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 tmmrhelp@gap.com. 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.
Privacy
Policy: We respect
your privacy. We will only use information you provide to transmit your mobile
messages and respond to you, if necessary. This includes sharing information
with our program partners, message content providers, phone companies, and
vendors who assist us in the delivery of mobile messages. EXCEPT AS SET FORTH IN THIS SECTION, WE DO
NOT SELL, RENT, LOAN, TRADE, LEASE OR OTHERWISE TRANSFER FOR PROFIT ANY PHONE
NUMBERS OR CUSTOMER INFORMATION COLLECTED THROUGH PROGRAMS TO ANY THIRD PARTY.
Nonetheless, we reserve the right at all times to disclose any information as
necessary to satisfy any law, regulation or governmental request, to avoid
liability, or to protect our rights or property. When you
complete forms online or otherwise provide us information in connection with a
Program, you agree to provide accurate, complete, and true information. You
agree not to use a false or misleading name or a name that you are not
authorized to use. If in our sole discretion, we believe that any such
information is untrue, inaccurate, or incomplete, or you have opted into a Program
for an ulterior purpose, we may refuse you access to the Program and pursue any
appropriate legal remedies.
This Privacy Policy is strictly
limited to these Programs and has no effect on any other privacy policy(ies) that may govern the relationship between you and us in
other contexts.
View Gap Inc.’s privacy policy: https://corporate.gapinc.com/en-us/consumer-privacy-policy
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.
Arbitration
Agreement
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.
Other
Terms
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.