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SMS Terms

Black Umbrella SMS Terms & Conditions

Last Updated: October 29, 2022

Important! Please read these SMS Terms & Conditions (the “SMS Terms”) carefully. By enrolling or otherwise agreeing to receive text messages from or on behalf of Black Umbrella or by otherwise providing your phone number to Black Umbrella, you agree to these SMS Terms, as well as Black Umbrella’s Terms of Use and Privacy Policy, which are incorporated herein by reference and can be viewed at the links provided here, or at blackumbrellastudio.com.

PLEASE NOTE: THESE SMS TERMS CONTAIN AN ARBITRATION CLAUSE WITH A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS. THE ARBITRATION PROVISION AFFECTS HOW DISPUTES WITH FOXTAIL TURF ARE RESOLVED. YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT. PLEASE READ THESE SMS TERMS CAREFULLY.

For purposes of the SMS Terms, “Black Umbrella,” “the Company,” “we,” or “us” shall mean Black Umbrella,  and any of its subsidiaries, divisions, or affiliates.

Opting in to Receive Text Messages

By opting in to any Black Umbrella promotional or “get a free estimate” text program, you expressly consent to receive recurring marketing text messages that may be sent using an automatic telephone dialing system, by or on behalf of Black Umbrella, at the cell phone number you provide us. To opt in to Black Umbrella text messaging programs, please follow the instructions provided by the specific program from which you wish to receive marketing text messages.

By voluntarily providing your cell phone number to Black Umbrella, you consent to receive transactional, operational, or informational text messages at that phone number, including but not limited to order confirmations; shipping and delivery notifications; and appointment reminders. Please note we may not be able to deliver messages to all mobile carriers.

Consent to receive texts is not a condition of purchasing any goods or services, and you understand and agree that all text messages may be sent using automated or live help technology.

How to Opt Out and Get Help

To stop receiving text messages from Black Umbrella, you agree to reply STOP to the text message. After texting 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 Black Umbrella processes your request(s). If you opt out of one Black Umbrella text messaging program, you will remain opted in to other Black Umbrella text messaging programs (if applicable) unless you opt out of those programs separately. If you need further assistance, contact Black Umbrella customer service at (256) 374-0360.

Cost

Message and data rates may apply for any messages sent to you from or on behalf of Black Umbrella, and messages sent to Black Umbrella from you. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.

Eligibility and Change in Phone Number

By opting in to Black Umbrella’s promotional text messaging program or by otherwise providing your cell phone number to Black Umbrella, 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 Black Umbrella, you agree to notify Black Umbrella immediately. Failure to do so constitutes a material breach of these SMS Terms and Black Umbrella’s Terms of Use. Mobile carriers are not liable for delayed or undelivered messages.

Mandatory Dispute Resolution

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY PRE-DISPUTE RESOLUTION, BINDING ARBITRATION AND A CLASS ACTION WAIVER.

IRRESPECTIVE OF ANY LAW TO THE CONTRARY, YOU MUST PROVIDE NOTICE TO BLACK UMBRELLA, 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 Black Umbrella have a Dispute (as defined below), Black Umbrella is committed to engaging with you to resolve it. Therefore, for any Dispute that arises between you and Black Umbrella, 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 Black Umbrella, you must first send your name, address, telephone number, email address, and sufficient information for Black Umbrella to identify any transaction at issue; a detailed description of your Dispute; and the nature and basis of your claims and the relief sought to the following email address: privacy@BlackUmbrellaagency.com . You and Black Umbrella agree to negotiate in good faith about the Dispute, including through an informal and individualized telephone conference between you and Black Umbrella. 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 conference. This process should lead to resolution of the Dispute, but if the matter is not resolved within sixty (60) days after Black Umbrella’s receipt of the written description detailed above, you and Black Umbrella agree to the further dispute resolution provisions below. This time period will start to run upon receipt of the information referenced above.

Arbitration

You and Black Umbrella 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. 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 SMS 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 FOXTAIL TURF 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 BLACK UMBRELLA 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.

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.

As referenced above, this dispute resolution section shall be governed by the Federal Arbitration Act. It shall survive any termination or cancellation of these SMS Terms. Any amendments to this dispute resolution section shall be prospective only and shall not affect any pending Dispute for which Black Umbrella has notice or pending arbitration proceeding.

YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BLACK UMBRELLA 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: Black Umbrella’s updates to these SMS 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. Black Umbrella will continue to honor any valid opt outs if you previously opted out of arbitration with Black Umbrella. To opt out of arbitration, you must send a notice via email to privacy@blackumbrellaagency.com, 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 SMS Terms will continue to apply to you. Opting out has no effect on any other arbitration agreements that you may have entered with Black Umbrella or may enter into in the future with Black Umbrella.

Changes to the SMS Terms

These SMS Terms may be updated by Black Umbrella at any time without prior notice. By continuing to be enrolled in any Black Umbrella promotional or “get a free estimate” text program, or by providing your cell phone number for transactional, operational, or informational text messages, you agree to any changes.

Questions

For questions about these SMS Terms or Black Umbrella’s text messages, please contact Black Umbrella customer service at (256) 374-0360 or blackumbrellaagency@ gmail.com.