Effective Date: November 1, 2024
Please read these SMS Terms & Conditions (the "SMS Terms") carefully. By enrolling or otherwise agreeing to receive text messages from or on behalf of Dr. Fuhrman Online, Inc. ("DFO"), you agree to these SMS Terms, as well as DFO's Standard Terms of Use and Privacy Policy, which are incorporated herein by reference and can be viewed at the links provided here: Terms and Conditions | DrFuhrman.com and Privacy Policy | DrFuhrman.com. For purposes of these SMS Terms, "DFO," "the Company," "we," or "us" shall mean Dr. Fuhrman Online, Inc. and any of its subsidiaries, divisions, or affiliates.
PLEASE NOTE: SECTION 5 OF THESE SMS TERMS IS A MANDATORY DISPUTE RESOLUTION SECTION WITH AN ARBITRATION PROVISION, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER THAT AFFECT YOUR RIGHTS. THE MANDATORY DISPUTE RESOLUTION SECTION AFFECTS HOW DISPUTES WITH DFO ARE RESOLVED. YOU AGREE TO BE BOUND BY THE MANDATORY DISPUTE RESOLUTION SECTION, INCLUDING THE 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.
By opting into any DFO text message program, you expressly consent to receive recurring marketing and/or transactional text messages that may be sent using an automatic telephone dialing system, by or on behalf of DFO, at the cell phone number you provide us. You consent to receive such text messages at that phone number, including but not limited to order confirmations; shipping and delivery notifications; multi-factor authentication and marketing communications. 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 technology. Message and data rates may apply. Once you opt-in, you should expect to receive approximately 2-3 messages from us on a monthly basis.
To stop receiving text messages from DFO, you agree to reply STOP to the number sending the message. 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 DFO processes your request. If you need further assistance, text HELP to the number sending the message, or contact DFO customer service at number listed on the drfuhrman.com website. Below is more information on the types of text messages you may receive, and how to opt out of text messages from SFO. In all cases, consent to receive texts is not a condition of purchasing any goods or services, and message and data rates may apply:
After opting out of receiving text messages, you can re-enroll in any DFO text messaging program by following the instructions.
Message and data rates may apply for any messages sent to you from or on behalf of DFO, and messages you send to us. If you have any questions about your text plan or data plan, we recommend that you contact your wireless provider.
By opting into DFO's text messaging program or by otherwise providing your cell phone number to DFO, 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. Failure to do so constitutes a material breach of these SMS Terms. You represent that you are the account holder for the mobile telephone number(s) that you used to subscribe to the program. You are responsible for completing the opt-out process or notifying us immediately if you change, transfer, or intend to stop using the mobile telephone number used to subscribe to the program. You may notify us of a number change by contacting DFO as provided below. Your agreement to do so is a material part of these terms and conditions.>
You agree to indemnify DFO in full for all claims, expenses, and damages related to or caused in whole or in part by your failure to complete the opt-out process or notify us if you change, transfer, or intend to stop using your telephone number including, but not limited to, all claims, expenses, and damages related to or arising under the Telephone Consumer Protection Act.
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 A MANDATORY EARLY RESOLUTION PROCESS, BINDING ARBITRATION, A CLASS ACTION WAIVER, AND A JURY TRIAL WAIVER.
Any dispute or claim arising out of or relating to these SMS Terms, your use of the Services, or your relationship with DFO or any past, present, or future subsidiaries, parents, affiliates, employees, officers, directors, agents, successors, representatives, or assigns, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory (each a "Dispute") will be resolved through binding individual arbitration as set forth in these SMS Terms, except that either you or DFO may initiate a Dispute in or take a Dispute to small claims court, so long as that Dispute is not removed or appealed to a court of general jurisdiction. Whether a Dispute falls within the jurisdiction of small claims court is for a small claims court to decide in the first instance and for a court of competent jurisdiction to otherwise decide. The term "Dispute" shall be interpreted broadly and includes, but is not limited to: (a) any dispute or claim that arose before the existence of these or any prior SMS Terms (including, but not limited to, claims relating to advertising); (b) any dispute or claim that is currently the subject of purported class action litigation in which you are not a member of a certified class; and (c) any dispute or claim that may arise after termination of these SMS Terms. "Dispute," however, does not include disagreements or claims concerning patents, copyrights, trademarks, trade secrets, or other intellectual property, and claims of piracy or unauthorized use of intellectual property.
In any Dispute, the arbitrator shall decide all issues except the following (which are for a court of competent jurisdiction to decide): (a) issues that are reserved for a court in these SMS Terms; (b) issues that relate to the scope, validity, and/or enforceability of the arbitration provision, class action waiver, or any of the provisions of this Mandatory Dispute Resolution clause; and (c) issues that relate to the arbitrability of any Dispute. These SMS Terms and their arbitration provision do not prevent you from bringing a Dispute to the attention of any government agency. You and we agree that these SMS Terms evidence a transaction in interstate commerce and that the arbitration provision herein will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law.
You and DFO agree to work together in a good-faith effort to informally resolve any Dispute that might arise between us using the early resolution process described herein ("Early Resolution Process").
The party initiating a Dispute must first send the other a written notice (the "Dispute Notice") that includes all of the following information: (a) information sufficient to identify any transaction and/or account at issue in the Dispute; (b) contact information (including your name, address, telephone number, and email address); and (c) a detailed description of the nature and basis of the Dispute and the relief sought, including a calculation for such relief. The Dispute Notice must be personally signed by the party initiating the Dispute (and their counsel, if represented). If you are the party initiating a Dispute, you must send us the Dispute Notice via email to [email protected]. If DFO has a Dispute with you, we will send a Dispute Notice to you at the most recent contact information we have on file for you.
For a period of sixty (60) days from receipt of a completed Dispute Notice (which can be extended by agreement of the parties), you and we agree to negotiate in good faith in an effort to informally resolve the Dispute. The party receiving the Dispute Notice may request a telephone settlement conference to aid in the early resolution of the Dispute. If such a conference is requested, you and a DFO representative will personally attend such a telephone settlement conference (with counsel, if represented). The conference will be scheduled for a mutually convenient time, which may be outside of the 60-day period following receipt of a Dispute Notice. This informal Early Resolution Process is a condition precedent to you or DFO commencing a formal proceeding in arbitration or small claims court.
If the sufficiency of a Dispute Notice or compliance with this Early Resolution Process is at issue, such issue may be raised with and decided by a court of competent jurisdiction at either party's election and any arbitration shall be stayed pending resolution of such issue. The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of arbitrations, and to enjoin the assessment or collection of arbitration fees. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with this process in arbitration or to raise non-compliance with a AAA process arbitrator. All applicable limitations periods (including statutes of limitations) will be tolled from the date of receipt of a completed Dispute Notice through the conclusion of this Early Resolution Process. You or we may commence arbitration or a small claims court proceeding if a Dispute is not resolved through this Early Resolution Process.
The arbitration of any Dispute shall be conducted in accordance with the rules of the American Arbitration Association ("AAA"), including the AAA's Consumer Arbitration Rules and Supplementary Rules for Mass Arbitration, as applicable ("AAA Rules"), as modified by this arbitration provision and these SMS Terms. The AAA Rules are available online at www.adr.org. You and we understand and agree that the AAA's administrative determination that this arbitration provision comports with the Consumer Due Process Protocol is final, and that neither a court nor an arbitrator has the authority to revisit it. If the AAA is unavailable or unwilling to conduct the arbitration consistent with this arbitration provision and these SMS Terms, the parties shall agree on a replacement arbitration administrator that will do so. If the parties cannot agree on a replacement arbitration administrator, they shall petition a court of competent jurisdiction to appoint an arbitration administrator that will conduct the arbitration consistent with this arbitration provision and these SMS Terms.
An arbitration demand must (a) include all of the information required to be provided in the Dispute Notice above; (b) be accompanied by a certification of compliance with the Early Resolution Process above; and (c) be personally signed by the party initiating arbitration (and counsel, if represented). When initiating arbitration, you shall personally certify to DFO and to AAA that you are a party to this arbitration provision and provide a copy or link to it. By submitting an arbitration demand, the initiating party and counsel represent, as in court, that they are complying with the requirements of Federal Rule of Civil Procedure 11(b). The arbitrator is authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on represented parties and their counsel. You may choose to have the arbitration conducted by a phone, video, or in-person hearing, or through written submissions, except any Dispute seeking more than Ten Thousand Dollars ($10,000.00 USD) or injunctive relief shall have an in-person or video hearing unless the parties agree otherwise. You and we reserve the right to request a hearing in any matter from the arbitrator. You and a DFO representative will personally appear at any hearing (with counsel, if represented). An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory 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. To the fullest extent allowable by applicable law, you and we agree that each may bring claims against the other only in your or our individual capacity and not as a plaintiff or class member in any purported class, collective, consolidated, private attorney general, or representative proceeding. Further, unless both you and we agree otherwise, an arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of class, collective, consolidated, private attorney general, or representative proceeding. 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. An arbitrator must follow and enforce these SMS Terms as a court would.
IF, AFTER EXHAUSTION OF ALL APPEALS, ANY OF THESE PROHIBITIONS ON NON-INDIVIDUALIZED INJUNCTIVE OR DECLARATORY RELIEF AND CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE PROCEEDINGS ARE FOUND TO BE UNENFORCEABLE WITH RESPECT TO A PARTICULAR CLAIM OR REQUEST FOR RELIEF (SUCH AS A REQUEST FOR PUBLIC INJUNCTIVE RELIEF), THEN SUCH A CLAIM OR REQUEST FOR RELIEF WILL BE DECIDED BY A COURT OF COMPETENT JURISDICTION, AFTER ALL OTHER CLAIMS AND REQUESTS FOR RELIEF ARE ARBITRATED.
The arbitrator shall issue a reasoned written decision sufficient to explain essential findings and conclusions. The arbitrator shall apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award. Judgment on any arbitration award may be entered in any court of competent jurisdiction, except an award that has been satisfied may not be entered. An award shall have no preclusive effect in any other arbitration or proceeding in which you are not a named party.
Payment of arbitration fees will be governed by the AAA Rules and fee schedule. You and we agree that the parties have a shared interest in reducing the costs and increasing the efficiencies associated with arbitration. Therefore, you or we may elect to engage with the AAA regarding arbitration fees, and you and we agree that the parties (and counsel, if represented) will work together in good faith to ensure that arbitration remains cost-effective for all parties.
Class Action Waiver; Jury Trial Waiver
YOU AND WE EACH AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION. YOU AND WE AGREE TO WAIVE ANY RIGHT TO BRING OR TO PARTICIPATE IN SUCH AN ACTION IN ARBITRATION OR IN COURT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, THE PARTIES RETAIN THE RIGHT TO PARTICIPATE IN A CLASS-WIDE SETTLEMENT.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND DFO WAIVE THE RIGHT TO A JURY TRIAL.
These SMS Terms may be updated by DFO at any time without prior notice. By continuing to be enrolled in any DFO promotional text messaging program, or by providing your cell phone number for transactional, operational, or informational text messages, you agree to any changes.
For questions about these SMS Terms or DFO's text messages, please contact DFO customer service [email protected].