Last Updated: December 12, 2024

Thank you for your interest in Rocasuba, Inc., and our affiliates, subsidiaries, and operating companies, including the award-winning RapidLash® Eyelash Enhancing Serum (each referred to as the “Company”, “we”, or “us”). Company offers mobile messaging programs (each a “Program”), which you agree to use and participate in subject to these Mobile Messaging Program Terms and Conditions (the “Agreement”). By opting into or participating in any of our Programs, you accept and agree to the terms and conditions set forth in this Agreement. For purposes of this Agreement, you and Company may each be referred to individually as a “party” or collectively as the “parties.”

PLEASE NOTE: THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE WITH A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS. THE ARBITRATION PROVISION AFFECTS HOW DISPUTES WITH Company ARE RESOLVED. YOU AGREE TO BE BOUND BY THIS 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.

1. User Opt In: The Program allows you to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you (i) agree to receive from us (or our service providers acting on our behalf) autodialed or prerecorded marketing SMS/MMS mobile messages at the phone number you provided when you opted into the Program, and (ii) understand that consent is not required to make any purchase from us. While you consent to receive SMS/MMS mobile messages that we (or our service providers) send or transmit using an autodialer, an automatic telephone dialing system, or any similar automated system, the foregoing shall not be interpreted to suggest or imply that any or all of our SMS/MMS mobile messages are in fact sent or transmitted via an autodialer, an automatic telephone dialing system, or any similar automated system. Message and data rates may apply.

2. User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any SMS/MMS mobile messages from us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out of the Program. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out of a Program. If you opt out from one of our Programs, you will remain opted into other Programs (if applicable), unless you opt out of those individual Programs separately.

3. Duty to Notify and Indemnify: If at any time you stop using, whether voluntarily or involuntarily, the mobile telephone number that has been used to subscribe to the Program (e.g., canceling your mobile/wireless service plan, having your mobile/wireless service plan terminated, or selling or transferring the mobile phone number to another party), you agree (i) that you will complete the User Opt Out process set forth above (Section 2) prior to the ending or termination of your use of the mobile telephone number, and (ii) that failure to undertake the foregoing User Opt Out process set forth above (Section 2) is a material breach of this Agreement. You further acknowledge and agree that, if you discontinue the use of your mobile telephone number without notifying us of such change in accordance with this Agreement, you will fully, completely, and without limitation indemnify, defend, and hold harmless Company and our affiliates, subsidiaries, agents, and any party that assists in the delivery of the SMS/MMS mobile messages, and YOU WILL be responsible for all costs (including attorneys’ fees) and liabilities incurred by ANY OF THOSE ENTITIES as a result of ANY claim brought by ANY individual who IS later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs. FOR THE AVOIDANCE OF DOUBT, YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD Company and our affiliates, subsidiaries, agents, and any party that assists in the delivery of the SMS/MMS mobile messages HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

4. Program Description: Without limiting the scope of the Program, if you opt into a Program, you can expect to receive messages concerning promotions, marketing, sales, reminders (including shopping-cart reminders) with respect to concerts and similar events, and other programs, merchandise, products, and services associated with Company, and delivery status, informational messages, or similar updates concerning of any of the foregoing.

5. Cost and Frequency: Message and data rates may apply. The Program involves recurring SMS/MMS mobile messages, and additional SMS/MMS mobile messages may be sent periodically based on your interaction with us.

6. Support Instructions: For support regarding the Program, text “HELP” to the number you received in our SMS/MMS mobile messages or send us written notice by mail to Rocasuba, Inc., ATTN: Legal Department, 168 Industrial Drive, Building 1, Mashpee, MA 02649 U.S.A. Please note (i) that the use of this email and/or mailing address is not an acceptable method of opting out of a Program, and (ii) that Program opt-out requests must be in accordance with the User Opt Out process set forth above (Section 2).

7. MMS Disclosure: The Program may send terminating messages if your mobile device does not support our SMS/MMS mobile message delivery systems.

8. Privacy Policy. You hereby agree that Company will collect, process, and retain your personal information provided to us in connection with a Program in accordance with our website Privacy Policy, which may be amended from time to time.

9. Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available in all areas at all times and may cease to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any SMS/MMS mobile messages connected with a Program. The delivery of SMS/MMS mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of our control. We are not liable for delayed or undelivered SMS/MMS mobile messages.

10. Participant Requirements: In order to participate in a Program, you must agree to, and comply with, this Agreement, and you must (i) have a wireless device of your own capable of two-way messaging, (ii) be using a participating wireless carrier, and (iii) be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

11. Age Restriction: You may not participate in the Program if you are under sixteen (16) years of age. If you want to participate in the Program and are between sixteen (16) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By participating in the Program, you also acknowledge and agree that you are permitted by your jurisdiction’s applicable laws and regulations to participate in the Program.

12. Waiver of Class Action; Arbitration Agreement

    • YOU AGREE (I) THAT BY ENTERING INTO THIS AGREEMENT, IN PARTICULAR THE AGREEMENT TO ARBITRATE, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND (II) THAT YOU MAY BRING CLAIMS AGAINST COMPANY ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION OR OTHER ACTION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.

    • COMPANY AND YOU EACH AGREE THAT ANY DISPUTES ARISING FROM YOUR PARTICIPATION IN A PROGRAM, FROM YOUR RECEIPT OF OUR OR OUR SERVICE PROVIDERS’ SMS/MMS mobile messages, or FROM this Agreement (INCLUDING OUR PRIVACY POLICY), INCLUDING DISPUTES ARISING FROM OR CONCERNING THE AGREEMENT’S INTERPRETATION, VIOLATION, INVALIDITY, NON-PERFORMANCE, OR TERMINATION, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) APPLYING CALIFORNIA LAW, WITHOUT REGARD TO ITS CONFLICT-OF-LAWS RULES.

    • Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five (5) years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal, except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration. The parties agree that the arbitrator shall not have the authority to award attorneys’ fees, unless otherwise expressly authorized by statute or contract (including this Agreement). The arbitrator shall have no authority to award punitive damages, and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. For the avoidance of doubt, this section shall be construed as a written agreement to arbitrate a dispute of any kind between you and Company that may arise through your participation in the Program or your receipt of an SMS/MMS mobile messages from us or our service providers, and you hereby agree with us that this paragraph satisfies any writing or consent requirement of the FAA.

    • Any and all arbitration proceedings and hearings shall be conducted in Ventura County, California. Except as required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If for any reason a dispute proceeds in a federal or state court rather than in arbitration, the parties hereby waive any right to a jury trial and acknowledge and agree that all such proceedings shall be conducted in the federal or state courts located in Ventura County, California. This arbitration provision shall survive any cancellation or termination of the Agreement.

13. Miscellaneous: You warrant and represent to us that you have all necessary rights, power, and authority to agree to this Agreement and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time; any updates to this Agreement shall be communicated to you (which may include posting updated terms on Company’s website); and you acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.