IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED BELOW. PLEASE READ CAREFULLY.
Software Advice, Inc., a subsidiary of Gartner Inc., (“Software Advice,” “we,” “us,” or “our”) provides these SMS Terms and Conditions (the “SMS Terms”), which govern the provision and delivery of text messages by us or our text message service providers to you (the “Software Advice Alerts”). Software Advice provides this text message service to (1) provide you with information you requested from us and/or (2) notify you of special offers, sales, and events that may interest you.
By agreeing to receive Software Advice Alerts, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by sending an email to GDMPrivacy@gartner.com with “Revoke Electronic Consent” in the subject line. To view and retain a copy of this disclosure or any information regarding your enrollment in this program, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, send an email to GDMPrivacy@gartner.com with contact information and the address for delivery.
Signing Up for Software Advice Alerts:
Costs of Signing Up for Software Advice Alerts:
Software Advice does not charge you for its text message program. But message and data rates may apply, so depending on your plan with your wireless or other applicable provider, you may be charged by your carrier or other applicable provider.
Frequency of Text Messages:
We may send you an initial message confirming that we have received your opt-in. After that, the specific amount of text messages may vary depending on how you use our services and whether you take steps to generate additional text messages from us (such as by sending a HELP request).
Content is not available on all carriers and carrier participation could change. As of October 2019, our text messages can be sent through the following carriers: Verizon, AT&T, T-Mobile, and Sprint. The content is not compatible with all mobile device models. The list of participating carriers may be changed at Software Advice’s sole discretion without prior notice. Software Advice will not be liable for any delays in the receipt of any text messages or changes to the participating carriers as delivery is subject to effective transmission from your carrier with active participation at that time. The mobile carriers are not liable for delayed or undelivered messages.
By signing up to receive Software Advice Alerts, you represent that you are 13 years of age or older and understand the obligations and agree to the terms set forth in these SMS Terms, which forms a binding agreement between you and us. You further represent that you are the subscriber of the cellular service at the mobile number provided. In the event that you change or deactivate the mobile number you enrolled in Software Advice Alerts, you agree you will promptly notify Software Advice at GDMPrivacy@gartner.com to have your number removed.
Opting Out of Software Advice Alerts:
If you no longer want to receive Software Advice Alerts, your only options are to reply with STOP to any text message from Software Advice. After unsubscribing, we may send you confirmation of your opt-out via text message. If you have revoked consent and want to re-enroll in our text message program, you can resume your enrollment by entering your information on one of websites, in a mobile location or in any other location where we request your phone number.
Modifications to these Software Advice SMS Terms:
We reserve the right to modify these SMS Terms, or any part thereof, or add or remove terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Your continued enrollment in Software Advice Alerts shall be deemed to constitute acceptance by you of such modifications, additions or deletions.
Arbitration and Class Action Waiver:
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Software Advice agree that these SMS Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Arbitration and Class Action Waiver section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these SMS Terms or any prior agreement (including, but not limited to, claims Software Advice to advertising or your receipt of any text messages from us or our services providers); and claims that may arise after the termination of these SMS Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these SMS Terms, you agree to resolve any and all disputes with Software Advice as follows:
Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You can reach Software Advice at GDMPrivacy@gartner.com. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Software Advice, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Software Advice will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Software Advice will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of New York, United States of America. You and Software Advice further agree to submit to the personal jurisdiction of any federal or state court in New York, New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND SOFTWARE ADVICE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending emailing written notice of your decision to opt out to GDMPrivacy@gartner.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” Please include in your email the phone number you submitted to us to enroll in Software Advice Alerts. The notice must be sent within thirty (30) days of your enrollment in Software Advice Alerts; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Software Advice also will not be bound by them.
Changes to This Section: Software Advice will provide thirty (30) days’ notice of any changes affecting the substance of this Arbitration and Class Action section by posting on our website, sending you a message, or otherwise notifying you. Amendments will become effective thirty (30) days after they are posted on the website or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you enrolled in Software Advice Alerts.
Survival: This Arbitration and Class Action Waiver section shall survive any termination of these SMS Terms, the Software Advice Alerts, or your enrollment in Software Advice Alerts.
For more information, please email us at GDMPrivacy@gartner.com, visit softwareadvice.com or text HELP in response to one of our text messages.