SMS Terms and Conditions

Last revision: October 25, 2022

User Agreement

Opting into Text Messages

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).

Opting out of Text Messages

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 tech@csoft.net.

Cost

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.

Eligibility and Change in Phone Number

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.

Mandatory Dispute Resolution, Binding Arbitration and Class Action Waiver

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.

Pre-Dispute Resolution Process

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: arbitration@csoft.net, or in writing at the address:

  CubeSoft Communications
  132 Ch. des Buttes
  Havre aux Maisons, Quebec
  G4T 5L3 Canada
You and CubeSoft agree to negotiate in good faith about the Dispute, including through an informal and individualized telephone or video settlement conference if requested by CubeSoft. If either party to the Dispute is represented by counsel, that party's counsel may participate, but the party also must personally appear at and participate in the settlement conference. This process should lead to resolution of the Dispute, but if the matter is not resolved within sixty (60) days after CubeSoft's receipt of the complete written description detailed above, you and CubeSoft agree to the further dispute resolution provisions below. This time period will start to run upon receipt of the information referenced above. If the sufficiency of the Notice or compliance with this pre-dispute resolution process is at issue, either party may elect to have this issue decided by a court, and any formal dispute resolution proceeding shall be stayed pending resolution of the issue.

Arbitration

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.

OPT-OUT OF AGREEMENT TO ARBITRATE
CubeSoft's updates to these Terms do not provide you with a new opportunity to opt out of arbitration if you previously agreed and did not validly opt out of arbitration. CubeSoft will continue to honor any valid opt outs if you previously opted out of arbitration with CubeSoft. To opt out of arbitration, you must send a notice by e-mail to: arbitration@csoft.net, or in writing at the address:

  CubeSoft Communications
  132 Ch. des Buttes
  Havre aux Maisons, Quebec
  G4T 5L3 Canada
and you must provide the following information: (1) your name, (2) your address, (3) your phone number, and (4) a clear statement that you wish to opt out of this arbitration provision. This opt-out notice must be received no later than thirty (30) days after the date you first become subject to this arbitration agreement. If you opt out of this agreement to arbitrate, all other provisions of these Terms will continue to apply to you. Opting out has no effect on any other arbitration agreements that you may have entered into with CubeSoft or may enter into in the future with CubeSoft.

Changes to the SMS Terms

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.


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