Last updated: January, 2019
Upland Software, Inc. (hereinafter, “we,” “us,” “our”, or “Upland”) is offering various text message programs (collectively “Programs”) on behalf of The Gap, Inc. (“Gap Inc.”), which you agree to use and participate in subject to these Terms.
By opting in to or participating in any of THE Programs, you accept and agree to these terms, including, without limitation, your agreement to resolve any disputes through binding, individual-only arbitration WITH JURY TRIAL AND CLASS ACTION WAIVERS, as detailed in the “Dispute Resolution AND ARBITRATION AGREEMENT” section, below (THE “AGREEMENT”).
RECURRING MARKETING TEXT MESSAGE PROGRAMS:
Description: Without limiting the scope, users that opt into a recurring marketing Program can expect to receive recurring ongoing messages that may include marketing, advertising, transactional and other similar messages such as sales, discounts, loyalty programs, reward certificates, and other offers each calendar week at the mobile number provided. There are separate recurring marketing Programs as follows: Old Navy, Banana Republic, Banana Republic Factory, and Gap Inc. Rewards.
Opt In: A recurring marketing Program allow users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms or by texting a keyword to the short code associated with the Program (the “Short Code”), and completing the sign-up instructions found in the text message received. Regardless of the opt-in method you utilized to join the Program, you agree that these Terms apply to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not a condition of purchasing goods or services from us or Gap Inc. 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”). Upon your request to sign-up to the Program, you will receive two (2) text messages as part of the process confirming your desire to opt-into the Program (first an opt-in request message, and once you have replied “Y” you will receive a sign-up confirmation message). Message and data rates may apply.
Opt Out: If you do not wish to continue participating in any Program or no longer agree to these Terms, you agree to text the applicable Short Code or directly reply to any mobile message received from a Program with STOP, END, CANCEL, UNSUBSCRIBE, or QUIT in order to opt out of that Program at any time. 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 and exclusive methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words or phrases other than those set forth above or verbally requesting employees of Gap Inc. or Upland to remove you from our list, is not a reasonable means of opting out. You may be subscribed to multiple Programs across different Short Codes, and therefore you must separately text or reply STOP to each Short Code from which you wish to unsubscribe.
ON-DEMAND REPLY TEXT MESSAGE PROGRAMS:
You may also send a text requesting certain types of on-demand text message reply services from Gap Inc. brands including but not limited to the following: text to receive a link to sign-up for loyalty programs, text to sign-up for email marketing programs, text to receive a link to save a coupon or similar item to your mobile phone or digital wallet, or text to receive a link to enter or make entry to a sweepstakes. These text messages are not ongoing recurring Programs and therefore you will only receive the information requested in reply.
Gap Inc. may also offer the following text message functionality through other service providers (not through Upland Software) which are still subject to these Terms where applicable, including but not limited to the Dispute Resolution provision below:
· Narvar delivery notification alerts via text message: Delivery notification alerts do not come from the same Program Short Code(s), but instead come from a separate ten-digit phone number. Therefore, the delivery notification alerts are separate and distinct from the Program text messages, and texting STOP to opt out of the delivery notification alerts will not opt you out of the Program’s text messages and vice versa. Reply STOP at any time to the ten-digit phone number from which you received the alerts to cancel them for a given order. Also, you will need to reopt-in to receive the alerts for each respective order on which you would like them.
· ChargeItSpot storage locker access text message: A text with an access code to use a ChargeItSpot storage locker while shopping in-stores will come directly from ChargeItSpot and not from the same Program Short Code(s). Therefore, the access code text is separate and distinct from the Program text messages, and texting STOP to ChargeItSpot will not opt you out of the Program’s text messages and vice versa.
· Job application or employee referral hyperlink text messages: Text messages with a hyperlink to a job application or employee referral portal come from its own short code (97211) and do not come from the same Program Short Code(s). Therefore, any text messages regarding job applications or employee referrals are separate and distinct from the Program text messages, and texting STOP to opt out of the any job application or employee referral texts will not opt you out of the Program’s text messages and vice versa.
· Job opportunity recruiter follow-up text messages: You may also enroll in a recurring recruiting alert text program to receive ongoing information on the job application process or to hear about additional job opportunities, but you must opt-in to receive these alerts by completing the sign-up instructions. Regardless of the opt-in method you utilized to receive ongoing recruiting alerts, you agree that these Terms apply to your participation in those alerts. By participating, you agree to receive autodialed or prerecorded recruiting mobile messages at the phone number associated with your opt-in, and you understand that consent is not a condition of purchasing goods or services from us or Gap Inc. 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 ATDS or autodialer. Upon your request to sign-up to the recruiting alerts, you will receive two (2) text messages as part of the process confirming your desire to opt-in (first an opt-in request message, and once you have replied “Y” you will receive a sign-up confirmation message). Message and data rates may apply. If you do not wish to continue participating in the recruiting alerts or no longer agree to these Terms, you agree to text the applicable ten-digit phone number or directly reply to any mobile message received with STOP in order to opt out of the alerts. 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 and exclusive methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words or phrases 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.
GENERAL TERMS FOR ALL PROGRAMS:
Duty to Notify and Indemnify: If at any time, you intend to stop using the mobile telephone number that has been used with any 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 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. SEC. 227), AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Cost: Message and data rates may apply. Check with your mobile operator for details.
Supported Carriers: U.S.: AT&T Wireless, Boost Mobile*, Metro PCS*, Sprint, T-Mobile, Tracfone, Verizon, Virgin Mobile USA*, and C-Spire & Associated Carriers (*carriers do not support MMS alerts, only SMS.) Canada: BCE Inc, MTS, Telus, Eastlink, Rogers, Freedom Mobile, SaskTel Mobility and Vidéotron. We may add or remove any carriers from any Program without notice. Also, Programs may not be available on all carriers. If your mobile operator is not supported, you will not receive a reply to your messages. Some operators may not support some services at the prices offered. Pre-paid users may not be able to participate - check with your mobile operator. Carriers are not liable for delayed or undelivered messages.
Support: For support regarding the Program, text “HELP” to the applicable Program’s Short Code or email us at firstname.lastname@example.org. Please note that the use of this email address, or texting “HELP” to the Program’s Short Code is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above. In Canada, text “INFO” for contact information of the sender, which is the Gap Inc. brand identified and can be reached at 13153 Coleraine Dr, Bolton, ON L7E 3B6, Canada, and 1-800-653-6289.
MMS Disclosure: A Program will send SMS (Short Message Service) messages if your mobile device does not support MMS (Multimedia Messaging Service) messaging.
Our Disclaimer of Warranty: The Programs are 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 any Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator, and is outside of our control. We are not liable for delayed or undelivered mobile messages.
Participant Device & Service Requirements: You must have a wireless device of your own, capable of 2-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.
Participant Age: Children under the age of 13 may not participate in any Program and parents or legal guardians may not agree to these Terms on their behalf. If we become aware that a child under 13 has provided or attempted to provide us with personal information, we will use our best efforts to remove the information permanently from our files. If you are under the age of 18 but at least 13 years of age, you may participate in any Program only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 13 and 18, be advised that you are fully responsible for his or her participation in any Program, including, without limitation, all legal liability that he or she may incur.
Governing Law: This Agreement shall be governed by the laws of the State of Delaware, without reference to conflict of laws principles. Any suit to enforce this Agreement shall be brought exclusively in the State and U.S. District Courts located in Wilmington, Delaware and the Parties hereby submit to the personal jurisdiction of such courts and waive any venue objection.
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 these Terms 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 any Program shall be subject to these Terms unless explicitly stated otherwise in writing. We reserve the right to change these Terms from time to time. Any updates to these Terms shall be communicated to you. You acknowledge your responsibility to review these Terms from time to time and to be aware of any such changes. By continuing to participate in any Program after any such changes, you accept these Terms, as modified.
DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
Please read this carefully. It affects your rights. Any dispute or claim relating in any way to your involvement in the Program will be resolved by binding arbitration, rather than court.
Informal Dispute Resolution
Mindful of the high cost of legal disputes, not only in dollars but also in time and energy, you, Gap Inc. and Upland agree to the following dispute resolution procedure: In the event of any controversy, claim, action or dispute between you and us or Gap Inc. and its brands, or between you and any 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, expressly including claims brought under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., or any other statute, regulation, or legal or equitable theory, these Terms, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement ("Dispute"), the party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent
(1) to Upland at: Upland Legal Department, 401 Congress Ave., Suite 1850, Austin, TX 78701, Attn: General Counsel, or
(2) to Gap Inc. at: Gap Inc. Legal Department, 2 Folsom Street, San Francisco, CA 94105, Attn: General Counsel, or
(3) to you at: your last-used billing address or the billing and/or shipping address in your online profile, or to such other address as you may supply.
You and Gap Inc. and Upland agree that this dispute resolution procedure is a condition precedent which must be satisfied prior to initiating any arbitration or filing any claim against the other party.
To the extent you cannot resolve any Dispute through the informal dispute resolution procedure described above, a Dispute shall be resolved through binding individual arbitration. You agree to give up your right to go to court to assert or defend your rights under this Agreement and with respect to any Dispute. You, Gap Inc. and Upland expressly delegate to the arbitrator the authority to determine the arbitrability of any Dispute, including the scope, applicability, validity, and enforceability of this arbitration provision.
In the event that there is a unresolved Dispute
between you and Gap
Inc., or between you and any third-party service provider acting on behalf to Gap Inc. 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, these Terms, 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 Wilmington, Delaware before one arbitrator.
The parties agree to submit the Dispute to binding arbitration in accordance with the Consumer 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 State Courts of Delaware and Federal Circuit Courts located in Delaware, without regard to 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 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.
In lieu of arbitration, either you, Gap Inc. or Upland may bring any individual claim in small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual claim.
Waiver of Jury Trial and Right to Bring Class Actions and Representative Claims
The parties agree to arbitrate OR BRING ANY CLAIM 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. IF FOR ANY REASON A DISPUTE PROCEEDS IN COURT RATHER THAN IN ARBITRATION, THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL, AND ANY COURT TRIAL OF A DISPUTE ARISING UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS OR REPRESENTATIVE ACTION.
If a court decides that applicable law precludes enforcement of any of the preceding paragraph’s limitations as to a particular cause of action, then that cause of action (and only that cause of action) must remain in court and be severed from any other proceeding or arbitration.
This Arbitration Agreement shall be governed by, and interpreted, construed, and enforced in accordance with, the Federal Arbitration Act. The terms of the Arbitration Agreement provisions shall survive after this Agreement terminates or your receipt of text messages ends. Except as set forth above, if any portion of this Arbitration Agreement is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Agreement.
This Section “Dispute Resolution and Arbitration Agreement” shall survive any cancellation or termination of your agreement to participate in any of our Programs.