General Mills Totinos’ or Game Over SMS/Text Program
Terms and Conditions
Effective Date: February 1, 2021
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR PARTICIPATION IN THE GENERAL MILLS Totinos’ or Game Over SMS/TEXT PROGRAM. THESE TERMS REQUIRE YOU ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION FORMAT.
1.Our Service. By utilizing the “[Send It]” functionality/”Totino’s or Game Over” service (also referred to herein as the “Service”), you agree to be bound by these Program Terms and Conditions (“Terms”). Your participation in the Service is affirmation of your consent to these Terms and the General Mills Legal Terms, which also apply to your use of the Service. By clicking on the “[Send It]” functionality, you consent to participate in the Service, which allows you to send messages through the SMS/text messaging capabilities on your wireless device. The Service is offered by General Mills Marketing, Inc. (“Sponsor”), alone or together with its services providers (collectively referred to in these Terms as the “Company”, “we”, “our” or “us”). The Service is only available to customers of select carriers with compatible handsets.
You agree that you will only use the Service for purposes of sending messages to individuals with whom you have a personal relationship (i.e., an individual you know that you regularly send messages to). You represent and warrant that you have all necessary permissions from any individuals that you send messages to when using the Service.
3.Eligibility and Use Requirements. By using to the Service, you confirm that you are over thirteen (13) years of age. You verify that any contact information (if any) provided to Company, including, without limitation, your name, mailing address, email address, your residential telephone number, and/or your mobile number, is true and accurate and that you will immediately notify Company if you change any of your contact information. You confirm that you are the current subscriber and/or customary user of the mobile number registered with the Service and authorized to incur any message or data charges that may be charged by your carrier. You are strictly prohibited from using a mobile device or mobile number that is not your own. If we discover that you fail to comply with these Terms, we may hold, suspend or terminate your access to the Service at any time. You understand that your consent to send or receive messages is not a condition of any service. Your participation in the Service is completely voluntary. You consent to the sending and receiving mobile messages using automated technology, including through an automatic telephone dialing system or auto-dialer.
4.Anti-Spam Policy. The following terms and information constitute an introduction to the concept of spam and the general contours of only sending permission-based SMS/text messages. This Section is not intended to nor shall it be deemed to constitute legal advice. You should consult a lawyer for legal advice on your texting practices. The information herein is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages prior to using the Service.
- What is spam? Spam is any type of unsolicited message. You should not assume that an existing relationship with any message recipient constitutes permission to send SMS/text messages. For example, if an individual disclosed a mobile number to you in the course of business but did not give you specific permission to send mobile messages, you may not have permission to send text messages to that mobile number. Also, some federal and state laws restrict the hours and days when marketing calls can be made. Before using the Service, you agree to review and abide by all federal, state, and local laws, including, but not limited to, the following laws, and to check for any revisions, as they may be amended over time.
- Telephone Consumer Protection Act (“TCPA”)
- Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003
- Mobile Marketing Association (“MMA”) U.S. Consumer Best Practices Guidelines for Messaging
- CTIA – The Wireless Association – Best Practices and Guidelines for Location-Based Services
For further information, please visit websites, including:
- Federal Trade Commission, http://www.ftc.gov
- Federal Communications Commission, http://www.fcc.gov
- DoNotCall Registry Info, http://www.donotcall.gov
- You represent and warrant that all of the owners of the phone numbers that you are using to which outbound sms/text messages are transmitted through your device have consented or otherwise opted-in to the receipt of such messages, in accordance with the TCPA and other applicable laws and regulations. You represent and warrant that any information disseminated by Company regarding the TCPA or any other applicable law or regulation is not intended to replace your responsibility to familiarize yourself with and abide by such legal requirements. You acknowledge that you are ultimately responsible to make your own informed decisions, and you are solely responsible for all acts or omissions or violations of law that may occur.
- You acknowledge and agree that you shall have sole responsibility for obtaining any consents for sending messages through the Service.
- You agree that you will not access or otherwise use any third-party list of phone numbers or otherwise engage in unsolicited messaging in connection with the Service. Additionally, you agree not to send messages to your contacts beyond the frequency represented in any disclosures or terms you have made available.
- You agree that you will only use contact information with proof, which you shall retain, of each user’s consent to receive communications from you.
- You agree to represent truthfully your identity, the identity of your organization, your product or service, availability of goods or services, pricing, benefits, and any other offering aspects in your messaging.
- You agree to not send messages before 8:00 a.m. or after 9:00 p.m. local time at the recipient’s location.
- You agree to comply with all local, state, and federal laws and regulations as well as general industry best practices governing your content or promotion type.
Company maintains a no-tolerance policy toward spam. Although Company does not assume the duty or obligation to monitor messages, we reserve the right, in our sole and absolute discretion, to monitor any and all messages created or sent by you or any third party at any time without prior notice to ensure that they conform to the guidelines and policies pertaining to our Service. You agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC list. You further agree that you will not initiate any subsequent messages to any individuals after they make a DNC or other opt-out or stop request.
You hereby acknowledge and confirm that you are solely responsible for the content of your messaging. You will ensure that any and all consents have been obtained, including, without limitation, consent for the delivery of commercial and marketing messages. You hereby acknowledge that Company merely provides functionality for facilitating the sending of certain content through the text message capability on your mobile device, and that you shall have sole responsibility and liability for your messages and communications. You also agree to defend, indemnify and hold harmless Company from and against any claims or damages which may result from your communications through the Service, including, but not limited to, claims, damages, or lawsuits filed by third parties (see Section 10 below for all of your indemnities to Company). We reserve the right to hold, suspend or terminate your access to the Service for any alleged violation of this Section 4 and/or any unusual or suspicious activity related to your use of the Service.
5.Costs. Use of the Service is free, but message and data rates may apply from your carrier. Check your mobile plan and contact your mobile carrier for details. You are responsible for obtaining and maintaining all mobile devices and other equipment and software, and all internet service provider, mobile service, and other services needed to access and use the Service. You are solely responsible for all charges related to them, including charges from your mobile carrier.
6.Promotional Messages. In the future, we may choose to send SMS and/or MMS messages with promotional content, including offers, advertisements, events, polls, giveaways, downloads and information alerts from us or third parties, and you consent to receive such messages if and when we begin to send them as part of the Service.
7.Service Use Restrictions.
A. Service Use Restrictions. You agree that you will not: (i) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Sponsor; (ii) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (iii) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Company, or other users of the Service; (iv) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service; (v) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; (vi) sell, resell, sublicense, share, rent or lease the Service to any third party; (vii) knowingly use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights; (viii) use the Service to store or transmit malicious code; (ix) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein; (x) access the Service for purposes of monitoring its availability, performance, reliability or functionality, or for any other benchmarking or competitive purposes; (xi) violating our anti-spam policy; or (x) otherwise violate these Terms. Further, you shall: (a) be responsible for compliance with these Terms by any individuals using your mobile device; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify us promptly of any such unauthorized access or use; and (c) use the Service only in accordance with applicable laws, rules and government regulations.
B. Content Use Restrictions. You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such content (including any images, text, or page layout); (iii) you will keep intact all trademark, copyright, and other intellectual property notices contained in such content; (iv) you will not use such content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such content in any way for any purpose except as specifically permitted by these Terms or with the prior written consent of an officer of Company or, in the case of content from a licensor, the owner of the content; and (vii) you will not insert any code or product to manipulate such content in any way that adversely affects any user experience.
C. Availability of Service, Services and Content. Company may immediately suspend or terminate the availability of the Service, the services and content (and any elements and features of them), in whole or in part, for any reason, in Company’s sole discretion, and without advance notice or liability.
D. Reservation of All Rights Not Granted as to Content, the Service and Services. These Terms include only narrow, limited grants of rights to share content and to use and access the Service and services. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Company and its licensors and other third parties. Any unauthorized use of any content, the Service or the services for any purpose is prohibited.
8.Disclaimers. IN ADDITION TO THE DISCLAIMERS SET FORTH IN THE GENERAL MILLS LEGAL TERMS, WHICH ARE INCORPORATED INTO THESE TERMS BY THIS REFERENCE, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE OPTION, DISCRETION, AND RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICE WILL BE SECURE, ERROR-FREE, OR INVULNERABLE TO VIRUSES, WORMS, OR OTHER HARMFUL SOFTWARE OR HARDWARE. YOU HEREBY ACKNOWLEDGE THAT THE SERVICE MAY BE INTERRUPTED OR UNAVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING PERIODIC SYSTEM MAINTENANCE, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURES, AND TELECOMMUNICATIONS INFRASTRUCTURE DISRUPTIONS OR FAILURES. WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY, OR PERFORMANCE CAUSED BY THESE AND ANY OTHER FACTORS. WE ARE NOT REQUIRED TO PROVIDE REDUNDANT OR BACKUP NETWORKS OR SYSTEMS. ANY MALFUNCTION OF THE SERVICE VOIDS ALL PAYS.
9.Limitation of Liability. The limitation of liability set forth in the General Mills Legal Terms applies to the Service and limits our liability from your use of the Service. ADDITIONALLY, NEITHER WE, NOR OUR PARENT COMPANIES, SUBSIDIARIES, OR AFFILIATES (INCLUDING ANY OF OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS OR REPRESENTATIVES, OR OUR OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS) (COLLECTIVELY, “GENERAL MILLS PARTIES”) ARE LIABLE TO YOU OR ANY THIRD PARTY IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY DIRECT OR INDIRECT LOSS OR DAMAGE ARISING FROM OR CONNECTED WITH YOUR USE, ATTEMPTED USE OR INABILITY TO USE OR ANY THIRD PARTY’S USE, ATTEMPTED USE OR INABILITY TO USE THE SERVICE INCLUDING INCIDENTAL, SPECIAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, LOSS OF REVENUE, LOSS OF BUSINESS OPPORTUNITY, LOSS OF GOODWILL, REPUTATIONAL DAMAGE, BUSINESS INTERRUPTION, OR ANY OTHER PECUNIARY OR CONSEQUENTIAL LOSS (EVEN WHERE WE HAVE BEEN NOTIFIED BY YOU OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE). THE GENERAL MILLS PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY ACTS OR OMISSIONS MADE BY YOUR CARRIER, FINANCIAL INSTITUTION OR OTHER THIRD PARTY ON WHOM YOU RELY TO GAIN ACCESS TO OR USE THE SERVICE OR PROCEEDS THEREOF. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. THE GENERAL MILLS PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY MODIFICATION TO, SUSPENSION OF OR DISCONTINUANCE OF THE SERVICE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE GENERAL MILLS PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE, YOUR UTILIZATION OF OUR SERVICES AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID THE GENERAL MILLS PARTIES IN THE PREVIOUS TWELVE (12) MONTHS; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.
10.Indemnification. You agree to indemnify, defend, hold harmless and release the General Mills Parties from and against any claim, demand, damage, cost or expense, including reasonable attorneys’ fees, made by any third party due to or arising out of your: (a) access to, use of, attempted access to or use of or inability to access or use the Service, (b) your failure to have the necessary permissions from individuals you send messages to using the Service or failure to comply with applicable laws, rules or regulations, including, without limitation, the TCPA; (c) your sending of communications to recipients that appear on your own or the General Mills Parties DNC lists or communications that are sent by you before 8:00 a.m. or after 9:00 p.m. local time at the recipient’s location; or (d) violation or alleged violation of the Terms.
11.Arbitration Agreement and Class Action Waiver. Any dispute or claim arising out of or relating to the Service shall be settled by binding arbitration. You and Company waive the right to go to court and agree to submit any claims to arbitration. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU ALSO AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. Any claim that all or part of this class action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. This arbitration provision is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended. However, we both retain the right to pursue in a small claims court any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis. You agree that regardless of any statute or law to the contrary, any claim must be filed within one (1) year after such claim arose or be forever barred. The arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules issued in Sept. 2014. Please contact the AAA for a copy of the rules. For your convenience, arbitration may be conducted in the federal district where you reside. It may be held by telephone or through written submissions if both you and Company agree. Any award rendered shall include a written opinion and shall be final, subject to appeal under the FAA. This provision survives termination of your subscription or relationship with Company. If the class action waiver is deemed unenforceable, then this entire arbitration provision shall be rendered null and void.
12.Changes to Terms. Our Terms may be modified and/or we may cease offering the Service at any time. YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE WEBSITE (OR IN ANY OTHER REASONABLE MANNER AT OUR SOLE DISCRETION), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR AGREEMENT TO THE NEW TERMS.
13.General. No waiver of any of the provisions of these Terms shall be deemed or shall constitute a waiver of any other provisions. If any provision of these Terms is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of these Terms, which shall otherwise remain in full force and effect. We reserve the right, in our sole discretion and without your consent, to transfer, assign, sublicense or pledge the Service and/or the Terms, in whole or in part, to any person or entity without notice. You may not assign, sublicense or otherwise transfer in any manner whatsoever any of your rights or obligations under the Terms. These Terms survive termination of your subscription or relationship with Company. These Terms and the General Mills Legal Terms constitute the entire agreement between you and Company and govern your use of the Service, superseding any prior agreements between you and Company. These Terms and your relationship with Company shall be governed by the laws of the State of Minnesota, without regard to its conflict of law provisions.