UPWEST TEXT TERMS
Created August 2021
Your consent to receiving text messages to the mobile number provided is not required to buy goods or services. You agree that when you initiate a text message in the Program that you may receive a text message in reply. Message and data rates may apply so please consult your service agreement with your wireless carrier to determine your phone’s pricing plan. This Program may not be available on all wireless carriers.
For Customer Service related to the Program, please call toll free to 1-833-879-3781.
You agree that UpWest may change these Text Terms from time to time through updating the online version of these Text Terms. You will be provided notice of material changes to these Text Terms via text messaging, if You are opted into the Program at the time of the changes.
DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE
There might be instances when you have an issue or dispute with UpWest. In those instances, UpWest is committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your concern. Therefore, for any issue or dispute that you may have with UpWest, you acknowledge and agree that you will first give UpWest an opportunity to resolve it before initiating any formal dispute resolution proceeding. This includes you first sending a written description of your issue or dispute to the following address: email@example.com.
You then agree to negotiate with UpWest in good faith about your problem or dispute. This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within sixty (60) days after UpWest’s receipt of your written description of it, you agree to the further dispute resolution provisions below.
Engaging in this informal dispute resolution process is a requirement that must be fulfilled before commencing a formal dispute resolution proceeding. The relevant limitations period and any filing fee deadlines shall be tolled while the parties engage in this informal dispute resolution process.
ANY DISPUTE INVOLVING YOU AND US, INCLUDING ANY OF OUR, AFFILIATES, AGENTS, OR VENDORS, THAT CANNOT BE RESOLVED INFORMALLY SHALL BE RESOLVED THROUGH INDIVIDUAL ARBITRATION OR A SMALL CLAIMS COURT PROCEEDING.
“Dispute” shall be interpreted broadly and cover any claim or controversy arising out of or relating in any way to (1) your relationship with us whether based in contract, tort, statute, regulations, or any other legal theory; (2) the Program, Services, or Terms; and/or (3) any products or services offered, sold, or distributed by us including, but not limited to, the advertising of or the sales practices for such products and services. Dispute shall also include all disputes that arose before your enrollment in the Program and after the cancellation or termination of the Program, including any claims that are the subject of a purported class action litigation.
Arbitration Provision: You each agree that any Dispute shall be resolved by individual binding arbitration, and not through litigation, unless such Dispute falls within the jurisdictional scope and amount of an appropriate small claims court and either party elects to resolve the dispute on an individual basis in small claims court.
The arbitrator's authority to resolve claims and make awards is limited to claims between you and us alone. Furthermore, claims brought by you against us, or by us against you, may not be joined or consolidated in arbitration with claims brought by or against someone other than you, unless agreed to in writing by all parties. The arbitrator may not preside over any form of representative or class 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. This waiver of class actions and collective relief is an essential part of this arbitration agreement and if it is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor UpWest is entitled to arbitration of such claim or dispute. Notwithstanding the foregoing, if a court determines that public injunctive relief may not be waived and all appeals from that decision have been exhausted, then the parties agree that any 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 dispute resolution provision (except for the jury trial waiver) shall be null and void.
No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. BOTH YOU AND WE ARE GIVING UP ANY RIGHT YOU AND WE MAY HAVE HAD TO A JURY TRIAL, AND ALL OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT THAT ARE NOT AVAILABLE IN ARBITRATION.
This Arbitration Provision is intended to apply as broadly as possible, and to include all parties and claims that would be included in a case brought in court. Thus, this Arbitration Provision also requires arbitration as to any other corporate or natural persons who are parties to the claim, such as our corporate affiliates and vendors, and members of your family, including any minor children upon whose behalf you may bring a claim. This Arbitration Provision also applies to claims of every kind and nature, including but not limited to counterclaims, cross-claims and third-party claims, and claims based upon torts, statutes, regulations, common law and equity. However, any dispute over the validity, enforceability or scope of this Arbitration Provision shall be decided by a court, not an arbitrator.
Notwithstanding anything in this Arbitration Provision to the contrary, we may bring suit in court to enjoin infringement or otherwise enforce intellectual property rights.
You or we may commence an arbitration proceeding by sending a demand to the American Arbitration Association (AAA) that describes the basis for the claim. The arbitration will be governed by the AAA’s Consumer Arbitration Rules or Commercial Arbitration Rules (collectively, the “AAA Rules”), as appropriate, and as modified by this Arbitration Provision, and will be administered by the AAA. For a copy of the AAA Rules, to file a claim or for other information, contact AAA (adr.org or 1-800-778-7879). In addition to AAA, claims may be referred to any other arbitration organization that is mutually agreed upon in writing by you and us, or to an arbitration organization or arbitrator(s) appointed pursuant to § 5 of the Federal Arbitration Act as it may be amended (FAA), provided that any such organization and arbitrator(s) will enforce the terms of this Arbitration Provision. This Arbitration Provision is made concerning transactions involving interstate commerce and shall be governed by the FAA. If there is a conflict between the applicable arbitration rules and these Terms, these Terms shall govern. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations, shall honor claims of privilege recognized at law, and, at the timely request of either party, shall provide a brief written explanation of the basis for the decision. The arbitration proceeding shall not be governed by any federal or state rules of civil procedure or rules of evidence. The arbitrator shall take reasonable steps to preserve privacy and confidentiality.
If there is an in-person arbitration hearing, it shall take place in the federal judicial district that is closest to your residence and contains an UpWest store. If the nearest federal judicial district to your residence that contains an UpWest store is more than 50 miles away from your residence, you may elect to conduct the arbitration by telephone or at a location in your county of residence.
You will be responsible for paying your share, if any, of arbitration fees, but only up to the amount of filing fees you would have paid to file a claim in the state or federal court closest to your residence. We will be responsible for any additional arbitration fees, even if we win the arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules; however, we will reimburse those fees (but not an attorney’s fees) for claims totaling less than $10,000 unless the arbitrator determines your claims are frivolous. If the arbitrator finds that either the substance of your claim or the relief sought in your demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In a dispute involving $10,000 or less, you may choose to have the arbitration conducted by telephone, based on written submissions from the parties, or in person according to the AAA Rules.
This Arbitration Provision shall survive termination of these Terms and/or the Services or your use of the Services or participation in the Program and any bankruptcy by you or us. Except as set forth above, if any portion of this Arbitration Provision is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this Arbitration Provision If a court decides that the entirety of this Arbitration Provision is invalid or unenforceable, the remainder of the Terms shall still apply.
Any amendments to this Arbitration Provision will be prospective only and will not affect any pending dispute or arbitration proceeding that you have already provided notice of to UpWest.