Emissary Agency Subscription Agreement
Posted/Revised: September 27, 2019
PLEASE READ THIS SUBSCRIPTION AGREEMENT CAREFULLY. BY EXECUTING AN ORDER FORM FOR EMISSARY’S SOFTWARE-AS-A-SERVICE SYSTEM, CUSTOMER AGREES TO THIS AGREEMENT.
This Agency Subscription Agreement, together with any Exhibits and Order Forms incorporated herein by reference (the “Agreement”), constitutes an agreement by and between Emissary Software LLC, a Delaware limited liability company and the corporation, LLC, partnership, sole proprietorship, individual or other business entity (“Customer”) executing an Order Form for the System (both as defined in Article 1 below) or such other services. This Agreement is effective as of the date each party executes the first Order Form (the “Effective Date”). Customer’s and its clients’ (each a “Client”) use of and Emissary’s provision of the System are governed by this Agreement and by executing the Order Form, Customer authorizes Emissary to grant System access to its Users, as defined below. To the extent there is any conflict between this Agreement and an Order Form, the terms of the Order Form shall prevail.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PERSON EXECUTING THIS AGREEMENT REPRESENTS THAT HE OR SHE HAS BEEN AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER AND HAS THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.
The following capitalized terms shall have the following meanings whenever used in this Agreement.
1.1. “Affiliate” of a party means an entity that directly or indirectly controls, is controlled by, or is under common control with that party, in each case through majority voting power.
1.2. “Applicable Law” shall mean, with respect to either party, all laws, ordinances, rules, and regulations governing such party’s duties or responsibilities under this Agreement, including without limitation, laws governing the protection of personally identifiable information and other laws applicable to employment, the protection of Customer Data, the U.S. CAN-SPAM Act, the U.S. Telephone Consumer Protection Act (“TCPA”), Canadian Anti-Spam Legislation S.C. 2010, c.23 and any other applicable federal, state, local or foreign laws.
1.3. “Authorized Agents” mean any person who uses the System on behalf of Customer or Client.
1.4. “AUP” means Emissary’s acceptable use policy currently posted at http://www.emissary.ai/aup, as may be amended from time to time.
1.5. “Consumer Terms” means any terms that Emissary may require Customer and its Clients to require of Consumers in connection with usage of the System.
1.6. “Consumer” means any person other than an Authorized Agent with whom Customer or its Client communicates through the System.
1.7. “CAN-SPAM Act” means the CAN-SPAM Act of 2003, as amended.
1.8. “Customer Data” means data in electronic form input or collected through the System by or from Customer or its Client, including without limitation by Consumers or other Authorized Agents.
1.9. “Documentation” means Emissary’s standard materials related to use of the System including any content available through the Site.
1.10. “Message” means any text or email message sent to or received from a Consumer through the System. For clarity, “Message” does not include any communication sent or received outside the System through Customer’s or Client’s web site, email accounts, or telephones and other electronic devices of Customer, Client or any of their employees and contractors.
1.11. “Order Form” means the documentation related to an order for access to the System referencing this Emissary Agency Subscription Agreement executed by both parties.
1.13. “Site” means Emissary’s website located at http://www.emissary.ai.
1.14 “System” means Emissary’s proprietary software-as-a-service system designed to facilitate scripted and/or unscripted communications by text message, electronic mail, or telephone between (a) companies requesting or providing information directly from and to individuals and (b) those individuals.
1.15. “TCPA” means the Telephone Consumer Protection Act of 1991, as amended.
1.16. “Text Message” means any Message sent as a short message service (SMS) or multimedia message service (MMS).
1.17. “Triggered Text Message” is a Text Message sent in response to Consumer-requests through Emissary forms embedded into Customer’s or Client’s website in connection with Emissary’s Text Retargeting solution, or similar triggered messaging tools offered by Emissary.
1.18. “Term” is defined in Section 11.1 below.
1.19. “User” means any company or individual who uses the System to communicate with (i) Customer or Client or (ii) Customer’s or Client’s Authorized Agents, who uses the System on Customer’s or Client’s behalf or through Customer’s or Client’s account or passwords, whether authorized or not, including without limitation Consumers and Authorized Agents.
2. THE SYSTEM.
2.1. Use of the System. During the Term, Customer or Client may access and use the System pursuant to: (a) the terms of any outstanding Order Form, including such features and functions as the Order Form requires; and (b) Emissary’s policies posted on the Site, as such policies may be reasonably updated from time to time.
2.2. Documentation: Customer or Client may reproduce and use the Documentation solely as necessary to support Users’ use of the System.
2.3. System Revisions. Emissary may revise System features and functions at any time, including without limitation by removing such features and functions.
2.4. Consumers. Customer shall ensure that: (a) identifying information has been provided for each proposed Consumer and Authorized Agent to Emissary through the System and that such information has been updated as soon as it become aware of a change; (b) if Emissary has embedded Consumer Terms into any Messages, Customer shall not permit any party to remove or obscure such Consumer Terms; (c) Customer shall, and shall ensure that its Clients (i) make no representations or warranties regarding the System or any other matter, to Users or any other third party, from or on behalf of Emissary, and Customer (ii) and do not create or purport to create any obligations or liabilities for Emissary. Emissary shall have no obligation to provide support or other services or other remedies to Consumers.
2.5. Consumer Unsubscribe Requests. Emissary may restrict the ability of Customer or Client to communicate with unsubscribed Users via the System. Customer shall not, and shall not permit Client to charge a fee, require a Consumer to give any personal information (other than his or her phone number or email address), or take any step other than sending a reply text or email as a condition of honoring an Unsubscribe Request. Emissary is not responsible and accepts no liability for any Consumer requests to terminate communications with Customer or Client. Customer agrees to monitor and respond to any other Consumer requests not to receive communications from Customer or Client. Both during and after the Term, Customer (or Client, if applicable) shall maintain a list of and comply with any request by a User not to receive communications from Customer (or Client, as the case may be) (an “Unsubscribe Request”). After termination of this Agreement, Customer (or Client, as applicable) is responsible for maintaining the list of Unsubscribe Requests provided by Emissary and honoring such requests. Emissary will endeavor to make a reasonable effort to identify Unsubscribe Requests from Users, block Messages by means of the System from Customer (or Client, if applicable) to those Users, and communicate those Unsubscribe Requests periodically to Customer (or Client, as applicable); provided nothing in the foregoing shall be deemed to relieve Customer from its sole responsibility for ensuring compliance with all Unsubscribe Requests both during and after the Term.
2.6. Compliance Measures. Emissary may implement technical or other measures in its discretion to limit or prevent any use of the System in violation of Customer’s and Client’s responsibilities under this Section 2, as determined in Emissary’s good faith discretion.
3. SYSTEM FEES.
3.1. Subscription Fees. Customer shall pay Emissary the fees set forth in each Order Form (the “Subscription Fee”) for each Term. Emissary will not be required to refund the Subscription Fee under any circumstances except as set forth in the Order Form.
3.2. Taxes. Customer shall be solely responsible for paying any sales, value-added, business use, or other similar taxes relating to the System or any other product or service provided by Emissary (collectively, the “Service”), exclusive of Emissary’s income taxes. The fees listed in an Order Form are exclusive of taxes, and Emissary shall have the right to invoice taxes together with or separately from the fees payable by Customer.
3.3. Invoice Dispute. Any invoice must be disputed within thirty (30) days of delivery. If within that period Customer delivers written notice disputing an invoiced amount and describing the basis for dispute with reasonable particularity, the parties shall make a good faith effort to confer and resolve the dispute within thirty (30) days of delivery of Customer’s notice. If Customer has paid all undisputed amounts and engages in good faith negotiations, Emissary’ rights under this Agreement to assess overdue payment charges, suspend access to the System due to non-payment, or terminate the Agreement for material breach based on non-payment of the disputed payment, shall be suspended during that thirty (30) day period.
4. CUSTOMER DATA & PRIVACY.
4.1. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System or permitting Client to access and use the System, Customer assumes such risks. Emissary offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or other human acts or omissions.
4.2. Data Accuracy. Emissary shall have no responsibility or liability for the accuracy of data transmitted through the System by or to Customer or Client, including without limitation Customer Data and any other data transmitted to Customer or Client by Consumers.
4.3. Data Deletion. Emissary may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
4.4. Use of Customer Data. In addition to the license set forth in Section 6 of this Agreement, Emissary may use and disclose Customer Data as reasonably necessary to comply with Applicable Law, cooperate with law enforcement agencies, or attempt to prevent or respond to illegal conduct, fraud, abuse, or a threat to the security or integrity of systems or data including the System or Customer Data.
4.5. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 4, Emissary may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer, Client, and any of their Users.)
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Customer shall comply and shall ensure that Client and all of their Users comply with the AUP. In the event that Emissary suspects any breach of the AUP, including without limitation by Users, Emissary may suspend access to the System without advanced notice, in addition to such other remedies as Emissary may have under law or equity. Neither this Agreement nor the AUP requires that Emissary monitor use of the System or take any action against Customer or any User or other third party for violating the AUP or this Agreement, but Emissary is free to take any such action it sees fit. In particular, Emissary may block any messages or campaigns and remove any content that Emissary believes may be (or is alleged to be) in violation of this Agreement or the AUP.
5.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall, and shall ensure that its Client shall notify Emissary immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach and mitigate its effects.
5.3. Compliance with Laws. Customer shall, and, as applicable shall ensure that Client shall obtain any consent or approval required to communicate with a Consumer at the time and in the manner required by Applicable Law. Customer is solely responsible for any use of the Service by Customer, Client or Authorized Agents, including any Message, and any recruiting, hiring, or employment-related process, action or decision, and shall ensure that any Message, communication, process, action, or decision does not violate any Applicable Law. Customer is solely responsible for and shall ensure that use or disclosure of any Customer Data in connection with this Agreement and the Service complies with Applicable Law, including any required notices or consents in its use of the System, Customer shall, and shall ensure its Client and Authorized Agents, comply with all Applicable Law. Customer agrees that, as between Customer and Emissary, Emissary is a service provider facilitating communications between Customer or Client on the one hand, and Consumers on the other. As between Emissary and Customer, Customer (or Client, as applicable) is the sole or designated “sender” (as such term is defined by the CAN-SPAM Act and the TCPA) of any Message sent through the System and that, therefore, Emissary is not a sender and bears no liability for any claims that Messages sent to Consumers through the System violate Applicable Law. Similarly, Customer agrees that with regard to Messages sent to Canadian phone numbers or email addresses, as between Customer and Emissary, (a) Customer (or Client, as applicable) is the sole person sending or causing or permitting the Messages to be sent through the System (within the meaning of Canada’s Anti-Spam Legislation, S.C. 2010, c. 23), (b) Emissary is not such a person and (c) Emissary bears no liability for any claims that Messages sent to Consumers through the System that violate Canada’s Anti-Spam Legislation.
5.4. Accurate Disclosure. Customer agrees that in any Message sent through the System, Customer shall, or ensure that Client shall, accurately and clearly identify itself, the person sending the Message (if applicable) and the purpose of the Message.
5.5. Consumers & Other Users; System Access. Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s or Client’s account, whether authorized or unauthorized.
6. IP & FEEDBACK.
6.1. IP Rights to the System. Emissary retains all right, title, and interest in and to the Service, including without limitation all software and documentation used to provide the Service and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer or Client any intellectual property license or rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright and other laws.
6.2. Use of Emissary Marks. Customer acknowledges and agrees that some Messages sent via the System to Consumers may include the legend “Powered by Emissary”. Customer shall not, and shall ensure that Client shall not, otherwise use Emissary’s business name(s) trademarks, trade names, service marks or logos (“Marks”) except as authorized in writing by Emissary and subject to such guidelines as are provided by Emissary. All goodwill associated with Emissary’s Marks inure solely to Emissary, and Customer shall, and shall ensure that Customer shall take no action to damage the goodwill associated with the Marks.
6.3. License Grant to Emissary. Customer hereby grants to Emissary a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to:
(a) modify, copy, distribute and incorporate into the Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer, Client and its Users relating to the Service;
(b) use, as applicable, Customer’s and Client’s Marks in connection with providing the Service and for marketing and promotional purposes in connection with Emissary’s business; and
(c) host, store, use, copy, distribute, display, publish, prepare derivative works of and otherwise use Customer Data for the purposes of providing, improving and developing the Service and/or complementary products and services or Emissary and of Emissary’s business partners. Customer represents, warrants and covenants to Emissary that it has all rights necessary to grant the licenses in this Section 6.3 and that provision of Customer Data through and in connection with the System does not violate any applicable laws or rights of any third party.
7. CONFIDENTIAL INFORMATION.
“Confidential Information” refers to the following items Emissary discloses to Customer or Client: (a) any document Emissary marks “Confidential”; (b) any information Emissary orally designates as “Confidential” at the time of disclosure, provided Emissary confirms such designation in writing within 10 business days; (c) the Documentation, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information Customer or Client should reasonably consider a trade secret or otherwise confidential. For purposes of clarity, pricing arrangements between the parties shall be considered Confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s or Client’s possession at the time of disclosure; (ii) is independently developed by Customer or Client without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s or Client’s improper action or inaction; or (iv) is approved for release in writing by Customer or Client.
7.1. Nondisclosure. Customer shall not, and shall ensure that Client shall not use Confidential Information for any purpose other than to facilitate its and its Users’ use of the Service (the “Purpose”). Customer: (a) shall not, and shall ensure that Client shall not disclose Confidential Information to any employee or contractor of Customer or Client unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer (or Client, as applicable) with terms no less restrictive than those of this Article 7; and (b) shall not, and shall ensure that Client shall not, disclose Confidential Information to any other third party without Emissary’s prior written consent. Without limiting the generality of the foregoing, Customer shall, and shall ensure that Client shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall, and shall require Client to promptly notify Emissary of any misuse or misappropriation of Confidential Information that comes to Customer’s or Client’s attention. Notwithstanding the foregoing, Customer and Client may disclose Confidential Information as required by Applicable Law or by proper legal or governmental authority. Customer shall, and shall require Customer to give Emissary prompt notice of any such legal or governmental demand and reasonably cooperate with Emissary in any effort to seek a protective order or otherwise to contest such required disclosure, at Emissary’s expense.
7.2. Injunction. Customer agrees that breach of this Article 7 would cause Emissary irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Emissary will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.3. Termination & Return. Upon termination of this Agreement, Customer shall, and shall ensure that Client shall return all copies of Confidential Information to Emissary or certify, in writing, the destruction thereof.
7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Emissary will retain all right, title, and interest in and to all Confidential Information.
7.5. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Customer is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
(a) IMMUNITY. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS.
8.1. From Emissary. Emissary represents, warrants, and covenants that it is the owner of the Service and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Emissary’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Emissary. In the event of a breach of the warranty in this Section 8.1, Emissary, at its own expense, shall promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it noninfringing; or (c) terminate the infringing features of the System and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Emissary’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System.
8.2. From Customer. Customer represents, warrants, and covenants that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (ii) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; (iii) Customer shall not, and shall ensure the Client does not provide any inaccurate information about a User to or through the System; (iv) and Customer shall, and shall ensure that Client shall only send communications to Users in accordance with Applicable Law and the AUP.
8.3. Warranty Disclaimers. Except to the extent set forth Section 8.1 above, CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) EMISSARY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL BE FREE FROM VIRUS OR OTHER HARMFUL ELEMENTS, MEET YOUR REQUIREMENTS, PERFORM WITHOUT INTERRUPTION OR ERROR; (B) EMISSARY DOES NOT MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SYSTEM AND (C) EMISSARY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EMISSARY MAY MAKE CHANGES TO THE EMISSARY SERVICE FROM TIME TO TIME, OR THE CORRESPONDING EMISSARY INFORMATION, AND THOSE CHANGES SHALL NOT BE DEEMED TO GIVE RISE TO BREACH OF WARRANTY OR LIABILITY OF EMISSARY.
Customer shall defend, indemnify, and hold harmless Emissary and the Emissary Associates (as defined below) against any “Indemnified Claim,” meaning any regulatory penalty or fine as well as any third party claim, suit, or proceeding arising out of or related to a breach of any of the representations, warranties or covenants contained herein, Customer’s or Client’s alleged or actual use of, misuse of, or failure to use the Service, or violation of any obligation or duty under this Agreement (including the AUP) or under any Applicable Law. Indemnified Claims include, without limitation: (a) claims by Consumers or other Users or by Customer’s or Client’s employees; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s or Client’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s or Client’s account, including by Consumers or other Users, harasses, defames, or defrauds a third party or violates the TCPA, the CAN-SPAM Act, or any other Applicable Law, including any law or restriction related to electronic or telephone advertising or usage. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Emissary will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Emissary Associates” are Emissary’s officers, directors, shareholders, members, parents, subsidiaries, employees, agents, successors, suppliers, subcontractors, and assigns.)
10. LIMITATION OF LIABILITY.
10.1. IN NO EVENT WILL EMISSARY OR ANY EMISSARY ASSOCIATE HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING ANY ORDER FORM) FOR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR FOR LOST REVENUE, LOST PROFITS, LOST DAMAGES, LOSS OF GOODWILL, LOSS OF DATA, LOSS OF USE OR INTERRUPTION OF BUSINESS AND CUSTOMER HEREBY WAIVES, AND SHALL ENSURE CUSTOMER WAIVES, ANY CLAIM FOR SUCH DAMAGES.
10.2. THE MAXIMUM AGGREGATE LIABILITY FOR EMISSARY AND THE EMISSARY ASSOCIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED, THE AMOUNT PAID TO EMISSARY FOR THE ANNUAL SUBSCRIPTION TERM DURING WHICH THE LIABILITY AROSE (OR, IF THE LIABILITY ARISES DURING A FREE TRIAL PERIOD, THE SUBSCRIPTION FEE FOR THE FIRST MONTH OF THE SUBSCRIPTION TERM STATED IN THE ORDER FORM). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS IN THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
10.3. IN NO EVENT WILL EMISSARY OR ANY EMISSARY ASSOCIATE BE LIABLE FOR ANY DAMAGES FOR BREACH OF CONTRACT UNDER THIS AGREEMENT UNLESS CUSTOMER FIRST PROVIDED TO EMISSARY THIRTY (30) DAYS’ PRIOR WRITTEN NOTICE OF SUCH BREACH AND AN OPPORTUNITY FOR EMISSARY TO CURE SUCH BREACH WITHIN THOSE THIRTY (30) DAYS.
10.4. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF EMISSARY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Emissary’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Emissary’s liability limits and other rights set forth in this Article 10 apply likewise to Emissary’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
11. TERM & TERMINATION.
11.1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for the period set forth in the Order Form or, if none, for one year. Thereafter, the Term will renew for successive one-year periods, unless either party refuses such renewal by written notice 60 or more days before the renewal date.
11.2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice, effective in 30 days unless the other party first cures such breach. Without limiting Emissary’s other rights and remedies, Emissary may suspend or terminate a Client’s Consumer’s or other User’s access to the System at any time, without advanced notice, if Emissary reasonably concludes such Client, Consumer or other User has conducted itself in a way that is not consistent with the requirements of the AUP or the other requirements of this Agreement or in a way that subjects Emissary to potential liability. Termination by Emissary for cause will not relieve Customer of its obligation to pay all fees that would have otherwise been due had the Agreement not been terminated for breach, and all such fees shall become immediately due.
11.3. Effects of Termination. Upon termination of this Agreement, Customer shall, and shall ensure that Clients shall cease all use of the System and delete, destroy, or return all copies of the Documentation in their possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination and as set forth in 11.2; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.2 (Warranty Disclaimers), 9 (Indemnification), 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
12.1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Emissary employee or contractor will be an employee of Customer.
12.2. Notices. Emissary may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after confirmed receipt. Customer may send notices pursuant to this Agreement to [email protected], and such notices will be deemed received 72 hours after confirmed receipt.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Emissary’s express written consent. Emissary may assign the Agreement without consent to any Affiliate or to any successor by way of merger, consolidation or other corporate reorganization or sale of all or substantially all of Emissary’s assets. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of New York, including applicable U.S. federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of New York, New York. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
12.10. Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Emissary or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo.
12.11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
12.13. Limitation on Time to File Claim. ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO USE OF THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.