IMPORTANT NOTICE: ANY DISPUTE BETWEEN US MAY BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS OUTLINED IN SECTION 9 BELOW. BY OPTING-IN TO OR OTHERWISE PARTICIPATING IN A PROGRAM, YOU ARE AGREEING TO THESE SMS TERMS AND BINDING ARBITRATION AND WAIVING YOUR RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY.
TEXT MESSAGE PROGRAMS:
By opting-in to one or more Programs, you expressly consent to receive text messages applicable to that Program from Sirius XM or its service providers, including text messages that may be sent using an automatic telephone dialing system (“ATDS”) or other automated system, at the telephone number you provide when signing up or at another number you designated for that Program. For purposes of these SMS Terms, “opt in” “opting in,” and “opt-in” refers to requesting, joining, agreeing to, enrolling in, signing up for, acknowledging, or otherwise consenting to receive one or more text messages from Sirius XM. Although you consent to receive messages sent using an ATDS or other automated system, the foregoing shall not be interpreted to suggest or imply that any or all of our Program text message are sent using an ATDS or automated system. You agree that your consent to receive text messages for a particular Program shall continue indefinitely unless and until you opt-out of the applicable Program. Text messages may sent using SMS, MMS or other text messaging technologies/formats.
PROGRAM DESCRIPTIONS: Programs may include one-time, limited duration, or ongoing recurring text messages. Programs may be added or deleted at any time without notice. To opt-in to a Program, follow the instructions applicable to the Program, which may include sending a text or keyword to a five-digit short code associated with the Program (the “Short Code”), completing an online form, opting-in to text messages in your online subscriber account, or otherwise providing your consent to SiriusXM either directly (e.g. a customer care agent on the phone, via chat or through our interactive voice response system) or through a third party.
a.One Time Messages. If you make a request to us for information or for a particular purpose (e.g. radio refresh link, password reset, app download), we may respond to that request by sending you a one-time text message with the requested information.
b. Transactional Messages. You may have the opportunity to communicate with our Customer Care agents via text message. These communications are two-way communications between you and our live or virtual agents regarding the transaction you initiate.
c. Marketing Messages. You may be given the opportunity to receive special offers, event notifications, and other alerts from us by text message. Marketing Message Programs may require a two-step opt-in process (e.g. respond to a call to action, receive an initial opt-in request message, and once you have replied “Y” or “YES” you will receive an enrollment confirmation message). Your consent to receive these messages is not required as a condition of purchasing any goods or services. You agree that your consent to receive text messages for a Marketing Message Program shall continue indefinitely unless and until you opt-out of that Program.
MESSAGE FREQUENCY: Message frequency will vary depending on which Program(s) you sign up for. The number of text messages you receive may also depend on other factors, including how you use our services and whether you take steps to generate additional text messages from us (such as by sending a HELP request). Sirius XM reserves the right to change the frequency of text messages at any time and without notice. You may opt-out of messages at any time by following the instructions below or as may be provided in a Program text message.
a. We may offer multiple Programs operating through different Short Codes or phone numbers. To opt out of a Program to which you have opted-in, you must text STOP, END, CANCEL, UNSUBSCRIBE, or QUIT (“Authorized Opt-Out Keywords”) to a text message you receive from Sirius XM. By opting out of a particular Program, you understand that your opt-out request is specific to that Program. If you have opted-in to multiple Programs, you must opt out of each text message Program separately. To opt-out of Marketing Messages send one of the Authorized Opt-Out Keywords to 58932 (e.g. STOP to 58932). To opt-out of transactional text messages with our agent reply to the text message with one of the Authorized Opt-Out Keywords.
b. Texting an Authorized Opt-Out to the applicable Program Short Code is the only reasonable method of opting out of that Program. Any other attempt to opt out using other methods, including, but not limited to, texting other words or misspellings of the one of the Authorized Opt-Out Keywords or requesting one of our employees or agents to remove you from our list, is not a reasonable means of opting out of a text messaging Program. If we do receive a valid opt-out request from you, we may send you a one-time confirmation of your opt-out via text message. If you have opted-out and want to re-opt-in to a Program, you must opt-in again through the applicable enrollment mechanism and provide your consent.
APPLICATION: These SMS Terms apply solely to Sirius XM’s text messaging Programs and not to any other calling campaigns conducted by Sirius XM. By opting-in to a Program, you are hereby requesting to receive text messages at the number you provide regardless of whether that number or any of your other phone numbers may have been placed on the federal, or a state's, or Sirius XM’s Do Not Call List and you agree that, to the maximum extent permitted by law, your request overrides any prior Do Not Call request or prior text message opt-out. Please note, that opting out of a Program will not add your number to Sirius XM’s Do Not Call List for purposes of future telemarketing or other calling campaigns conducted by Sirius XM. You must separately add your number to Sirius XM’s Do Not Call List in accordance with our Do Not Call Policy (www.siriusxm.com/do-not-call ) if you do not wish to receive future telemarketing calls from Sirius XM.
SUPPORT/HELP: To request more information, text the keyword HELP to the Short Code for the Program about which you have questions. Should you need additional assistance please visit our Contact Us page at www.siriusxm.com/contact-us.
USER REPRESENTATIONS AND WARRANTIES AND INDEMNITIES.
a.Authorized User. By signing up for a Program, you represent and warrant that you are (i) the account holder or authorized/regular or customary user of the mobile telephone number associated with your opt-in, (ii) at least 18 years of age or older, (iii) capable and legally able to receive text messages in the jurisdiction in which you reside, and (iv) consent to the use of an electronic record to document your opt-in.
b. Obligation to Notify Change of Number. If you change your mobile phone number (including cancelling your phone plan or selling, releasing or transferring your phone number to another party), you must either (i) complete the opt-out process described above prior to ending your use of the mobile phone number, or (ii) promptly notify Sirius XM of the change by calling us at 1-866-303-5603.
c. You understand and agree that your obligation to notify us of a change in your phone number is a material aspect of these SMS Terms. If you discontinue the use of your mobile number without first opting out of a Program you have opted-into, you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us, or any party that assists us in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile number.
d. YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD THE SIRIUS XM PARTIES (AS DEFINED BELOW) HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM (I) PROVIDING US WITH A MOBILE NUMBER THAT IS NOT YOUR OWN, (II) YOUR USE OF A PROGRAM, AND (III) BREACH OR ALLEGED BREACH OF YOUR REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, 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 TELEPHONE NUMBER YOU PROVIDED. This obligation shall survive any cancellation or termination of your agreement to participate in a Program.
CARRIERS: You understand that your telecommunications carrier’s messaging and data rates may apply.
a. Supported Carriers. Supported mobile carriers may change from time to time without notice, the following carriers are currently supported on the following U.S. carriers for SMS messages: T-Mobile®, AT&T, Verizon Wireless, Iowa Wireless Svc, ACS Wireless, Inc., US Cellular Corp, West Central Cellular, Visible, NTELOS, Bluegrass Cellular, Plateau Telecomm, Revol, Cellular South, Carolina West Wireless, Appalachian Wireless, Limitless Mobile, Cellcom, GCI Comms, Inland Cellular, Illinois Valley, Nex-Tech, United Wireless, Chat Mobility, NW Missouri Cellular, Element Wireless, MTPCS, Thumb Cellular, Viaero Wireless, AIO Jasper, PTCI, Flat_Wireless, Union_Wireless, Copper_Valley, SouthernLINC Wireless, SRT Wireless, Mid-Rivers Communications, ASTAC Wireless, Cordova Wireless, Pine Belt Cellular, Standing Rock, ShellComm, Cross Wireless, IT&E, James Valley Cellular, MTA, Duet IP, Mobi PCS, Peoples Wireless, Epic Touch, Mosaic, Pioneer Cellular, UBET, South Central Utah, Gold Star Communications, All West Communications, Farmers Mutual Telephone, CTC Telecom, Eagle Telephone System, Syringa Wireless, Pine Cellular, Google Voice, Chariton Valley Wireless, Nemont Sagebrush Cellular, CellularOne of NE AZ, Enflick Inc, Layered Communications, Custer Telephone, Triangle Wireless, Brightlink, Inteliquent. For MMS: T-Mobile®, AT&T, Verizon Wireless, Metro PCS, Boost Mobile, Virgin, US Cellular.
b. Carrier Liability. Carriers do not guarantee that messages will be delivered and will not be liable for delayed or undelivered messages. If your mobile service provider is not participating, you will not receive a message.
PLEASE READ THE PROVISIONS OF THIS SECTION CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. YOU ARE HEREBY WAIVING THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR, OR A PANEL OF ARBITRATORS, INSTEAD OF A JUDGE OR JURY. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, BUT THEY CHOOSE TO HAVE ANY DISPUTES RESOLVED THROUGH ARBITRATION.
Any legal or equitable claim relating to a Program or these SMS Terms (a "Claim"), will be resolved as follows:
a. Informal Claim Resolution. To initiate an informal resolution to a Claim, you must send a notice by first class United States mail to Sirius XM Radio Inc., 1221 Avenue of the Americas, 35th Floor, New York, NY 10020, Attention: General Counsel. Neither of us may start a formal proceeding (except for Claims described in subsection 9(c) below) for at least sixty (60) days after one of us notifies the other of a Claim in writing. If we initiate a Claim, we will send our notice to your address on file with us.
b. Formal Resolution/Arbitration Agreement. If we cannot resolve a Claim informally, including any dispute as to the validity or applicability of this arbitration clause, then the Claim shall be resolved, upon election by either party, exclusively and finally by binding arbitration in accordance with the following process.
The party initiating arbitration must follow the rules and procedures of the American Arbitration Association (“AAA”) in effect at the time the Claim is filed, and the parties agree that the arbitration shall be administered by the AAA. You may obtain copies of the current rules, forms and instructions for initiating an arbitration by contacting:
American Arbitration Association
New York, New York 10019
Web site: www.adr.org
This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act (“FAA”), and not by any state law concerning arbitration.
c. Exceptions. Notwithstanding the foregoing, any dispute involving a violation of the Communications Act of 1934, 47 U.S.C. §605, the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521, or a violation of our intellectual property rights may be decided only by a court of competent jurisdiction.
d. Small Claims. Instead of proceeding to arbitration, either you or we have the option to pursue a Claim in small claims court (or the equivalent) so long as the Claim 1) remains in that court, 2) is made solely on our behalf (if brought by us) or on your behalf, and 3) does not seek damages or other monetary relief in excess of $5,000. However, if that Claim is transferred or appealed to a different court, we reserve our right to elect arbitration.
e. Cost Sharing. Whoever files the arbitration pays the initial filing fee. If we file, we pay; if you file, you pay. If you have paid the initial filing fee and you prevail, we will reimburse you for that fee. If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing. All other fees will be allocated as provided by the rules of the arbitration firm and applicable law. In no event will you be required to reimburse us for any arbitration filing, administrative, or hearing fees in an amount greater than what your court costs would have been if the Claim had been resolved in a state court with jurisdiction. However, we will advance or reimburse your fee if the arbitration firm or arbitrator determines there is good reason requiring us to do so, or if you ask us and we determine there is good reason for doing so. Each party will bear the expense of its own attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.
f. Opt-out of Arbitration. You may elect to exclude yourself from the agreement to arbitrate by sending a letter (an “Arbitration Opt-Out Notice”) to Sirius XM Radio Inc., 1221 Avenue of the Americas, 35th Floor, New York, New York 10020; Attention: General Counsel: Arbitration SMS Opt-Out. The Arbitration Opt-Out Notice must include (1) your first and last name; (2) your postal mailing address; (3) phone number; (4) email address; and (5) a clear statement that you do not wish to resolve disputes with Sirius XM through arbitration. The Opt-Out Notice must be received no later than thirty (30) days from the date you opted-in to any Program. You must submit a separate Opt-Out Notice for each of your telephone number you used to opt-in to a Program. All other terms of these SMS Terms will continue to apply to your opt-in to a Program, including the requirement to participate in informal dispute resolution (Section 9(a)), the Class Action Waiver (Section 9(g), and the Applicable Law provision (Section 11).
g. Class Actions and Severability. You do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any Claim submitted to arbitration or litigation (to the extent you elect to Opt-Out of Arbitration) (“Class Action Waiver”). A “Claim” does not include any challenge to the validity and effect of the Class Action Waiver, which must be decided by a court. There shall be no right or authority for any claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, as a private attorney general, or other individuals, or other persons similarly situated. The parties acknowledge and agree that under no circumstances will a class action be arbitrated.
The Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from this agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or cannot be enforced, then the parties' agreement to arbitrate (except for this sentence) shall be null and void, subject to the right to appeal any limitation or invalidation of the Class Action Waiver. If this entire agreement to arbitrate is determined to be null and void, then the parties agree that any actions shall be brought in the State or Federal courts of New York, New York.
h. Binding Effect. In the arbitration proceeding, the arbitrator must follow applicable law, and any award may be challenged, as set forth in the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitrator's decision is final and binding on all parties and may be enforced in any federal or state court with jurisdiction.
i. Survival. This arbitration agreement shall survive termination of these SMS Terms and opt-out of any Programs.
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY;
a. Disclaimers. OUR PROGRAMS ARE PROVIDED BY SIRIUS XM ON AN "AS IS," "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SIRIUS XM, AND ITS SUBSIDIARIES, AFFILIATES, DIVISIONS, JOINT VENTURES, AND THIRD-PARTY SERVICE PROVIDERS AND EACH OF THEIR EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, AND AGENTS (COLLECTIVELY, THE "SIRIUS XM PARTIES") MAKE NO REPRESENTATION ABOUT THE SUITABILITY OR AVAILABILITY OF THE PROGRAMS OR CONTENT CONTAINED THEREIN FOR ANY PURPOSE AND ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SIRIUS XM PARTIES AND ALL THIRD-PARTY CONTENT PROVIDERS OR LICENSORS SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND REGARDING THE PROGRAMS, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. YOUR USE OF OUR PROGRAMS IS AT YOUR OWN RISK. THE SIRIUS XM PARTIES MAKE NO REPRESENTATION THAT CONTENT PROVIDED IN OUR PROGRAMS IS APPLICABLE TO OR APPROPRIATE FOR USE IN LOCATIONS OUTSIDE OF THE UNITED STATES.
b. Limitations of Liability. IN NO EVENT SHALL EITHER THE SIRIUS XM PARTIES OR THEIR AGENTS OR THIRD PARTY CONTENT PROVIDERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OUR PROGRAMS, THE MATERIALS IN OUR PROGRAMS, THE DELAY OR INABILITY TO USE OUR PROGRAMS, OR OTHERWISE ARISING IN CONNECTION WITH OUR PROGRAMS, WHETHER BASED ON CONTRACT, TORT, OR STRICT LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE SIRIUS XM PARTIES AND THEIR AGENTS AND THIRD PARTY CONTENT PROVIDERS OR LICENSORS ARISING OUT OF OR RELATED TO, DIRECTLY OR INDIRECTLY, THE PERFORMANCE OR NONPERFORMANCE OF THESE SMS TERMS OR BY THE NEGLIGENCE, ACTIVE OR PASSIVE, OF THE SIRIUS XM PARTIES AND/OR THEIR AGENTS OR THIRD PARTY CONTENT PROVIDERS OR LICENSORS, EXCEED THE GREATER OF $100 USD OR THE PRICE PAID BY YOU TO SIRIUS XM FOR THE MOST RECENT SIX MONTHS OF SERVICE IMMEDIATELY PRIOR TO THE SPECIFIC EVENT WHICH GAVE RISE TO THE APPLICABLE DAMAGE OR LOSS. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES HEREIN ARE A FUNDAMENTAL ELEMENT OF THIS SMS TERMS.
c. State Law: SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
d. Miscellaneous: UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
APPLICABLE LAW. The interpretation and enforcement of this SMS Terms shall be governed by the laws of the State of New York.
ELECTRONIC COMMUNICATIONS AND RECORDS. By participating in any Program, you consent to have these SMS Terms provided to you in electronic form. You can access these terms at www.siriusxm.com/sms. You have the right to receive these SMS Terms in non-electronic form. You may request a non-electronic copy either before or after you sign up for a Program. To receive a non-electronic copy of these SMS Term, please email us at SMSPolicy@siriusxm.com and include “SMS Terms Request” in the Subject Line and provide your name and postal address in the body copy of your email. You can also view and print a copy of the SMS Terms by visiting siriusxm.com/sms. By opting-in to a Program you understand and agree that Sirius XM and its service providers may record and keep any of your opt-ins in electronic form.
SEVERABILITY. If any part of these SMS Terms is invalid or unenforceable under applicable law, the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these SMS Terms shall continue intact and govern such use.
MODIFICATIONS: We reserve the right to modify any Program and 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 any Program shall be deemed to constitute acceptance by you of such modifications, additions or deletions. We may change any Short Code or telephone number we use to operate the service at any time and will notify you of these changes by text message to the number associated with your enrollment should these changes impact your ability to opt-out as set forth in Section 4 above. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.