Recess Digital, Inc. Text Messaging Terms and Conditions

Text Messaging Terms and Conditions

Last Revised: September 12, 2022

UNDER THESE TERMS YOU ARE AGREEING TO BINDING ARBITRATION AND A CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM. THIS ARBITRATION AGREEMENT AND CLASS ACTION WAIVER REQUIRES US BOTH TO ARBITRATE ALL CLAIMS INSTEAD OF GOING TO A COURT BEFORE A JUDGE AND JURY, AND REQUIRES THAT ALL SUCH ARBITRATION CLAIMS MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS CLASS REPRESENTATIVE, CLASS MEMBER, OR OTHERWISE ON BEHALF OF OTHERS IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING.

By opting in to receive text messages from Recess Digital, Inc., or our subsidiaries or affiliates (hereinafter, “We,” “Us,” “Our”) (the “Service”), you agree to these Text Messaging Terms and Conditions (the “Agreement”). Your participation in the Service is also subject to our Privacy Policy and Terms and Conditions. If there is an actual conflict between these Terms and any other terms that may govern the relationship between you and Us in other contexts, these Terms shall control and the non-conflicting provisions in any such other terms will continue to apply.

Any and all disputes, claims and causes of action (collectively, "Claims") arising between you and us (whether based in contract, statute – including, without limitation, the Federal Telephone Consumer Protection Act and state telemarketing laws), regulation, ordinance, tort—including, but not limited to, fraud, any other intentional tort or negligence—common law, constitutional provision, respondeat superior, agency or any other legal or equitable theory), whether arising before or after the effective date of these terms, must be resolved exclusively by final and binding arbitration under the rules of the American Arbitration Association ("AAA"), including the Supplementary Procedures for Consumer-Related Disputes, for full and final settlement of such Claim applying the Federal Arbitration Act and other federal arbitration laws. YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO SUE OR GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT. YOU AND WE ALSO AGREE THAT (A) ANY CLAIMS WILL BE RESOLVED INDIVIDUALLY, NOT AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR OTHERWISE ON BEHALF OF OTHERS IN ANY PURPOSED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING AND NOT THROUGH ANY CLASS ACTION; (B) NOTWITHSTANDING SUBPARAGRAPH A, IN THE EVENT A CLAIM PROCEEDS IN COURT , WE BOTH WAIVE ANY RIGHT TO A JURY TRIAL; AND (C) SUBPARAGRAPH A NOTWITHSTANDING, EITHER YOU OR WE MAY SEEK A COURT INJUNCTION REGARDING INTELLECTUAL PROPERTY INFRINGEMENT. ARBITRATION DOES NOT INVOLVE A JUDGE OR JURY. Court review of an arbitration award is extremely limited. An arbitrator is empowered to award the same damages and relief as a court, however, including injunctive relief or statutory damages. Notwithstanding the foregoing, either party may seek temporary or emergency equitable relief to enforce its rights in any court of competent jurisdiction.

You may seek arbitration of a Claim by sending an AAA “Demand for Arbitration” to the AAA, available at https://adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_3.pdf. If not using the AAA form, your written Demand for Arbitration must include: a brief explanation of the dispute; your name and address and our company’s name and address; the amount of money in dispute; the requested location for any in-person hearing; and a description of what you are seeking from the arbitration. The arbitration may be conducted via telephone, written submissions or in person in a mutually agreed location. If an in-person arbitration hearing is required, then that hearing will be conducted either in New York, New York or, at your option, in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you reside at the time the dispute is submitted to arbitration Payment of all filing, administration, arbitrator and/or mediator fees ("Fees") will be governed by AAA's rules. The AAA's rules are available at: www.adr.org or call 800-778-7879 (toll-free) for instructions on how to obtain a copy. Unless the AAA arbitrator determines that your Claim was frivolous, we will (i) reimburse you for the Fees paid by you, and (ii) will not seek reimbursement from you for our attorneys' fees and costs associated with the arbitration. You and we further agree that any arbitration award and any judgment confirming such an award applies only to the arbitration in which it was awarded and cannot be used in any other proceeding except to enforce the award itself, and any post-arbitration action seeking to enforce an arbitration award or action seeking equitable or injunctive relief shall be brought exclusively in the courts of the State of New York, or the United States District Court for the Southern District of New York.

The foregoing notwithstanding, both parties retain the right to seek relief in small claims court for any dispute or claim falling within the scope of such court’s jurisdiction. For Claims that are not subject to arbitration or resolution in small claims court, if any: (a) the exclusive jurisdiction and venue for proceedings involving Claims shall be the courts of competent jurisdiction sitting within the State of New York (the "Forum"), and the parties hereby waive any argument that any such court does not have personal jurisdiction or that the Forum is not appropriate or convenient; (b) you and we waive any and all rights to trial by jury with respect to any Claims.