Smok-Haus Terms of Texting Program
Thank you for joining our texting program! We have a few key terms and conditions that apply to our sending any messages to you. You accept these terms when you agree to join our program, and they apply to all messages you receive from us unless and until your membership is ended.
Please be aware that we will not contact you with sales messages unless you request them, we will not use a prerecorded, machine-read message, and that you do not need to enter into any agreement as a condition of any purchase. We will send messages only to the telephone number that you provided. To ensure smooth and efficient operation of our messaging service, we may message you using an automated system that selects and dials numbers for receipt of text messages, and you authorize us to use that automated system for that purpose.
Dispute Resolution and Arbitration. By accepting these terms, you are also agreeing to resolve any dispute with us through binding arbitration or small claims dispute procedures (unless you opt out), and to waive your rights to a jury trial and to participate in any class action suit. YOU AND WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO, ARISING FROM, OR CONCERNING OUR CONTACTING OR MESSAGING YOU WILL BE RESOLVED BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT.
Notwithstanding the above, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE YOU FIRST RECEIVED THESE TERMS (the “Opt Out Deadline”). You may opt out of these arbitration procedures by filling out the following form:
Any opt-out received after the Opt Out Deadline will not be valid and you will be required to pursue any claim in arbitration or small claims court.
You and we each agree to negotiate your claim in good faith. You agree that you may not commence any arbitration or court proceeding unless you and we are unable to resolve the claim within 60 days after we receive your claim description and you have made a good faith effort to resolve your claim directly with us during that time.
If we are unable to resolve your claim within 60 days despite those good faith efforts, then either you or we may start arbitration or small claims court proceedings. To begin arbitration, you must send a letter requesting arbitration and describing your claim to our registered agent and to the American Arbitration Association (“AAA”). The arbitration of all disputes will be administered by the AAA under its Consumer Arbitration Rules in effect at the time the arbitration is commenced, except to the extent any of those rules conflicts with our agreement in these Terms, in which case these Terms will govern. The AAA rules are available at www.adr.org.
If the claims asserted in any request or demand for arbitration could have been brought in small claims court, then either you or we may elect to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that election in writing. The arbitration of all disputes will be conducted by a single arbitrator, who shall be selected using the following procedure: (a) the AAA will send the parties a list of five candidates; (b) if the parties cannot agree on an arbitrator from that list, each party shall return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. Upon filing of the arbitration demand, we will pay or reimburse all filing, administration, and arbitrator fees. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs. Except for claims determined to be frivolous, we agree not to seek attorneys’ fees in arbitration even if permitted under applicable law.
Florida Law:. For purposes of compliance with the Florida Telemarketing Act and the Florida Do Not Call Act, you agree that at the time we message you, we may assume that you are not a Florida resident or visitor unless, at the time of opt-in to the program, (1) any contact address you provided is located in Florida; (2) the area code for the phone number used to opt-into the program is a Florida area code; or (3) you have affirmatively advised us in writing that you are a Florida resident or visitor by sending notice to us at firstname.lastname@example.org. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident or visitor, if you do not meet these criteria. Insofar as you are a Florida resident, you agree that mobile messages sent by us in direct response to mobile messages or requests from you (including but not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) and shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable. In addition, you acknowledge and agree that your receipt of one or more text messages from us does not constitute any “injury” to you.
In the event that you are seeking to enforce any provision of the Florida Do Not Call or Telemarketing Acts in arbitration or small claims court, those laws shall apply to you only to the extent that you can provide two forms of evidence of domicile in Florida (e.g. driver’s license and utility bill) and documentary evidence that you received the messages while in Florida (e.g. call records and evidence of date of travel.) Your failure to produce such evidence in arbitration or small claims court may be deemed sufficient to rebut any presumption arising from the fact that a call or text was made to a Florida area code.
Class Action Waiver. YOU AND WE EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS, REPRESENTATIVE, MASS, OR CONSOLIDATED ACTION. If we believe that any claim you have filed in arbitration or in court is inconsistent with this limitation, then you agree that we may seek an order from a court determining whether your claim is within the scope of this class action waiver. If a court or arbitrator determines in an action between you and us that any part of this Class Action Waiver is unenforceable with respect to any claim, the arbitration agreement and Class Action Waiver will not apply to that claim, but they will still apply to any and all other claims that you or we may assert in that or any other action. If you opt out of the arbitration provision as specified above, this Class Action Waiver provision will not apply to you. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt out requirements above.
Jury Trial Waiver. If a claim proceeds in court rather than through arbitration, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL