PROCEDURES FOR MANDATORY PRE-DISPUTE RESOLUTION, BINDING ARBITRATION, AND A CLASS ACTION WAIVER.

You, Dealer, and Fixed Ops Digital agree that any and all controversies, disputes, demands, counts, claims, or causes of action between you and the Dealer, or you and the Dealer and Fixed Ops Digital, or you and Fixed Ops Digital (“Dispute(s)”), shall be resolved through binding and confidential arbitration.  In addition, each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. “Dispute” shall be interpreted broadly and shall also include all Disputes that arose before your entering into this Agreement and which arise after the termination of this agreement.

Notwithstanding the foregoing, issues related to the scope, validity, and/or enforceability of this arbitration agreement are for a court to decide.  

There is no judge or jury in arbitration and arbitration procedures are simpler and more limited than rules applicable in court. YOU ACKNOWLEDGE AND AGREE THAT, APART FROM THE NARROW EXCEPTIONS ABOVE, YOU ARE WAIVING YOUR RIGHTS TO SUE IN COURT, INCLUDING RIGHTS TO RECEIVE A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.

THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY TO THE ARBITRATION PROCEEDING. FURTHER, UNLESS AGREED TO BY ALL PARTIES INVOLVED, 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. IF A COURT DETERMINES THAT PUBLIC INJUNCTIVE RELIEF MAY NOT BE WAIVED AND ALL APPEALS FROM THAT DECISION HAVE BEEN EXHAUSTED (OR THE DECISION IS OTHERWISE FINAL), THEN THE PARTIES AGREE THAT THE PARTICULAR CLAIM FOR PUBLIC INJUNCTIVE RELIEF SHALL BE SEVERED AND STAYED PENDING ARBITRATION OF THE REMAINING CLAIMS. IF THIS SPECIFIC PARAGRAPH IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION PROVISION (EXCEPT FOR THE JURY TRIAL WAIVER) SHALL BE NULL AND VOID.

Arbitration shall be subject to the Federal Arbitration Act and federal arbitration law, and shall be conducted by Judicial Arbitration Mediation Services, Inc. (“JAMS”) pursuant to the JAMS Streamlined Arbitration Rules & Procedures (the “JAMS Rules”) as modified by this arbitration agreement. The JAMS Rules, including instructions for bringing arbitration, are available on its website at www.jamsadr.com/rules-streamlined-arbitration. If JAMS is unable to administer a proceeding under this arbitration provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this arbitration provision as written and applying the selected arbitration organization’s consumer rules.

Arbitration costs will be split equally amongst the Parties.  Each side shall pay their own attorneys’ fees, costs, and arbitration fees unless the arbitrator finds, among other grounds, (1) that either the substance of a claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), or (2) the claim(s) at issue permit the prevailing party to be reimbursed its fees and litigation costs, and in such instances, the fees and costs awarded shall be determined by the arbitrator consistent with applicable law and with the JAMS Rules. The arbitrator may consider whether a party had previously offered full relief to the other party or whether the proceeding is part of multiple case filings.

The arbitration may be conducted by telephone, based on written submissions, or in person at a mutually agreed-upon location convenient for you. You agree to appear at an initial conference with the arbitrator and at any hearing, along with your counsel if you are represented.

As referenced above, this dispute resolution section shall be governed by the Federal Arbitration Act. It shall survive any termination or cancellation of this Agreement. 

YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION TO THE MAXIMUM EXTENT PERMITTED BY LAW.