Posted/Revised: Friday, October 27, 2017
EMISSARY TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY EXECUTING AN ORDER FOR EMISSARY’S SOFTWARE-AS-A-SERVICE SYSTEM, CUSTOMER AGREES TO THESE TERMS OF SERVICE.
TheseEmissary Terms of Service constitute an agreement (this “Agreement”) by and between Emissary Software LLC, a Delaware limited liability company whose principal place of business is at 3250NE 1st Ave, Suite 305, Miami FL, 33137 (“Emissary”) and the corporation, LLC, partnership, sole proprietorship, or other business entity (“Customer”) executing an Order for the System (both as defined in Article 1 below). This Agreement is effective as of the date each party executes the first Order (the “Effective Date”). Customer’s use of and Emissary’s provision of the System are governed by this Agreement, as are Customer’s authorizations to grant System access to its own job seekers and other users.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.
1.1. “AUP” means Emissary’s acceptable use policy currently posted at http://www.emissary.ai/aup.
1.2. “Consumer Terms” means terms that Emissary may require Individuals to agree to in order to use the System to communicate with Customer.
1.3. “Consumer” means any person Customer gives access to the System to facilitate communications with Customer.
1.4. “CAN-SPAMAct” means the CAN-SPAM Act of 2003, as amended.
1.5. “Customer Data” means data in electronic form input or collected through the System by or from Customer, including without limitation by Consumers or other Users.
1.6. “Documentation” means Emissary’s standard manual related to use of the System.
1.7. “Message” means any text or email message sent to or received from a Consumer on behalf of Customer through the System. For clarity, “Message” does not include any communication sent or received outside the System through Customer’s web site, email accounts, or telephones and other electronic devices of Customer and its employees and contractors.
1.8. “Order” means an order for access to the System referencing these Emissary Terms of Service and executed by both parties.
1.10. “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.
1.11. “TCPA” means the Telephone Consumer Protection Act of 1991, as amended.
1.12. “Text Message” means any Message sent as a short message service (SMS) or multimedia message service (MMS) message via a mobile device. A “Triggered Text Message” is a Text Message sent in response to Consumer-requests through Emissary forms embedded into Customer’s website. A “1-to-1 Text Message” is a Text Message initiated by Customer to phone numbers provided by Consumers upon submission by Consumer of information to Customer’s website.
1.13. “Term” is defined in Section 11.1 below.
1.14. “User” means any company or individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not, including without limitation Consumers.
2. THE SYSTEM.
2.1. Use of the System. During the Term, Customer may access and use the System pursuant to: (a) the terms of any outstanding Order, including such features and functions as the Order requires; and (b) Emissary’s policies posted on its Website at http://www.emissary.ai/aup, as such policies may be reasonably updated from time to time.
2.2. Documentation: Customer 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. Subject to the provisions below of this Section 2.4, Customer may authorize Consumers to access and communicate through the System in such numbers and according to such restrictions as are set forth in the applicable Order, solely for the following purposes: to reply to messages sent to a Consumer by Customer and/or to send messages to Customer. Customer shall: (a) provide identifying information for each proposed Consumer to Emissary through the System and update such information as soon as it become aware of a change; (b) in the case of Triggered Text Messages, Customer shall not remove or obscure the consent language on the Triggered Text Message form as detailed in Exhibit A; (c) in the case of 1-to-1 Text Messages, Customer agrees to obtain the required consent of each Consumer prior to sending them 1-to-1 Text Messages; Customer shall make no representations or warranties regarding the System or any other matter, to Consumers or Users or any other third party, from or on behalf of Emissary, and Customer shall not create or purport to create any obligations or liabilities for Emissary. Customer shall be jointly and severally liable to Emissary for Consumer’s compliance with the Consumer Terms. Emissary shall have no obligation to provide support or other services or other remedies to Consumers.
2.5. Consumer Unsubscribe Requests. Emissary shall make available to Consumers through the System the ability to withdraw their consent to receive Messages through the System and will report such requests (an “Unsubscribe Request”) in the System interface. Emissary shall monitor Unsubscribe Requests and may restrict the ability of Customer to communicate with unsubscribed users via the System. Customer shall not 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 or visiting a single page on an Internet web site 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 that do not follow the scripted Message format and/or standardized procedures for Unsubscribe Requests provided by Emissary. Customer agrees to monitor and respond to any other Consumer requests not to receive communications from Customer. After termination of this Agreement, Customer is responsible for maintaining the list of Unsubscribe Requests provided by Emissary and honoring such requests.
3. SYSTEM FEES. Following any free trial period, as described in the Order, Customer shall pay Emissary the fee set forth in each Order (the “Subscription Fee”) for each Term. Emissary will not be required to refund the Subscription Fee under any circumstances.
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, Customer assumes such risks. Emissary offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
4.2. Data Accuracy. Emissary shall have no responsibility or liability for the accuracy of data transmitted through the System by or to Customer, including without limitation Customer Data and any other data transmitted to Customer 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. 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 and any of its Users.)
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System, except Users and Consumers as specifically authorized by this Agreement; (b) share non-public System features or content with any third party; (c) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System; (d) send Text Messages through the System to Consumers who have not consented to receive them or to non-approved distribution lists, newsgroups, publicly available press or media addresses or purchased cell phone numbers, but only to Consumers who have consented to receive Text Messages from Customer; or (e) send any other Messages through the System to any person who has opted out, unsubscribed from or otherwise objected to receiving such Messages, in all cases through any method permitted by law (including without limitation, for objections, through the procedures described in Section 2.5 above. In the event that Emissary suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Emissary may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Emissary may have. Neither this Agreement nor the AUP requires that Emissary monitor Customer’s use of the System or take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, 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.
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 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.
5.3. Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data. Customer’s use shall be in compliance with the CAN-SPAM Act, the TCPA and any other law or regulation protecting consumers from unsolicited or deceptive communications. Emissary is a service provider facilitating communications between Customer and Consumers. Customer agrees that, as between Customer and Emissary, Customer 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 laws. Similarly, Customer agrees that with regard to Messages sent to Canadian phone numbers or email addresses, as between Customer and Emissary, (a) Customer 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 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) Consumers’ and other 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 account, whether authorized or unauthorized.
5.6. Arbitration Provisions. Customer shall require each Consumer receiving Triggered Text Messages to agree, as a condition of any communication with Customer through the System, to submit any claims against Customer regarding communications through the System to binding arbitration. The terms of such agreement (“Arbitration Terms”) shall be as shown on Exhibit A hereto.
6.1. IP Rights to the System. Emissary retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer 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. Feedback. Emissary has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer, Consumers, or other Users provide to Emissary, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Emissary’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the Consumer or other User in question. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Emissary’s products or services.)
6.3. Use of Emissary Name. Customer acknowledges and agrees that some Messages sent via the System to Consumers may include the legend “Powered by Emissary”. Customer shall not otherwise use Emissary’s trademarks and trade names (“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 inures solely to Emissary, and Customer shall take no action to damage the goodwill associated with the Marks.
7. CONFIDENTIAL INFORMATION. “Confidential Information” refers to the following items Emissary discloses to Customer: (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 non public, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or in action; or (iv) is approved for release in writing by Customer.
7.1. Nondisclosure. Customer shall not use Confidential Information for any purpose other than to facilitate its and its Users’ use of the System (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes an on disclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) 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 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 promptly notify Emissary of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall 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 been titled 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 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, 18USC 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.
8.1. From Emissary. Emissary represents and warrants that it is the owner of the System 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 Service 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.
(a) Re Customer Itself. Customer represents and warrants 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; and (iii) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
(b) Re Consumers. Customer represents and warrants that, to the best of its knowledge: (i) Customer shall not provide any inaccurate information about a Consumer or other User to or through the System; and (ii) each Consumer will be an individual 18 years or older.
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 HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) EMISSARY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; 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.
9. INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless Emissary and the Emissary Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Consumers or other Users or by Customer’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 account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’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 law or restriction on electronic or telephone advertising. Indemnified Claims include, without limitation, claims arising out of or related to Emissary’s negligence. 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 wrong doing or liability or subjects it to any ongoing affirmative obligations. (The “Emissary Associates” are Emissary’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
10.1. Dollar Cap. EMISSARY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID OR PAYABE TO EMISSARY FOR THE ANNUAL SUBSCRIPTION TERM DURING WHICH THE LIABILITY AROSE (OR, IF THE LIABILITY ARISES DURING AFREE TRIAL PERIOD, THE SUBSCRIPTION FEE FOR THE FIRST MONTH OF THE SUBSCRIPTION TERM STATED IN THE ORDER).
10.2. Exclusion of Consequential Damages. IN NO EVENT WILL EMISSARY BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3. 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 IFSUCH 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.
11.1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for the period set forth in the Order 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 30 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 Consumer’s or other User’s access to the System at any time, without advanced notice, if Emissary reasonably concludes such 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.
11.3. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its 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; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.2 (Warranty Disclaimers), 9 (Indemnification), and 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 they are sent. Customer may send notices pursuant to this Agreement to [email protected], and such notices will be deemed received 72 hours after they are sent.
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. 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 thisAgreement 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 (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
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.
Company agrees not to change or obscure the following legend which shall be prominently displayed above, under or beside any “Remind Me”, “I Accept”, or other button, link, or other click option that connects a Consumer to the System for the purpose of receiving Triggered Text Messages:
“I agree to receive text messages from [Customer] and to its arbitration policy.
The phrase, “arbitration policy” shall contain a hyperlink to a page, pop-up or message that prominently displays the Arbitration Terms set forth below, and Company agrees not to change or obscure the display of the hyperlink or the text below:
Choice of Law, Binding Arbitration, Injunctive Relief, Venue
Choice of Law. THE FOLLOWING ARBITRATION TERMS SHALL BE INTERPRETED AS THOUGH EXECUTED IN NEW YORK, NEW YORK AND SHALL BE GOVERNED BY NEW YORK LAWS WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
Binding Arbitration. TO THE FULLEST EXTENT PERMITTED BYLAW, THE PARTIES HEREBY AGREE TO RESOLVE ALL DISPUTES ARISING OUT OF OR RELATING TO TEXT MESSAGES SENT BY [CUSTOMER] BY BINDING ARBITRATION IN NEW YORK, NEW YORK BEFORE A SINGLE ARBITRATOR. ANY ELECTION TO ARBITRATE BY ONE PARTY SHALL BE FINAL AND BINDING ON THE OTHERS. THE PARTIES AGREE TO WAIVE ANY RIGHT TO JOIN CLAIMS WITH OTHERS OR OTHERWISE PROCEED IN A CLASS ACTION. YOU ACKNOWLEDGE THAT, WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT WITH A JURY OR PARTICIPATE IN A CLASS ACTION. The arbitration shall be administered by JAMS pursuant to its “Streamlined Arbitration Rules and Procedures,” and the arbitrator shall apply New York laws. The prevailing party shall be entitled to receive its reasonable attorney’s fees, legal costs, and any expenses incurred in such arbitration, and the arbitrator shall determine the prevailing party for this purpose. This clause shall not preclude the parties from seeking an injunction or other provisional remedies in aid of arbitration from a court in New York, New York. The parties waive any objection to personal jurisdiction and venue. Furthermore, this arbitration agreement applies to any claim against the “Remind Me” service provider, Emissary Software LLC (including its affiliates, owners, officers, directors and agents), and Emissary Software LLC is a third-party beneficiary under this agreement.
Provisional Remedies, Venue. THIS AGREEMENT TO ARBITRATE DOES NOT PRECLUDE THE PARTIES FROM SEEKING PROVISIONAL REMEDIES, INCLUDING ORDERS TOSTAY COURT ACTION OR COMPEL ARBITRATION, OR FROM APPLYING FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION TO PRESERVE INTELLECTUAL PROPERTY RIGHTS, IN STATE OR FEDERAL COURTS IN NEW YORK, NEW YORK. YOU AGREE THAT A BREACH OF THESE TERMS WILL LEAD TO IRREPARABLE INJURY AGAINST [CUSTOMER] AND EMISSARY SOFTWARE, LLC UNDER THIS AGREEMENT AND THAT [CUSTOMER] AND EMISSARY SOFTWARE, LLC MAY SEEK IMMEDIATE INJUNCTIVE RELIEF FOR SUCH BREACH. THE PARTIES WAIVE ANY OBJECTION TO PERSONAL JURISDICTION AND VENUE IN NEW YORK, NEW YORK.