Posted/Revised: Friday, October 27, 2017
EMISSARY TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BYEXECUTING AN ORDER FOR EMISSARY’S SOFTWARE-AS-A-SERVICE SYSTEM, CUSTOMER AGREESTO THESE TERMS OF SERVICE.
TheseEmissary Terms of Service constitute an agreement (this “Agreement”) byand between Emissary Software LLC, a Delaware limited liability company whoseprincipal place of business is at 3250NE 1st Ave, Suite 305, Miami FL, 33137 (“Emissary”) and thecorporation, 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 theSystem are governed by this Agreement, as are Customer’s authorizations togrant System access to its own job seekers and other users.
EACH PARTYACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BEBOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEENAUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALFREPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.
1.1. “AUP” means Emissary’s acceptable use policycurrently posted at http://www.emissary.ai/aup.
1.2. “Consumer Terms” means terms thatEmissary may require Individuals to agree to in order to use the System to communicatewith Customer.
1.3. “Consumer”means any person Customer gives access to the System to facilitatecommunications with Customer.
1.4. “CAN-SPAMAct” means the CAN-SPAM Act of 2003, as amended.
1.5. “Customer Data”means data in electronic form inputor collected through the System by or from Customer, including withoutlimitation 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 behalfof Customer through the System. Forclarity, “Message” does not include any communication sent or received outsidethe System through Customer’s web site, email accounts, or telephones and otherelectronic devices of Customer and its employees and contractors.
1.8. “Order”means an order for access to the System referencing these Emissary Terms ofService and executed by both parties.
1.10. “System” means Emissary’s proprietarysoftware-as-a-service system designed to facilitate scripted and/or unscripted communicationsby text message, electronic mail, or telephone between (a) companies requestingor providing information directly from and to individuals and (b) thoseindividuals.
1.11. “TCPA” means the Telephone ConsumerProtection Act of 1991, as amended.
1.12. “Text Message” means anyMessage sent as a short message service (SMS) or multimedia message service(MMS) message via a mobile device. A “Triggered Text Message” is a TextMessage sent in response to Consumer-requests through Emissary forms embeddedinto Customer’s website. A “1-to-1 Text Message” is a Text Messageinitiated by Customer to phone numbers provided by Consumers upon submission byConsumer 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 Systemon Customer’s behalf or through Customer’s account or passwords, whetherauthorized or not, including without limitation Consumers.
2. THE SYSTEM.
2.1. Use of the System. During the Term, Customer mayaccess 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’spolicies posted on its Website at http://www.emissary.ai/aup, as such policiesmay be reasonably updated from time to time.
2.2. Documentation: Customer may reproduce and use theDocumentation solely as necessary to support Users’ use of the System.
2.3. System Revisions. Emissary may revise Systemfeatures and functions at any time, including without limitation by removingsuch features and functions.
2.4. Consumers.Subject to the provisions below of this Section 2.4, Customer may authorize Consumers to access and communicatethrough the System in such numbers and according to such restrictions as areset forth in the applicable Order, solely for the following purposes: to replyto messages sent to a Consumer by Customer and/or to send messages to Customer.Customer shall: (a) provide identifying information for each proposed Consumer toEmissary through the System and update such information as soon as it becomeaware of a change; (b) in the case of Triggered Text Messages, Customer shallnot remove or obscure the consent language on the Triggered Text Message formas detailed in Exhibit A; (c) in the case of 1-to-1 Text Messages, Customeragrees to obtain the required consent of each Consumer prior to sending them 1-to-1Text Messages; Customer shall make no representations or warranties regardingthe 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 tocreate any obligations or liabilities for Emissary. Customer shall be jointlyand severally liable to Emissary for Consumer’s compliance with the ConsumerTerms. Emissary shall have no obligation to provide support or other servicesor other remedies to Consumers.
2.5. Consumer Unsubscribe Requests. Emissary shallmake available to Consumers through the System the ability to withdraw theirconsent to receive Messages through the System and will report such requests(an “Unsubscribe Request”) in the System interface. Emissary shall monitor Unsubscribe Requestsand may restrict the ability of Customer to communicate with unsubscribed usersvia the System. Customer shall notcharge a fee, require a Consumer to give any personal information (other thanhis or her phone number or email address), or take any step other than sendinga reply text or email or visiting a single page on an Internet web site as acondition of honoring an Unsubscribe Request. Emissary is not responsible and accepts no liability for any Consumerrequests to terminate communications with Customer that do not follow thescripted Message format and/or standardized procedures for Unsubscribe Requestsprovided by Emissary. Customer agrees tomonitor and respond to any other Consumer requests not to receivecommunications from Customer. Aftertermination of this Agreement, Customer is responsible for maintaining the listof Unsubscribe Requests provided by Emissary and honoring such requests.
3. SYSTEM FEES. Following any free trial period, as described in theOrder, Customer shall pay Emissary the fee set forth in each Order (the “SubscriptionFee”) for each Term. Emissary will not be required to refund theSubscription Fee under any circumstances.
4.1. Risk of Exposure. Customer recognizes and agreesthat hosting data online involves risks of unauthorized disclosure or exposureand that, in accessing and using the System, Customer assumes such risks. Emissaryoffers no representation, warranty, or guarantee that Customer Data will not beexposed or disclosed through errors or the actions of third parties.
4.2. Data Accuracy. Emissary shall have no responsibility orliability for the accuracy of data transmitted through the System by or toCustomer, including without limitation Customer Data and any other datatransmitted to Customer by Consumers.
4.3. Data Deletion. Emissary may permanently erase CustomerData if Customer’s account is delinquent, suspended, or terminated for 30 days ormore.
4.4. Aggregate & Anonymized Data. Notwithstandingthe provisions above of this Article 4, Emissary mayuse, reproduce, sell, publicize, or otherwise exploit Aggregate Data in anyway, in its sole discretion. (“Aggregate Data” refers to Customer Datawith the following removed: personally identifiable information and the namesand 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-sharingpurposes or in any other way allow third parties to exploit the System, except Usersand Consumers as specifically authorized by this Agreement; (b) share non-public System features or content with anythird party; (c) access the System in order tobuild 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 Consumerswho have not consented to receive them or to non-approved distribution lists,newsgroups, publicly available press or media addresses or purchased cell phonenumbers, but only to Consumers who have consented to receive Text Messages fromCustomer; or (e) send any other Messages through the System to any person whohas opted out, unsubscribed from or otherwiseobjected to receiving such Messages, in all cases through any method permittedby law (including without limitation, for objections, through the proceduresdescribed in Section 2.5above. In the eventthat Emissary suspects any breach of the requirements of this Section 5.1, including withoutlimitation by Users, Emissary may suspend Customer’s access to the Systemwithout advanced notice, in addition to such other remedies as Emissary mayhave. Neither thisAgreement nor the AUP requires that Emissary monitorCustomer’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 thatEmissary believes may be (or is alleged to be) in violation of this Agreement.
5.2. Unauthorized Access. Customer shall take reasonablesteps to prevent unauthorized access to the System, including withoutlimitation by protecting its passwords and other log-in information. Customer shallnotify Emissary immediately of any known or suspected unauthorized use of the System or breach of its security and shall use bestefforts 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 personallyidentifiable information and other laws applicable to the protection ofCustomer Data. Customer’s use shall be in compliance with the CAN-SPAM Act, theTCPA and any other law or regulation protecting consumers from unsolicited ordeceptive communications. Emissary is a service provider facilitatingcommunications between Customer and Consumers. Customer agrees that, as between Customer and Emissary, Customer is thesole or designated “sender” (as such term is defined by the CAN-SPAM Act andthe TCPA) of any Message sent through the System and that, therefore, Emissaryis not a sender and bears no liability for any claims that Messages sent to Consumersthrough the System violate applicable laws. Similarly, Customer agrees that withregard to Messages sent to Canadian phone numbers or email addresses, asbetween Customer and Emissary, (a) Customer is the sole person sending orcausing or permitting the Messages to be sent through the System (within themeaning of Canada’s Anti-Spam Legislation, S.C. 2010, c. 23), (b) Emissary isnot such a person and (c) Emissary bears no liability for any claims thatMessages sent to Consumers through the System that violate Canada’s Anti-SpamLegislation.
5.4. Accurate Disclosure. Customer agrees that in any Message sent through the System, Customer shallaccurately and clearly identify itself, the person sending the Message (ifapplicable) and the purpose of the Message.
5.5. Consumers & OtherUsers; System Access. Customer is responsible and liable for: (a) Consumers’and other Users’ use of the System, including without limitation unauthorizedUser conduct and any User conduct that would violate the AUP or therequirements of this Agreement applicable to Customer; and (b) any use of theSystem through Customer’s account, whether authorized or unauthorized.
5.6. Arbitration Provisions. Customer shall require each Consumer receivingTriggered Text Messages to agree, as a condition of any communication withCustomer through the System, to submit any claims against Customer regardingcommunications through the System to binding arbitration. The terms of such agreement (“ArbitrationTerms”) shall be as shown on Exhibit A hereto.
6.1. IP Rights to the System. Emissary retainsall right, title, and interest in and to the System, including withoutlimitation all software used to provide the System and all graphics, userinterfaces, logos, and trademarks reproduced through the System. This Agreementdoes not grant Customer any intellectual property license or rights in or tothe System or any of its components. Customer recognizes that the System andits components are protected by copyright and other laws.
6.2. Feedback. Emissary has notagreed to and does not agree to treat as confidential any Feedback (as definedbelow) that Customer, Consumers, or other Users provide to Emissary, andnothing in this Agreement or in the parties’ dealings arising out of or relatedto this Agreement will restrict Emissary’s right to use, profit from, disclose,publish, keep secret, or otherwise exploit Feedback, without compensating orcrediting Customer or the Consumer or other User in question. (“Feedback”refers to any suggestion or idea for improving or otherwise modifying any of Emissary’sproducts or services.)
6.3. Use of EmissaryName. Customer acknowledges and agrees that some Messagessent via the System to Consumers may include the legend “Powered by Emissary”. Customer shall not otherwise use Emissary’strademarks and trade names (“Marks”) except as authorized in writing byEmissary and subject to such guidelines as are provided by Emissary. All goodwill associated with Emissary’s Marksinures solely to Emissary, and Customer shall take no action to damage thegoodwill associated with the Marks.
7. CONFIDENTIALINFORMATION. “Confidential Information” refers to thefollowing 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 suchdesignation in writing within 10 business days; (c) the Documentation, whetheror not marked or designated confidential; and (d) any other nonpublic,sensitive information Customer should reasonably consider a trade secret orotherwise confidential. Notwithstanding the foregoing, Confidential Informationdoes not include information that: (i) is in Customer’s possession at the timeof disclosure; (ii) is independently developed by Customer without use of orreference to Confidential Information; (iii) becomes known publicly, before orafter 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 shall not use Confidential Information forany purpose other than to facilitate its and its Users’ use of the System (the“Purpose”). Customer: (a) shall not disclose Confidential Information toany employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes anondisclosure agreement with Customer with terms no less restrictive than thoseof this Article 7; and (b) shall not disclose Confidential Informationto any other third party without Emissary’s prior written consent. Withoutlimiting the generality of the foregoing, Customer shall protect ConfidentialInformation with the same degree of care it uses to protect its ownconfidential information of similar nature and importance, but with no less thanreasonable care. Customer shall promptly notify Emissary of any misuse ormisappropriation of Confidential Information that comes to Customer’sattention. Notwithstanding the foregoing, Customer may disclose ConfidentialInformation as required by applicable law or by proper legal or governmentalauthority. Customer shall give Emissary prompt notice of any such legal orgovernmental demand and reasonably cooperate with Emissary in any effort toseek a protective order or otherwise to contest such required disclosure, at Emissary’sexpense.
7.2. Injunction. Customer agrees that breach of thisArticle 7 would cause Emissaryirreparable injury, for which monetary damages would not provide adequatecompensation, and that in addition to any other remedy, Emissary will beentitled to injunctive relief against such breach or threatened breach, withoutproving actual damage or posting a bond or other security.
7.3. Termination & Return. Upon terminationof this Agreement, Customer shall return all copies of Confidential Informationto Emissary or certify, in writing, the destruction thereof.
7.4. Retention of Rights. This Agreement does not transferownership of Confidential Information or grant a license thereto. Emissary willretain 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 individualshall not be held criminally or civilly liable under any Federal or State tradesecret law for the disclosure of a trade secret that- (A) is made- (i) inconfidence to a Federal, State, or local government official, either directlyor indirectly, or to an attorney; and (ii) solely for the purpose of reportingor investigating a suspected violation of law; or (B) is made in a complaint orother document filed in a lawsuit or other proceeding, if such filing is madeunder seal.
(b) USE OF TRADESECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individualwho files a lawsuit for retaliation by an employer for reporting a suspectedviolation of law may disclose the trade secret to the attorney of theindividual and use the trade secret information in the court proceeding, if theindividual- (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 ownerof the System and of each and every component thereof, or the recipient of avalid license thereto, and that it has and will maintain the full power andauthority to grant the rights granted in this Agreement without the furtherconsent of any third party. Emissary’s representations and warranties in thepreceding sentence do not apply to use of the System in combination withhardware or software not provided by Emissary. In the event of a breach of thewarranty in this Section 8.1, Emissary, at its own expense, shall promptly takethe following actions: (a) secure for Customer the right to continue using theSystem; (b) replace or modify the System to make it noninfringing;or (c) terminate the infringing features of the Service and refund to Customerany prepaid fees for such features, in proportion to the portion of the Termleft after such termination. In conjunction with Customer’s right to terminatefor breach where applicable, the preceding sentence states Emissary’s soleobligation and liability, and Customer’s sole remedy, for breach of thewarranty in this Section 8.1 and for potential or actual intellectual propertyinfringement by the System.
(a) Re Customer Itself. Customerrepresents and warrants that: (i) it has the full right and authority to enterinto, execute, and perform its obligations under this Agreement and that nopending or threatened claim or litigation known to it would have a materialadverse impact on its ability to perform as required by this Agreement; (ii) ithas accurately identified itself and it has not provided any inaccurateinformation about itself to or through the System; and (iii) it is acorporation, the sole proprietorship of an individual 18 years or older, oranother entity authorized to dobusiness pursuant to applicable law.
(b) Re Consumers. Customerrepresents and warrants that, to the best of its knowledge: (i) Customer shall notprovide any inaccurate information about a Consumer or other User to or throughthe 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 ASAVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED,INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESSFOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTYARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OFTRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) EMISSARY HAS NOOBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TOINFRINGEMENT OF INTELLECTUAL PROPERTY; (b) EMISSARY DOES NOT REPRESENT ORWARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) EMISSARYDOES NOT REPRESENT OR WARRANT THAT THE SYSTEMIS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATAWILL REMAIN PRIVATE OR SECURE.
9. INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless Emissaryand the Emissary Associates (as defined below) against any “IndemnifiedClaim,” meaning any third party claim, suit, or proceeding arising out ofor related to Customer’s alleged or actual use of, misuse of, or failure to usethe System, including without limitation: (a) claims by Consumers or other Usersor by Customer’s employees; (b) claims related to unauthorized disclosure orexposure of personally identifiable information or other private information,including Customer Data; (c) claims related to infringement or violation of acopyright, trademark, trade secret, or privacy or confidentiality right bywritten material, images, logos or other content uploaded to the System throughCustomer’s account, including without limitation by Customer Data; and (d)claims that use of the System through Customer’s account, including by Consumersor 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 relatedto Emissary’s negligence. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys andpayment of court costs, as well as settlement at Customer’s expense and paymentof judgments. Emissary will have the right, not to be exercised unreasonably,to reject any settlement or compromise that requires that it admit wrongdoingor liability or subjects it to any ongoing affirmative obligations. (The “EmissaryAssociates” 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 WILLNOT EXCEED THE AMOUNT PAID OR PAYABE TO EMISSARY FOR THE ANNUAL SUBSCRIPTIONTERM DURING WHICH THE LIABILITY AROSE (OR, IF THE LIABILITY ARISES DURING AFREE TRIAL PERIOD, THE SUBSCRIPTION FEE FOR THE FIRST MONTH OF THE SUBSCRIPTIONTERM STATED IN THE ORDER).
10.2. Exclusion of Consequential Damages. IN NO EVENT WILLEMISSARY 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 LIABILITIESLIMITED BY THIS ARTICLE 10 APPLY: (a) TOLIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER INCONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF EMISSARY ISADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IFSUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OFTHEIR ESSENTIAL PURPOSE. If applicable law limits the application of theprovisions of this Article 10, Emissary’sliability will be limited to the maximum extent permissible. For the avoidanceof doubt, Emissary’s liability limits and other rights set forth in this Article10 apply likewise toEmissary’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 EffectiveDate and continue for the period set forth in the Order or, if none, for oneyear. Thereafter, the Term will renew for successive one-year periods, unlesseither party refuses such renewal by written notice 30 or more days before therenewal date.
11.2. Terminationfor Cause. Eitherparty may terminate this Agreement for the other’s material breach by writtennotice, effective in 30 days unless the other party first cures such breach. Withoutlimiting Emissary’s other rights and remedies, Emissary may suspend or terminatea Consumer’s or other User’s access to the System at any time, without advancednotice, if Emissary reasonably concludes such Consumer or other User hasconducted itself in a way that is not consistent with the requirements of theAUP or the other requirements of this Agreement or in a way that subjects Emissaryto potential liability.
11.3. Effects of Termination. Upontermination of this Agreement, Customer shall cease all use of the System anddelete, destroy, or return all copies of the Documentation in its possession orcontrol. The following provisions will survive termination or expiration ofthis Agreement: (a) any obligation of Customer to pay fees incurred beforetermination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.2 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) anyother provision of this Agreement that must survive to fulfill its essentialpurpose.
12.1. Independent Contractors. The parties areindependent contractors and shall so represent themselves in all regards.Neither party is the agent of the other, and neither may make commitments onthe other’s behalf. The parties agree that no Emissary employee or contractorwill be an employee of Customer.
12.2. Notices. Emissary may sendnotices pursuant to this Agreementto Customer’s email contact points provided byCustomer, and such notices will be deemed received 24 hours after they aresent. Customer may send notices pursuant to this Agreement to [email protected],and such notices will be deemedreceived 72 hours after they are sent.
12.3. Force Majeure. No delay, failure, or default, otherthan a failure to pay fees when due, will constitute a breach of this Agreementto the extent caused by acts of war, terrorism, hurricanes, earthquakes, otheracts of God or of nature, strikes or other labor disputes, riots or other actsof civil disorder, embargoes, or other causes beyond the performing party’sreasonable control.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of itsrights 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 thebenefit of the parties’ respective successors and assigns.
12.5. Severability. To the extent permitted by applicablelaw, the parties hereby waive any provision of law that would render any clauseof this Agreement invalid or otherwise unenforceable in any respect. In theevent 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 themaximum extent permitted by applicable law, and the remaining provisions ofthis Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to havewaived any of its rights under this Agreement by lapse of time or by anystatement or representation other than by an authorized representative in anexplicit written waiver. No waiver of a breach of this Agreement willconstitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction: This Agreement will be governed solely by theinternal 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 thesubstantive laws of another jurisdiction to the parties’ rights or duties; (b)the 1980 United Nations Convention on Contracts for the International Sale ofGoods; or (c) other international laws. The parties consent to the personal andexclusive 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 thisAgreement, 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 beconstrued in favor of or against either party by reason of authorship.
12.10.Technology Export. Customer shallnot: (a) permit any third party to access or use the System in violation of anyU.S. law or regulation; or (b) export any software provided by Emissary orotherwise remove it from the United States except in compliance with allapplicable U.S. laws and regulations. Without limiting the generality of theforegoing, Customer shall not permit any third party to access or use theSystem in, or export such software to, a country subject to a United Statesembargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
12.11.Entire Agreement. This Agreementsets forth the entire agreement of the parties and supersedes all prior orcontemporaneous writings, negotiations, and discussions with respect to itssubject matter. Neither party has relied upon any such prior or contemporaneouscommunications.
Company agrees not tochange or obscure the following legend which shall be prominently displayedabove, under or beside any “Remind Me”, “I Accept”, or other button, link, orother click option that connects a Consumer to the System forthe purpose of receiving Triggered Text Messages:
“I agree toreceive text messages from [Customer] and to its arbitration policy.
The phrase, “arbitrationpolicy” shall contain a hyperlink to a page, pop-up or message that prominentlydisplays the Arbitration Terms set forth below, and Company agrees not tochange 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 TERMSSHALL BE INTERPRETED AS THOUGH EXECUTED IN NEW YORK, NEW YORK AND SHALL BEGOVERNED 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 ORRELATING TO TEXT MESSAGES SENT BY [CUSTOMER] BY BINDING ARBITRATION IN NEWYORK, NEW YORK BEFORE A SINGLE ARBITRATOR. ANY ELECTION TO ARBITRATE BY ONEPARTY SHALL BE FINAL AND BINDING ON THE OTHERS. THE PARTIES AGREE TO WAIVE ANYRIGHT TO JOIN CLAIMS WITH OTHERS OR OTHERWISE PROCEED IN A CLASS ACTION. YOU ACKNOWLEDGE THAT, WITHOUT THISPROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT WITH A JURY ORPARTICIPATE IN A CLASS ACTION. The arbitration shall beadministered by JAMS pursuant to its “Streamlined Arbitration Rules andProcedures,” and the arbitrator shall apply New York laws. The prevailing partyshall be entitled to receive its reasonable attorney’s fees, legal costs, andany expenses incurred in such arbitration, and the arbitrator shall determinethe prevailing party for this purpose. This clause shall not preclude theparties from seeking an injunction or other provisional remedies in aid ofarbitration from a court in New York, New York. The parties waive any objectionto personal jurisdiction and venue. Furthermore, this arbitration agreementapplies to any claim against the “Remind Me” service provider, EmissarySoftware LLC (including its affiliates, owners, officers, directors andagents), and Emissary Software LLC is a third-party beneficiary under thisagreement.
Provisional Remedies, Venue.THIS AGREEMENT TO ARBITRATE DOES NOTPRECLUDE THE PARTIES FROM SEEKING PROVISIONAL REMEDIES, INCLUDING ORDERS TOSTAY COURT ACTION OR COMPEL ARBITRATION, OR FROM APPLYING FOR A TEMPORARYRESTRAINING ORDER OR PRELIMINARY INJUNCTION TO PRESERVE INTELLECTUAL PROPERTYRIGHTS, IN STATE OR FEDERAL COURTS IN NEW YORK, NEW YORK. YOU AGREE THAT ABREACH OF THESE TERMS WILL LEAD TO IRREPARABLE INJURY AGAINST [CUSTOMER] ANDEMMISSARY SOFTWARE, LLC UNDER THIS AGREEMENT AND THAT [CUSTOMER] AND EMISSARYSOFTWARE, LLC MAY SEEK IMMEDIATE INJUNCTIVE RELIEF FOR SUCH BREACH. THE PARTIESWAIVE ANY OBJECTION TO PERSONAL JURISDICTION AND VENUE IN NEW YORK, NEW YORK.