Kenneth Cole Messaging Terms & Conditions
Kenneth Cole (hereinafter, "Kenneth Cole," "We," "Us," "Our") is offering a mobile messaging program (the "Program"), which is subject to these Mobile Messaging Terms and Conditions (hereinafter, “Terms”) and Kenneth Cole Messaging Service Privacy Policy (hereinafter, “Policy”). If you do not agree to the Terms, you should not access or use the Program. You understand that you do not have to sign up for this Program in order to make any purchases, and your consent is not a condition of any purchase with Kenneth Cole. Your participation in this Program is completely voluntary.
By opting in to or participating in any of Our Programs, you accept and agree to these Terms and our Policy, including, without limitation, your agreement to resolve any disputes with Us through binding, individual-only arbitration, as detailed in the "Dispute Resolution" section below. Please review carefully.
By opting in to or participating in any of Our Programs, you represent and warrant that you do so because of a genuine desire to receive discounts, promotions, and other news or information from Us and not because of a desire or intent to initiate litigation or bring legal claims against any party. If you have requested to receive messages with a desire to bring legal claims against Us or any vendors acting on our behalf, then you shall immediately unsubscribe using the instructions set forth below and agree to indemnify Us and/or those vendors for any expenses, including attorneys' fees, associated with defending such claims.
These Terms are limited to the Program and are not intended to modify other terms and conditions, privacy policies, or other polices that may govern the relationship between you and Us in other contexts (including those in the "Other Terms and Policies" section below). Regardless of the opt-in method you utilized to join the Program, you agree that these Terms apply to your participation in the Program.
1. User Opt In.
2. User Opt Out. If you do not wish to continue participating in the Program or no longer agree to these Terms, you agree to reply STOP, END, CANCEL, REVOKE, OPT OUT, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. To the maximum extent permitted by law, You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our Program may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, REVOKE, OPT OUT, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that Kenneth Cole and its service providers will not have liability for failing to honor requests that are designed to circumvent the automated opt-out processes described above. You agree that other methods 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, may not be deemed to be reasonable methods of opting out. Our Do Not Call Policy is attached to these Terms of Service as Appendix A. . If you have subscribed to other Kenneth Cole mobile message programs or other programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms.
3. Other Terms and Policies. You also agree to Our Kenneth Cole Messaging Service Privacy Policy, Terms & Conditions | Kenneth Cole and Privacy Policy | Kenneth Cole.
4. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, customer support, delivery (including order confirmations, tracking information, and shipping updated via email), other transactional-related messages and sale of goods and services. Messages may include checkout reminders.
5. AI-Generated Message Content: You are advised that from time to time We may utilize certain generative artificial intelligence (AI) services provided by third-parties to develop or suggest the content of messages that we choose to send to you. Some of these messages may be tailored to your interests based on information available to Us. By enrolling and remaining in the program, You agree to the use of AI and further that Our use of these AI services does not make those third-parties either senders or initiators of the messages and text messages or otherwise responsible for the messages.
6. Message Frequency, Cost and Changes. We do not charge for the Program, but you are responsible for all charges and fees associated with messaging imposed by your wireless provider. Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. We reserve the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of messages sent. We also reserve the right to change the short code or phone number from which Our messages are sent.
7. Support Instructions. For support regarding the Program, text "HELP" to 60536 or to the short code you received a message from for assistance or email us at clientservices@kennethcole.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
8. MMS Disclosure. The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
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 not continue 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 mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.
10. Supported Devices. The Program is offered on an "as-is" basis. Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. Kenneth Cole, its service providers and the mobile carriers supported by the Program are not liable for delayed or undelivered messages.
11. Contact. This Program is a service of Kenneth Cole, located at 511 West 21st Street, New York NY 10011, US.
12. Age Restriction: You may not use or engage with the Program if you are under thirteen (13) years of age. If you use or engage with the Program and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent's or legal guardian's permission to do so. By using or engaging with the Program, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent's or legal guardian's permission to use or engage with the Program, or are of adult age in your jurisdiction. By using or engaging with the Program, you also acknowledge and agree that you are permitted by your jurisdiction's applicable law to use and/or engage with the Program.
13. Prohibited Content: You acknowledge and agree to not send any prohibited content over the Program. Prohibited content includes:
14. State Telemarketing Law - Residence: To the extent the law is relevant and applicable to the Program, we endeavor to comply with the federal Telephone Consumer Protection Act (TCPA) and all applicable state telemarketing laws. For purposes of compliance with these state laws, you agree that we may assume that you are a resident of a particular state if, at the time of opt-in to the Program, the area code for the phone number used to opt-into the Program is an area code associated with that state. Further, You agree that You will not assert that you are a resident of a state other than the state applicable to your area code unless you affirmatively advise us in writing that you are a resident of a specific state by sending written notice to us. Insofar as you are a resident of a state with an applicable telemarketing law, you further agree that any mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “commercial telephone solicitation phone call”, “telephonic sales call”, “telemarketing sales call”, “telephone solicitation”, or “unsolicited telemarketing sales call” for purposes of these state laws, to the extent the law is otherwise relevant and applicable.
15. Dispute Resolution (Including Arbitration Agreement, Class Action Waiver).
Our Customer Service Specialists are ready to assist you and address your concerns, email us at: clientservices@kennethcole.com.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS, COLLECTIVE, OR REPRESENTATIVE CLAIM OR ACTION IN ARBITRATION AND LITIGATION, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR KENNETH COLE WOULD HAVE IN COURT, SUCH AS APPELLATE REVIEW, ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
Binding Individual Arbitration: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Klaviyo any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, these Terms, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate (“Arbitration Agreement”) ( collectively, the "Dispute"), such Dispute will be, to the fullest extent permitted by law and applicable rules, determined by arbitration before one arbitrator, provided, however, that no party shall be precluded from seeking remedies in small claims court for disputes or claims within the scope of its jurisdiction. Whether a Dispute falls within the jurisdictional limits of small claims court is for the small claims court to decide. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Dispute will be given the broadest possible meaning permitted by law. It includes, but is not limited to: (a) any dispute or claim that arose before the existence of these or any prior terms and conditions (including, but not limited to, claims relating to advertising); (b) any dispute or claim that is currently the subject of a purported class action litigation in which you are not a member of a certified class; and (c) any dispute or claim that may arise after termination of these Terms and our relationship with you and Klaviyo or any other third-party service provider acting on Our behalf. Dispute, however, does not include disagreements or claims concerning patents, copyrights, trademarks, trade secrets, or other intellectual property, and claims of piracy or unauthorized use of intellectual property. The arbitrator shall decide all issues that relate to the scope, validity, and enforceability of the Arbitration Agreement. You and Kenneth Cole agree that these Terms evidence a transaction in interstate commerce and that this Arbitration Agreement will be interpreted and enforced in accordance with the Federal Arbitration Act and U.S. federal arbitration law and not state arbitration law.
Mandatory Informal Dispute Resolution Process. If you and Kenneth Cole have a Dispute, you and Kenneth Cole agree to make a good faith effort to informally resolve it. The party initiating the Dispute must send a written notice to the other party that describes the Dispute. The notice must include all of this information: (a) the initiating party's contact information (including name, address, telephone number, and email address) (with their counsel's contact information, if represented); (b) sufficient information to enable the other party to identify any phone number(s), transaction(s), or account(s) at issue; and (b) a detailed description of (1) the Dispute, (2) the nature and basis of the claims, and (3) the nature and basis of the relief sought, with a detailed calculation for such relief. The notice must be personally signed by the party initiating the Dispute (and their counsel, if represented).
If you have a Dispute with us, you must send this notice, including all of the information referenced above, by email to: clientservices@kennethcole.com or by mail to: 511 West 21st Street, New York NY 10011, US. If we have a Dispute with you, we will send this notice, including all of the information referenced above, to you at the most recent contact information we have on file for you or, if we do not have a mailing address on file, you authorize us to message and text you at the phone number we have available to seek your mailing address.
For a period of sixty (60) days from receipt of a completed notice (which can be extended by agreement of the parties), you and We (and counsel, if you and We are represented) agree to negotiate in good faith in an effort to informally resolve the Dispute. To this end, the party receiving the notice may request a telephone or video settlement conference to aid in the resolution of the Dispute. If such a conference is requested, you and a Kenneth Cole representative will personally attend (with counsel, if you and We are represented). The conference will be scheduled for a mutually convenient time, which may be outside of the 60-day period.
If the Dispute is not resolved within sixty (60) days after receipt of a completed notice (which period can be extended by agreement of the parties), you or Kenneth Cole may commence a formal dispute resolution proceeding consistent with the process set forth below. Compliance with and completion of this Mandatory Informal Dispute Resolution Process ("Process") is a condition precedent to you or Kenneth Cole commencing any formal dispute resolution proceeding in arbitration or small claims court. All applicable limitations periods (including statutes of limitations) will be tolled from the date of receipt of a completed notice through the conclusion of this Process. If the sufficiency of a notice or compliance with this Process is at issue, such issue may be raised with and decided by a court at either party's election, and any formal dispute resolution proceeding shall be stayed pending resolution of the issue. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration. Nothing in this section limits the right of a party to raise the sufficiency of a notice or compliance with this Process or to seek damages for non-compliance with this Process in arbitration, including with a Process arbitrator. You or we may commence arbitration only if the Dispute is not resolved through compliance with this Process.
Arbitration Generally; Relief Available. There is no judge or jury in arbitration, and court review of an arbitration award is limited pursuant to the Federal Arbitration Act (“FAA”). However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the Terms as a court would. For the avoidance of doubt, the arbitrator can award public injunctive relief if authorized by law and warranted by the individual claim(s).
Arbitration Proceedings and Rules, Including Provisions Governing Mass Arbitrations. The following rules and procedures shall apply:
No class actions or juries. YOU UNDERSTAND AND AGREE THAT, BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU AND KENNETH COLE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS ARBITRATION AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FAA. The parties agree to arbitrate solely on an individual basis, and this Arbitration Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding.
Invalidity and Survivability. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Future Changes to Dispute Resolution Section. Notwithstanding any provision to the contrary, you and We agree that if Kenneth Cole makes any future changes to this Arbitration Agreement (other than a change to the mailing or email address), you may reject any such change by sending us written notice personally signed by you within thirty (30) days of the change to Kenneth Cole at 511 West 21st Street, New York NY 10011, US. The written notice must include the following information: (a) your name, address, phone number, and email address and (b) a statement that you wish to opt out of changes to the arbitration agreement. Such written notice does not constitute an opt out of arbitration altogether. By rejecting any future change to the Arbitration Agreement, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this version of the Arbitration Agreement.
16. Miscellaneous. You warrant and represent to Us that you have all necessary rights, power, and authority to agree to the terms and perform your obligations hereunder, and nothing contained in these Terms 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 these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the terms of these Terms will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to these terms unless explicitly stated otherwise in writing. We reserve the right to change these Terms from time to time. Any updates to these Terms shall be communicated to you. Prior to such communication, the Terms in effect as last made available to you immediately prior to your receipt of the notice will continue to govern our relationship. You acknowledge your responsibility to review these Terms 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 these Terms, as modified.
Appendix A
Kenneth Cole
Do Not Call Policy: Text Messaging
Regulatory Summary Regarding The Telephone Consumer Protection Act (TCPA)
The federal Telephone Consumer Protection Act (TCPA), related FCC regulations, and related court interpretations protect consumers from specific types of telemarketing. Under the TCPA “telemarketing” is defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” 47 C.F.R. § 64.1200(f)(13). The TCPA imposes requirements for cold calls, prerecorded sales calls, and the use of autodialers. The TCPA also authorized the creation of the National Do Not Call Registry as well as internal Do Not Call lists. Various states have also adopted their own telemarketing laws.
Kenneth Cole is committed to complying with federal and state Do Not Call laws. This policy relates specifically to our compliance with those requirements for the purposes of sending text messages that constitute telemarketing. It is Our policy to not send telemarketing text messages to:
We will maintain an Internal Do Not Call list and will promptly honor a request made in a reasonable manner to place your telephone number Our Do Not Call list within a reasonable time of such request, not to exceed 10 business days from the date of said request. To be placed on Our Do Not Call list, you may:
Your telephone number shall be retained indefinitely on Our Do Not Call list unless you subsequently provide new prior express written consent to rejoin our SMS list. If you change your number, you must request for the new number to be put on Our Do Not Call list.