Mindset Care SMS/MMS Mobile Message Marketing Program Terms and Conditions
Last updated 10/18/2024
Mindset Care Inc. (hereinafter, “we,” “us,” “our,” or “Mindset Care”) is offering a mobile messaging program (the “Program”), which you ("you" or "your") agree to use and participate in subject to these Mobile Messaging Terms and Conditions, our Terms of Use[2](the “Terms of Use”) and our Privacy Policy[3](the “Mobile Agreement”). By opting in to or participating in our Program, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the Dispute Resolution Section below. This Mobile Agreement is limited to the Program and is not intended to modify other terms and conditions or Privacy Policy that may govern the relationship between you and us in other contexts.
1. USER OPT-IN
The Program allows users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Mobile Agreement applies to your participation in the Program. By participating in the Program, you agree to receive auto-dialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from us. 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”). Message and data rates may apply. Message frequency varies, as further described in Section 5.
2. USER OPT-OUT
If you do not wish to continue participating in the Program or no longer agree to this Mobile Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from us in order to opt-out of the Program. 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 methods of opting out. You acknowledge that our text message platform (the “Platform”) may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that Mindset Care and its service providers will have no liability for failing to honor such requests.
You also understand and agree that any other method of opting out, including, but not limited to, texting words 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 and will not be effective. If for any reason you are having difficulty opting out, please contact our customer service by phone at 888-502-3799 or by email at allison@mindset.care.
3. DUTY TO NOTIFY AND INDEMNIFY
If at any time you stop using, whether voluntarily or involuntarily, the mobile telephone number that has been used to subscribe to the Program (e.g., canceling your mobile/wireless service plan, having your mobile/wireless service plan terminated, or selling or transferring the mobile phone number to another party), you agree (i) that you will complete the user-opt-out process set forth above (Section 2) prior to the ending or termination of your use of the mobile telephone number, and (ii) that failure to undertake the foregoing user-opt-out process set forth above (Section 2) is a material breach of this Agreement. You further acknowledge and agree that, if you discontinue the use of your mobile telephone number without notifying us of such change in accordance with this Agreement, you will fully, completely, and without limitation indemnify, defend, and hold harmless Mindset Care and our affiliates, subsidiaries, agents, and any party that assists in the delivery of the SMS/MMS mobile messages, and YOU WILL be responsible for all costs (including attorneys’ fees) and liabilities incurred by ANY OF THOSE ENTITIES as a result of ANY claim brought by ANY individual who IS 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. FOR THE AVOIDANCE OF DOUBT, YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD Mindset Care and our affiliates, subsidiaries, agents, and any party that assists in the delivery of the SMS/MMS mobile messages 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. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
4. PROGRAM DESCRIPTION
As part of the Program, users who opt in can expect to receive messages from us or from our third party providers on our behalf related to the marketing, promotion, payment, delivery, sale, and provision of the Mindset Care benefit facilitation services, such as reminders about documents needed for filings, updates on our services, and information about promotions.
5. COST AND FREQUENCY
Message and data rates may apply. You agree to receive messages periodically at our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional, non-recurring mobile messages from time to time based on your interaction with us.
6. SUPPORT INSTRUCTIONS
For support regarding the Program, text “HELP” to the number you received messages from or email us at allison@mindset.care. Please note that, while you can email us for support and general inquiries, use of this email address is not an acceptable method of opting out of the Program. For opting out, please follow the procedures detailed in Section 2.
7. MMS DISCLOSURE
The Program will send SMS terminating messages (TMs) if your mobile device does not support MMS messaging.
8. DISCLAIMER OF WARRANTY
THE PROGRAM IS OFFERED ON AN "AS-IS" BASIS, WITHOUT ANY WARRANTIES OR GUARANTEES. THE PROGRAM 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 ARE NOT RESPONSIBLE FOR ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN THE RECEIPT OF ANY MOBILE MESSAGES CONNECTED WITH THIS PROGRAM. DELIVERY OF MOBILE MESSAGES DEPENDS ON YOUR WIRELESS SERVICE PROVIDER OR NETWORK OPERATOR AND IS OUTSIDE OF OUR CONTROL. CARRIERS ARE NOT LIABLE FOR DELAYED OR UNDELIVERED MOBILE MESSAGES.
9. PARTICIPANT REQUIREMENTS
You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with a text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text-messaging instructions.
10. AGE RESTRICTION
You may not use or engage with the Platform if you are under eighteen (18) years of age. By using or engaging with the Platform, (a) you acknowledge and agree that you are not under the age of eighteen (18) years, (b) that you are permitted by your jurisdiction’s applicable law to use and/or engage with the Platform, and (c) you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Mobile Agreement, and all applicable laws.
11. PROHIBITED CONTENT
You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
·Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
·Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
·Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
·Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
·Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
·Any other content that is prohibited by applicable law in the jurisdiction from which the message is sent or where the message is received.
12. DISPUTE RESOLUTION
Informal Negotiations
To expedite resolution and control the cost of any dispute, controversy, or claim related to 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, this Mobile Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate (each a "Dispute" and collectively, the “Disputes”) brought by either you or us and any other third-party service provider acting on our behalf (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
Binding Arbitration
If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved through binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website: www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Wilmington, Delaware. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Wilmington, Delaware, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the the Uniform Computer Information Transaction Act (UCITA) is excluded from these Terms of Use.
In no event shall any Dispute brought by either Party related in any way to the Site be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable, and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
Restrictions
The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration
The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
YOU AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, EXCEPT WHERE PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY.
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 for any reason a Dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
13. STATE LAW
Florida: To the extent the law is relevant and applicable to the Program, we endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. 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, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. 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 are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) 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.
Washington: To the extent the law is relevant and applicable to the Program, we endeavor to comply with the commercial telephone solicitation requirements pursuant to the Revised Code of Washington (RCW) (including but not limited to sections 80.36.390, 19.158.040, 19.158.110 and 19.158) as applicable to Washington residents. For purposes of compliance, you agree that we may assume that you are a Washington resident if, at the time of opt-in to the Program, the area code for the phone number used to opt-into the Program is a Washington area code.
Oklahoma: To the extent the law is relevant and applicable to the Program, we endeavor to comply with the Oklahoma Telephone Solicitation Act of 2022 as applicable to Oklahoma residents. For purposes of compliance, you agree that we may assume that you are an Oklahoma resident if, at the time of opt-in to Program, the area code for the phone number used to opt-into the Program is an Oklahoma area code. You agree that the requirements of the Oklahoma Telephone Solicitation Act do not apply to you, and you shall not assert that you are an Oklahoma resident, if you do not meet the criteria or, in the alternative, do not affirmatively advise us in writing that you are an Oklahoma resident by sending written notice to us. Insofar as you are an Oklahoma resident, you agree that mobile messages sent by us in direct response to mobile messages or requests from you (including but are not limited to response to keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Oklahoma Statutes Title 15 (including but not limited to sections 775C.1, 775C.2, 775C.3, 775C.4 and 775C.5), to the extent the law is otherwise relevant and applicable.
14. 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 Mobile 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 this Mobile Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Mobile Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Mobile Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Mobile Agreement from time to time by posting a new version on our website. Any such updates to this Mobile Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept and agree to such revised Mobile Agreement.
15. CONTACT US
If you have any questions about these terms, please contact us by either:
·Calling us at: 888-502-3799;
·Emailing us at: allison@mindset.care; or
·Writing to us via mail to: Mindset Care, Attention: Customer Service Department, 80 Broad St Fl 5 Suite 1085, New York, NY 10004.
Although Mindset Care will, in most circumstances, be able to receive your communications, Mindset Care does not guarantee that it will receive such communications, timely and accurately, and shall not be legally obligated to read act on or respond to any such email or other information. Be aware that your email communications to Mindset Care may not be secure and will not be treated as confidential.
