Terms & Conditions

Emissary Master Services Agreement

WHEREAS, Company provides (a) a service (the “Service”) that Client may utilize to access selected advisors with field-specific expertise (each an “Emissary”), and (b) online and other interfaces and related Company proprietary software and other tools (the “Software”), briefs, reports , surveys and similar work product deliverables (“Deliverables”),  and collectively with the Service and the Software, the “Platform”) as more detailed in individual Service Orders, in each case on the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the sufficiency of which is hereby acknowledged, and the mutual agreements herein set forth, the Parties hereby agree as follows:

1. Provision of Services.

1. Account.  In order to access certain functions of the Platform, Client will be required to register with Company (either online or by phone), to create (or permit Company personnel to create) a Service account (an “Account”). Throughout the Term (as defined below), Client agrees to provide true, current, and complete information with respect to its Account and to update the same as needed. Client’s initial and continued support is critical to the successful use of the Service; Client will commit the necessary resources to provide this support and understands that, without its support, there may be significant delays or disruptions in the delivery of the Service.  Client will provide Company with all reasonably necessary information and assistance required for Company to provide the Services including but not limited to whitelisting email domains and understands that a failure to do so could cause disruption in Services.  Each party will designate a main contact person and one or more backup contacts to be responsible for coordination of the Services between Company and Client.  Client will arrange to have its main contact person (Client Principal Contact) and one or more backup contacts attend Company-hosted training session(s) via webinar or other means agreed by the parties, within ninety (90) days of the Start Date.  Client will designate the appropriate information technology resources and contacts to address and assist Company in resolving any integration issues and technical difficulties in performing the Service. Client may permit any individual who is an employee or contractor of Client (each, an “Authorized User”) to access the Service as contemplated by this Agreement, provided that Client shall ensure that any Authorized Users agree to be bound by the terms and conditions of this Agreement and Client shall be entirely responsible for any breach by such persons. Client is solely responsible for maintaining the confidentiality of its Account information and Company will not be liable for any activities by anyone using Client’s Account, whether with or without Client authorization.

2. Service Orders. From time to time, Client shall purchase a Service as set forth in the applicable Service Order, each of which will be made and become a part of this Agreement. The Parties may only deviate from the Service Order if they mutually agree to in writing. If there is a conflict between the terms and conditions of a Service Order and these Terms, unless the applicable term expressly states that it will supersede a specific portion of these Terms, these Terms will control.

3. Usage. Client will follow all instructions provided via the Platform and/or by Company personnel with regard to reviewing and booking available Emissaries. Company does not guarantee that any particular Emissary will be available, and while Client may seek particular Emissaries and accept or reject any Emissary candidates presented to it, Company shall have discretion relative to Emissary availability.

4. Monitoring Communications. Client acknowledges and agrees that Company has the right (but not the obligation) to review, record, monitor, maintain and retain transcripts and recordings of any and all telephone calls, email correspondence and other communications between Client and an Emissary in connection with the provision of the Services and/or otherwise sent or received through the Platform.

5. Limitations of Emissary Obligations. An Emissary’s sole obligation to Client as part of Service delivery shall be to provide good faith advice, using his/her reasonable efforts, pursuant to the parameters agreed to herein. Further, Emissaries shall not be obligated to (i) make introductions between Client and any third party or otherwise vouch or make any other recommendation for Client, or (ii) secure or commit to secure any sales for Client.  Client shall not pressure or seek to coerce any Emissary to do any of the foregoing.  Company shall not have any liability hereunder in the event that it furnishes an Emissary but Client does not engage with or is otherwise not reasonably responsive to such Emissary.

6. Vetting. Company will use reasonable efforts to confirm each Emissary’s stated background prior to making them available (“Emissary Vetting”). For clarity, Emissary Vetting may be limited to a single phone interview and/or other readily available online reference sources but will not include criminal background checks, private investigators or personal reference checks.  Client acknowledges that Emissary Vetting may not be accurate and Client’s rights and remedies relative to any mistakes in Emissary Vetting shall be solely as set forth herein. Except for the Emissary Vetting, Company makes no representations as to the capability, or qualifications of any Emissary.

7. Emissary Role; Deliverables. Client agrees that, vis-a-vis Emissaries, (i) while the Platform is provided to connect Clients to Emissaries, Emissaries are not employees of Company and any advice provided by an Emissary is provided directly to Client, and (ii) any advice or other interaction with any Emissary pursuant to a Service or otherwise (collectively, the “Emissary Experience”) is not controlled or supervised by Company and is accepted by Client at its own risk, without liability to Company. Further, Client understands that the Company does not guarantee that Deliverables will deliver sales improvement or particular results.

8. Service Issues and Redress. In the event that either (i) an Emissary fails to perform its obligations under a Service Order and/or this Agreement, or Client discovers that an Emissary’s career experience is materially different than his or her described background or (ii) Client identifies to Company a Deliverable that materially deviated from the Company description thereof, Client must promptly notify Company . Thereafter, Company will investigate the circumstances and if it does not reasonably dispute Client’s factual account of such issues, Company will provide an alternative Interaction or Deliverable.   Client agrees that the foregoing shall be its exclusive remedy under this Agreement relative to such circumstances; except that, if Client believes that an Emissary violated its obligations relating to Client Work Product, Client Data or Confidential Information (per Section 2.3 below), then Client will have the additional remedies described in Section 1.9 below.

9. Client-Emissary Relationship; Third Party Beneficiary. Client will not contract directly with any Emissary.  However, each Emissary  will enter into an agreement with the Company whereby it agrees to be bound by obligations that are no less restrictive than those contained herein relative to its maintenance of any Client Data,  the ownership of any Client Work Product and the use of Confidential Information (as set forth in Section 2.3 below), and whereby Client shall have the status of a “third party beneficiary” to those specific terms of  such agreement such that Client may therefore enforce its rights solely with regard to such terms directly against such Emissary.  In all cases where Client believes that an Emissary has breached any of its obligations, Client will first notify Company in writing and provide Company the reasonable opportunity to seek redress with the Emissary before it commences any direct action against an Emissary.

10. Licenses. Subject to Client’s compliance with this Agreement, Company hereby grants Client, during the Term, a limited, non-exclusive, non-transferable (except to Authorized Users), non-sublicensable, revocable license to access and use the Platform in accordance with any instructions and documentation provided by Company (“Documentation”), solely for Client’s internal business purposes and in accordance with the limitations set forth herein. The foregoing license shall not include any right to conduct timesharing, application service provider, or other unauthorized use.  In addition, Company will provide the perpetual license set forth on Section 2 Ownership below relative to certain Deliverables, as stated therein.

11. Service Usage Restrictions.

• • Client agrees that it will interact with all Emissaries in a professional, respectful and civil manner, in accordance with all laws and regulations, and only as permitted hereunder for the purpose of improving its sales, marketing or other business strategy.
  • Unless an Emissary voluntarily provides additional personal contact information to a Client (which it is not obligated to do), Client will only interact with any Emissary via the communication tools provided by Company.
  • Client will not purposefully seek a third party’s confidential or proprietary information from an Emissary.
  • Client will respect an Emissary’s confidentiality and not directly or indirectly reveal the Emissary’s identity or involvement with Client to any third party unless the Emissary expressly authorizes the same.
  • Client will not utilize any Deliverable for resale or other purposes not expressly provided for herein.

12. Additional Restrictions. Client further agrees that it will not, nor will it cause or permit any third party to, (a) allow any third party to access the Platform (except as permitted hereunder); (b) modify, adapt, alter or translate the Platform; (c) sublicense, lease, rent, loan, distribute, transfer or otherwise allow the use of the Platform for the benefit of any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software or any other part of the Platform; (e) create derivative works based on the Platform; or (f) access or use the Platform, or any information or content obtained in connection therewith, for any purpose prohibited by law.  Client may not re-sell any purchased Services or Deliverables unless it receives Company’s express prior written approval, in any instance.

13. Non-Circumvention. Client agrees that Company’s network of Emissaries is a unique property of Company and that its access to such network represents a core component of the consideration provided under this Agreement. During the Term and for the twelve (12) months after, Client agrees that (i) it will only engage Emissaries for advisory services via the Service and (ii) that if it does engage or hire an Emissary during such period, for any purpose (whether on a full-time, part-time, consulting or other basis), as liquidated damages, Client will pay to Company an amount equal to either: (i) ten percent (10%) of the first year’s annual salary amount, or (ii) twenty percent (20%) of any other fee amount, in each case that it agrees to pay to such Emissary (or any entity that it controls).

14. Modification. Company endeavors to improve its Platform and Services and may add or remove features and functionality from time to time. Company will use reasonable efforts to give Client prior written notice of any material modifications. All such modifications shall be subject to and governed by this Agreement. Company may modify the terms of this Agreement from time to time; provided that, it will provide email notice to Client of any changes and if any changes would materially degrade Client’s rights under any active Service Orders, Client will have an opportunity, within ten (10) business days, to decline to accept such amended terms and terminate the Agreement by providing written notice of the damage to Company, receiving a pro-rated refund of any paid for but unredeemed Services. If Client does not provide a written termination notice, it will be deemed to have accepted any such changes.

15. Suspension. Company reserves the right to suspend Client’s access to the Platform and/or Service: (a) for scheduled or emergency maintenance or (b) in the event Company reasonably determines Client to be in breach of this Agreement.

2.  OWNERSHIP

1. The Platform. Except with respect to the licenses granted by Company hereunder, Company owns all right, title and interest (including, but not limited to, all copyright, patent, trademark, and trade secret rights) in and to the Platform and the Documentation.

2. Open Source Software. Certain items of software used in the Platform may be subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this Agreement. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Client’s rights under, or grants Client rights that supersede, the terms of any applicable end-user license for the Open Source Software. If required by any such license, Company makes such Open Source Software, and Company’s modifications to that Open Source Software, available by written request.

3. Deliverables; Client Advice, Client Provided Materials; Data; Confidentiality.

1. Deliverables. Any Deliverables, which includes any work product delivered by Company or an Emissary to a Client that is not (i) Client Advice or (ii) Client Provided Materials, shall be owned by Company; provided that, subject to Client’s paying all amounts due under the applicable Service Order, Client shall receive a perpetual, fully-paid up, royalty free right to access and use the Deliverables for its internal sales, marketing, business development and training activities, as well as within non-public sales or marketing pitches.   The foregoing shall not include any right to resell or relicense the same and any public use of a Deliverable must be approved by Company.

2. Client Advice. Any advice from an Emissary or Company to Client about Client’s business and/or Client’s business materials, including related work product (such as edits or suggested edits to Client’s sales materials) (collectively, “Client Advice”) shall be produced on a “work for hire” basis and Client shall own the same.   However, the foregoing may include materials or portions of materials that are derived or licensed from public third-party sources (such as newspaper articles), which will be subject to any rights identified therewith that are applicable to them.

3. Client Provided Materials.  Any materials provided or made accessible by Client to Company (such as but not limited to, its existing sales decks, its strategies, marks, product descriptions or the like, collectively “Client Provided Materials”) shall be owned entirely by Client.  To the extent that Client provides Client Provided Materials to Company for use within any Deliverable or other aspect of the Platform or Services, such use will be under limited license, during the Term, solely to provide the Services).

4. To the extent that any of Client’s strategy, data and other non-public information (“Client Data”) is provided to Company, Company agrees (and it will cause each Emissary to agree) to maintain the confidentiality of the same, as described under “Confidential Information” below.  Client hereby agrees to provide to Company a revocable, nonexclusive, royalty-free, limited license to store, copy, transmit, and display Client Data (a) as necessary in order for Company to provide the Services in accordance with the Agreement, and (b) to track and evaluate the success of Services and (c) create and compile Aggregate Data that it may use for any lawful purpose.  “Aggregate Data” means data that is anonymized and aggregated with other anonymized data. Client is solely responsible for creating backup copies of any Client Data.

5. Confidential Information. “Confidential Information” means the terms of this Agreement, including any Service Order, any Client Data, and any and all information prepared or delivered to the receiving party by the disclosing party or its representatives (including information or data received by Client from Emissaries), that should be known to a reasonable person given the facts and circumstances of the disclosure to be confidential information of the disclosing party. Client Data shall be Confidential Information of Client; the identity of each Emissary and the Aggregate Data shall be Confidential Information of Company. Confidential Information does not include any information that the receiving party can establish: (a) was known to the receiving party prior to receiving the same from the disclosing party, free of any restrictions; (b) is independently developed by the receiving party without access to or reference to the disclosing party’s Confidential Information; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.

6. Use of Confidential Information. The receiving party agrees that it will not use or disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement. The receiving party will limit access to the disclosing party’s Confidential Information to those employees or representatives who have a need to know such Confidential Information to perform the receiving party’s obligations or exercise the receiving party’s rights under this Agreement, and who have been informed of the confidential nature of such information. In addition, the receiving party will protect the disclosing party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the disclosing party’s request or upon the expiration or termination of this Agreement, the receiving party will return to the disclosing party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the receiving party does not have a continuing right to use under this Agreement, and, upon the disclosing party’s request, the receiving party shall provide to the disclosing party a written affidavit certifying compliance with this sentence.

3. Service Fees. Client shall pay to Company the amounts (“Fees”) set forth in the applicable Service Order in accordance with the payment terms set forth therein. Non-payment or late payment of undisputed Fees is a material breach of this Agreement. Client shall pay interest on any overdue balance at the rate of 1.5% per month or the maximum permitted by law, whichever is less, plus all expenses of collection. All taxes and other governmental charges (except for income taxes), if any, imposed on Client hereunder shall be deemed to be in addition to the Fees charged, and borne solely by Client. Client understands that all Fees are priced based on Company’s commitment to provide the applicable Services and Deliverables and that Company assigns resources accordingly.  Therefore, Client agrees that at the termination of the Agreement Term (unless terminated early by Company as set forth in Section 7 below), no refund or other pro-rata return of fees paid for any Services, Deliverables, Emissary Interactions or other Platform elements that have been paid for but not used during the Agreement Term shall be due and, unless the Parties agree otherwise in writing as part of a term extension or amendment, no such services or items will carry forward and be redeemable or accessible after the Agreement Term. No Emissary should seek any additional charges or fees from a Client relative to any Services and Client agrees that in such instance it (i) shall refuse any such request and (ii) promptly report the same to Company.

4. Warranties and Disclaimers. Client hereby represents and warrants to Company that (i) it has the authority to enter into this Agreement and that its obligations hereunder shall not cause it to violate any agreement to which it is a party, (ii) it shall only interact with Emissaries and the use the Platform as permitted herein, (ii) that it will comply with all applicable laws and regulations in relation to the same. Company hereby represents and warrants to Client that it has secured contractual commitments from Emissaries that participate in Services to provide good faith advice, pursuant to the parameters set forth herein.

EXCEPT AS EXPRESSLY PROVIDED IN THE PRECEDING SENTENCE, THE PLATFORM IS PROVIDED “AS IS,” AND COMPANY DISCLAIMS AND MAKES NO OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT GUARANTEE ANY RESULTS WITH RESPECT TO THE USE OF THE PLATFORM OR ANY EMISSARIES WITH WHOM CLIENT IS CONNECTED THROUGH THE SERVICE.

CLIENT ACKNOWLEDGES THAT COMPANY DOES NOT PERFORM CRIMINAL BACKGROUND OR IDENTITY CHECKS (APART FROM THE EMISSARY VETTING DESCRIBED) ON ANY EMISSARY AND THAT CLIENT’S INTERACTION WITH AN EMISSARY, SHALL BE AT ITS OWN RISK.

CLIENT AGREES THAT IT IS ITS OWN RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, ADVICE OR OTHER MATERIALS PROVIDED BY AN EMISSARY AND CLIENT AGREES THAT (COMPANY IS NOT RESPONSIBLE, IN ANY WAY, FOR THE SAME OR CLIENT’S RELIANCE UPON IT.  SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.

5. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE HEREUNDER.  EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER (IF ANY), IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER AS A RESULT OF ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES OWED BY CLIENT IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM.  SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CLIENT.IF CLIENT IS A CALIFORNIA RESIDENT, IT HEREBY WAIVES ITS RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

NO PERSON ACTING ON COMPANY’S BEHALF HAS ANY AUTHORITY TO MAKE OR CLAIM ANY REPRESENTATION, TERM, PROMISE, CONDITION, STATEMENT, WARRANTY, OR INDUCEMENT (COLLECTIVELY, “INDUCEMENT”) NOT EXPRESSED HEREIN. BY ACCEPTING THESE TERMS AND CONDITIONS, CLIENT REPRESENTS THAT IT IS NOT RELYING ON ANY INDUCEMENT THAT IS NOT EXPRESSED IN THIS AGREEMENT.

6. Indemnification

1. By Company. Company shall indemnify, defend and hold harmless Client against any third-party claims (i) arising out of Company’s gross negligence or willful misconduct in connection with the provision of the Service and/or (ii) alleging that the Platform violates its intellectual property rights and Company shall pay any losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) (“Losses”) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Company. For clarity, the foregoing indemnity obligation shall not apply relative to any claims arising out of the actions of any Emissary.

2. By Client. Client shall indemnify defend and hold harmless Company against any third-party claims arising out of (a) use of the Platform and Service hereunder except to the extent such claims are covered under Section 6.1 above, (b) Client’s interaction with an Emissary and/or (c) Client’s breach or alleged breach of any of its covenants, representations or warranties hereunder, and Client shall pay any Losses finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Client.

3. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall (at the indemnifying party’s expense) reasonably cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

7. Term and Termination. This Agreement shall remain in effect for the term of the applicable Service Order (the “Initial Term”) and shall automatically renew and/or go back into effect during the terms of any renewal or other additional Service Orders entered into between Company and the Client (each a “Renewal Term” and together, the “Term”).  Either party may terminate this Agreement immediately upon written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within (30) days after its receipt of written notice of such breach; provided that Company may terminate this Agreement upon immediate notice if it determines that Client has breached any obligations relating to its interactions with any Emissary and/or its continued relationship would expose Company to immediate harm. Company may additionally terminate this Agreement and/or any individual Service Order, if it determines that it cannot adequately provide the Service in a manner that meets Client’s needs; provided that, in the case of the foregoing, Company shall refund Fees to Client on a pro-rated basis that are attributable to paid-for but unredeemed Services subject to termination. Immediately upon termination of this Agreement, (a) except as expressly set forth herein (if applicable to a particular Service Order) the licenses granted to either party shall immediately terminate; and (b) except as may be set forth in a particular Service Order (which often permit a 30 day grace period post-Term to utilize any previously purchased Services), Company shall cease to make available and Client shall cease to use the Platform and Service and it shall stop any communications pursuant to any Service. Except as specifically set forth herein or upon other mutual written agreement, Termination shall not relieve Client’s obligation to pay all charges accrued before the effective date of termination and in the case of any termination for breach by Client, no previously paid Fees shall be refunded. Sections 1.9, 1.12, 1.13, 2-11 will survive the expiration or termination of this Agreement.

8. Dispute Resolution; Arbitration; No Class Actions. The Parties agree that any dispute, claim or controversy arising out of or relating in any way to the Service and this Agreement will be determined by binding arbitration or in small claims court, at Client’s choosing. In executing this Agreement, Client agrees that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that the Parties are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of Client’s use of the Service. To seek arbitration or to file a small claim court action against Company, Client must first send to Company, by certified mail, a written notice of its claim, including a description of the basis for the claim and the relief being sought, to: General Counsel, Emissary, 228 Park Ave S, Ste 86223, New York, NY 10003-1502. If Company initiates arbitration, it will send a similar written notice to the Client address provided herein. Following either Party’s receipt of such a written notice, the parties agree to first use reasonable efforts to reach an amicable resolution to the claim. If the Parties cannot reach an agreement to resolve the claim within 30 days after the notice is received, either may commence an arbitration proceeding or file a claim in small claims court.  The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The arbitrator will be bound by the terms of this Agreement. All issues will be for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless the Parties agree otherwise, any arbitration hearings or small claims court proceedings will take place within 100 miles of Company’s offices.

THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Parties agree otherwise, the arbitrator may not consolidate more than one person’s claims with its claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

9. TIMING. CLIENT AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION ACCRUES OR THE APPLICABLE STATUTE OF LIMITATIONS PERIOD. OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

10. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without reference to conflicts of laws principles. Both Parties expressly agree that any action relating to this Agreement shall exclusively be brought in New York City, New York, and both parties irrevocably consent to the jurisdiction of the state and federal courts located in New York City, New York. Each party expressly waives any objection that it may have based on improper venue or forum non-conveniens to the conduct of any such suit or action in any such court.

11. MISCELLANEOUS. The parties are independent contractors and nothing in this Agreement shall be deemed to create the relationship of partners, joint venturers or employer-employee, between the parties. Neither party is, or will hold itself out to be, an agent of the other party. Neither party is authorized to enter into any contractual commitment on behalf of the other party. This Agreement, together with any Service Order(s), and any and all exhibits attached thereto, contain the entire agreement of the parties and supersede any prior or present understanding or communications regarding its subject matter, and may only be amended in a writing signed by both parties. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect. Neither party shall assign this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to a successor pursuant to a merger, consolidation or sale of substantially all of its assets related to this Agreement, provided it promptly notifies the non-assigning party in writing of the assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, failure of suppliers, fires, floods or earthquakes. Any notice given under this Agreement shall be in writing and shall be sent via overnight mail by a nationally recognized express delivery service addressed to the address set forth herein.