EXHIBIT A to Emissary Client Services Agreement
Additional Terms and Conditions
These Additional Terms govern and are hereby incorporated into the Client Services Agreement executed by Company and Client, further iterating and supplementing the Order Terms, regarding the Services to be provided by Company to Client, which shall include Client’s access to and use of (a) the Service designed to connect a company with one or more Emissaries and (b) the online platform, mobile application(s), API interfaces and related Company proprietary software and other tools (collectively, with the Service and Software, the “Platform”). These Terms and Conditions, together with the Order Terms constitute the binding agreement (“Agreement”) between Company and Client, effective as of the Effective Date.
Please Note: We hope to resolve any issues that may arise directly with you, to your satisfaction. However, should you pursue a legal remedy against us relating to the Service, this Agreement (i) requires all matters to be settled by binding, individual arbitration or via small claims court (if applicable) and (ii) includes a waiver of certain rights, including the ability to form class actions. Please see “Dispute Resolution; Arbitration, No Class Actions” for more.
1. Provision of Services. 1.1 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) an online Service account (a “Account”). Throughout the Term, Client agrees to provide true, current, and complete information with respect to Client’s Account and to update the same as needed. Client may permit any individual who is an employee or contractor of Client (each, an “Authorized User”) to access and use the Services 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 of this Agreement by any such persons. Client is solely responsible for maintaining the confidentiality of its Account information and Company will not be liable for any activities undertaken by anyone using Client’s Account, whether with or without Client authorization. Client agrees to immediately notify Company of any unauthorized use of its Account or any other breach of security relating to the Services.
1.2 Booking Engagements. Client will follow all instructions provided via the Platform and/or by Company personnel relative to how to review available Emissaries and book actual Engagements. Each Engagement will be booked via Client’s redemption of Credits, previously purchased via a Credit Plan. Any Engagement renewal shall require another Credit redemption. Company does not guarantee that any Emissaries or any particular Emissary will be available for any Engagement(s) and while Client may seek particular Emissaries and accept or reject any Emissary candidates presented to it for an Engagement, Company shall have discretion relative to Emissary availability.
1.3 Engagements. The parameters of a standard Engagement shall be as set forth in the Order Terms and the Parties may only deviate from the Order Terms if they mutually agree to in writing.
1.4 Monitoring Communications. Client 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 Client and Emissary in connection with the provision of the Services and/or otherwise sent or received through the Platform.
1.5 Emissary 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 individual communications) or Client believe that Emissary’s communications or behavior violated the Emissary Code of Conduct or any other standards set forth herein, Client shall promptly notify Company of same. Thereafter, Emissary will investigate the circumstances and if it does not reasonably dispute Client’s factual account or conclusions of violations, Company will (as Client’s sole and exclusive remedy therefor) either (i) furnish a replacement Emissary reasonably acceptable to Client (ii) refund a prorated portion of the fees paid for the applicable Engagement(s). For the avoidance of doubt, Company shall not have any liability hereunder in the event that it furnishes an Emissary, but the applicable Client representative does not engage with or is otherwise not reasonably responsive to such Emissary.
1.6 Limitations of Emissary Obligations. An Emissary’s sole obligation to Client as part of an Engagement shall be to provide good faith advice, using his/her reasonable efforts, pursuant to the parameters agreed to hereunder. Further, while an Emissary may be retained for the purpose of helping a Client to improve its strategy relative to the sales or marketing penetration of a particular organization, Emissaries shall not be obligated to (i) make any introductions (in-person, via email or otherwise) between Client and any third party or otherwise “put in a good word”, vouch or make any other recommendation for Client, (ii) secure or commit to secure any sales or other business objectives of Client, or (iii) secure or make any additional commitments to Client. Client agrees that it shall not pressure or seek to coerce any Emissary to do any of the foregoing.
1.7 Emissary Role. Client acknowledges and agrees that, (i) Platform is only provided to connect Clients to Emissaries for Engagements; (ii) Emissaries are not employees of Company, nor are they trained or coached by Company and any advice provided by an Emissary is provided directly from him/her to Client, (iii) any business or other advice or any other communication from or interaction with any Emissary pursuant to an Engagement (or otherwise, collectively, the “Emissary Interaction”) is not controlled, supervised or influenced by Emissary and is accepted by Client at Client’s own risk; (v) Emissary shall not have any liability or obligations arising from any Emissary Interaction or any other acts or omissions by Emissaries (including but not limited to any negligence, willful misconduct, bad faith actions or criminal misconduct); and (vii) apart from the limiting vetting conducted by Emissary as set forth in the Business Terms, Emissary makes no representations as to the reliability, capability, or qualifications of any Emissary or the quality, security or legality of any Emissary Interaction. Please also see “Warranties and Disclaimers.”
1.8 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-sublicenseable, 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. for the foregoing license shall not include any right to conduct timesharing, application service provider, or service bureau use.
1.9 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 after the start of an Engagement (which it is under no obligation to do), Client will only seek to contact and interact with any Emissary via the Platform and/or any anonymized email or phone number provided via the Platform.
- Client will not seek any confidential or proprietary information from an Emissary, including but not limited to confidential or proprietary information owned by or relating to a company or entity that the Emissary was specifically hired to be of advice to Client for.
- Client will respect an Emissary’s confidentiality and not reveal the Emissary’s identity or involvement with Client to any third party unless the Emissary expressly (via email) authorizes the same. The foregoing will include any direct or indirection action (including but not limited to any social media posting or action) that would provide enough specific information to a third party about an Emissary to reasonably identify it (i.e., revealing his or her prior job title.)
1.10 Additional Restrictions. Client further agrees that it will not, nor will Client cause or permit any third party to, (a) allow any third party to access the Platform, except as expressly permitted under this Agreement; (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.
1.11 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. You therefore agree to be bound by any additional Non-Circumvention provision(s) stated in the Order Terms, if any.
1.12 Modification. Company endeavors to continuously improve the Platform and may add new features and functionality and remove older 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 Order Terms, Client will have an opportunity to, within 10 business days, decline to accept such amended terms and terminate the Agreement, receiving a pro-rated refund of any paid for but unredeemed Credits.
1.13 Suspension. Company reserves the right to suspend Client’s access to the Platform and/or Service: (a) for scheduled or emergency maintenance, (b) in the event Company reasonably determines Client to be in breach of this Agreement, or (c) for any other purpose deemed necessary by Company in its reasonable discretion.
2.1 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.
2.2 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.
2.3 Work Product. As between Company and Client, any work product provided by an Emissary to a Client shall be owned by the Client. However, as between Emissary and Client, the foregoing shall be subject to any legal rights that the Emissary or any third party may maintain in any such work product or in any element thereof. If Client has any question as to whether any work product contains any Emissary or third party owned intellectual property, it should ask the Emissary.
2.5 Third-Party Data and Information; Client acknowledges and agrees that certain data and information that Company obtains through or in connection with the Services is provided by third parties, including Emissaries (“Third-Party Data and Information”). Company does not, and has no obligation to, verify the accuracy or completeness of any such Third-Party Data and Information. Client relies on any such Third-Party Data and Information at Client’s own risk.
2.6 No Securities Advice. NOTHING IN THE PLATFORM, INCLUDING ANY THIRD-PARTY DATA AND INFORMATION, AND/OR NOTWITHSANDING ANYTHING COMMUNICATED BY ANY EMISSARY AS PART OF AN ENGAGEMENT OR OTHERWISE SHOULD BE CONSTRUED AS AN OFFER TO SELL, A SOLICITATION OF AN OFFER TO BUY, OR A RECOMMENDATION FOR OR AGAINST ANY SECURITY BY COMPANY. CLIENT COVENANTS THAT IT SHALL NOT PURCHASE OR SELL, NOR SHALL CLIENT 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 ANY THIRD PARTY, ANY SECURITY AS A RESULT OF ANY INFORMATION OBTAINED BY CLIENT FROM AN EMISSARY OR OTHERWISE CVIA THE PLATFORM AND/OR THIS AGREEMENT.
3. Client’s Consulting Fees. Client shall pay Company the amounts (the “Fees”) set forth in the applicable Order Form 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 1½% 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. No Emissary should seek any additional charges or fees from a Client relative to any Engagement 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 applicable to its use of the Platform and to its interactions with any Emissaries. Client understands and agrees that it shall be responsible for any claims arising out of their failure to do so, including but not limited to any claims against them (or against Emissary – see “Indemnification”) by any Emissaries. Company hereby represents and warrants to Client that it has secured contractual commitments from any Emissaries that participate in Engagements to provide reasonable, 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 MAKES NO (AND HEREBY DISCLAIMS ALL) 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, NOR DOES IT WARRANT THAT THE OPERATION OF THE PLATFORM SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE; THAT ALL ERRORS CAN BE CORRECTED.
CLIENT UNDERSTANDS AND AGREES THAT COMPANY DOES NOT PERFORM CRIMINAL BACKGROUND OR (APART FROM THE CURSORY INVESTIGATION DESCRIBED IN THE ORDER TERMS) OTHER IDENTITY CHECKS ON ANY EMISSARY AND THAT CLIENT’S INTERACTION WITH AN EMISSARY, INCLUDING BUT NOT LIMITED TO A DECISION BY CLIENT TO PROVIDE ANY PERSONAL INFORMATION TO AND/OR TO MEET UP WITH AN EMISSARY IN PERSON, SHALL BE SOLELY AT ITS OWN RISK.
**UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR ANY CLAIM, LOSS OR DAMAGE CAUSED BY CLIENT’S INTERACTION WITH AN EMISSARY, IN ANY WAY, INCLUDING BUT NOT LIMITED TO ANY TORTIOUS OR ILLEGAL BEHAVIOUR BY AN EMISSARY, ANY PHYSICAL OR MENTAL HARM COMMITTED BY AN EMISSARY AND/OR CLIENT’S RELIANCE ON ANY ADVICE, INFORMATION AND/OR MATERIALS PROVIDED BY AN EMISSARY. **
CLIENT UNDERSTANDS AND AGREES THAT IT IS CLIENT’S RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, ADVICE, MATERIALS OR OTHER CONTENT MADE AVAILABLE BY AN EMISSARY AND CLIENT UNDERSTANDS THAT COMPANY IS NOT RESPONSIBLE, IN ANY WAY, FOR THE SAME. NO INFORMATION OBTAINED FROM AN EMISSARY WILL BE OR SHOULD BE CONSTRUED AS LEGAL, INVESTMENT, TAX OR MEDICAL ADVICE. UNDER NO CIRCUMSTANCES WILL EMISSARY BE LIABLE FOR ANY CLAIM, LOSS OR DAMAGE CAUSED BY CLIENT’S RELIANCE ON ANY ADVICE, INFORMATION AND/OR MATERIALS PROVIDED BY AN EMISSARY.
SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CLIENT.
5. Limitation of Liability. EXCEPT WITH RESPECT TO (I) A VIOLATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (II) A PARTY’S INDEMNIFICATION OBLIGATIONS, (A) 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, AND (B) 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 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.”
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, YOU REPRESENT THAT YOU ARE NOT RELYING ON ANY INDUCEMENT THAT IS NOT EXPRESSED IN THIS AGREEMENT.
6.1 Confidential Information. “Confidential Information” means the terms of this Agreement 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 is known to the receiving party, or should be known to a reasonable person given the facts and circumstances of the disclosure, as being 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.
6.2 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.
7. Indemnification. 7.1 By Company. Company shall indemnify, defend and hold harmless Client against any third-party claims arising out of Company’s gross negligence or willful misconduct in connection with the provision of the Service, 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. This Section 7.1 states the sole and exclusive remedy of Client and the entire liability of Company, and any of the officers, directors, employees, shareholders, contractors or representatives of Company, for the claims and actions described in this Section 7.1. For clarity, the foregoing indemnity obligation shall not apply relative to any claims arising out of the actions of any Emissary(s), including but not limited to the gross negligence, willful misconduct, or criminal misconduct of any such Emissary (as part of an Engagement or otherwise.)
7.2 By Client. Client shall indemnify defend and hold harmless Company against any third-party claims arising out of (a) any failure by Client or any Authorized User to comply with applicable laws, rules and regulations in connection with its activities hereunder, including without limitation its provision and Company’s authorized use of Client Data hereunder, (b) Client’s use of the Platform and Service hereunder except to the extent such claims are covered under Section 7.1 above, (c) 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. This Section 7.2 states the sole and exclusive remedy of Company and the entire liability of Client, and any of the officers, directors, employees, shareholders, contractors or representatives of Client, for the claims and actions described in this Section 7.2.
7.3 Procedure. 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.
8. Term and Termination. This Agreement commences on the Effective Date and shall continue through the Term specified on any then-current Order Terms unless earlier terminated as set forth herein. 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 proper interactions with any Emissary and/or its continued relationship would expose Company and/or the Platform to immediate harm. Company may additionally terminate this Agreement and/or any individual Order Terms and/or Credit Plan, if it determines that it cannot adequately provide the Service in a manner that meets Client’s specific 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 Credits from the Credit Plan(s) subject to termination. Immediately upon termination of this Agreement, (a) the licenses granted to either party shall immediately terminate; and (b) 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 Engagement. 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 1.10, 1.11 ,2, 3, 4, 5, 6, 7, 8, 9, and 10 will survive the expiration or termination of this Agreement.
9. 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. Client agrees that, by agreeing to these terms, 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 Emissary, Client must first send to Emissary, 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, 120 Walker Street, 4th Floor New York, NY 10013. If Emissary 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 AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879. Client may also write to Emissary (including by submitting a request with its written notice for the dispute) and Emissary will provide them to it. 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 YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
10. Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims with your 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.
11. YOU 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.
12. 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. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13. MISCELLANEOUS. 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, 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. These Terms and Conditions, together with the Order Terms, 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 of a conflict between the Order Terms and these Terms and Conditions, the terms contained in these Terms and Conditions shall control. 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.