S’well Messaging Terms & Conditions
You agree to receive recurring automated marketing and informational text (e.g., SMS and MMS) messages from S’well, including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. Consent to receive automated marketing text messages is not a condition of any purchase. Msg & Data rates may apply.
Message frequency will vary. S’well reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. S’well also reserves the right to change the short code or phone number from which messages are sent.
Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. S’well, its service providers and the mobile carriers supported by the program are not liable for delayed or undelivered messages.
Text the keyword STOP to 24321 to cancel. After texting STOP to 24321 you will receive one additional message confirming that your request has been processed. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP keyword command and agree that S’well and its service providers will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from S’well through any other programs you have joined until you separately unsubscribe from those programs.
Mobile Phone Number Change
In the event that you change or deactivate your mobile phone number, you agree to notify S’well by emailing email@example.com.
If you are experiencing any problems, please reply “HELP” to any Text Message you receive from us or email firstname.lastname@example.org with details about your problem or your request for support.
This message program is a service of S’well, located at Can't Live Without It, LLC, 90 Fifth Avenue 8th Floor, New York, New York 10011.
1. General. In the interest of resolving disputes between you and S’well in the most expedient and cost effective manner, you and S’well agree that any dispute arising out of or in any way related to these messaging terms and conditions ("Messaging Terms") or your receipt of text messages from S’well or its third-party service providers will be resolved by binding arbitration. Arbitration is an alternative to a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in a court proceeding, and may be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Messaging Terms, or your receipt of text messages from S’well or its service providers whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of when a claim arises. YOU UNDERSTAND AND AGREE THAT, BY AGREEING TO THESE MESSAGING TERMS, YOU AND S’well ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THESE MESSAGING TERMS SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
2. Exceptions. Notwithstanding subsection (a) above, nothing in these Messaging Terms will be deemed to waive, preclude, or otherwise limit the right of you or S’well to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) file suit in a court of law to address an intellectual property infringement claim.
3. Arbitrator. Any arbitration between you and S’well will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Messaging Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting S’well. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
4. Notice; Process. If you or S’well intends to seek arbitration, then the party seeking arbitration must first send a written notice of the dispute to the other party by U.S. Mail ("Notice"). S’well’s address for Notice is: Can't Live Without It, LLC, 90 Fifth Avenue, 8th Floor , New York, New York 10011, Attn: Legal Department. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). You and S’well will make good faith efforts to resolve the claim directly, but if you and S’well do not reach an agreement to do so within 30 days after the Notice is received, you or S’well may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or S’well must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. (e) Fees. If you commence arbitration in accordance with these Messaging Terms, S’well will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. If the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse S’well for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award are based, if any. You and S’well agree that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from you or S’well made within 14 days of the arbitrator's ruling on the merits.
5. No Class Actions. YOU AND S’well AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and S’well agree otherwise in a signed writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
6. Modifications to this Arbitration Provision. Notwithstanding anything to the contrary in these Messaging Terms, if S’well makes any future change to this arbitration provision, other than a change to S’well’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to S’well ‘s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and S’well.
7. Enforceability. If an arbitrator decides that applicable law precludes enforcement of any of the limitations of subsection (f) above (addressing class, representative and consolidated proceedings) as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in court. If any other provision of these Messaging Terms is found to be unenforceable, the applicable provision shall be deemed stricken and the remainder of these Messaging Terms shall remain in full force and effect.
Changes to Messaging Terms
S’well reserves the right to terminate or revise our messaging program at any time. S’well also reserves the right to modify, or amend these Messaging Terms at any time and any such modification or amendment shall take effect when it is posted to S’well’s website. You agree to review these Messaging Terms periodically to ensure that you are aware of any changes. Your continued enrollment following such changes shall constitute your acceptance of such changes.