Text-to-buy services powered by Wizard

TERMS OF USE

WELCOME TO WIZARD!

Please read these Terms of Use ( www.wizard.com/privacy-tos ) and our Privacy Policy ( www.wizard.com/privacy-policy ) ("Privacy Policy") carefully because they govern your use of the website located at www.wizard.com (the "Site") and use of our text messaging platform for inbound orders, transaction facilitation and outbound marketing campaigns (the "Text Messaging Platform") accessible via the Site and corresponding mobile application ("App") offered by Wizard, Inc. ("Wizard," "we," " us," "our"). To make these Terms of Use easier to read, the Site, Text Messaging Platform and App and services offered under each solution, including, without limitation, any updates, modifications or new features thereto, are collectively called the "Services." By using the Services or accessing the Site, you accept and agree to be bound and abide by these Terms of Use. With respect to the Text Messaging Platform, the services thereunder will be made available to you only after you click to accept or agree to the Terms of Use as well. We reserve the right, at our sole discretion, to change or modify portions of these Terms of Use at any time. If we do this, we will post the change(s) on this page and will indicate at the top of this page the date these terms were last revised. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately, in each case applying to all access to and use of the Services thereafter. Notwithstanding the foregoing, any changes to the dispute resolution provisions will not apply to any disputes for which the parties have actual notice before the date the change is posted on the Site. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Use, and you are expected to check this page each time you access this Site so you are aware of any changes, as they are binding on you.
In addition, when using certain services, you will be subject to any additional terms applicable to such services that may be posted on the Service from time to time, including, without limitation, the Privacy Policy located at www.wizard.com/privacy-policy All such terms are hereby incorporated by reference into these Terms of Use.
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS OF USE YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND WIZARD THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 12 "ARBITRATION AGREEMENT" BELOW FOR DETAILS REGARDING ARBITRATION.

1. ACCESS AND USE OF THE SERVICE

(a) Services and Membership Description: The Service is designed to enable conversational and social commerce via messaging platforms and mobile devices with photo orders submitted via one text message on messaging platforms, text orders submitted via mobile telecommunications networks, and/or via one tag on social platforms (e.g. tag@Wizard in a comment on Instagram). Once you create an account via our Site, you become a "Member." By becoming a Member, you agree to and specifically consent to the SMS Terms and Conditions at www.wizard.com/privacy-tos.html to receive text messages from Wizard. Wizard will contact you via text to provide the full spectrum of the social commerce Service experience, including but not limited to texts that communicate the product results, pricing estimates, product links, order confirmations, shipping confirmations, return information, cart reminders, trend alerts, birthday offers, holiday specials, Service reminders, policy updates, and other texts generated by Wizard related to the Service and the offering of the Service. For more details about the Service, please see www.wizard.com Wizard informs our business partners that they may not send marketing texts to you without having first obtained the express consent from you. There are no long-term ordering commitments. There are no fees for becoming a Member or maintaining your membership. You may cancel your membership at any time by contacting customer support at info@wizard.com. Wizard reserves the rights to terminate your membership, to refuse any and all current or future use of the Site or the Service, and not to do business with any Member or anyone else, each as Wizard deems appropriate in its sole discretion for any reason.

(b) Your Registration Obligations: You may be required to register with Wizard in order to access and use certain features of the Service. If you choose to register for the Service, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Services registration form. Registration data and certain other information about you are governed by our Privacy Policy.

(c) Age Policy: If you are under 18 years of age, you are not authorized to use the Service, with or without registering.

(d) U.S. Resident: You may only use the Text Messaging Platform as a resident of the United States located in the United States. The Text Messaging Platform is hosted and operated in the United States pursuant to United States law. By providing personal information through the use of the Text Messaging Platform, you understand and consent to the collection, maintenance, processing and transfer of such information in and to the United States.

(e) Registered Account, Password and Security: You are responsible for maintaining the confidentiality of your account, including without limitation, your password, user name, and other security information, if any, and are fully responsible for any and all activities that occur under your account. You agree to (a) immediately notify Wizard of any unauthorized use of your account, password, user name or security information or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Wizard will not be liable for any loss or damage arising from your failure to comply with this Section. You should use particular caution when accessing your account form a public or shared computer so that others are not able to view or record your password or other personal information.

(f) Modifications to Service: Wizard reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Wizard will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. In addition, we will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period.

(g) General Practices Regarding Use and Storage: You acknowledge that Wizard may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Wizards servers on your behalf. You agree that Wizard has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Wizard reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Wizard reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

(h) Mobile Services: The Text Messaging Platform includes certain services that are available via a mobile device, including without limitation, receiving text messages from Wizard, sending text messages to Wizard, and the ability to browse the Service and the Site from a mobile device (collectively, the "Mobile Services"). To the extent you access the Service through a mobile device, your wireless service carriers standard charges, message and data rates, text rates, and other fees may apply. In addition, accessing or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.

2. CONDITIONS OF USE

(a) User Conduct: You are solely responsible for all photographs, video, images, information, data, text, software, music, sound, graphics, messages or other materials ("content") that you upload, post, publish or display (hereinafter, "upload") or email or otherwise use via the Service. Below are examples of the kind of content and/or use that is illegal or prohibited by Wizard. Wizard is not obligated to monitor access to or use of the Services or to review or edit any content. However, Wizard reserves the right to investigate and take appropriate legal action against anyone who, in Wizards sole discretion, violates this provision, with or without notice, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

(b) General Prohibitions: You agree to not use the Service to:

(c) Permissions to Content: By uploading content you hereby grant to Wizard a perpetual, non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your content in connection with operating and providing the Services.

(d) Removal of User Content: You can remove your content by specifically deleting it. You should know that in certain instances, some of your content (such as posts or comments you make) may not be completely removed and copies of your content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your content.

(e) DMCA/Copyright Policy: Wizard respects copyright law and expects its users to do the same. It is Wizard's policy to terminate in appropriate circumstances account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.

3. TERMS OF SALE AND ORDERS

(a) To become a Member, you will be required to provide Wizard with information regarding your credit card or other payment instrument. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for any purchases made through the Service, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.

As part of the Services, we will text you the pricing, as well as taxes and shipping costs, of the item(s) for which you requested information, and your text reply of "Yes," "Y," or a similar affirmative response is an acceptance of the order, and thereby authorizes Wizard to charge your payment instrument for the full price of the item(s), applicable taxes, and shipping charges to the shipping address we have on file for you. If there are multiple shipping options, we will text you that information as well, and you will be required to choose your desired option when you respond. You agree to pay Wizard for items ordered through Wizard and charges incurred in accordance with these Terms of Use. If you dispute any charges you must let Wizard know within ten (10) days after the date that Wizard bills you. We reserve the right to institute fees for any portion of the Service, but if we do, we will provide advance notice of the change. Your continued use of the Service after the fee change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes and shipping costs associated with items ordered via the Service.

(b) Return Policy; Shipping: We will notify you prior to your order of any items which are non-returnable or are marked as final sales. If returns are available from the particular vendor, you may return any item you receive through the Service in accordance with the instructions detailed by the particular vendor from whom you purchased the item(s), if any. Such instructions are typically found on the receipt in the box or on the vendors website. Items must be returned in their original unworn condition and include all original tags and packaging. Members should use pre-paid shipping labels when provided or, in situations where there is no pre-paid shipping label, members will need to coordinate and pay for return shipping. Typically, original shipping and handling costs are not refundable and returns must be made within a certain number of days from shipment or delivery. If you have any questions regarding returns, please email us for help at info@wizard.com. However, Wizard is not responsible for returns and has no control over the vendors return policies. All items you receive through the Service will be shipped directly from the vendor to you by a third-party carrier, and all title and risk of loss pass to you upon such vendors transfer of the products to the third-party carrier. We are not responsible for any delays, loss or damage in packing or shipping.

(c) Special Notice for International Use: Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including without limitation, as it concerns online conduct and acceptable content.

(d) Commercial Use: You agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, upload or use for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use only.

4. TRANSACTIONS INVOLVING ALOCHOL

You may have the option to order delivery of alcohol products in some locations and from certain retailers. You agree that you will comply with all applicable laws and not cause Wizard or any retailer to contravene or violate any (i) applicable laws, including without limitation, alcoholic beverage laws, or (ii) industry specific laws and self-regulatory industry regulations, including without limitation, involving the sale of alcoholic products (e.g., the DISCUS code). You represent and warrant that you are of legal drinking age for purchasing, possessing, and consuming alcohol (i.e., 21 years of age or older in the United States, 18 years of age or older in Alberta, Manitoba, and Quebec, and 19 years of age or older in all other Canadian provinces or territories). If you order alcohol products, you understand and acknowledge that Wizard cannot accept your order of alcohol products, and the order will only be delivered if the retailer accepts your order. You agree that, upon delivery of alcohol products, the recipient will provide valid government-issued identification proving their age to person delivering the alcohol products, that the recipient will not be intoxicated when receiving delivery of such products, and that alcohol has not been purchased with the intent to resell the alcohol or provide the alcohol to someone who is not of legal drinking age. It is the responsibility of the retailer and any delivery provider they use to verify identification and age, and to determine whether it is otherwise safe and appropriate to furnish you with alcohol. You agree that if any applicable legal requirements for the delivery of alcohol are not met, Wizard reserves the right to cancel the alcohol-related portion of your order.

Customers who purchase alcohol through the Wizard platform for delivery within the State of Hawaii acknowledge that IT IS ILLEGAL: (1) FOR A PERSON UNDER 21 YEARS OLD TO PURCHASE OR CONSUME LIQUOR, (2) TO USE FALSE IDENTIFICATION TO OBTAIN LIQUOR, (3) TO USE ANOTHER PERSONS IDENTIFICATION TO OBTAIN LIQUOR, OR (4) TO PURCHASE LIQUOR FOR A PERSON UNDER 21 YEARS OLD. (Sections 281-78 & 101.5, Hawaii Revised Statutes).

5. INTELLECTUAL PROPERTY RIGHTS

(a) Service Content: You acknowledge and agree that the Services and its entire contents, functionality (including but not limited to, all information, technology, software, source code, text, displays, images, video and audio, and the design, selection and arrangement thereof) ("Service Content"), are owned by Wizard, its licensors, or other providers of such material, and are protected by copyright, patent, trademark, trade secret and other proprietary rights and laws. Except as expressly authorized in writing by Wizard in each instance, you agree not to:

Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. Any rights not expressly granted herein are reserved by Wizard.

(b) Trademarks: The Wizard name and logos are trademarks and service marks of Wizard (collectively the "Wizard Trademarks"). Other Wizard, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Wizard. Nothing in this Terms of Use or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Wizard Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Wizard Trademarks will inure to our exclusive benefit.

(c) Third Party Material: Under no circumstances will Wizard be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Wizard does not pre-screen content, but that Wizard and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Wizard and its designees will have the right to remove any content that violates these Terms of Use or is deemed by Wizard, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including without limitation, any reliance on the accuracy, completeness, or usefulness of such content.

6. Rights and Terms for Apps

(a) App License: If you comply with these Terms of Use, Wizard grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on your personal computers, mobile handsets, tablets, wearable devices, and/or other devices and to run the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms of Use, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.

(b) Additional Information; Apple App Store: This Section applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party's intellectual property rights. Apple and its subsidiaries are third-party beneficiaries of these Terms of Use, and upon your acceptance of the Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third-party beneficiary thereof. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.

7. THIRD PARTY WEBSITES

The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet as a convenience. Wizard has no control over such sites and resources and Wizard is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Wizard will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Wizard is not liable for any loss or claim that you may have against any such third party.

8. ORIGINATING SERVICES

You may be able to enable or log in to the Service via various online third party services, such as third-party retail sites and social media and social networking services like Instagram ("Originating Services"). By logging in or directly integrating these Originating Services into the Service, we make your online experiences richer and more personalized. To take advantage of this feature and capabilities, we may ask you to authenticate, register for or log into Originating Services on the websites of their respective providers. As part of such integration, the Originating Services would provide us with access to certain information that you have provided to such Originating Services, and we would process, use, share, exchange, store and disclose such information in accordance with this Privacy Policy. For more information about the implications of activating these Originating Services and Wizards use, storage and disclosure of information related to you and your use of such services within Wizard (including without limitation, your friend lists and the similar information), please see our Privacy Policy at www.wizard.com/privacy-policy.html. However, please remember that the manner in which Originating Services process, use, share, exchange, store and disclose your information is governed solely by the policies of such third parties, and Wizard shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within the Service.

In addition, Wizard is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Originating Services. As such, Wizard is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Originating Services. Wizard enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation. We may disable all or any features for Originating Services at any time without notice in our discretion.

9. INDEMNITY

You agree to indemnify, defend and hold Wizard and its affiliates and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys fees, rights, claims, and actions of any kind arising out of or relating to your access to and use of the Services, your content and violation of these Terms of Use or your violation of any rights of another. Wizard will have the right to control and direct the defense of any claim and the settlement thereof.

10. DISCLAIMER OF WARRANTIES

YOU ACKNOWLEDGE THAT WIZARD PROVIDES AN INTERMEDIARY SERVICE THAT FACILITATES PURCHASES OF PRODUCTS THROUGH TEXT MESSAGESON YOUR BEHALF, BUT WIZARD IS NOT THE MANUFACTURER, SELLER OR VENDOR OF SUCH PRODUCTS. AS SUCH, WIZARD PROVIDES NO WARRANTIES AS TO THE PRODUCTS, ALL OF WHICH ARE PROVIDED SOLELY BY SUCH THIRD PARTY MANUFACTURER, SELLER OR VENDOR.

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WIZARD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

WITHOUT LIMITING THE FOREGOING, WIZARD MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY CLOTHES, PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; OR (V) THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

11. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER WIZARD NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WIZARD OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WIZARDS TOTAL LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR FROM THE USE OF OR INABILITY TO USE THE SERVICES FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID WIZARD IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Wizard AND YOU. CERTAIN PROVISIONS OF THE FOREGOING PARAGRAPH MAY NOT APPLY TO CONSUMERS WITHIN THE STATE OF NEW JERSEY OR IN OTHER JURISDICTIONS WHERE PROHIBITED BY LAW. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.

12. ARBITRATION AGREEMENT

(a) Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Most customer concerns can be resolved quickly and to the customers satisfaction by emailing customer support at info@wizard.com. In the unlikely event that our customer care team is unable to resolve a complaint you may have (or if Wizard has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration, or small claims court instead of in courts of general jurisdiction in accordance with the procedures below.

YOU ARE HEREBY AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IN YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING WITHOUT LIMITATION, STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

(b) Interpretation: References to "Wizard", "you", and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between us.

(c) Mandatory Arbitration of Disputes: We each agree that any dispute, claim or controversy arising out of or relating to these Terms of Use or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services, including without limitation:

  • (i) 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;
  • (ii) claims that arose before this or any prior agreements (including, but not limited to, claims relating to advertising);
  • (iii) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
  • (iv) claims that may arise after the termination of this Terms of Use.
  • (collectively, "Disputes") will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Wizard agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms of Use, and that you and Wizard are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Use.

    (d) Exceptions: As limited exceptions to the section above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. Additionally, this arbitration agreement does not preclude you from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. This Terms of Use evidences a transaction in the interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision.

    (e) Arbitration Process: A party who intends to seek arbitration must first send to the other, by email, a written Notice of Dispute ("Notice"). The Notice to Wizard should be addressed to info@wizard.com, and any notice to you will be sent to the email address you have provided, as to which it is your responsibility to keep updated ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If Wizard and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or Wizard may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Wizard or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Wizard is entitled.

    (f) Conducting Arbitration and Arbitration Rules: The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Terms of Use, and will be administered by the AAA. The AAA Rules are available online at www.adr.org/arb_med, or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Terms of Use. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and arbitrability of the arbitration provision. The seat or place of arbitration shall be Tampa, Florida, United States.

    (g) Arbitration Costs: Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won't seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we'll pay all of our attorneys' fees and costs and won't seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses to the extent provided under applicable law. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.

    (h) Injunctive and Declaratory Relief: The arbitrator shall determine all issues of liability on the merits of any claim asserted by either party, and may award declaratory or injunctive 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. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.

    (i) Class Action Waiver: YOU AND WIZARD 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. Further, unless both you and Wizard agree otherwise, the arbitrator may not consolidate more than one persons claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. If this specific provision is found to be unenforceable, then the entirety of this Arbitration Agreement section shall be null and void.

    (j) Changes to the Arbitration Provision: Notwithstanding any provision in this Terms of Use to the contrary, we agree that if Wizard makes any future change to this arbitration provision (other than a change to the Notice Address) while you are a user of the Site, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision. Notwithstanding the foregoing, you or we may elect to pursue a claim in small-claims court rather than arbitration if the party requesting such election provides the other with written notice of their intention do so within 60 days of the claim. The arbitration or small-claims court proceeding will be limited solely to your individual Dispute.

    (k) Severability: If any provision of this arbitration agreement is found unenforceable (except with respect to the Class Action Waiver, as further described in Section 12(i)), the unenforceable provision will be severed and the remaining arbitration terms (and additional terms and conditions in the Terms of Use) will be enforced.

    13. TERMINATION

    You agree that Wizard, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, with or without notice, for any reason, including, without limitation, for lack of use or if Wizard believes that you have violated or acted inconsistently with these Terms of Use. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Wizard may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Use may be effected without prior notice, and acknowledge and agree that Wizard may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Wizard will not be liable to you or any third-party for any termination of your access to the Service.

    14. USER DISPUTES

    You agree that you are solely responsible for your interactions with any other user in connection with the Service and Wizard will have no liability or responsibility with respect thereto. Wizard reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.

    15. GENERAL

    These Terms of Use constitute the entire agreement between you and Wizard and govern your use of the Service, superseding any prior agreements between you and Wizard with respect to the Service. Except where provided by applicable law in your jurisdiction, you may not assign or transfer these Terms of Use, by operation of law or otherwise, without Wizard's prior written consent. Any attempt by you to assign or transfer these Terms of Use absent our consent or your statutory right, without such consent, will be null. Wizard may freely assign or transfer these Terms of Use without restriction. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of the parties, their successors and permitted assigns. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Use will be governed by the laws of the Florida, United States without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Wizard agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Tampa, Florida, United States. The failure of Wizard to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision. Except as expressly set forth in these Terms of Use, the exercise by either party of any of its remedies under these Terms of Use will be without prejudice to its other remedies under these Terms of Use or otherwise. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties intentions as reflected in the provision, and the other provisions of these Terms of Use remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail, at the addresses provided by you, of which it is your responsibility to keep updated. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. As further described in the introductory paragraphs, we may also provide notices to you of changes to these Terms of Use or other matters by displaying notices or links to notices generally on the Service.

    16. YOUR PRIVACY

    At Wizard, we respect the privacy of our users. For details please see our Privacy Policy located at www.wizard.com/privacy-policy.html. By using the Service, you consent to our collection and use of personal data as outlined therein.

    17. NOTICE FOR CALIFORNIA USERS

    Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. Wizard may be contacted in writing at info@wizard.com.

    QUESTIONS? CONCERNS? SUGGESTIONS?

    Please contact us at info@wizard.com to report any violations of these Terms of Use or to pose any questions regarding this Terms of Use or the Service.

    SMS Terms and Conditions

    1. Wizard, Inc. ("Wizard," "we," "us," "our") provides these SMS Terms and Conditions (the "SMS Terms"), which govern the provision and delivery of text messages by us and/or our text message service providers to you. These SMS Terms are offered under and subject to all of the terms and conditions of the Terms of Use, which are available at www.wizard.com/privacy-tos. By using the Text Messaging Platform (as defined in the Terms of Use), including our SMS services, you also agree to our Terms of Use, which are available at www.wizard.com/privacy-tos and hereby incorporated into these SMS Terms by reference. As described in the Terms of Use, Wizard sends SMS messages to our users provide the full spectrum of the social commerce service experience, including but not limited to texts that communicate the product results, pricing estimates, product links, order confirmations, shipping confirmations, return information, cart reminders, trend alerts, birthday offers, holiday specials, service reminders, policy updates, and other texts generated by Wizard related to its services and offerings.

    2. You can cancel the SMS service at any time. Just text the word STOP, END, CANCEL, UNSUBSCRIBE, or QUIT in response to the message you would like to unsubscribe from. After you send this message, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time, and we will start sending SMS messages to you again. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands and agree that Wizard and its service providers will have no liability for failing to honor such requests.

    Content is not available on all carriers and carrier participation could change. We can deliver messages to the following mobile phone carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless).

    3. If you are experiencing issues with our messaging program, you can get help directly at info@wizard.com

    4. Neither Wizard nor its service providers or carriers shall be liable for delayed or undelivered messages.

    5. As always, message and data rates may apply for any messages sent to you from us and to us from you. You will receive a variable number of messages per month based on the application features you have enabled, and we may alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. If you have any questions about your text plan or data plan, please contact your wireless provider.

    6. If you have any questions regarding privacy, please read our privacy policy

    7. 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 Wizard's text messaging program shall be deemed to constitute acceptance by you of such modifications, additions, or deletions.