Posted/Revised: February 16, 2022
EMISSARY SUBSCRIPTION AGREEMENT
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 Subscription Agreement, together with any Exhibits and Orders incorporated herein by reference (the “Agreement”), constitutes an agreement by and between Emissary Software LLC, a Delaware limited liability company (“Emissary”) and the corporation, LLC, partnership, sole proprietorship, individual or other business entity executing an Order for the System (both as defined in Article 1 below) or such other services as the parties may agree. 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 and by executing the Order, 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, the terms of the Order 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.
1. DEFINITIONS. 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” means, 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 text, e-mail, and other electronic communications, telephone advertising or usage, the protection of personal data and/or 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. For purposes of this Agreement, unless otherwise agreed between the parties, with regard to Emissary’s compliance obligations, Applicable Law means only the federal, state, and local laws of the United States.
1.3. “Authorized Agent” means any person who uses the System on behalf of Customer.
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” means any person other than an Authorized Agent or Emissary personnel with whom Customer communicates through the System.
1.6. “CAN-SPAM Act” means the CAN-SPAM Act of 2003, as amended.
1.7. “Customer Data” means data input or collected through the System or otherwise shared with Emissary by or on behalf of Customer, including without limitation by Consumers or Authorized Agents.
1.8. “Documentation” means Emissary’s standard materials related to use of the System including any content available through the Site or the System.
1.9. “Industry Standard Opt-Out Request” means a response made by a Consumer to a Message sent through the System as a means of communicating to Customer that the Consumer does not wish to receive further Messages from the sender which such response conforms to industry practice opt-out standards or Applicable Law. An Industry Standard Opt-Out Request shall include but not be limited to Messages such as “STOP” and “UNSUBSCRIBE”.
1.10. “Message” means any 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 website, email accounts, through any other platform, or through telephones and other electronic devices of Customer, its employees or contractors.
1.11. “Opt-Out Request” means any request made by a Consumer to no longer receive Messages from Customer.
1.12. “Order” means the documentation related to an order for access to the System referencing this Emissary Subscription Agreement executed by both parties.
1.14. “Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”);
1.15. “Site” means Emissary’s website located at http://www.emissary.ai.
1.16. “System” means Emissary’s proprietary software-as-a-service system designed to facilitate scripted and/or unscripted Messages between (a) companies requesting or providing information directly from and to individuals and (b) those individuals.
1.17. “System Suppression List” means a list maintained through the System which contains (a) the numbers of Consumers who have sent Industry Standard Opt-Out Requests through the System; and (b) the numbers added by Customer as a result of requests made outside of the System or through Opt-Out Requests which are not Industry Standard Opt-Out Requests.
1.18. “TCPA” means the Telephone Consumer Protection Act of 1991, as amended.
1.19. “Text Message” means any Message sent as a short message service (SMS) or multimedia message service (MMS).
1.20. “User” means any company or individual other than Emissary or its third party service providers who uses the System to communicate with Customer or Customer’s Authorized Agents, or who uses the System on Customer’s behalf or through Customer’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 may access and use the System pursuant to: (a) the terms of this Agreement; (b) the terms of any outstanding Order, including such features and functions as the Order requires; and (b) Emissary’s policies posted on the Site or within the System, 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. Consumers. Customer shall: (a) upload or provide to Emissary to upload identifying information for each proposed Consumer and Authorized Agent to the System and update such information as soon as it become aware of a change as required by Applicable Law; (b) 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 shall 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 except as provided herein. For purposes of clarity, it is understood that Consumers may request not to receive Messages and, with regard to Messages generated through the System those requests shall be addressed as set forth in Section 2.4. If a Consumer communicates additional support requests through the System which require Emissary’s assistance, it shall be Customer’s responsibility to advise Emissary of such request and Emissary shall work collaboratively with Customer to help address such request.
2.4. Consumer Opt-Out Requests.
(a) Emissary may restrict the ability of Customer to communicate with Consumers who have opted out 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 Message as a condition of honoring an Opt-Out Request.
(b) During the Term, for the purposes of subsection (a) above, Emissary will use automated means to add the phone numbers of Consumers who have made Industry Standard Opt-Out Requests to the System Suppression List. Communication to phone numbers added to the System Suppression List will be blocked by the System. Additionally, Customer shall have the ability to add numbers to the System Suppression List at its discretion if Opt-Out Requests are received either outside of the System or through means other than Industry Standard Opt-Out Requests. At any time, each Authorized Agent shall have the ability to access and export the portion of the System Suppression List tied to their contacts and, at any time prior to termination of the Agreement and within 30 days thereafter, Customer may request that Emissary provide a copy of the entire System Suppression List.
(c) Other than as set forth in subsection (b) above, Emissary is not responsible and accepts no liability for any Consumer requests to terminate communications with Customer. Additionally, Emissary is not responsible and accepts no liability for any Consumer Requests (i) made through the System that are not Industry Standard Opt-Out Request; (ii) made after termination of the Agreement; (iii) made to Customer outside of the System if Customer does not request that such number is added to the System Suppression List; or (vi) made through the System requesting to terminate Customer’s or Clients’ communication with Consumer beyond the System. Customer agrees it is Customer’s responsibility to monitor and respond to Consumer communications and shall comply with Applicable Law in honoring request not to receive Messages or other forms of communication from Customer during the Term of this Agreement and thereafter.
(d) The Customer shall be responsible for retrieving the System Suppression List from the System prior to termination of this Agreement. After termination of this Agreement, Customer shall be responsible for maintaining the System Suppression List and honoring such requests.
2.5. Compliance Measures. Emissary may temporarily implement technical or other measures in its reasonable discretion to limit or prevent any use of the System in violation of Customer’s responsibilities under this Section 2, as determined in Emissary’s good faith discretion. It is understood that this right is designed for the sole purpose of ensuring that use of the System is in accordance with Applicable Law and reducing the risk for both parties and that use of the System will not result in liability to either party or cause harm to either party or to any third party.
3. SYSTEM FEES.
3.1. Subscription Fees. Customer shall pay Emissary the fees set forth in each Order (the “Subscription Fee”) for each Term. Emissary will not be required to refund the Subscription Fee under any circumstances except as set forth in this Agreement.
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 Subscription Fees are exclusive of taxes, and Emissary shall have the right to invoice taxes together with or separately from the Subscription 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. 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.
4.2. Data Deletion. Customer shall have the option to retrieve Customer Data stored in the System prior to the date of termination of this Agreement. Upon termination of the Agreement, Emissary may permanently erase all Customer Data stored in the Customer’s account.
4.3. Use of Customer Data. In addition to the license set forth in Article 6 of this Agreement, Emissary may use and disclose Customer Data as necessary to comply with Applicable Law.
4.4. California Consumer Privacy Act. The parties agree that in connection with this Agreement, Emissary is a “service provider” and not a “third party” as those terms are defined in the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq. (“CCPA”) Emissary agrees that it shall not (i) sell personal information received in connection with this Agreement; (ii) retain, use or disclose such personal information for any purpose other than for the specific purpose of performing the services specified in this Agreement, including retaining, using or disclosing such personal information for a commercial purpose other than providing the services specified in this Agreement; or (iii) retain, use or disclose such personal information outside of the direct business relationship created pursuant to this Agreement. Emissary a hereby certifies that it understands its obligations under the CCPA and will comply with them.
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Customer shall ensure that all of its Users comply with the terms of the AUP and Applicable Law. In the event that Emissary reasonably and in good faith suspects any breach of the AUP or violation of Applicable Law by Customer or Users, in addition to such other remedies as Emissary may have under law or equity, Emissary may suspend Customer’s access to the System with advance notice or without advance notice if advance notice would increase the likelihood of harm to Emissary, Customer or any third party. 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 or this Agreement, but Emissary is free to take any such reasonable action as it sees fit. In particular, Emissary may block any Messages or campaigns and remove any content that Emissary reasonably and in good faith 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 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 is solely responsible for any use of the Service by Customer 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 and that all legally required disclosures have been made and consents have been obtained in connection with any Message sent through the System. Customer agrees that, as between Customer and Emissary, Emissary is a service provider facilitating communications between Customer and Consumers. Customer is the sole or designated “sender” (as such term is defined by the CAN-SPAM Act, the TCPA, or similar Applicable Law relating to sending Messages) of any Message sent through the System and that, therefore, Emissary is not a sender (as that term is associated with each of the foregoing laws) and bears no liability for any claims that Messages sent through the System by Customer or any party who Customer allows to use its accounts violates Applicable Law. The foregoing sentence is in no way intended to reduce Emissary’s liability if, as a result of Emissary’s negligent acts or omissions Messages are sent by Emissary without Customer’s permission and such Messages 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 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 identify 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 account, whether authorized or unauthorized provided that Customer shall only be responsible for unauthorized access if such access is the result of Customers’ or Users’ acts or omissions.
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 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 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 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 and its Users relating to the Service;
(b) 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 to prevent or respond to illegal conduct, fraud, abuse, or a threat to the security or integrity of systems or data; and
(c) use, as applicable, Customer’s Marks in connection with providing the Service and for marketing and promotional purposes in connection with Emissary’s business.
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 nonpublic, sensitive information Customer 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 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 inaction; or (iv) is approved for release in writing by Customer.
7.1. Nondisclosure. Customer covenants that it 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 disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure 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 may 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 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: (a) 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; (b) it has all rights necessary to grant the licenses granted in this Agreement and that provision of Customer Data through and in connection with the System does not violate any Applicable Law or rights of any third party; (c) it will accurately identify itself and it will not provide any inaccurate information about itself or a User to or through the System; (d) it shall only send communications to Users in accordance with Applicable Law and the AUP; and (e) it shall not, and shall not permit its Authorized Agents to upload or transmit through the System Sensitive Personal Information or any other personal information which would require compliance with the laws of any jurisdictions other than the United States.
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; AND (B) EMISSARY DOES NOT MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SYSTEM. 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.
9. INDEMNIFICATION. 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 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 employees; (b) claims related to unauthorized use including but not limited to disclosure or exposure of personal data, 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 Applicable Law. 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) 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 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, IN THE AGGREGATE, 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). 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 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. 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 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 and as set forth in 11.2; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (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. Anti-Bribery. Each party agrees and acknowledges that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees, contractors or agents in connection with the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party.
12.12. 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.
12.14. 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.