Recart Consumer Terms of Service
These Consumer Terms of Service (“Terms” or “Agreement”) are an agreement between you (“You” or “Your”) and GhostMonitor Inc. (d/b/a Recart) and its affiliates and subsidiaries (“Recart”, “We”, “Our”, or “Us”) and govern Your access to and use of any consumer services or products offered by Recart, including the cross-site recognition service operated by Recart that enables one-click opt-in across participating e-commerce vendors (Recart’s services and products, collectively, the “Services”).
Please read these terms of service carefully. By using the Services, You agree to be bound by these Terms and Our privacy policy (“Privacy Policy”) (incorporated herein by reference). If You do not agree to these Terms and the Privacy Policy, You may not use the Services.
Please note that these Terms require that disputes be resolved only by final and binding individual arbitration (and not by court litigation) as set forth in Section 8 of the Terms. This means that You waive any right to a jury trial and waive any right to bring or participate in class actions against Us. In arbitration, there is no jury, less discovery, and limited appellate review as compared to court litigation.
<aside>
NOTE: Recart’s Marketing Platform
Recart operates a Marketing Platform (“Platform”) for brands to connect with You via text/SMS and/or email. By interacting with a brand through the Platform, You engage directly with the brand. These Terms do not apply to Your interactions with the brand via the Platform, and Your interactions with the brand do not create a contractual or legal relationship between You and Recart.
In providing the Platform to brands, Recart acts as a “service provider” and only processes personal information on behalf of each respective brand, at the brand’s instruction. Recart is restricted from using personal information collected through the Platform on behalf of a brand for its own purposes. Personal information collected through the Platform remains the sole property of the brand. The brand owns and controls the way the personal information is processed, and is the “controller” of the information for purposes of applicable U.S. privacy laws.
For information on a particular brand’s terms or any available privacy rights You may have, or details on how Your data is processed when You interact with a brand through the Platform, please review the brand’s terms and privacy policy or reach out to the brand with whom You have a direct relationship.
</aside>
PLEASE READ THIS SECTION CAREFULLY.** IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. THIS SECTION ALSO CONTAINS A JURY TRIAL WAIVER AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION IN ARBITRATION OR IN LITIGTATION TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
The arbitration agreement contained in these Terms (“Arbitration Agreement”) is governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) (“FAA"), including its procedural provisions, in all respects. This means that the FAA governs, among other things, the interpretation and enforcement of this arbitration agreement and all of its provisions, including the class action waiver. State arbitration laws do not govern in any respect. Further, You and We each agree that these Terms evidence a transaction involving interstate commerce and will be governed by and construed in accordance with federal law to the fullest extent possible.
In the event that a complaint cannot be resolved to Your satisfaction, this section explains how any Dispute (as defined herein) will be resolved through arbitration. In this Arbitration Agreement, the terms “Recart,” “Our,” “We,” or “Us” includes Recart, and its present or future affiliates or subsidiaries, including any all agents, independent contractors, service providers, employees, and all others acting for, or on behalf of, Recart’s direction or control, and all companies affiliated with Recart (including, but not limited to, parents, subsidiaries, and sibling corporations, if any). “Dispute” shall be interpreted broadly and cover any claim or controversy arising out of or relating in any way whatsoever to Your relationship or interaction with Recart, these Terms, and the Services whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory. Dispute shall also include, but not be limited to (1) any dispute or claim that arose before the existence of these or any prior Terms; and (2) any dispute or claim that may arise after termination of these Terms. Dispute, however, does not include disputes or claims seeking to enjoin the misuse of intellectual property rights, which may be brought in a court of competent jurisdiction. The arbitrator shall decide all issues except the following (which are for a court of competent jurisdiction to decide): (1) issues that are reserved for a court in these Terms; and (2) issues that relate to the validity or enforceability of the arbitration agreement, class action waiver, jury trial waiver, or any of the provisions of this Dispute Resolution section. These Terms and this Arbitration Agreement do not prevent You from bringing a Dispute to the attention of any government agency.
Mandatory Informal Dispute Resolution Process. If a dispute arises, Recart is committed to working with You to reach a reasonable resolution. For any issue or Dispute that arises between You and Recart, both parties acknowledge and agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. This includes first sending a written notice of dispute (“Mandatory Dispute Notice”). A Mandatory Dispute Notice from You to Recart must (1) be sent by certified mail, with a copy to [email protected]. with the subject line “User Dispute”; (2) be addressed to: su[email protected].Notice Address”); (3) contain Your name, address, and email address; (4) describe the nature and basis of Your claim; (5) include any relevant facts regarding Your use of the Services (as may be applicable), including without limitation the specific conduct to which Your Dispute pertains, the date(s) of Your interaction under which the Dispute arose; (6) specify the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation of them; and (7) include a personally signed statement from You (and not Your counsel) verifying the accuracy of the contents of the Mandatory Dispute Notice. The Mandatory Dispute Notice must be individualized, meaning it can concern only Your Dispute and no other person’s Dispute. If applicable, Recart agrees to send a Mandatory Dispute Notice to You, containing a similar level of detail as described above, by email to an email address You have previously provided to Recart or by certified mail, return receipt requested to an address You have previously provided to Recart.
You and Recart will then, upon receipt of any Mandatory Dispute Notice, attempt in good faith to resolve each Dispute described in the Mandatory Dispute Notice on an individual basis. You and Recart agree that, after receipt of the completed Mandatory Dispute Notice, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and Recart agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually convenient time and to seek to reach a resolution. If We and You do not reach an agreement to resolve the issues identified in the Mandatory Dispute Notice within 60 days after the completed Mandatory Dispute Notice is received (or a longer time if agreed to by the parties), You or We may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).
Compliance with this Mandatory Informal Dispute Resolution Process is a condition precedent to initiating arbitration (or, if permitted, a small claims court proceeding). Any applicable limitations period (including statute of limitations) and any filing fee deadlines (other than the filing fees due by a claimant to commence an arbitration matter) shall be tolled while the parties engage in Mandatory Informal Dispute Resolution Process set forth herein. All of the requirements of the Mandatory Informal Dispute Resolution Process are essential so that You and Recart have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Informal Dispute Resolution Process, provided that this shall not excuse a claimant from timely paying filing fees necessary to commence arbitration. If the arbitration is already pending prior to the completion of the Mandatory Informal Dispute Resolution Process, the arbitration shall be administratively closed. A party may seek in arbitration, and an arbitrator or process arbitrator may award, damages for non-compliance with the Mandatory Informal Dispute Resolution Process. You or Recart may commence arbitration if the Dispute is not resolved through this process.
Arbitration Agreement, Class Action & Jury Trial Waiver. RECART AND YOU AGREE THAT ALL DISPUTES, CONTROVERSIES OR CLAIMS WHICH ARISE OUT OF OR RELATE IN ANY WAY TO THE SERVICES, THIS AGREEMENT, OR THE PRIVACY POLICY SHALL BE FINALLY RESOLVED BY BINDING INDIVIDUAL ARBITRATION CONDUCTED BY A SINGLE ARBITRATOR ACCORDING TO THE JAMS STREAMLINED ARBITRATION RULES & PROCEDURES, COMPREHENSIVE ARBITRATION RULES & PROCEDURES, AND/OR JAMS MASS ARBITRATION PROCEDURES AND GUIDELINES, AS APPLICABLE, AS MODIFIED BY THIS AGREEMENT. YOU AGREE THAT YOU ARE WAIVING THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BY JURY. YOU AGREE THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. THE ARBITRATOR WILL HAVE NO AUTHORITY TO AWARD ANY DAMAGES THAT ARE EXCLUDED BY THIS AGREEMENT. ANY AWARD BY THE ARBITRATOR MAY BE ENFORCED IN ANY COURT HAVING JURISDICTION.
UNLESS YOU AND RECART AGREE OTHERWISE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE STATE AND FEDERAL COURTS THAT ENCOMPASS NEW YORK COUNTY, NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY DISPUTES (EXCEPT FOR CLAIMS BROUGHT IN SMALL CLAIMS COURT) THAT ARE NOT SUBJECT TO ARBITRATION, THAT ARE OPTED OUT OF ARBITRATION PURSUANT TO THESE TERMS, OR OVER ANY ACTION THAT SEEKS TO ENFORCE OR CHALLENGE THE ENFORCEABILITY OF THE ARBITRATION AGREEMENT OR ANY PROVISION OF THE ARBITRATION AGREEMENT OR THESE TERMS. YOU AND RECART CONSENT TO THE EXCLUSIVE JURISDICTION OF THESE COURTS AND WAIVE ANY OBJECTIONS AS TO PERSONAL JURISDICTION OR AS TO THE LAYING OF VENUE IN SUCH COURTS BECAUSE OF (1) INCONVENIENT FORUM OR (2) ANY OTHER BASIS OR RIGHT TO SEEK TO TRANSFER OR CHANGE VENUE OF ANY SUCH ACTION TO ANOTHER COURT.
Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration.
Arbitration Procedures. The arbitration shall be administered by JAMS under its applicable rules, including the Streamlined Arbitration Rules & Procedures, Comprehensive Arbitration Rules & Procedures, and/or JAMS Mass Arbitration Procedures and Guidelines, as applicable (the “JAMS Rules”), as modified by this Agreement. The JAMS Rules are available at www.jamsadr.com. The arbitration will be conducted by a single arbitrator, other than potential use of a Process Administrator, who may be appointed in accordance with the JAMS Rules. If JAMS is unavailable or unwilling to administer the arbitration consistent with the JAMS Rules as modified by this Agreement, the parties shall agree on an administrator that will do so. If the parties cannot agree on an administrator, they shall jointly petition a court of competent jurisdiction to appoint an administrator that will administer the arbitration consistent with its rules as modified by this Agreement.
An arbitration demand must be accompanied by a certification of compliance with the Mandatory Informal Dispute Resolution Process and be personally signed by the party initiating the arbitration (and counsel, if represented). By submitting an arbitration demand, the party (and counsel, if represented) represents that, as in federal court, 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. Any Dispute seeking $12,500 or more or injunctive relief shall have an in-person or video hearing if the respondent requests one. You and Recart reserve the right to request a hearing from the arbitrator in any matter where a hearing is not required. You and a Recart representative will personally appear at any hearing (with counsel, if represented). Any in-person hearing will be held in the county in which You reside or at another mutually agreed location. An arbitrator may award, on an individual basis, any relief that would be available in 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. Unless You and Recart 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. An arbitrator must follow and enforce these 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, 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 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 the 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 fully satisfied may not be entered. An award shall have no preclusive effect in any other arbitration or proceeding involving Recart in which You are not the sole named party.
To begin an arbitration proceeding, You must send an arbitration demand that contains the information set forth in the Mandatory Informal Dispute Resolution Process section (required for the notice) along with all information required by JAMS to JAMS with a copy to 251 Little Falls Drive, Wilmington, Delaware, 19808. USA and [email protected]., ****or We must send an arbitration demand to You that contains this same information set forth above to JAMS with a copy to the most current address and/or email address We have on file for You.
Additional Procedures for Mass Arbitration. You and Recart agree that these Additional Procedures for Mass Arbitration (in addition to the other provisions of this Arbitration Agreement) shall apply if You choose to participate in a Mass Arbitration. If 25 or more similar Disputes (including Yours) are asserted against Recart by the same or coordinated counsel (“Mass Arbitration”), You understand and agree that the resolution of Your Dispute might be delayed and ultimately proceed in court. The parties agree that as part of these procedures, their counsel shall meet and confer in good faith in an effort to resolve the Disputes, streamline procedures, address the exchange of information, modify the number of Disputes to be adjudicated, and conserve the parties’ and JAMS’ resources.
If Your claim is part of a Mass Arbitration, any applicable limitations period (including statutes of limitations) shall be tolled for Your Dispute from the time that Your Dispute is first submitted to JAMS until Your Dispute is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this provision.
STAGE ONE: If at least 50 Disputes are submitted as part of the Mass Arbitration, counsel for the claimants and counsel for Recart shall each select 25 Disputes to be filed and to proceed as cases in individual arbitrations as part of this initial staged process. The number of Disputes to be selected to proceed in Stage One can be increased by agreement of counsel for the parties (and if there are fewer than 50 Disputes, all shall proceed individually in Stage One). Each of the 50 (or fewer) cases shall be assigned to a different arbitrator and proceed individually. If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage One. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed or collected in connection with those claims. After this initial set of proceedings, counsel for the parties shall participate in a global mediation session with a retired federal or state court judge jointly selected by counsel in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stage One), and Recart shall pay the mediator’s fee.
STAGE TWO: If the remaining Disputes have not been resolved at the conclusion of Stage One, counsel for the claimants and counsel for Recart shall each select 50 Disputes per side to be filed and to proceed as cases in individual arbitrations as part of a second staged process. The number of Disputes to be selected to proceed as part of this second staged process can be increased or decreased by agreement of counsel for the parties (and if there are fewer than 100 Disputes, all shall proceed individually in Stage Two). No more than five cases may be assigned to a single arbitrator to proceed individually. If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage Two. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed or collected in connection with those claims. After this second set of staged proceedings, the parties shall engage in a global mediation session of all remaining Disputes with a retired federal or state court judge jointly selected by counsel in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stages One and Two), and Recart shall pay the mediator’s fee.
Upon completion of the mediation set forth in Stage Two, each remaining Dispute (if any) that is not settled or not withdrawn shall be opted out of arbitration and may proceed in a court of competent jurisdiction consistent with the remainder of the Terms. Notwithstanding the foregoing, counsel for the parties may mutually agree in writing to proceed with the adjudication of some or all of the remaining Disputes in individual arbitrations consistent with the process set forth in Stage Two (except Disputes shall be randomly selected and mediation shall be elective by agreement of counsel) or through another mutually-agreeable process.
A court of competent jurisdiction shall have the authority to enforce the Additional Procedures for Mass Arbitration, including the power to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees. The Additional Procedures for Mass Arbitration provision and each of its requirements are essential parts of this Arbitration Agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that the Additional Procedures for Mass Arbitration apply to your Dispute and are not enforceable, then your Dispute shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of the Terms.
Costs of Arbitration. Payment of all arbitration fees will be governed by the JAMS Rules. You and Recart agree that the parties have a shared interest in reducing the costs and increasing the efficiencies associated with arbitration. Therefore, You or Recart may elect to engage with JAMS regarding arbitration fees, and You and Recart agree that the parties (and counsel, if represented) will work together in good faith to ensure that arbitration remains cost-effective for all parties.
The Parties shall be responsible for their own attorneys’ fees and costs in arbitration, unless they are authorized by law or the arbitrator determines that a claim or proceeding was frivolous or brought for an improper purpose or in bad faith (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Opt-out. You have the right to opt out of this Arbitration Agreement by sending written notice of Your decision to opt out to the following address: 251 Little Falls Drive, Wilmington, Delaware, 19808, USA postmarked within 30 days of first accepting these Terms. You must include (i) Your name and residence address, (ii) the email address and/or telephone number associated with Your account, and (iii) a clear statement that You want to opt out of the Arbitration Agreement contained in these Terms.
Severability and Survival. Except as specifically provided in the Arbitration Agreement, if any part or parts of this Arbitration Agreement is/are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. If, however, any court or arbitrator determines that the class action waiver is void or unenforceable for any reason or that an arbitration can proceed on a class basis, and all appeals from that decision have been exhausted (or the decision is otherwise final), then the Arbitration Agreement shall be deemed null and void in its entirety. This Arbitration Agreement will survive the termination of Your relationship with Recart.
Future Changes to Arbitration Agreement. If We make any future changes to this arbitration agreement (other than a change to Our contact information), You may reject any such change by sending Your personally signed, written notice to the following address within 30 days of the change:
251 Little Falls Drive, Wilmington, Delaware, 19808, USA.
Rejection of any future change to the arbitration agreement does not constitute an opt out of arbitration altogether. You must have complied with the opt-out provision defined above. 9. CHANGES & AMENDMENTS 1. Notwithstanding anything to the contrary contained in this Agreement, Recart may, from time to time and at its sole discretion, update these Terms with or without notice to You. You are encouraged to review Our site, Our Terms, and any notifications, messages and communications from Us to ensure You are abreast of any changes as they are made. By continuing to use the Services, including the Network, You consent to and accept any changes. If You don’t agree to be bound by the updated Terms, then You may not use the Services anymore. As Our Services are evolving over time, We may change or discontinue all or any part of the Services, at any time and without notice, at Our sole discretion. 10. GENERAL PROVISIONS. 1. This Agreement represents the entire agreement between Recart and You with respect to Your access to and use of the Service. 2. If either party waives or modifies any term or condition of this Agreement, that will not void, waive or change any other term or condition. If either party waives a default by the other party, that does not mean that either party will waive future or other defaults. 3. You may not assign or otherwise transfer this Agreement or any rights granted under it without the prior written consent of Recart, which consent may be withheld at Recart’s sole discretion, and any purported assignment without Recart’s prior written consent shall be void. 4. If any part of this Agreement, for any reason, is declared to be invalid, it shall be reformed to the minimum extent necessary in order for such part to remain in effect and be enforceable in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect. 5. These Terms are governed by the laws of the State of New York, exclusive of conflict of laws principles and/or choice of law rules.