Messaging Terms and Conditions (October 13, 2020)
Last updated: October 13th, 2020
These Terms of Service (“Terms of Service“) and any on-line or written order form for the purchase of the Services (as herein defined) (each, a “Service Order“), collectively constitute a binding agreement between 317 Labs, Inc. d/b/a Emotive (“Emotive“) and you or the legal entity you represent (“Customer” or “you“).
Customer desires to use Emotive’s online customer management, marketing, personalization, and analytics services presently offered or available (the “Services”), using Emotive’s instructions and other documentation of Emotive (the “Emotive Documentation”). The Services include using Emotive’s marketing platform to retrieve customer information from SMS or MMS text messages, websites and similar opt-ins, and transactions (the “Communications“), viewing data available from the Communications, using Emotive’s marketing platform to send messages to end customers through SMS or MMS text messages. The Services shall also include any required, usual, appropriate or acceptable methods to perform activities related to the Services, including (a) carrying out the Services or the business of which the Services are a part, (b) carrying out any benefits, rights and obligations related to the Services, (c) maintaining records relating to the Services, and (d) complying with any legal or self-regulatory obligations related to the Services.
Emotive will permit Customer to use the Services and the Emotive Documentation subject to the terms and conditions of these Terms of Service. By using the Services, Customer agrees to all of the terms and conditions of these Terms of Service, including but not limited to the limitations on liability set forth herein. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, CUSTOMER IS NOT PERMITTED TO USE THE SERVICES.
1.1 Agreement to Provide Services. Subject to the terms and conditions of these Terms of Service and during the term of these Terms of Service, Emotive will provide to Customer access to the Services purchased through and described on the Emotive website at www.emotiveapp.co and any other or related domains or sub domains (collectively, the “Emotive Site“). Customer’s Services start on the date of the beginning of the Term as defined in Section 12. Customer understands and agrees that by using the on-line registration process and agreeing to the terms of these Terms of Service, Customer has made a binding selection of the type of Services to be provided and all associated specifications, prices, policies and documentation related to the delivery of the Services
1.2 Service Orders. Each Service Order is hereby incorporated into these Terms of Service by this reference and is subject to the terms and conditions of these Terms of Service; provided, however, that in the event of a conflict between the terms and conditions of these Terms of Service, the terms contained in such Service Order shall control. In the event of any conflict between the terms of these Terms of Service or a Service Order and any Customer-issued order form or purchase order, the terms of these Terms of Service and the applicable Service Order shall control
2 MODIFICATIONS TO THESE TERMS OF SERVICE
3 LICENSE AND OWNERSHIP
3.1 License. Subject to the terms and conditions of these Terms of Service, Emotive grants to Customer a non-exclusive, non-transferable, revocable license during the Term (as defined in Section 12), without the right to sublicense, to (i) use the software and other technology supplied by Emotive to enable Customer to receive or access the Services (the “Emotive Platform“) solely for the purposes of accessing and using the Services; and (ii) use the Emotive Documentation in connection with the Customer’s use of the Emotive Platform. Except for the limited licenses granted hereunder, Emotive reserves all rights not expressly granted and no such additional rights may be implied.
3.2 Ownership. Customer acknowledges that (i) all right, title and interest in and to the Services, including the Emotive Platform and Emotive Documentation therein, and all patents, copyrights, trade secrets, trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and other proprietary and intellectual property rights embodied therein or associated therewith, are and shall remain with Emotive or its third party licensors; (ii) no right or interest in the Services or the Emotive Platform is conveyed other than the limited licenses granted herein; (iii) the Services, the Emotive Documentation and the Emotive Platform are protected by copyright and other intellectual property laws; and (iv) Emotive asserts that the Services, the Emotive Documentation and the Emotive Platform embody valuable confidential and secret information of Emotive or its licensors, the development of which required the expenditure of considerable time and money.
3.3 No Modification. Customer agrees that Customer shall not (i) modify or alter the Emotive Platform; (ii) create derivative works of the Emotive Platform; (iii) decompile, disassemble, decode or reverse engineer the Emotive Platform, translate the Emotive Platform or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the Emotive Platform or reduce the Emotive Platform by any other means to a human perceivable form; or (iv) bypass, delete or disable any copy protection mechanisms or any security mechanisms.
3.4 License to Customer Marketing Content. In connection with the Services, Customer grants Emotive and third-party Partner (as defined in Section 9.3) website(s) a non-exclusive, transferable, royalty-free license during the Term to use Customer’s trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and all other marketing or promotional content provided by Customer to Emotive (“Customer Marketing Content“) in connection with the advertising, promotion and sale of Customer’s products, services or business, and to sublicense such Customer Marketing Content to third parties in connection with the provision of such Services. Customer acknowledges that any online coupon or similar marketing offer, deal or advertisement to market its products or services (each, an “Offer“) posted on third-party Partner websites(s) may not carry the Emotive trademark or branding. Customer further acknowledges and agrees that Emotive or its sublicensees may modify Customer Marketing Content in order to effectively provide the Services ordered in Emotive’s reasonable discretion, provided, that none of such modifications shall materially alter the terms of any Offer without Customer’s prior written consent.
3.5 Certain Other Obligations. Customer agrees that Customer (i) shall not sell, transfer, lend, provide or otherwise make available, or disclose to third parties, the Services or any components thereof; (ii) shall not obscure, alter or remove any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation appearing on or contained within the Services, the Emotive Platform, the Documentation or on any other Emotive materials; and (iii) shall take all reasonable precautions to prevent unauthorized or improper use of the Services.
3.6 Non-Assertion of Claims. During the term of these Terms of Service, Customer will not assert, nor will Customer authorize, assist, or encourage any third party to assert, against Emotive or any related party, any patent infringement or other intellectual property infringement claim with respect to the Emotive Platform, Emotive Documentation or the Services.
3.7 Feedback and Comments. In the event Customer elects, in connection with any of the Services, to communicate to Emotive suggestions for improvements to the Services (“Feedback“), Emotive shall be entitled to use the Feedback without restriction and Feedback will not be treated as confidential to Customer. Customer hereby grants to Emotive a royalty-free, sub-licensable, transferable, perpetual, irrevocable worldwide license in and to the Feedback to use in any manner related to the operation of its business. In addition, Emotive hereby disclaims any and all liability for any comments, drawings, depictions, audio clips or other content made available on the Emotive Site by Customers of the Emotive Site generally (“Comments“). Further Emotive (i) shall have a royalty-free, sub licensable, transferable, perpetual, worldwide, irrevocable license in and to such Comments to use in any manner related to the operation of its business, and (ii) reserves the right to remove any such Content from the Emotive Site immediately in its sole discretion.
4 FEES AND BILLING
4.1 Fees. In consideration for the provision of Services to Customer, Customer will pay to Emotive all Services fees (“Fees“) due according to the Service Order. Charges are exclusive of all applicable taxes, which may be billed to Customer in addition to the Fees. Emotive will provide Customer fourteen (14) calendar days advance notice for any increase in fees or addition of new fees for any existing Services. Customer’s continued use of the Services after a fee increase will constitute Customer’s agreement to the increase in service fees.
4.2 Billing, Invoicing and Payment Terms. Emotive will, using Stripe (or any other third party payment processors), charge Customer the Fees and applicable taxes for the Services rendered for each billing period on or after the first day of such billing period. If Customer is paying by credit card, (a) Customer hereby irrevocably authorizes Emotive to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, and (c) if Customer’s credit card expires, Customer hereby gives Emotive permission to submit the credit card charge with a later expiration date. All billing disputes must be emailed to firstname.lastname@example.org within fourteen calendar (14) days of delivery of the billing statement, and disputes not made within that time are waived by Customer. Late payments, including those resulting from credit card declines that the Customer has attempted to follow up on hereunder will accrue interest at a rate of one and one-half percent (1 1/2 %) per month, or the highest rate allowed by applicable law, whichever is lower. Emotive reserves the right to have Customer complete a credit application to determine Customer’s creditworthiness as a condition of receiving further Services. If Emotive must initiate a collections process to recover Fees due and payable hereunder, then Emotive shall be entitled to recover from Customer all costs associated with such collections efforts, including, but not limited to, reasonable attorneys’ fees. In the event Emotive delivers to Customer an invoice for any Fees or interest payments owed hereunder, such invoiced amounts shall be due within ten (10) calendar days of the date of such invoice. In the event an account is past due and Customer requests to cancel per Section 12, Customer is required to pay for the month of service from their initial bill date decline.
5 USE OF THE SERVICE
5.1 Communications. Customer is responsible for obtaining and maintaining all of the appliances, hardware, software and services that Customer may need to access and use the Services. Without limiting the foregoing, Customer must obtain and maintain, and pay all charges, taxes and other costs and fees related to, Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by Customer to access and use the Services.
5.2 Customer Management. Customer understands and agrees that it is solely and fully responsible for compliance with all applicable federal and state laws regarding communications with third parties and privacy rights of such third parties, including but not limited to complying with the Telephone Consumer Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act and applicable foreign and international laws pertaining to marketing messages. Without limiting the foregoing, Customer represents and warrants that it has obtained appropriate and complete prior express consent from all individuals whose information, including but not limited to cellular telephone numbers, is provided to Emotive such that Emotive may properly and without being in violation of any applicable law send SMS or MMS text messages to such customers and review customer information from Communications and view data available from Communications. Further, if any individual informs Customer that he or she is withdrawing consent to receive text messages, Customer shall inform Emotive as soon as possible and under all circumstances not later than 24 hours after the withdrawal of consent so that Emotive can cease sending messages to that individual.
5.3 Passwords and Account User Activity. Customer is responsible for protecting and safeguarding any keys, certificates, passwords, access codes, Customer IDs or other credentials and login information that have been provided to Customer or that are generated in connection with Customer’s use of the Services, including without limitation any Password that Customer provisions or causes to be provisioned to Customer’s employees, service providers, or other third parties authorized by Customer (collectively, “Passwords“). Customer will not disclose or make available any Passwords other than to Customer’s authorized employees, service providers, or other third parties authorized by Customer, and Customer shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords or the Services. Customer is solely and fully responsible for any use of or access to the Services using Passwords, any Security Incident (as defined below) caused by Customer’s employees, service providers or other third parties authorized by Customer, and all other activities that occur in connection with Passwords. Without limiting the foregoing, Customer is responsible for all charges and liabilities applicable to data and information transmitted to and stored under Customer’s account on the Services. In the event Customer believes the Passwords have been compromised, Customer is solely responsible for notifying Emotive immediately by email to email@example.com. For purposes of this Section 5.3, a “Security Incident” means unauthorized access to, use or disclosure of any data maintained by Emotive. Customer shall promptly notify Emotive by email to firstname.lastname@example.org of any suspicious activity in connection with the Services, which Customer detects or of which Customer becomes aware, that may indicate an actual or suspected Security Incident.
5.4 Downtime. Customer acknowledges that Customer’s access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of Emotive.
5.5 Suspension, Limitation or Termination. Emotive shall be entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s access to the Services at any time in the event (i) that Emotive determines, in its sole discretion, that the Services are being used in violation of applicable federal, state or local law or ordinance, these Terms of Service, or any agreement applicable to the Services; (ii) that Emotive, in its sole discretion, determines that the Services are being used in an unauthorized, inappropriate, or fraudulent manner; (iii) that Emotive determines that the use of the Services adversely affects Emotive’s equipment or service to others; (iv) Emotive is prohibited by an order of a court or other governmental agency from providing the Services; (v) of a denial of service attack or any other event which Emotive determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; or (vi) of a security incident or other disaster that impacts the Services or the security of Customer Data. In addition, Emotive shall have the right to immediately deny or suspend access to the Emotive Platform or Services in the event Emotive is not paid any amount due in connection with the Services or Customer’s breach or alleged breach of these Terms of Service. Without limiting the generality of Section 5, Emotive shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer‘s right to use the Services in accordance with these Terms of Service.
5.6 Prohibited Activities. Customer may not use the Services (i) in violation of these Terms of Service, including usage that exceeds storage volume limits or other parameters and restrictions described on the applicable Service Order or on the Emotive Site; (ii) to infringe on, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (iii) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control (including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control), unfair competition, anti-discrimination and/or false advertising); (iv) to store, or transmit throughout, defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (v) to store or transmit obscene, pornographic or indecent data in violation of applicable law; or (vi) to introduce or propagate any unauthorized data, malware, viruses, Trojan horses, spyware, worms, other malicious or harmful code. Customer may not use the Emotive Platform or Services in any application that may involve risks of death, personal injury, property damage or environmental damage. Customer may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Services or the Emotive Platform. Customer may not attempt to discover or use any license keys, access codes or similar information provided from time to time to Emotive. Customer may not attempt to discover, access, read, alter, destroy, or damage any programs, data or other information stored on or in connection with the Emotive Platform or Services by any other party. Customer may access the Services only through the interfaces and protocols provided or authorized by Emotive. Customer may not access the Emotive Platform or Services through unauthorized means, such as unlicensed software clients. Customer may not compile or use the Emotive provided materials or any other information obtained through the Services or the Emotive Platform for the purpose of spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.
5.7 No Spam; Customer’s Obligation to Obtain Permission. Under the terms of the CAN-SPAM Act, as between Emotive and Customer, Customer is the sender of SMS or MMS text messages and is obligated to follow all legal requirements applicable to the sending of SMS or MMS text messages under CAN-SPAM, including but not limited to the prohibition against sending unsolicited SMS or MMS text messages to persons with whom Customer does not have a business relationship or who have not requested (opted-in) to Customer’s SMS or MMS text messages (Spam). As part of its agreement to these Terms of Service, Customer agrees to only send permission-based SMS or MMS text messages in connection with its use of the Services. “Permission-based” means that all recipients must have opted-in to receive SMS or MMS text messages communications from Customer. SMS or MMS text messages sent by Customer must include all information required by CAN-SPAM.
5.8 HIPAA Compliance. Customer agrees to not upload or incorporate into any customer lists, or otherwise provide to Emotive any protected health information of any kind within the meaning of the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA). Notwithstanding the foregoing, if Customer is a covered entity under HIPAA, Customer agrees to contact Emotive at email@example.com in order to request a business associate agreement (BAA) prior to using the Emotive Site or the Services. If Emotive agrees to enter into a BAA with Customer, Customer may provide protected health information to Emotive, subject to these Terms of Service and the terms of the BAA.
5.9 No Children’s Information. Customer agrees not to upload or incorporate into any customer lists, or otherwise provide to Emotive any information about individuals that Customer knows or has reason to know are under the age of 13. If Customer discovers that it uploaded, incorporated into any customer lists, or otherwise provided to Emotive any information about individuals that Customer knows or discovers are under the age of 13, Customer agrees to promptly remove such information from Emotive’s systems and notify Emotive of such occurrence.
5.10 Changes to the Services. Emotive has the right to change, modify, update, add to, discontinue or retire the Services and any aspect or feature thereof, including but not limited to, hours of availability, equipment needed for access or use, and the type and size of files that can be stored or transmitted. Emotive may provide notice of material changes to the Emotive Platform or Services by posting them on the Emotive Site. It is Customer’s responsibility to check the Emotive Site periodically to be informed of any changes. You understand and agree that Emotive may change the telephone number(s) and/or the credit card payment processing system. You agree that Emotive will not be liable for any damages whatsoever (including, but not limited to, consequential or special damages) arising out of any such change and you hereby waive any claims with respect to any such change, whether based on contractual, tort or other grounds, even if Emotive has been advised of the possibility of such damages.
6 DATA PRIVACY
6.1 Customer Data. Customer warrants that Customer is the owner or legal custodian of, or otherwise has the right to provide to Emotive, all programs, data, information and other content transmitted via the Emotive Platform and hosted through the Services, including, without limitation, End Customer Data (as defined below) and the Customer Marketing Content (collectively, the “Customer Data“) and has the full authority to transmit and store the Customer Data through the Services. Customer hereby authorizes the storage of Customer Data by Emotive through the Services that Customer elects to transmit via the Emotive Platform. Customer acknowledges that Customer bears sole responsibility for adequate security, protection and backup of Customer’s Data on Customer’s equipment. Customer understands that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions and other causes, which might result in Customer restoring files that are no longer usable. Without limiting the generality of Section 6, Emotive will have no liability to Customer for any unauthorized access to, or use, alteration, corruption, deletion, destruction or loss of any of Customer Data on Customer’s equipment.
6.2 End Customer Data. In connection with Emotive’s performance of the Services, Emotive may collect online data from Customer through the Emotive Platform regarding Customer’s customers (the “End Customer Data“). Further, Customer acknowledges that such End Customer Data may include personal information of Customer’s customers as well as data relating to Communications.
Consistent with applicable privacy and data protection laws, Customer shall be responsible for providing notice to, or obtaining consent from, its customers regarding Emotive’s processing of End Customer Data on Customer’s behalf in connection with Emotive’s performance of the Services. Customer shall not share End Customer Data with Emotive unless Emotive has collected the data in compliance with applicable law and may lawfully disclose the data to Emotive for the purpose of Emotive’s performance of the Services. Customer shall hold Emotive, its subcontractors, suppliers and licensors harmless from any and all privacy or data protection claims relating to Customer’s violation of these obligations or applicable privacy and data protection laws.
Emotive will not sell End Customer Data. Emotive will not retain, use, or disclose End Customer Data for any purpose other than: (i)to provide the Services to Customer, (ii) as necessary to comply with applicable law, or (iii) as explicitly authorized under applicable law, for example, to detect data security incidents or protect against fraudulent or illegal activity. To the extent the California Consumer Privacy Act, as amended, and related implementing regulations (collectively, the “CCPA”) applies to End Customer Data, Emotive shall retain, use and disclose End Customer Data solely in its capacity as a “Service Provider” to Customer, as defined in the CCPA. Emotive may create and derive from its provision of the Services anonymized and/or aggregated data that cannot reasonably be linked to any particular Customer or customer of Customer and use, publicize or share with third parties such data to improve Emotive’s products and services and for Emotive’s other lawful business purposes.
To the extent Customer authorizes a third party to access Customer’s End Customer Data, Customer shall be solely responsible for ensuring that such access complies with all applicable privacy or data protection laws, and that Customer has the necessary rights to authorize the access and has provided all required information and choices to Customer’s relevant customers. To the extent Emotive receives an individual’s request for access to, correction of, or deletion of their personal information that is End Customer Data, Customer agrees that Customer shall be responsible for processing such a request in compliance with any obligations under applicable law. Emotive agrees that it shall forward any such individual requests that it receives to Customer and shall reasonably assist Customer, at Customer’s request and expense, to satisfy such obligations. Emotive will provide other assistance to Customer in responding to individuals’ requests to the extent Emotive deems such appropriately limited and reasonable (“Additional Assistance”). Emotive reserves the right to require Customer to bear the costs of any assistance that Customer requests Emotive to provide and any Additional Assistance at Emotive’s then-current professional services rates, which shall be made available to Customer upon request. Customer agrees that it may be necessary for Emotive to access End Customer Data to respond to Customer’s request for assistance with any technical problems and/or queries. Customer shall hold Emotive, its subcontractors, suppliers and licensors harmless from any and all privacy or data protection claims relating to such access. Emotive may transfer End Customer Data to its successor or acquirer in a merger, acquisition or other consolidation, including without limitation the sale of all or substantially all of Emotive’s stock or assets or business to which these Terms of Service apply.
7 REPRESENTATIONS, WARRANTIES AND AGREEMENTS
7.1 Authority. Customer represents and warrants that (i) Customer has full corporate right, power and authority to enter into these Terms of Service, (ii) the execution of these Terms of Service by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which Customer is a party or by which Customer is bound, and (iii) when executed and delivered, these Terms of Service will constitute your legal, valid and binding obligation, in accordance with its terms.
7.2 Compliance with Law. In connection with the subject matter of these Terms of Service, Customer agrees to, and warrants and represents that it shall, comply with all applicable United States Federal and State, local, and foreign laws and regulations, including but not limited to any applicable laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property, and the sending of electronic marketing messages (including but not limited to the CAN-SPAM Act of 2003, the Children’s Online Privacy Protection Act, and HIPAA.)
7.3 Validity of Offers. Customer warrants that any Offer shall not violate any laws or regulations and, upon claim by a customer whether on the Emotive Site or a Third-Party Partner Site or otherwise, shall be available for redemption by such customer. Customer agrees to comply with the Offer terms and conditions as set forth in a particular Offer or any other advertising or marketing terms or Offers made available to Customer’s end customers or potential end customers via the Services, and shall at all times honor the terms of any Offer offered or otherwise promoted via the Services. This Section 7.3 shall remain in effect, regardless of whether Customer is currently using the Services.
7.5 Authorization and Account Information. Customer represents and warrants that: (i) the information Customer provides in connection with Customer’s registration for the Services is accurate and complete; (ii) if Customer is registering for the Services as an individual, that Customer is at least 18 years of age and has the legal capacity to enter into these Terms of Service; and (iii) if registering for the Services as an entity or organization, (a) Customer is duly authorized to do business in the country or countries and state and local jurisdictions where it operates, (b) the individual accepting these Terms of Service and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of Customer, and (c) Customer’s employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind Customer to these Terms of Service and all transactions conducted under Customer’s account.
8 LIMITED WARRANTY
8.1 Emotive Platform and Services. Emotive warrants solely to Customer that the Emotive Platform and the Services, when used in accordance with the terms of these Terms of Service, will function substantially in accordance with the Emotive Documentation. Emotive shall use commercially reasonable efforts to perform the Services. Emotive’s sole obligation and Customer’s exclusive remedy hereunder with respect to any failure of the foregoing obligations shall be to use reasonable efforts to correct any such failure. Emotive shall have no obligation for any failure resulting from (i) content provided by or passed through Customer or third-parties in connection with the Services (including Customer Data); (ii) operating system or other technology modifications, changes or updates applied by the Customer; (iii) the use or combination of the Emotive Platform or the Services with any other software or hardware not supported by Emotive; (iv) causes external to the Emotive Platform or the Services, such as problems with the hardware, network or other infrastructure with which the Emotive Platform and the Services are used; (v) unauthorized or improper use of the Emotive Platform or the Services; or (vi) any modification of the Emotive Platform or the Services by anyone other than Emotive.
8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, THE EMOTIVE PLATFORM AND THE SERVICES ARE PROVIDED TO CUSTOMER “AS IS,” WITHOUT WARRANTY OF ANY KIND. EMOTIVE HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THESE TERMS OF SERVICE, THE EMOTIVE PLATFORM, THE SERVICES OR THE OFFERS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF CUSTOMER ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. Without limiting the generality of the foregoing, Emotive does not warrant that the Emotive Platform or the Services will meet Customer’s requirements or operate without interruption or downtime or be error free.
9 LIMITATION OF LIABILITY
9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EMOTIVE, NOR ANY OF ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, VENDORS, SUPPLIERS OR RESELLERS, NOR ANY OF ITS THIRD PARTY PARTNERS, BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM CUSTOMER’S OR ANY OTHER THIRD PARTY’S USE OF OR INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES WHETHER OR NOT EMOTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF EMOTIVE, ITS LICENSORS, VENDORS AND RESELLERS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES PAID BY CUSTOMER FOR THE SERVICE FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EMOTIVE AND CUSTOMER.
9.2 Customer may not bring any suit or action against Emotive for any reason whatsoever more than one (1) year after the cause of action accrued.
9.3 Furthermore and notwithstanding anything herein to the contrary, Customer acknowledges and agrees that: (i) any Services (“Partner Services”) provided by, through or in partnership with any other third-party partner of Emotive (“Partners”) ARE PROVIDED TO CUSTOMER “AS IS,” WITHOUT WARRANTY OF ANY KIND. EMOTIVE HEREBY DISCLAIMS ON BEHALF OF THE PARTNERS ALL OTHER WARRANTIES WITH RESPECT TO SUCH PARTNER SERVICES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NO PARTNER SHALL HAVE ANY LIABILITY TO CUSTOMER OTHER THAN AS MAY BE SET FORTH IN THE PARTNER’S STANDARD TERMS AND CONDITIONS FOR THE PARTNER SERVICES, (ii) each Partner is hereby granted a limited license to use any content supplied by Customer in connection with the Partner Services (“Partner Marketing Content“), with the right to sublicense to its partners in connection with the operation of the Partner Services, provided that Partner and its publisher partners shall not provide any third party with access to Partner Marketing Content nor use Partner Marketing Content for its or their own commercial benefit beyond the provision of the Partner Services; (iii) at Customer’s request, reasonable efforts will be used by the Partners to remove from publication any Customer Marketing Content, but in no event will a Partner or its publisher partners have any liability if such Customer Marketing Content nonetheless continues to be published; (iv) Customer will cooperate to provide Emotive with all information reasonably required by a Partner to provide any Partner Services; (v) each Partner is an intended third party beneficiary of this Section 9.3; and (vi) the terms and conditions of all Partner Services shall be subject to the Partner’s standard end user terms and conditions for such Services.
10.1 For Customer support, please email firstname.lastname@example.org. In providing support, Emotive or an Emotive agent may use a variety of tools to aid in the process of resolving Customer issues as a Customer and may request that Customer provide additional information in order to resolve these issues. Customer hereby grants Emotive and such agent the right to use those tools and any information Customer provides to Emotive in order to provide Customer with support.
Customer will indemnify, defend, and hold Emotive, its Partners, its and their investors, officers, directors, affiliates, subsidiaries, licensors, agents and employees (collectively, the “Emotive Parties“) harmless against any loss, liability, claim, demand, damages, penalties, settlements, costs and expenses, resulting from any claim (including third party claims), suit, action or proceeding against a Emotive Party, resulting from or arising out of or in connection with (i) claims of intellectual property infringement based on (A) Customer’s use or combination of the Emotive Platform and the Services with any other software or hardware not supported by Emotive, if such infringement would not have occurred but for such use or combination; (B) any modification of the Emotive Platform and the Services by Customer; or (C) the use by Customer of any version of the Emotive Platform and/or Services other than the current version of the Emotive Platform and/or Services, if such version was made available by Emotive with notice that such version was being provided in order to avoid an alleged or potential infringement; (ii) claims relating to the Offers or the fulfillment thereof (including claims by purchasers or other Customers of the Offers on the Emotive Site or Third-Party Partner Site relating to Customer’s products or services); or (iii) any breach by Customer of any representation, warranty or obligation under these Terms of Service, including but not limited to any breach of Customer’s representation in section 5.2 hereof that Customer is in compliance with all applicable federal and state laws regarding communications with third parties and privacy rights of such third parties such that Emotive may properly and in compliance with such laws send SMS or MMS text messages to any customers whose information is provided to Emotive and retrieve and review customer information and data from Communications ; or (iv) the use, transmission, access, disclosure, or other processing of Customer Data. Emotive does not knowingly collect, either online or offline, Personal Information from persons under the age of thirteen (13). Customer agrees to indemnify Emotive if, as a result of Communications, Emotive collects Customer Data from persons under the age of 13. Customer’s defense obligation includes paying on a current basis the attorney’s fees and other legal costs and expenses incurred by attorneys of Emotive’s choosing to defend against any claim covered by this Section 11, whether prior to the commencement of litigation or in connection with pending litigation.
12 TERM AND TERMINATION
12.1 Term. Subject to Emotive’s receipt of all applicable Fees, and unless otherwise terminated in accordance with this Section 12, these Terms of Service shall commence upon Customer’s first use of the Services or acceptance of these Terms of Service (whichever comes first) and shall continue in effect for the period specified on the applicable Service Order (the “Term“). Each Service Order shall continue for the Term specified therein, and will AUTOMATICALLY RENEW for subsequent Terms (“Renewal Term”) unless either party provides at least thirty (30) calendar days written notice of non-renewal prior to the expiration of the then-current Term that it elects not to renew the Services under such Service Order at the end of such Term.
12.2 Termination by Customer. Notification of such non-renewal from Customer to Emotive must be emailed to email@example.com, which must be confirmed by Emotive. If Customer chooses not to renew, Customer must fully notify Emotive in writing at least thirty (30) calendar days prior to the Renewal Term, in which case, Customer will continue to have access to the Services and be billed until the end of the then current term. Customer shall not receive a refund for any unused portion of the Term. In the case Customer fails to fully notify Emotive of its intent not to renew within this time, the Renewal Term will commence at the end of the then-current term and Customer is responsible for the payment of Fees for the Services rendered for that Renewal Term. Customer shall not in any event be entitled to any refund of any Fees previously paid to Emotive for Services.
12.3 Termination by Emotive. Emotive shall have the right to terminate these Terms of Service or any Service Order at any time with or without cause and with or without notice, at Emotive’s sole disrection. In addition, Emotive may terminate these Terms of Service or any Service Order upon written notice to Customer if Customer becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors. Upon a termination by Emotive without cause, Customer may be entitled to a pro-rata refund of any pre-paid and unused Fees advanced to Emotive.
12.4 Past Due Bills. In the event of a credit card decline, Emotive will attempt to reach out to Customer for a new payment method. If Emotive fails to resolve the issue with Customer, the account will be terminated due to non-payment and Emotive will attempt to collect on any past due balances at Customer’s expense. Per Section 4.2, in the event Customer requests to cancel with a past due balance, Customer is required to pay for the month of service from their initial bill date decline.
12.5 Consequences of Termination. Upon termination of these Terms of Service, a Service Order, and/or the Services, for any reason whatsoever, Customer shall cease to use the Emotive Platform, the Services and Emotive Documentation. Emotive retains the right to terminate Customer’s access to any Emotive Platform and Services in the event of termination by either party.
12.6 Data Deletion, Preservation, Retrieval or Transfer. In the event of a temporary suspension of Customer’s access to Services, (i) Emotive will not take any action to intentionally erase or delete Customer Data stored on the Services; and (ii) applicable Fees will continue to accrue. In the event Customer becomes inactive due to past-due amounts, Customer agrees that Emotive may delete all End Customer Data after a period of sixty (60) calendar days. In the event of the expiration or earlier termination of these Terms of Service and/or a Service Order, Customer may, upon reasonable notice to Emotive, elect to retrieve Customer Data using the self-service tools Emotive makes available to Customer. If these Terms of Service and/or a Service Order are terminated for any reason other than Customer’s breach, Emotive will not take any action to intentionally erase or delete Customer Data stored on the Services for a period of sixty (60) calendar days, after which Emotive will delete the End Customer Data. If these Terms of Service are terminated on account of Customer’s breach or alleged breach of these Terms of Service and/or a Service Order, Emotive will not take any action to intentionally erase or delete Customer Marketing Content or Customer Data stored on the Services for a period of fifteen (15) calendar days, or for sixty (60) calendar days with respect to customer Communications, after which Emotive will delete End Customer Data. In each case, Customer’s post-termination retrieval or transfer of Customer Data will be conditioned on Emotive’s receipt of all applicable Fees for the period following termination, payment in full of any other amounts owed, and Customer’s compliance with such reasonable terms and conditions as Emotive may establish with respect to such retrieval or transfer. In addition, if Customer utilizes the professional services of Emotive to assist Customer in connection with such retrieval or transfer, Customer will be responsible for Emotive’s then current charges for such professional services. In the event that Emotive does not receive all such Fees and amounts due within the applicable time periods described above, or in the event that Customer fails to notify Emotive of Customer’s election with respect to the retrieval or transfer of Customer Data within such period, Emotive shall have no obligation to continue to store Customer Data or permit Customer to retrieve or transfer the same.
Emotive will respond to requests to transfer or delete End Customer Data only to the extent such requests are addressed to Emotive from an email address from the email domain that is the same as the domain associated with Customer’s Emotive account. To the extent the request does not originate from the specific email address associated with Customer’s Emotive account (“Authorized Email”), Emotive will notify Customer of the request at Authorized Email, and Emotive will deem such request valid unless it receives a response within five (5) business days from the Authorized Email objecting to the request. Emotive will deem valid any request addressed to Emotive from the Authorized Email, and Customer is solely responsible for the validity of all requests or communications addressed to Emotive from the Authorized Email.
12.7 Survival. The following shall survive the termination of these Terms of Service: (i) all liabilities accrued under these Terms of Service prior to the effective date of termination; and (ii) all provisions of Sections 3.2, 3.3, 3.5, 3.7, 4, 5.2, 5.7, 5.8, 6, 7, 8.2, 9, 11, 12.4, 12.5, 12.6, 13 and 14 of these Terms of Service. Subject to the provisions of Section 9 hereof, the rights provided in this Section 12 shall be in addition to any and all rights and remedies available to a non-defaulting party at law or in equity upon any breach of these Terms of Service by the other party.
13 DIGITAL MILLENNIUM COPYRIGHT ACT; TAKE DOWN NOTICE AND PROCEDURES
It is Emotive’s policy to respond to notices alleging that any material uploaded by users of the Services or the Emotive Platform infringes another persons’ copyright. If you believe any material accessible on or from the Emotive Site or the Services infringes your copyright, you may request removal of those materials (or access thereto) from this web site by contacting the 317 Labs, Inc. copyright agent (identified below) and providing the following information:
1. Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (URL) of an authorized version of the work.
2. Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
3. Your name, address, telephone number and (if available) e-mail address.
4. A statement that you have a good faith belief that the use of the materials is not authorized by the copyright owner, its agent, or the law.
5. A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
6. A signature or the electronic equivalent from the copyright holder or authorized representative.
Our agent for copyright issues relating to the Emotive Site or Services is:
Attn: DMCA Compliance
11390 W. Olympic Blvd.
Los Angeles, CA 90064
For all email submissions please include the subject line: DMCA Takedown Request.
Emotive has adopted a policy of terminating, in appropriate circumstances, accounts of users of the Services or Emotive Platform who are deemed to have repeatedly uploaded content that infringes the intellectual property rights of others.
14.1 Marketing. Customer agrees that Emotive may refer to Customer by name and trademark in Emotive’s marketing materials and web site. Customer understands and acknowledges that Emotive does not certify or endorse, and has no obligation to certify or endorse, any of Customer’s products or content.
14.2 Entire Agreement. These Terms of Service, any Additional Policies, and any applicable Service Order(s) set forth the complete understanding of the parties with respect to the subject matter hereof and supersede all prior understandings and communications relating thereto. No term or condition of any other document provided to Emotive which is different from, inconsistent with, or in addition to the terms and conditions set forth herein will be binding upon Emotive.
14.3 Modification; Waiver. Emotive shall have the right to amend these Terms of Service at any time, effective upon posting of an updated version of these Terms of Service at www.emotive.io/terms. Emotive may, but, unless required by law, is not obligated to, use reasonable efforts to provide Customer with notice of changes to these Terms of Service, but Customer is responsible for regularly checking the Emotive Site to be informed of such changes. Continued use of the Services after any such changes are posted shall constitute Customer’s agreement to such changes. The waiver by either party of a breach of any provision hereof shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of such party to avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege.
14.4 Governing Law. These Terms of Service shall be governed by the laws of the State of California without regard to its conflict of laws provisions, provided that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration agreement discussed in section 14.12. Unless you and Emotive agree otherwise in writing, in the event that the arbitration agreement is found not to apply to you or a particular claim (except for small claims court actions), as a result of a decision by the arbitrator or a court order, you agree that the claim will be resolved exclusively by a state or federal court located in Los Angeles, California. You and Emotive agree to submit to the personal jurisdiction of the courts located within California for the purposes of litigating such claims. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Your use of the Services may also be subject to other local, state, national, or international laws.
14.5 Assignment. Customer may not assign its rights or delegate any obligations hereunder without the express prior written consent of Emotive. Any assignment by Customer without the prior written consent of Emotive shall be null and void. Emotive may assign its rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in these Terms of Service. These Terms of Service shall inure to the benefit of each party’s permitted successors and assigns.
14.6 Force Majeure. If either party is unable to perform any of its obligations hereunder (other than payment obligations) due to any act of God, fire, casualty, flood, war, strike, shortage or any other cause beyond its reasonable control, and if such party uses reasonable efforts to avoid such occurrence and minimize its duration and gives prompt notice to the other party, then the affected party’s performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform. If the force majeure continues for more than thirty (30) calendar days, then either party may terminate these Terms of Service for convenience upon written notice to the other party.
14.7 Severability. In the event that any provision contained herein shall for any reason be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, to such extent such provision shall be deemed null and void and severed from these Terms of Service, and the remainder hereof shall remain in full force and effect and enforceable.
14.8 Independent Contractor. Neither Customer nor Emotive shall be deemed to be an agent of the other and the relationship of Customer and Emotive shall be that of independent contractors. Neither Customer nor Emotive shall have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on behalf of the other party, or to bind the other party in any matter whatsoever.
14.9 Notices. Except as otherwise provided, notices under these Terms of Service shall be delivered by email addressed to the other party at such address as is set forth in the applicable Service Order or such other email address as Customer may provide to Emotive. Such notice will be deemed to have been given as of the date it is delivered by electronic mail, personally, by confirmed facsimile or by courier, or five (5) days after it is sent by postal mail. All communications and notices to be made or given pursuant to these Terms of Service shall be in the English language.
14.10 Compliance with Laws. Customer agrees to comply at all times with all laws, rules and regulations applicable to Customer’s use of the Services, including but not limited to data privacy laws and legal requirements.
14.11 Headings. The headings of the sections of these Terms of Service are for convenience of reference only and shall not be considered in construing these Terms of Service.
14.12 Arbitration. In any claim, action or proceeding to enforce any right or obligation of the parties under these Terms of Service including, without limitation, relating to your use of our services, you hereby waive any right you may now have or hereafter possess to a trial by jury. Both parties agree to resolve any dispute either Party may have arising out of or relating to these Terms of Service or the Emotive Services in good faith mediation. In the event no mutual agreement is made under mediation within sixty (60) days of notice of such dispute, the Parties have the right to resolve such dispute via arbitration before a single arbitrator pursuant to the then-current Commercial Rules of the American Arbitration Association (AAA). The arbitrator may award any relief available under applicable law including but not limited to an award of attorneys’ fees, this agreement to arbitrate does not interfere with either party’s right to file a claim with a state or federal agency with jurisdiction thereof to the extent permitted by applicable law. Even if allowed under AAA rules, no class or collective action or arbitration may be brought against Emotive hereunder unless required by applicable law. If either you or Emotive intends to seek arbitration under these Terms of Service, the party seeking arbitration must first notify the other party of the dispute in writing at least 30 days in advance of initiating the arbitration. Notice to Emotive should be sent as required by these Terms of Service. The notice must describe the nature of the claim and the relief being sought. If you and Emotive are unable to resolve our dispute within 30 days, either party may then proceed to file a claim for arbitration. The arbitration, information produced, and pre-and post-hearing proceedings will be confidential and any award shall not be used in any other case except to enforce the award itself.
14.13 Class Action Waiver. Any claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the claim is subject to arbitration, the arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration. If this class action waiver is found to be unenforceable, then the entirety of the arbitration agreement in Section 14.12, if otherwise effective, shall be null and void. 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.
If Customer has any questions or concerns about what has been stated in this Terms of Service, please contact us at firstname.lastname@example.org.
Previous Version: February 6, 2020