Advisor Terms and Conditions

Emissary: Summary Engagement Terms

Hi, and welcome to Emissary!

These Summary Engagement Terms summarize your relationship with Emissary. Together with the attached legal terms and conditions, it will constitute your agreement with us. 

What You’re Signing Up For

  • By completing this process, you’re signing up to become an Emissary. This means you’ll be eligible to work with our clients, pursuant to defined parameters that we call “Engagements.” We offer two types of Engagements that we may invite you to contribute to, subject to our criteria: (1) completion of informational surveys about your current or most recent professional roles and organizations for use in our database that is made available to our clients (“Knowledge”) and/or (2) sharing your insights regarding technology purchasing practices at your most recently departed organization (“Coach,” where any live coaching session is a “Coaching Session”). 
  • You will NOT be asked to contribute to Coach with regard to  your current organization, and your insights provided for Knowledge will only be presented in an aggregated, anonymous manner.
  • Once you’re on board, we will start looking for opportunities where your expertise can be impactful. We will be there to support you every step of the way in an Engagement.

Your Background

  • We need background information from you to verify your eligibility as a potential Emissary. You agree to provide accurate and current information about your work history and background.
  • We’ll make use of your background information to create a confidential, password-protected profile. It’s your obligation to log in to validate the profile’s accuracy, update us as needed to keep it accurate, and keep your login credentials secure.
  • You have control over your profile data. Your profile data will be treated in accordance with our Privacy Policy https://emissary.io/privacy-policy/.

What Happens Once You’re On Board?

  • Once you’re on the platform, you’re eligible to start receiving Knowledge surveys and potentially Coach opportunities. Each opportunity will include payment rates and terms. For Coach, a proposal will also include client information and questions to confirm you are a good match. You are not obligated to accept any Engagements, though we do request your prompt response to them.
  • To accept a Coach Engagement proposal, you may need to provide some brief information related to the client’s needs to confirm the match is viable.
  • Once you accept a Coach Engagement, you need to select a preferred meeting date/time, which will ultimately trigger a final confirmation email that confirms the scheduled Engagement.
  • We don’t guarantee that we will offer you Engagements of any kind..

Working With Clients

Expectations

  • Our standard Knowledge model has you working directly with us to fill out questionnaires and other feedback forms electronically. We will share Knowledge Engagement opportunities with you throughout the year.
  • Our standard Coach Engagement requires you to have one phone call of approximately one hour. You may also exchange emails with the client after the call within a 30-day period using our Engagement email relay. You are expected to respond to email within no more than two business days.
  • Before the end of a Coach Engagement, we’ll ask you to fill out a brief feedback survey.
  • If we offer you an Engagement that differs from either of our standard models, we’ll notify you in writing.

Code of Conduct

  • For Knowledge surveys, we will not accept fraudulent answers, nor answers that are generated by any type of artificial intelligence (AI) resource. If we detect that you have completed a Knowledge Engagement using AI, you are subject to removal from the platform and our network.

Confidentiality

  • In connection with any Engagement, you may not share any confidential, proprietary or other non-public information, or violate any nondisclosure or confidentiality obligations that you may have in place or any other commitments or restrictions by which you may be bound. You will not provide any information or other products to a Client that will violate any third party’s intellectual property rights.
  • All Coaching Sessions are confidential – you may not reveal that you’re working with a client, to anyone, without their explicit permission.
  • Likewise, clients have agreed not to reveal who they are working with (or that they are working with an Emissary at all) without your explicit permission.
  • For Coach Engagements only, we may provide your semi-anonymized profile to current clients to gauge interest and facilitate an Engagement match. These clients have agreed not to reveal any information about Emissaries to third parties.

Staying On Platform

  • The Emissary platform will handle any and all communications with clients.
  • Clients are not permitted to contact you outside of the Emissary platform without your explicit permission.
  • Conversations taking place on the Emissary platform may be monitored or recorded to more effectively facilitate Coach Engagements, for security and to improve and market our services (including, but not limited to, adding content to the Knowledge Solution and publishing excerpts without attributing specific quotes to specifically named individuals).
  • If a client requests to engage or otherwise hire you outside of the Emissary platform within a year of being engaged by a client, you’re required to notify us. Failure to do so may result in your removal from the platform.

Getting Paid

  • You’ll always be briefed on potential compensation at the beginning of either a Knowledge or Coach Engagement.
  • For a completed Knowledge Engagement, you will be paid within seven days.
  • For a completed Coach Engagement, you will be paid within 30 days of call completion. We run two Coaching payment batches per month. 
  • You will be required to provide appropriate payment information within the Emissary platform. Failure to provide this information and/or keep it accurate, complete, and up-to-date may result in a payment delay, or cause the payment to not be processed at all. Though we will endeavor to resolve any payment issues with you, we are not liable for any failed payments owing to your failure to provide us with accurate, complete and up-to-date payment information.
  • If a client terminates a Coach Engagement early through no fault of your own, you’ll still get paid. If we determine that you didn’t perform your duties appropriately, though, we reserve the right to withhold payment, among any other available rights we may have. We will notify you and give you a chance to respond in such situations.

If you have additional questions, please email us at advisor-support@emissary.io . These Summary Engagement Terms are binding and are supplemented by the more complete legal terms that follow below.

 

Emissary Advisory Services Agreement

Last Updated: December 8, 2023

The terms of this Advisory Services Agreement entered into between you (“Emissary” or “you”) and Emissary, Inc., a New York corporation with offices located 228 Park Avenue South, Suite 86223 New York, NY 10003 ((“Company,” “we” or “us”) and together with you, the “Parties”), further iterate and supplement the Summary Engagement Terms presented and accepted by you, herewith (together, the “Agreement”). This Agreement specifically governs the services to be provided by you (the “Engagement Services”), whereby you agree to make yourself available as an advisor (marketed as an “Emissary”) for a Company-operated service (the “Company Service”). Your Engagement Services will include your access to Company’s online software, elements of the Company Service and related online and mobile platforms (collectively, the “Platform”).

PLEASE READ THIS AGREEMENT CAREFULLY. BY PROVIDING ENGAGEMENT SERVICES OR OTHERWISE BY ACCESSING OR USING THE PLATFORM IN ANY WAY, ACCEPTING THIS AGREEMENT BY CLICKING ON THE “I ACCEPT” BUTTON, OR COMPLETING THE ACCOUNT REGISTRATION PROCESS, YOU REPRESENT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, (3) YOU ARE NOT BARRED FROM PROVIDING THE ENGAGEMENT SERVICES OR USING THE PLATFORM UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION; (4) YOUR PARTICIPATION HEREIN AND PROVISION OF ENGAGEMENT SERVICES WILL NOT CAUSE YOU TO VIOLATE THE TERMS OF ANY AGREEMENT THAT YOU MAY HAVE WITH A CURRENT OR PRIOR EMPLOYER OR ANY OTHER THIRD PARTY AND (4) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE PLATFORM OR OTHERWISE PROVIDE ENGAGEMENT SERVICES.

WE HOPE TO RESOLVE ANY ISSUES THAT MAY ARISE DIRECTLY WITH YOU, TO YOUR SATISFACTION. HOWEVER, SHOULD YOU CHOOSE TO PURSUE A LEGAL REMEDY AGAINST US RELATING TO THIS AGREEMENT, PLEASE NOTE THAT SECTION 10 CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND COMPANY. AMONG OTHER THINGS, SECTION 10 INCLUDES AN AGREEMENT TO ARBITRATE, WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 10 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 10 CAREFULLY.

UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 10) WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 10.10 (30-DAY RIGHT TO OPT OUT): (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE PLATFORM WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.

COMPANY MAY MODIFY THE TERMS OF THIS AGREEMENT AT ANY TIME (AS FURTHER DESCRIBED IN SECTION 11.9). WHEN CHANGES ARE MADE, COMPANY WILL MAKE A NEW COPY OF THIS AGREEMENT, AS APPLICABLE, AVAILABLE ON THE PLATFORM, AND WE WILL ALSO UPDATE THE “LAST UPDATED” DATE AT THE TOP OF THIS AGREEMENT. IF WE MAKE ANY MATERIAL CHANGES AND YOU HAVE REGISTERED AN ACCOUNT WITH US, WE WILL ALSO SEND AN EMAIL WITH A LINK TO THE UPDATED COPY OF THIS AGREEMENT TO YOU AT THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT. 

 

1.Registration

1.1 Account. To access certain Platform features, you will be required to register an account on the Platform (an “Account”). You may register an Account online or by phone; in the latter case, Company personnel can help you create an Account. 

1.2 Registration Data. In registering an Account, you shall (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”) and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. 

1.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of Company. Furthermore, you are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Company immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, incomplete or not current, or Company has reasonable grounds to suspect that any information you provide is untrue, inaccurate, incomplete or not current, Company has the right to suspend or terminate your Account and refuse any and all current or future provision of the Engagement Services or Platform (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You shall not have more than one Account at any given time. You agree not to create an Account or use the Platform if you have been previously removed by Company, or if you have been previously banned from providing any Engagement Services.

 

2. Engagements; Role of Emissary

2.1  Types of Engagements. As described in the Summary Engagement Terms, Company offers two types of Engagements: (1) the Knowledge Solution and (2) the Coaching Solution.

2.2 Accepting Engagements. You will make yourself reasonably available to accept requests by Company for participation in Engagements (“Order Requests”), provided that you agree that you will not accept any Order Request that would entail a fiduciary or other legal or ethical conflict of interest or otherwise require you to violate or breach the terms of any obligations you have with a third party, including any current or prior employer. Each Engagement will be booked via separate, direct order form, which will include the applicable consulting fee payable to you (“Consulting Fee”), the payment method, and any other Engagement-specific terms (“Order Terms”). You may accept an order form electronically, whether via email, the Platform or otherwise and, in doing so, you agree to be bound by any Order Terms therein. Emissary shall not be entitled to nor seek any additional compensation beyond the Consulting Fee in connection with an Engagement, nor shall ask any Client for any consideration or payment.

2.3  Engagement Parameters. The parameters of a standard Engagement shall be as set forth in the Summary Engagement Terms, and, in all instances, your Consulting Fee will be set forth in the Order Terms. In some cases, the Order Terms for an Engagement will vary from the terms of the Summary Engagement Terms; in such case, the Order Terms will govern for that particular Engagement. The Parties may agree to modify any active Order Terms from time to time, provided that any such modification must be mutually agreed to, with email to suffice.

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

2.5  Service Issues; Complaints and Redress. In the event that an Emissary fails to communicate meaningfully with Client (e.g., whether in terms of the number of communications or the content of the individual communications) or Client believes that Emissary’s communications otherwise violated the terms and standards set forth herein (including but not limited to the Advisor Code of Conduct), Company will investigate the circumstances, and, if it determines that Emissary has not performed its duties to Company’s reasonable satisfaction, it may cause any Consulting Fees payable for any Engagement to be forfeited, (ii) terminate this Agreement immediately and/or (iii) take any other legal action that it is entitled to; provided that Company will notify Emissary of any dispute or issue and provide Emissary with a reasonable chance to respond. For clarity, Emissary cannot prevent a Client from taking direct action against an Emissary for any behavior of Emissary as part of an Engagement and Company shall have no responsibility to defend or indemnify Emissary for any such action.

2.6  Limitations on Emissary Obligations to Client; Disclaimer; Non-Solicitation. For clarity, an Emissary’s sole obligation to Client as part of an Engagement will be to provide good faith information in a professional and workmanlike manner, using his/her reasonable efforts, pursuant to the parameters and limitations agreed to hereunder in connection with an Engagement. Clients contractually commit to Company that they will not pressure or seek to coerce any Emissary to make introductions or recommendations for a Client, provide personal contact information to a Client, connect with or endorse a Client via social media, win business for a Client or make other additional commitments to a Client (each, an “Out-of-Scope Task”), but Emissary understands and agrees that Company cannot control a Client’s behavior and will not be responsible, at all, if a Client requests that you perform any Out-of-Scope Task. For Clients to whom an Emissary is first introduced through us, for a period of one year from the most recent Engagement with or introduction to such Client, you agree not to knowingly solicit projects from or propose or agree to any kind of consulting, advisory, or employment arrangement with such Client, either directly or indirectly, without Company’s written approval.

2.7  Emissary Role. Emissary agrees that (i) the Company Services and the Platform are provided only to provide general information and insights to Clients and to connect Clients to Emissaries for Engagements; (ii) Emissary is not an employee of Company, nor will it be trained or coached by Company relative to any advice that it should provide, (iii) any business or other advice or any other communication from or interaction by an Emissary pursuant to an Engagement (or otherwise, collectively, the “Client Interaction”) is not controlled, supervised or influenced by Company and is accepted by the Emissary at his/her own risk; (v) Company shall not have any liability or obligations arising from any Client Interaction or any other acts or omissions by Clients or Emissary; and (vii) Company makes no representations as to the reliability, capability, or qualifications of any Client or the quality, security or legality of any Client Interaction. Please also see Section 6 (“Disclaimer of Warranties”).

2.8  No Volume Commitment. Company does not guarantee that Emissary will be presented with any Order Requests or be otherwise entitled to perform any Engagements. The pairing of Emissary with a Client shall be at Company’s discretion, even if a Client specifically requested a particular Emissary and/or if Emissary already previously performed Engagement Services for a Client.

2.9 Licenses. Subject to Company’s approval of Emissary’s Account registration, and Emissary’s agreement to and compliance with this Agreement, Company hereby grants Emissary, during the Term, a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to access and use the Platform in accordance with any instructions and documentation provided by Company (“Documentation”), solely for Emissary to provide the Engagement Services and in accordance with the limitations set forth herein.  

2.10 Text Messaging Services.  Company may offer one or more mobile message programs  (collectively, the “Message Service”) that allows users to receive SMS/MMS mobile messages by opting-in such as through online enrollment forms.  Regardless of the opt-in method you use to enroll, you agree that your use of the Message Service is governed by this Agreement.  We do not charge for the Message Service, but you are responsible for all charges and fees associated with mobile messaging imposed by your wireless carrier and you acknowledge that your carrier may charge you or deduct usage credit from your account when you text us or we send messages to you.  Message and data rates may apply.  By enrolling a telephone number in the Message Service, you authorize us to send recurring SMS and MMS mobile messages to the number you specify, and you represent that you are authorized to receive mobile messages at such number.  The messages sent through the Message Service may include information about Engagement opportunities.  You agree that these messages may be transmitted using an automatic telephone dialing system (“ATDS”), other automated systems for the selection or dialing of telephone numbers, or different technology.  Your consent to receive mobile messages via an ATDS or other automated system for the selection or dialing of numbers is not required (directly or indirectly) as a condition of purchasing any property, goods or services.  While you consent to receive messages sent using an ATDS, the foregoing shall not be interpreted to suggest or imply that any or all of our messages are sent using such a system.  Message frequency varies.  If you do not wish to continue participating in a Message Service program we offer, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message you receive from that program to opt out.  You may receive an additional mobile message confirming your decision to opt out.  You understand and agree that the foregoing options are the only reasonable methods of opting out.  The Message Service may not be available in all areas or supported by all carriers or all devices.  Delivery of mobile messages is subject to effective transmission from your wireless carrier/network operator and is outside of our control.  We and the wireless carriers supported by the Message Service are not liable for any failed, delayed or undelivered messages.  If you decide to change your mobile phone number, you agree to first opt out of each Message Service program in which your number is enrolled.  

 

3. Emissary Conduct

3.1 Rules and Restrictions. 

(a)  Emissary agrees that it will interact with all Clients (and any Company personnel) in a professional, respectful and civil manner and only for the purpose of providing Engagement Services. Unless stated otherwise in an Order Request, Emissary will provide the Engagement Services for the sole purpose of attempting to help a Client to improve its strategy relative to the commercial penetration of a particular target organization.

(b)    Unless a Client expressly authorizes it and provides additional personal contact information to Emissary after the start of an Engagement, Emissary will only interact with a Client via the Platform.

(c)    Emissary will not reveal any confidential or proprietary information or seek any confidential or proprietary information from a Client, including but not limited to information owned by or relating to a company or entity about which the Emissary was specifically hired to be of advice to Client.

(d)    Emissary will treat any data and information that it receives from or about a Client as confidential and not share the same with any third party, unless expressly authorized by Client.

(e)    Unless Client expressly requests in writing (or email), Emissary will not reveal its involvement with a Client to any party (except Company), including to the party about which the Emissary was hired to be of advice to Client. Emissary will not take any action that would be reasonably likely to indirectly or directly reveal the same.

(f)    Emissary will not provide any advice or information to any Client as part of an Engagement that is or would reasonably be construed to be legal, tax, investment or medical advice.

(g)    Emissary will comply with the terms of this Agreement, the Advisor Code of Conduct as it may be updated from time to time, any additional documentation provided to it by Company prior to an Engagement (including but not limited to any Order Terms) and with all applicable laws governing its conduct.

(h)    Emissary will immediately notify Company if it suspects that any Client is sharing or attempting to share any third party’s confidential information with it or is otherwise acting in violation of the Advisor Code of Conduct or the law.

(i)    Emissary will not purchase or sell, nor will Emissary advise any third party to purchase or sell (or to refrain from purchasing or selling), directly or indirectly, on its own behalf or on behalf of another party, any security as a result of any information obtained by Emissary via an Engagement, the Platform or otherwise.

3.2 Additional Restrictions. Emissary will not, nor will it cause or permit any third party to, (a) access or provide the Engagement Services in its stead; (b) modify, adapt, alter or translate the Platform or any element thereof; (c) license, sell, lease, rent, loan, distribute, reproduce, host, assign, transfer or otherwise allow the use of the Engagement Services 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 Platform; (e) modify, translate, adapt, or otherwise create derivative works of any part of Company Services or the Platform, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (f) use any manual or automated software, devices, or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Platform; (g) interfere with or attempt to interfere with the proper functioning of the Platform or use the Platform in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Platform, introducing viruses, worms, or similar harmful code into the Platform or interfering or attempting to interfere with use of the Platform by any other user, host, or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Platform; (h) take any action or make available any data, content, or information on or through the Platform that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; or (i) access the Platform for any purpose prohibited by law.

 

4. Ownership

4.1  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 Company Services, the Emissary network and the Documentation. You shall not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform or any Company Service. 

4.2  Trademarks. Emissary.io, and all related stylizations, graphics, logos, service marks and trade names used on or with any Company Service and/or the Platform are the trademarks of Company and may not be used without permission in connection with your, or any third-party’s, products or services. Other trademarks, service marks and trade names that may appear on or on the Platform are the property of their respective owners.

4.3  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 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 will limit Emissary’s rights under, or grants Emissary rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Company makes such Open Source Software, and Company’s modifications to that Open Source Software, available by written request.

4.4 Coaching Session Work Product. Any work product, data or information provided by Emissary directly to a Client during a Coaching Session (“Coaching Session Work Product”) will be owned by the Client, and you hereby assign all your right, title and interest thereto directly to Client. You shall not provide any information or other products to a Client that will violate the “Confidentiality” provision of the Summary Engagement Terms or the Advisor Code of Conduct. Notwithstanding the above, Company may access and use any Coaching Session Work Product to improve the Company Service and Platform (including adding content to the Knowledge Solution), publish excerpts without identifying any individuals and otherwise as permitted by Client vis-à-vis Company’s agreement with Client.

4.5  Knowledge Solution & Other Work Product. Except as set forth in the Privacy Policy or with respect to Coaching Session Work Product, Company will own all work product, information and data that is not Coaching Session Work Product, which is (i) uploaded to or transmitted via the Platform by Emissary, or (ii) otherwise communicated by Emissary to Company. Without limiting the foregoing, Company will own the information and data that you provide within the interviews, surveys or questionnaires in connection with the Knowledge Solution (collectively, together with the information and data referenced in (i) and (ii) above, “Company Work Product”). Emissary hereby assigns and shall assign all its right, title and interest in and to the Company Work Product to Company. Company will only use and/or share Company Work Product that is personally identifiable to Emissary in accordance with its Privacy Policy https://emissary.io/privacy-policy/. Company may use any information and data to provide and improve the Company Services or for its other business purposes and/or to comply with any law or regulation. 

4.6  Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Company through its suggestion, feedback, forum, or similar pages (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Company Service, the Platform, and/or Company’s business.

5. Representations and Warranties 

Emissary 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 Clients and use the Platform and perform the Engagement Services as permitted herein, (iii) it will comply with all applicable laws, professional ethical guidelines and standards, and regulations applicable to its performance of the Engagement Services and to its interactions with any Clients, (iv) it will not engage in any intimidating, harassing abusive, discriminatory, derogatory, demeaning, or other offensive conduct, or other conduct which may be disparaging of or otherwise harm the good reputation of Company or its Clients, (v) it will not represent itself to be an employee or agent of Company, and (vi) all information provided by Emissary to Company, including without limitation, information related to Emissary’s experience and credentials, is truthful, complete, and accurate . Emissary understands and agrees that it shall be responsible for any claims arising out of its failure to do so, including, but not limited to, any claims against it (or against Company – see Section 8 (“Indemnification”)) by any Clients or otherwise. 

 

6. Disclaimer of Warranties 

6.1  As Is. THE COMPANY SERVICES AND PLATFORM ARE PROVIDED “AS IS,” AND COMPANY PARTIES (AS DEFINED BELOW) MAKE NO (AND HEREBY DISCLAIM ALL) 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 ARISING FROM THE PROVISION OF THE ENGAGEMENT SERVICES OR USE OF THE COMPANY SERVICES OR PLATFORM. YOUR PROVISION OF ENGAGEMENT SERVICES AND USE OF THE COMPANY SERVICES AND PLATFORM IS AT YOUR SOLE RISK. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

6.2 Company Service. THE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE COMPANY SERVICES OR PLATFORM WILL MEET YOUR REQUIREMENTS (SUCH AS THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICE); OR (2) YOUR USE OF THE COMPANY SERVICES OR PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.

6.3 Downloads. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE COMPANY SERVICES OR PLATFORM IS ACCESSED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND/OR ANY DEVICE YOU USE TO ACCESS THE PLATFORM, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

6.4  Betas. From time to time, Company may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Company’s sole discretion. The provisions of this Section 6 apply with full force to such features or tools.

6.5  No Liability for Conduct of Clients or Third Parties. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD PARTIES, INCLUDING CLIENTS, ON THE PLATFORM OR VIA ANY COMPANY SERVICE OR ENGAGEMENT SERVICE. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING CLIENTS, AND THAT THE RISK OF ECONOMIC DAMAGES, PHYSICAL OR MENTAL HARM, AND OTHER DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU UNDERSTAND THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF CLIENTS. EMISSARY FURTHER UNDERSTANDS THAT COMPANY DOES NOT PERFORM CRIMINAL BACKGROUND OR OTHER FORMAL IDENTITY CHECKS ON CLIENTS AND THAT EMISSARY’S (I) RELIANCE ON ANY DATA OR INFORMATION PROVIDED TO IT BY A CLIENT (WHETHER VIA THE PLATFORM OR OTHERWISE), (II) INTERACTION WITH A CLIENT, INCLUDING BUT NOT LIMITED TO A DECISION BY EMISSARY TO PROVIDE ANY PERSONAL INFORMATION TO ANY CLIENT AND/OR TO MEET UP WITH A CLIENT IN PERSON, SHALL BE SOLELY AT ITS OWN RISK.

 

7. Limitation of Liability

7.1  Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY PARTIES BE LIABLE TO EMISSARY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA), IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; COMPANY SERVICES; ENGAGEMENT SERVICES; ANY COMMUNICATIONS; INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE COMPANY SERVICE OR THIRD PARTIES; OR ITS PERFORMANCE HEREUNDER, INCLUDING TO THE EXTENT RESULTING FROM: (i) THE INABILITY TO PROVIDE ENGAGEMENT SERVICES OR OTHERWISE USE THE PLATFORM; (ii) ANY DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED; OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE PLATFORM; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (v) ACTIONS OF YOUR EMPLOYER OR FORMER EMPLOYER, INCLUDING TERMINATION OF YOUR EMPLOYMENT; OR (vi) ANY OTHER MATTER RELATED TO ANY COMPANY SERVICE, ANY ENGAGEMENT SERVICE, OR THE PLATFORM, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.

7.2 Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY PARTIES’ LIABILITY TO EMISSARY AS A RESULT OF ANY CLAIM ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE CONSULTING FEES PAID BY COMPANY TO EMISSARY IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM. 

7.3  Exclusion of Damages. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO LIABILITY OF THE COMPANY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY COMPANY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY COMPANY’S FRAUD OR FRAUDULENT MISREPRESENTATION. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR 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.”

7.4 No Inducement. 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, EMISSARY REPRESENTS THAT IT IS NOT RELYING ON ANY INDUCEMENT THAT IS NOT EXPRESSED IN THIS AGREEMENT.

7.5 Emissary Content. COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY DATA, REGISTRATION DATA, COMMUNICATIONS OR PERSONALIZATION SETTINGS.

7.6 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.

 

8. Indemnification.

Emissary shall indemnify and hold harmless Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Company Party” and collectively, the “Company Parties”) harmless from any losses, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) (“Losses”) from third-party claims arising out of or relating to any of the following: (a) any failure by Emissary to comply with any applicable laws, rules and regulations in connection with its activities hereunder, (b) Emissary’s provision of Engagement Services hereunder, (c) Emissary’s interaction with any Client, (d) Emissary’s breach or alleged breach of any of its covenants, representations or warranties or any other terms hereunder or (e) any claim by a current or former employer of Emissary that Emissary’s participation in any Engagement Services or information shared in connection therewith violated Emissary’s obligations to such employer (including any confidentiality obligations). Emissary shall pay any Losses finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Company. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to the Platform.

 

9. Term and Termination. 

9.1  Term. The term of this Agreement (the “Term”) commences on the date when you accept this Agreement (as described in the preamble above) and continues in full force and effect while you provide the Engagement Services or otherwise use the Company Services or Platform, unless earlier terminated as set forth herein. 

9.2  Suspension. Company may suspend Emissary’s access to the Platform and performance of any Engagement Services: (a) for scheduled or emergency maintenance, (b) in the event Company determines Emissary to be in breach of this Agreement, or (c) for any other purpose deemed necessary by Company in its discretion.

9.3  Termination for Breach. 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. 

9.4  Other Termination Rights of Company. Company may terminate this Agreement and/or any Engagement upon immediate notice for any reason, with or without cause, including if it determines, in its sole discretion, that you have breached any obligations relating to your Engagements with any Client, or your acts or omissions are likely to expose Company or a Client to immediate harm or that Emissary cannot adequately provide the Engagement Services in a manner that meets a Client’s or Company’s specific needs. 

9.5  Effect of Termination. Immediately upon termination of this Agreement, (a) Company shall cease to make the Platform available to Emissary and Emissary shall cease to use the Platform and provide the Engagement Services (or in the case of the termination that is only specifically applicable to a particular Engagement, it shall cease to provide the Engagement Services for such Engagement) but (b) any licenses or rights granted by Emissary to Company or Client shall remain in effect (subject to the terms of the Privacy Policy https://emissary.io/privacy-policy/. Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of your Registration Data or other information. All provisions of this Agreement which by their nature should survive, will survive termination of this Agreement, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability. 

9.6  No Subsequent Registration. If this Agreement is terminated for cause by Company or if your Account or ability to participate in the Engagement Services is discontinued by Company due to your violation of any portion of this Agreement or for conduct otherwise deemed inappropriate, then you agree that you shall not attempt to re-register with or access the Platform or Company Services through use of a different member name or otherwise.

 

10. Dispute Resolution; Arbitration; No Class Actions. Please read this section. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. 

10.1  Applicability of Arbitration Agreement. Subject to the terms of this Section 10 (“Arbitration Agreement”), you and Company agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Platform or provision of Engagement Services, any communications you receive, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Company may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.

10.2  Informal Dispute Resolution. There might be instances when a Dispute arises between you and Company. If that occurs, Company is committed to working with you to reach a reasonable resolution. You and Company agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Company therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Company that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to advisor-support@emissary.io. or regular mail to our offices located at 228 Park Avenue South, Suite 86223 New York, NY 10003. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

10.3  Waiver of Jury Trial. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 10.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

10.4  Waiver of Class and Other Non-Individualized Relief. YOU AND COMPANY AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 10.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, 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 the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 10.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Company agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Company from participating in a class-wide settlement of claims.

10.5  Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Company agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. 

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. 

Unless you and Company otherwise agree, or the Batch Arbitration process discussed in Section 10.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.

You and Company agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

10.6  Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 10.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.

10.7  Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 10.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 10.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 10.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 10.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 10.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

10.8  Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Company need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

10.9  Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Company agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Company by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Company.

You and Company agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

10.10  30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 228 Park Avenue South, Suite 86223 New York, NY 10003, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

10.11  Invalidity, Expiration. Except as provided in Section 10.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Company as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy (or, if no such statute of limitation exists, then six months after the cause of action accrues), or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

10.12  Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Company at 228 Park Avenue South, Suite 86223 New York, NY 10003, your continued use of the Platform and provision of Engagement Services, including the acceptance of Order Requests following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Platform, any communications you receive, any services sold or distributed through the Platform or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Company will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.

 

11. General Provisions.

11.1  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, consistent with the Federal Arbitration Act, without giving effect to any conflicts of laws principles. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both parties irrevocably consent to the jurisdiction of the state and federal courts located in New York, 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. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

11.2 Independent Contractors; No Partnership. The parties are independent contractors, and nothing in this Agreement shall be deemed to create the relationship of partners, joint venturers, employer-employee, master-servant, or franchisor-franchisee between the parties. Neither party is nor 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. 

11.3 Entire Agreement. These Terms, together with the Summary Engagement Terms and any Order Terms, 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 of a conflict between any Order Terms and these Terms, the Order Terms shall control. 

11.4  Severability. 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. 

11.5  Assignment. Neither party shall assign this Agreement without the other party’s prior written except that Company may assign this Agreement to any successor in interest, provided it promptly notifies Emissary. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. 

11.6  Force Majeure. Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, fires, floods or earthquakes. 

11.7  Notice. Any notice given under this Agreement shall be in writing and shall be sent via overnight mail or via email, in each case to the address last provided by a Party. 

11.8  Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

11.9  Agreement Updates. Company may modify the terms of this Agreement at any time. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account and thirty (30) days after posting for users with an Account. Company may require you to provide consent to the updated Agreement in a specified manner before further use of the Platform or provision of Engagement Services is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE PLATFORM AND/OR PROVIDING ENGAGEMENT SERVICES. 

11.10  Electronic Communications. The communications between you and Company may take place via electronic means, whether you visit the Platform or send Company emails, or whether Company posts notices on the Platform or communicates with you via email. For contractual purposes, you (i) consent to receive communications from Company in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.

 

 

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