SMS Terms & Conditions
Please fully and carefully read these SMS Terms and Conditions. These SMS Terms and Conditions contain an arbitration agreement and a class action waiver.
MemoryStitch offers its customers mobile alerts regarding sale promotions, event information, product launch announcements, cart reminders, back in stock alerts, price drop alerts, low inventory alerts by SMS message (the "Service") on 68599. You may not enroll if you are under 18 years old. By entering or permitting others to enter your mobile phone number(s) in any MemoryStitch, LLC (“MemoryStitch”) service, technology or platform that includes automated messaging functionality (collectively, “SMS Service”),
- You acknowledge and represent to MemoryStitch that you are the current wireless service plan subscriber and/or an authorized user of the mobile phone number(s) that you link to (sign up to receive) the automated text message service, or you have been granted permission by the wireless service plan subscriber and/or authorized user of the mobile phone number(s) to enroll the mobile phone number(s) in the service;
- You grant MemoryStitch and its affiliates express permission to send automated text messages ( “Text Messages”) to the enrolled mobile phone number(s) through your wireless phone carrier for marketing and non-marketing purposes unless and until such permission is revoked by you in accordance with these SMS Terms and Conditions;
- By granting such permission to MemoryStitch, you are hereby requesting to receive Text Messages in spite of the fact that your mobile phone number(s) may otherwise be on the federal, or a state's, Do Not Call List and you agree that, to the maximum extent permitted by law, your request overrides any prior Do Not Call request for or related to the SMS Service program you enroll in; and
- You are not required to directly or indirectly sign this agreement or to agree to enter into this agreement as a condition of purchasing any property, goods, or services.
- You consent to the use of an electronic record to document your opt-in. To request a free paper or email copy of the opt-in or to update our records with your contact information, call (855) 792-4205. To view and retain an electronic copy of these Terms or the rest of your opt-in, you will need (i) a device (such as a computer or mobile phone) with Internet access, and (ii) and either a printer or storage space on such device. For an email copy, you'll also need an email account you can access from the device, along with a browser or other software that can display the emails.
SMS Service allows mobile subscribers to opt-in to receive information from MemoryStitch through Text Messages straight to the subscriber’s phone: (i) regarding your use of the SMS Service and/or (ii) about MemoryStitch’s products and services.
You may opt in to receive Text Messages from MemoryStitch by submitting a form on our website here: Opt In to Receive Text Messages
There are no premium charges for joining SMS Service for receiving notification/information messages about MemoryStitch products and services, provided, however, standard message and data rates may apply.
Message Content and Frequency
- Sale promotions
- Event information
- Product launch announcements
- Cart reminders
- Back in stock alerts
- Price drop alerts
- Low inventory alerts
To opt-out of receiving automated messages from the SMS Service, reply “STOP” to a Text Message you have received from MemoryStitch. This is the exclusive method for opting out.
For support or information about our SMS Service, reply "HELP" to a text message you have received from MemoryStitch or call MemoryStitch Customer Service at (855) 792-4205 with your request or question.
Copyrights and Trademarks
SMS Service, and all content available through SMS Service, is protected by copyright and other intellectual property rights. No portion of the SMS Service may be copied, republished, transmitted, displayed or distributed in any way without MemoryStitch’s prior written consent. Any such use of the SMS Service's content for any purpose not authorized by MemoryStitch in writing is a violation of the copyrights of MemoryStitch. You agree to use the SMS Service only as authorized by MemoryStitch.
All trademarks, service marks, logos and trade names on the SMS Service, whether registered or unregistered, are proprietary to MemoryStitch. You may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names without the prior written consent of MemoryStitch.
MemoryStitch makes no representations or warranties whatsoever regarding Text Messages or the SMS Service. MemoryStitch hereby disclaims all warranties, including any implied representations or warranties of merchantability or fitness for a particular purpose.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY AGREE THAT MEMORYSTITCH AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR ANY OTHER DAMAGES UNDER THESE SMS TERMS AND CONDITIONS OR IN ANY WAY RELATED TO THE SMS SERVICE OR TEXT MESSAGES, EVEN IF MEMORYSTITCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE WIRELESS PHONE CARRIERS ARE NOT LIABLE FOR DELAYED OR UNDELIVERED MESSAGES. FURTHERMORE, MEMORYSTITCH SHALL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, ACTS OR OMISSIONS BY WIRELESS PHONE CARRIERS OR ACTS OR OMISSIONS THAT CAUSE DELAYS IN THE TRANSMISSION OF TEXT MESSAGES. MEMORYSTITCH AND THE MOBILE CARRIERS ARE NOT RESPONSIBLE FOR ANY UNDUE DELAYS, FAILURE OF DELIVERY, OR ERRORS IN MESSAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS MEMORYSTITCH AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, INDEPENDENT CONTRACTORS, AFFILIATES, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, DAMAGES, LIABILITIES, ACTIONS, CAUSES OF ACTION, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES), JUDGMENTS OR PENALTIES OF ANY KIND OR NATURE WHATSOEVER ARISING FROM OR RELATING TO YOUR USE OF THE SMS SERVICE OR RECEIPT TEXT MESSAGES IN CONNECTION WITH SMS SERVICE, INCLUDING, BUT NOT LIMITED TO, ALL CLAIMS, EXPENSES, AND DAMAGES RELATED TO OR ARISING UNDER THE TELEPHONE CONSUMER PROTECTION ACT.
Arbitration and Class Action Waiver
IN THE EVENT YOU AND MEMORYSTITCH (OR ANY AFFILIATE OF MEMORYSTITCH) HAVE ANY DISPUTE RELATING TO YOUR USE OF ANY SMS SERVICE, YOUR RECEIPT OF TEXT MESSAGES OR THESE SMS TERMS AND CONDITIONS (“DISPUTE”), YOU AND MEMORYSTITCH AGREE TO BINDING INDIVIDUAL ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) UNDER THE FEDERAL ARBITRATION ACT (“FAA”), AND NOT TO SUE IN COURT IN FRONT OF A JUDGE OR JURY. INSTEAD, A NEUTRAL ARBITRATOR WILL DECIDE AND THE ARBITRATOR’S DECISION WILL BE FINAL EXCEPT FOR A LIMITED RIGHT OF APPEAL UNDER THE FAA. CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE ATTORNEY-GENERAL ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY AREN’T ALLOWED; AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN ANY SUCH LAWSUITS, ARBITRATIONS, ACTIONS AND PROCEEDINGS IN CONNECTION WITH ANY DISPUTE.
- MAIL A NOTICE OF DISPUTE FIRST. IF YOU HAVE A DISPUTE, YOU MUST SEND A NOTICE OF DISPUTE BY U.S. MAIL TO MEMORYSTITCH AT: MEMORYSTITCH, ATTN: LEGAL, 8843 S. 137TH CIRCLE, OMAHA, NE 68138
- ARBITRATION PROCEDURE. THE AAA WILL CONDUCT ANY ARBITRATION UNDER ITS COMMERCIAL ARBITRATION RULES (OR IF THE VALUE OF THE DISPUTE IS $75,000 OR LESS, ITS CONSUMER ARBITRATION RULES). IN A DISPUTE INVOLVING $25,000 USD OR LESS, ANY HEARING WILL BE TELEPHONIC UNLESS THE ARBITRATOR FINDS GOOD CAUSE TO HOLD AN IN-PERSON HEARING INSTEAD. ANY IN-PERSON HEARING WILL TAKE PLACE IN OMAHA, NEBRASKA. THE ARBITRATOR MAY AWARD THE SAME DAMAGES TO YOU INDIVIDUALLY AS A COURT COULD, SUBJECT TO THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THESE SMS TERMS AND CONDITIONS. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY TO YOU INDIVIDUALLY TO SATISFY YOUR INDIVIDUAL CLAIM, SUBJECT TO THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THESE SMS TERMS AND CONDITIONS AND SUBJECT TO SUBSECTION 8 BELOW.
- MUST FILE WITHIN ONE YEAR. YOU AND MEMORYSTITCH MUST FILE IN ARBITRATION ANY DISPUTE (EXCEPT INTELLECTUAL PROPERTY DISPUTES) WITHIN ONE YEAR FROM WHEN IT FIRST COULD BE FILED. OTHERWISE, IT’S PERMANENTLY BARRED.
- REJECTING FUTURE ARBITRATION CHANGES. YOU MAY REJECT ANY CHANGE MEMORYSTITCH MAKES TO THIS ARBITRATION AGREEMENT (OTHER THAN ADDRESS CHANGES) BY SENDING US NOTICE WITHIN 30 DAYS OF THE CHANGE BY U.S. MAIL TO THE ADDRESS LISTED IN SECTION (B) ABOVE. IF YOU DO, THE MOST RECENT VERSION OF THIS ARBITRATION AGREEMENT BEFORE THE CHANGE YOU REJECTED WILL APPLY.
- SEVERABILITY. IF THE CLASS ACTION WAIVER IS FOUND TO BE ILLEGAL OR UNENFORCEABLE AS TO ALL OR SOME PARTS OF A DISPUTE, THOSE PARTS WON’T BE ARBITRATED BUT WILL PROCEED IN COURT, WITH THE REST PROCEEDING IN ARBITRATION. IF ANY OTHER PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND TO BE ILLEGAL OR UNENFORCEABLE, THAT PROVISION WILL BE SEVERED BUT THE REST OF THIS ARBITRATION AGREEMENT STILL APPLIES.
- CONFLICT WITH AAA RULES. THIS AGREEMENT GOVERNS IF IT CONFLICTS WITH THE AAA’S COMMERCIAL ARBITRATION RULES OR CONSUMER ARBITRATION RULES.
- MEMORYSTITCH AFFILIATES ARE THIRD-PARTY BENEFICIARIES. MEMORYSTITCH AND OTHER AFFILIATES OF MEMORYSTITCH ARE NOT PARTIES TO THIS ARBITRATION AGREEMENT BUT ARE INTENDED THIRD-PARTY BENEFICIARIES OF YOUR AGREEMENT WITH US TO RESOLVE DISPUTES THROUGH ARBITRATION.
- Nothing in these SMS Terms and Conditions will be interpreted to waive your right to seek public injunctive relief under applicable consumer protection statutes.
If any of these terms or conditions shall be deemed invalid, void, or for any reason unenforceable, that term or condition shall be deemed severable and shall not affect the validity and enforceability of any remaining terms and conditions.
These SMS Terms and Conditions are to be governed by and construed in accordance with the law of the State of Nebraska, without reference to its conflicts of law rules.
MemoryStitch reserves the right to change these SMS Terms and Conditions or cancel the SMS Service at any time, subject to your ability to reject changes to the Class Action Waiver and Binding Arbitration Section as expressly set forth therein. Your continued use of the SMS Service or acceptance of Text Messages from MemoryStitch after changes are made to these SMS Terms and Conditions will be deemed acceptance of these SMS Terms and Conditions as modified by the posted changes. Therefore, please check these SMS Terms and Conditions on a regular basis.