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 Advance Drainage Systems Text Message Order Alerts - Terms and Conditions

 

Program Overview:

 

(1) General Program Terms

A. By signing up for the Advance Drainage Systems, Inc. (“ADS” “us” “we” or “us”) Text Message Order Alerts Program (“Program”), you: 1) agree to these terms and conditions (“Program Terms”) (which include mandatory arbitration of disputes and class action waiver, as well as limitations on your rights and remedies and of our liability), 2) consent to our practices described herein and in our Privacy Policy and 3) authorize ADS to deliver, to the designated mobile phone number, informational text messages including via an autodialer (i.e., automated dialing technology). 

B. As part of the Program, you will receive text message alerts from ADS regarding your order(s), including, but not limited to, order status updates, information or action needed in relation to your order, and delivery notifications.

C. You can unsubscribe from the Program by texting “STOP” as a reply to a Program text you receive.  You can also unsubscribe through your account at https://mypreferences.adspipe.com, if you have one, or by emailing us at privacy@ads-pipe.com.  You hereby consent to receive a text message confirming that you have unsubscribed, as well as other non-promotional text messages (such as when you text the short code to join, or send us a HELP text or any unrecognized message and when we send you administrative messages such as if we change the short code).  You understand that unsubscribing to the Program will not terminate your consent to receive other text alerts that you have signed up for, or apply to other communications from us (such as emails). 

D. You agree to promptly notify us if your phone number changes or you do not continue to own and control the device assigned by your carrier to the number you provided us by contacting us at 1-800-821-6710 or by changing your phone number within your account. 

E. The Program may not be available in all areas.  Message and data rates may apply and your carrier may charge you or deduct usage credit from your account when you text us or we text you. The Program may not be supported by all carriers and all devices.  Check with your carrier for details. You represent and warrant that you are the age of majority where you reside (18 in most states) and are a U.S. resident using a U.S. mobile number to subscribe. Carriers are not liable for delayed or undelivered messages.

(2) Limitations of our Liability

A. AS PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ADS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE PROGRAM SHALL BE RESPONSIBLE TO YOU OR ANY THIRD PARTIES FOR ANY DIRECT OR INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGE OR LOSS INCURRED IN CONNECTION WITH USE OF, OR INABILITY TO USE, ANY OF THE PROGRAM, OR ANY OF THE MATERIALS PROVIDED BY ADS OR THIRD PARTIES THROUGH ANY OF THE PROGRAM, OR ANY DAMAGE OR LOSS INTERRUPTION OF USE, DELETIONS OF FILES, ERRORS OR DEFECTS IN THE USERS SYSTEM, REGARDLESS OF THE CLAIM AS TO THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES.

B. The foregoing limitations of liability will apply even if any of the events or circumstances were foreseeable and even if ADS were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Program). 

C. AS PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ADS’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE PROGRAM AND YOUR RIGHTS UNDER THESE TERMS, EXCEED ONE HUNDRED DOLLARS ($100). 

(3) Dispute Terms: MANDATORY ARBITRATION; WAIVER OF CLASS ACTION CLAIMS; AND JUR WAIVER

READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE SUIT IN COURT.

A. Generally

You and we (referred to individually as “party” and collectively as “parties”), each agree that any and all controversies, disputes, allegations, or claims at law or equity that have arisen or may arise between you and us relating in any way to or arising out of this or previous versions of these Terms (“Dispute”), SHALL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, rather than through other legal proceedings in court, and governed by the laws of the State of Ohio as set forth in this Section 3 (this “Arbitration Agreement”). You and ADS agree that we intend that this Section 3 satisfies the “writing” requirement of the Federal Arbitration Act. Arbitration is more informal than a lawsuit filed in court. It uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to limited review by courts. You and we agree that we intend for this Arbitration Agreement to satisfy the writing requirement of the Federal Arbitration Act, 9 U.S.C. §1, et seq.

B. Informal Dispute Resolution First

(i) You and we agree that, prior to initiating an arbitration or other legal proceeding, you and we will attempt to negotiate an informal resolution of the Dispute. To begin this process, and before initiating any arbitration or legal proceeding against us, you must send a Notice of Dispute (“Notice”) by certified mail to the attention of our General Counsel at 4640 Trueman Boulevard, Hilliard, Ohio 43026.

(ii) Your Notice to us must contain all of the following information: (1) your full name, address, and the email address and phone number associated with your use of the Program or that you have otherwise used to transact with us; (2) a detailed description of the nature and basis of the Dispute; (3) a description of the relief you want, including any money damages you request; and (4) your signature verifying the accuracy of the Notice and, if you are represented by counsel, authorizing us to disclose information about you to your attorney.

(iii) After receipt of your Notice, you and we shall engage in a good-faith effort to resolve the dispute for a period of 60 days, which both sides may extend by written agreement (“Informal Dispute Resolution Period”). During the Informal Dispute Resolution Period, neither you nor we may initiate an arbitration or other legal proceeding.

(iv) If the Dispute is not resolved during the Informal Dispute Resolution Period, you may initiate an individual arbitration as provided below.

C. Mandatory Arbitration

(i) Arbitration Procedures. The assigned independent arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, any part thereof, including, but not limited to, any claim that all or any part of these Terms are void or voidable.

(ii) Conducting Arbitration and Arbitration Rules. Unless you give us notice of opt-out within five (5) business days of your first use of the Program which is addressed to 4640 Trueman Boulevard, Hilliard, Ohio 43026, Attention: General Counsel, all actions or proceedings arising in connection with, touching upon or relating to any Dispute, or the scope of the provisions of this Arbitration Agreement, shall be submitted to JAMS (www.jamsadr.com) for final and binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less, to be held in  Franklin County, Ohio before a single arbitrator. If the matter in dispute is between ADS and a consumer, the matter shall be submitted to JAMS in accordance with its Policy on Consumer Arbitration Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by JAMS.  We may have the right to pay the JAMS fees if required for arbitration to be enforceable. If you are a consumer you have the right to an in-person hearing.  The arbitration shall be a confidential proceeding, closed to the general public; provided, however, that a party may disclose information relating to professional advisers. The fact that there is a dispute between the parties that is the subject of arbitration shall be confidential to the same extent. The parties may engage in the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based, the arbitrator shall not have the power to award punitive and consequential damages.  Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief (subject to the provisions of these Terms waiving or limiting that relief) in the United States District Court for the Southern District of Ohio and/or the appropriate state court with jurisdiction over Franklin County, Ohio, if sought by ADS, such other court that may have jurisdiction over you, without thereby waiving its right to arbitration of the Dispute under this Section; provided further, however, that the losing party shall have fifteen (15) business days after the issuance of the arbitrator’s decision to fully comply with such decision, after which the prevailing party may enforce such decision by a petition to the United States District Court for the Southern District of Ohio and/or the appropriate state court with jurisdiction over Franklin County, Ohio or, in the case of you, such other court having jurisdiction over you, which may be made ex parte, for confirmation and enforcement of the award.

(iii) An arbitration demand filed with JAMS must include a certification signed by the filing party verifying compliance with the Initial Dispute Resolution requirements and other requirements set out in this Arbitration Agreement.

(iv) If JAMS fails or declines to conduct the arbitration for any reason, you and we will mutually select a different arbitration administrator. If we cannot agree, a court will appoint the arbitration administrator.

D. Additional Procedures for Multiple Case Filings

(i) Multiple Case Filings. You and we agree that these “Additional Procedures for Multiple Case Filings” in this Section shall also apply if you or we are subject to twenty-five (25) or more individual arbitration demands of a substantially similar nature with the assistance of either the same law firm or law firms acting in coordination (“Multiple Case Filing”). For the avoidance of doubt, this includes where you choose to participate in a Multiple Case Filing against us; for example, where your counsel asserts your Dispute against us in a Multiple Case Filing. Please be aware that if you do so, the resolution of your Dispute might be delayed and ultimately proceed in court. You and we agree that as part of these procedures, the parties’ 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 the arbitrator’s resources. The limitations period(s) applicable to each arbitration demand within a Multiple Case Filing, including any applicable statutes of limitations and the requirement to file within one (1) year, shall remain tolled from the time a party makes a pre-arbitration demand to the time when that party files the arbitration demand with the arbitration provider.

(ii) STAGE ONE: If at least twenty-five (25) disputes are submitted as part of the Multiple Case Filing, you and we shall select sixteen (16) Disputes (eight (8) per side) to proceed as cases in individual arbitrations (“Bellwether 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). While the Bellwether Arbitrations are adjudicated, no other demand for arbitration that is part of the Multiple Case Filing may be processed, administrated, or adjudicated, and no filing or other administrative costs for such a demand for arbitration shall be due from either party to the arbitration provider. If, contrary to this provision, a party prematurely files non-Bellwether Arbitrations with the arbitration provider, the parties agree that the arbitration provider shall hold those demands in abeyance. Following resolution of the Bellwether Arbitrations, the parties shall participate in a global mediation of all the remaining demands from the Multiple Case Filings, with a mediator jointly selected by counsel of the parties in an effort to resolve the remaining Disputes that are a part of the Multiple Case Filing.

(iii) STAGE TWO: If the remaining Disputes from the Multiple Case Filings have not been resolved at the conclusion of Stage One, you and we shall select fifty (50) Disputes (twenty-five (25) per side) to proceed as cases in individual arbitrations as Bellwether Arbitrations as part of Stage Two. The number of Disputes to be selected to proceed as part of Stage Two can be increased by agreement of counsel for the parties (and if there are fewer than 50 Disputes, all shall proceed individually in 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 from the Multiple Case Filing with a retired mediator jointly selected by counsel in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stages One and Two). Upon the 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 these 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 Multiple Case Filings, including the power to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees. The Additional Procedures for Multiple Case Filings provision and each of its requirements are essential parts of this Arbitration Agreement. If, after exhaustion of all appeals, either an arbitrator or a court of competent jurisdiction decides that the Additional Procedures for Multiple Case Filings apply to your dispute and are not enforceable, then, notwithstanding this Section 3, your Dispute shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of the Terms.

(iv) Timing of Bellwether Arbitrations. The parties shall work in good faith with the arbitrator to complete each Bellwether Arbitration (in each respective stage, i.e., Stage One, Stage Two, and, if agreed, subsequent stages) within one hundred and twenty (120) calendar days of its initial pre-hearing conference. The parties agree that the Bellwether Arbitration process is designed to achieve an overall faster, more efficient, and less costly mechanism for resolving Multiple Case Filings, including the claims of individuals who are not selected for a Bellwether Arbitration.

E. Costs of Arbitration

Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. For claims under $10,000, we will reimburse you for all arbitration fees, including the initial filing fee, if you are deemed the prevailing party by the arbitrator. For the global mediations to resolve Multiple Case Filings (if any) that take place according to this Section, we will pay the mediator’s fee.

F. Exceptions to Arbitration

This Arbitration Agreement shall not require arbitration of the following types of claims brought by either you or we: (i) small claims court actions, if the requirements of the court are met and the claims are only on an individual basis; and (ii) claims pertaining to intellectual property rights, including trademarks, trade dress, domain names, trade secrets, copyrights and patents.

G. Class Action Waiver

As permitted by applicable law, both you and ADS waive the right to bring any Dispute as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any Dispute brought by anyone else. Notwithstanding any provision in the JAMS Comprehensive Arbitration Rules and Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the Disputes of different persons into one proceeding. Notwithstanding the arbitration provision set forth above, if the provision regarding waiver of class, collective, representative, and private attorney general claims of this Arbitration Agreement is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding, and not in arbitration.

H. Jury Waiver

AS PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.

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