Last Updated: August 12, 2022.
PLEASE READ THESE MESSAGING TERMS CAREFULLY. THESE MESSAGING TERMS INCLUDE A BINDING INDIVIDUAL ARBITRATION PROVISION IN SECTION 5 AND A CLASS ACTION/JURY TRIAL WAIVER IN SECTION 6. UNLESS YOU HAVE OPTED OUT IN A TIMELY MANNER, THE ARBITRATION AGREEMENT REQUIRES THAT ALL DISPUTES BE RESOLVED IN INDIVIDUAL ARBITRATIONS OR SMALL CLAIMS COURT PROCEEDINGS. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.
1. You Consent to Receive Automated Calls From 818.
You consent to receive from 818 recurring automated promotional and/or telemarketing text messages (e.g. SMS or MMS)—including text messages that may be sent using an automatic telephone dialing system or with automated technology, and messages sent using an artificial or prerecorded voice—to the mobile telephone number you provided when signing up or any other number that you designate. You understand that your consent to receive automated promotional and/or telemarketing text messages is not a condition of purchasing good or services from 818. 818 reserves the right to change the short code or telephone number from which messages are sent to you, with or without prior notice to you.
2. Message and Data Rates May Apply, and Message Frequency Will Vary.
You may be charged for messages from 818 and data rates may also apply. Message frequency will vary. Please consult your service agreement with your wireless carrier to determine your pricing plan. Not all mobile devices or handsets may be supported, and 818 messages may not be deliverable in all areas. The carriers currently supported by this program are as follows: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless). 818, its service providers, and the mobile carriers supported by the program, are not liable for delayed or undelivered messages.
3. You Can Unsubscribe and Stop Messages at Any Time.
You may opt-out of receiving messages at any time by replying STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any text message you receive from us. You agree that after transmitting your STOP request, you will receive one additional message confirming that your request has been processed. You also agree that these opt-out instructions provide the exclusive means of revoking your consent to receive text messages. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP, END, CANCEL, UNSUBSCRIBE, or QUIT keyword commands, and you agree that 818 and its 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 818 through any other programs you have joined until you separately unsubscribe from those programs. For help related to any text message program, reply HELP to any text message received.
4. You Promise to Provide Accurate Information and to Indemnify Us.
You promise that you have provided your accurate mobile telephone number to 818 and that you have authority to consent to receive messages at that number. Before changing, deactivating, or relinquishing your telephone number, you agree that you will opt-out of all 818 text message programs. YOU AGREE THAT YOUR FAILURE TO DO SO CONSTITUTES A MATERIAL BREACH OF THESE MESSAGING TERMS, AND THAT YOU WILL DEFEND, INDEMNIFY, AND HOLD US HARMLESS FROM AND AGAINST ANY DAMAGES, LOSSES, OR EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED IN CONNECTION WITH ANY CLAIMS ARISING OUT OF YOUR FAILURE TO COMPLY WITH THIS SECTION 4.
5. Arbitration Agreement
For any Claim, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that 818 has not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by AAA before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this process. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you live or New York, unless you and 818 agree otherwise. If you are using the Site for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Site for non-commercial purposes: (i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and 818 agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Messaging Terms, any provision of these Messaging Terms, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
Nothing in this Section shall be deemed as: preventing 818 from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non- representative) basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
6. Class Action/Jury Trial Waiver.
YOU AGREE THAT ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND 818 AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER 818 USERS. YOU AND 818 FURTHER AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND 818 ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
7. Changes to These Messaging Terms.
You agree that 818 may change these Messaging Terms, including the Arbitration Agreement, from time to time, through updating the online version of these Messaging Terms. Should there be a material change to these Messaging Terms, 818 we will update the “Last Updated” date at the top of this page and provide notice of such change via text messaging or email at the telephone number or email address on record for you.
If you are experiencing any problems or have any additional inquiries about us, the Site, or these Messaging Terms, please contact us at:
818 SPIRITS, INC.
2261 Market Street #4503
San Francisco, CA 94114