Last revision: October 25, 2022
This Agreement is a contract between you and CubeSoft Communications, Inc. and applies to the use of the SMS notification service (the "Service").
In this Agreement, "you" or "your" refers to any person or entity using the Service ("Users"). Unless otherwise stated, "CubeSoft", "we" and "our" will refer collectively to CubeSoft Communications, Inc. and its affiliates, directors, employees, agents and contractors.
By clicking on the "I agree to the SMS Terms and Conditions" checkbox on the Contact and Billing Information page (under the section Control Panel / Preferences) on the CubeSoft Web site, you agree to the terms and conditions of this Agreement. You further agree that this Agreement forms a legally binding contract between you and CubeSoft, and that this Agreement constitutes "a writing signed by You" under any applicable law or regulation.
By opting into the CubeSoft SMS program, you expressly constent to receive text messages that may be sent using an automatic SMS gateway, by or on behalf of CubeSoft, at the Mobile number you provide us (the number under the "Mobile number" field on the Contact and Billing Information page).
To stop receive text messages from CubeSoft, you agree to either reply
STOP to the number sending the message, or to remove your number
from the "Mobile number" field on the
Contact and Billing Information
page of the CubeSoft Web site.
After replying STOP, you may receive additional communications confirming that your request has been received and processed, and you may continue to receive text messages for a short period while CubeSoft processes your request(s). If you need further assistance, text HELP to the number sending the message, or contact CubeSoft customer service at 888-655-4977 or by e-mail at email@example.com.
Message and data rates may apply for any messages sent to you from or on behalf of CubeSoft, and messages you send to us. Please contact your wireless provider if you have any questions about your text or data plan.
By opting into CubeSoft's text messaging program or by otherwise
providing your mobile phone number to CubeSoft, you warrant that
you are 18 years of age or older. You further warrant that you are
the current subscriber or authorized user of the phone number you
have provided. You agree that you will not initiate messages to the
mobile phone of any other person or entity without authorization.
If you change, forfeit or deactivate the phone number you have provided to CubeSoft, you agree to notify CubeSoft immediately. Failure to do so constitutes a material breach of these SMS Terms and Conditions.
Mobile carriers are not liable for delayed or undelivered messages.
IRRESPECTIVE OF ANY LAW TO THE CONTRARY, YOU MUST PROVIDE NOTICE TO CUBESOFT, PURSUANT TO THE PROCEDURES SET FORTH IN THIS SECTION, OF ANY CLAIM WITHIN ONE YEAR OF ITS ACCRUAL OR YOUR CLAIM SHALL BE WAIVED AND TIME-BARRED.
Should you and CubeSoft have a Dispute (as defined below), CubeSoft is
committed to engaging with you to resolve it. Therefore, for any Dispute
that arises between you and CubeSoft, the parties agree that they will
first make a good faith effort to resolve it informally. This informal
dispute resolution process is a condition precedent to commencing any
formal proceeding in arbitration or small claims court. The parties
agree that any relevant limitations period and filing fee or other
deadlines will be tolled while the parties engage in this process.
For your Disputes with CubeSoft, you must first send your name, address, telephone number, e-mail address, and sufficient information for CubeSoft to identify any transaction at issue; a detailed description of your Dispute; and the nature and basis of your claims and the relief sought, along with the calculation you used (the "Notice") to the following e-mail address: firstname.lastname@example.org, or in writing at the address:
You and CubeSoft agree that any and all controversies, disputes, demands,
counts, claims, or causes of action between you and the Company, or the
Company's employees, agents, affiliates, subsidiaries, successors,
representatives, or assigns ("Dispute(s)"), shall be resolved through
binding and confidential arbitration, except that you or the Company
may elect to have a Dispute heard in small claims court if it qualifies
for hearing by such a court, provided that an action in small claims
may only seek individualized relief and so long as the action remains
in that court and is not removed or appealed to a court of general
jurisdiction. If the limitations on a small claims court proceeding are
deemed unenforceable for any reason, it shall be severed from this
agreement and the parties may not elect to proceed in small claims court,
and the dispute shall be heard in arbitration. In addition, each party
retains the right to seek injunctive or other equitable relief in a court
of competent jurisdiction to prevent the actual or threatened infringement,
misappropriation, or violation of a party's copyrights, trademarks, trade
secrets, patents, or other intellectual property rights. "Dispute" shall
be interpreted broadly and shall also include all Disputes that arose
before your agreement to these Terms, and which arise after the
termination of this agreement. Notwithstanding the foregoing, issues
related to the scope, validity, and/or enforceability of this arbitration
agreement are for a court to decide.
There is no judge or jury in arbitration and arbitration procedures are simpler and more limited than rules applicable in court. YOU ACKNOWLEDGE AND AGREE THAT, APART FROM THE NARROW EXCEPTIONS ABOVE, YOU AND CUBESOFT ARE EACH WAIVING YOUR RIGHTS TO SUE IN COURT, INCLUDING RIGHTS TO RECEIVE A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR ANY OTHER REPRESENTATIVE 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. Further, unless both you and CubeSoft agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding. If a court determines that public injunctive relief may not be waived and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that the particular 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 arbitration provision (except for the jury trial waiver) shall be null and void.
Arbitration shall be subject to the Federal Arbitration Act and federal arbitration law, and shall be conducted by Judicial Arbitration Mediation Services, Inc. ("JAMS") pursuant to the JAMS Streamlined Arbitration Rules & Procedures (the "JAMS Rules") as modified by this arbitration agreement. The JAMS Rules, including instructions for bringing arbitration, are available on its website at www.jamsadr.com/rules-streamlined-arbitration. If JAMS is unable or unwilling to administer a proceeding under this arbitration provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this arbitration provision as written and applying the selected arbitration organization's consumer rules. When initiating arbitration, you shall personally certify to CubeSoft and to JAMS that you are a party to this arbitration agreement and provide a copy or link to it. You shall also personally certify that you have complied with the pre-dispute resolution process detailed above. You agree that you shall personally participate, along with your counsel if represented, in the initial conference with the arbitrator unless the parties agree otherwise.
CubeSoft will pay its arbitration costs as required by JAMS rules, and in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, and you have complied with the pre-dispute resolution process outlined above, CubeSoft will pay as much of your arbitration filing and hearing fees as the arbitrator deems is necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation. Each side shall pay their own attorneys' fees, costs, and arbitration fees unless the arbitrator finds, among other grounds, (1) that either the substance of a claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), or (2) the claim(s) at issue permit the prevailing party to be reimbursed its fees and litigation costs, and in such instances, the fees and costs awarded shall be determined by the arbitrator consistent with applicable law and with the JAMS Rules. The arbitrator may consider whether a party had previously offered full relief to the other party or whether the proceeding is part of multiple case filings. The provisions of Federal Rule of Civil Procedure 68 shall be applied by the arbitrator. The arbitrator shall be bound by these Terms as any court would be. The arbitrator shall issue a reasoned, detailed decision explaining the essential findings and conclusions on which the award is based. The arbitration award shall be binding only as to the parties. The arbitration may consider rulings in other arbitrations involving other claimants, but an arbitrator's ruling will not be binding in proceedings involving different claimants.
The arbitration may be conducted by telephone, based on written submissions, or in person at a mutually agreed-upon location convenient for you. You agree to appear at an initial conference with the arbitrator and at any hearing, along with your counsel if you are represented. If fifty (50) or more claimants submit Notices raising similar claims and they are represented by the same or coordinated counsel, you understand and agree to the following provisions: (1) you agree that the adjudication of your Dispute may be delayed; (2) you agree that your counsel will negotiate in good faith with CubeSoft to determine a reasonable staged bellwether process involving a subset of demands not to exceed fifty (50) at a time, each of which shall be adjudicated on an individual basis; (3) only after each of the arbitrations that proceed are adjudicated or otherwise resolved shall the next set of staged proceedings commence; (4) your Dispute shall not be filed or considered properly filed in arbitration and filing fees shall not be due and owing until it is selected for inclusion in this continuously staged, reasonable bellwether process. This process shall continue until all the claimants' claims are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for your claim from the time of initiation with JAMS until the time your Dispute is selected for a bellwether process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing of arbitration demands against CubeSoft.
As referenced above, this dispute resolution section shall be governed by the Federal Arbitration Act. It shall survive any termination or cancellation of these Terms. Any amendments to this dispute resolution section shall be prospective only and shall not affect any pending Dispute for which CubeSoft has notice or pending arbitration proceeding.
YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CUBESOFT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION TO THE MAXIMUM EXTENT PERMITTED BY LAW.
These SMS Terms may be updated by CubeSoft at any time without prior notice. By continuing to be enrolled in CubeSoft's text messaging program, or by providing your mobile phone number for transactional, operational, or informational text messages, you agree to any changes.