End User Agreement
IMPORTANT—READ CAREFULLY AS IT CREATES A LEGALLY BINDING CONTRACT
Messagera, Inc., doing business as Presence.ai ("Presence.ai," "us", "we") is excited to provide you access to our cutting-edge intelligent communication assistant solution that we like to call the "Presence.ai Service". We think our tools really take electronic communication to whole new level and hope you agree. As we open our Presence.ai Service to public consumption, there are certain rules of the road that we need to establish. Our lawyers are pretty cool so they’ve tried to keep the rules short, sweet and actually understandable! We hope you agree.
Rule No. 1—This Document Is Really Important.
In order for us to enable you to use the Presence.ai Service, you need to agree to become a party to this User Agreement (the "Agreement"). If you do not want to agree to become subject to this Agreement, STOP sending messages right now. If you continue to send messages, that action will be considered your electronic signature to and acceptance of this Agreement.
By continuing to use the Presence.ai Service, you acknowledge and agree that the terms of this Agreement shall apply to any use by you of the Presence.ai Service on behalf of ANY business that is using the Presence.ai Service to facilitate communications with you.
Finally, if you want to print or save a copy of this Agreement, just copy and paste all the text into a document of your choice. We highly encourage you to do so.
Rule No. 2—You Agree to Receive Advertisement and Commercial Text Messages.
By using the Presence.ai Service, you agree in writing to receiving advertisements and other commercial text messages through the Presence.ai Service from and/or on behalf of the business(es) using the Presence.ai Service for which you have communicated. You further agree that Presence.ai Service is not an "automatic telephone dialing system" based, in part, to your agreement and acknowledgement that the Presence.ai Service requires human intervention. Moreover, you consent to Presence.ai communicating with you via push notification, text message or other automated format for any reason related to Presence.ai, this Agreement or the Presence.ai Service.
Rule No. 3—Your Privacy Rights.
Rule No. 4—Do No Harm.
You also agree not to use the Presence.ai Service to (a) promote (1) information you know is just false or (2) anything that is illegal; or (b) do things like threaten or harass others. Basically, you are responsible for your actions.
Presence.ai reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, in Presence.ai's sole discretion. You acknowledge that all information sent by you through the use of the Presence.ai Service, is, by definition, non-confidential and may be read by others without your knowledge..
You agree to indemnify and hold Presence.ai, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney's fees, made by any third party due to or arising out of your use of the Presence.ai Service in violation of this Agreement or your violation of any law or the rights of a third party.
Rule No. 5—Presence.ai Can Change The Scope of the Presence.ai Services and Amend This Agreement.
Presence.ai is a vibrant company with a lot of ideas. Therefore, we need to reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Presence.ai Service (or any part thereof) with or without notice. You agree that Presence.ai shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Presence.ai Service (or any part thereof).
Presence.ai also reserves the right, in its sole discretion, to change, modify, add, or delete portions of this Agreement at any time by requiring you to agree to any such changes upon your attempt to continue to use the Presence.ai Service to communicate with businesses using the Presence.ai Service. Your continued use of the Presence.ai Service in any manner after any such changes occur shall constitute your acceptance of the new terms. Should you have any questions regarding the specific terms of this Agreement (as amended), please direct them to email@example.com. Notwithstanding the foregoing, Presence.ai shall take reasonable efforts to provide notice to you (push notification, text message, or other automated format) of any material and substantial changes to this Agreement.
Rule No. 6—Each Of Us Can Terminate Our Relationship.
You may terminate access to the Presence.ai Service by submitting a termination request to Presence.ai at firstname.lastname@example.org or by ceasing all use of the Presence.ai Services. Moreover, Presence.ai may terminate and delete your access to all or portions of the Presence.ai Service or your use thereof for any reason or no reason at any time, in Presence.ai's sole discretion.
Rule No. 7—Know What Laws Apply To You.
Recognizing the global nature of electronic communication, you agree that using the Presence.ai Service, is void where prohibited. By using the Presence.ai Service, you represent and warrant that you agree to abide by all of the terms and conditions of this Agreement and your actions do not in any manner violate any law applicable to you. It is your responsibility to ensure that you are legally allowed to use the Presence.ai Service where you are located.
Also, your communications sent via the Presence.ai Services will travel through multiple computer networks, located throughout the United States and portions of which may also be located abroad. As a result, even if you think you are just talking to somebody down the hall or across town, the actual transmission is likely to be an interstate communication. Accordingly, you acknowledge that your use of the Presence.ai Services results in interstate data transmissions.
Rule No. 9—Caveat Emptor.
The Presence.ai Service may be temporarily unavailable from time to time for maintenance or other reasons. Presence.ai assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications. Presence.ai is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet, including injury or damage to your computer, mobile phone, tablet or other equipment related to or resulting from participating or downloading materials in connection with the Internet and/or in connection with or your use of the Presence.ai Service.
To the furthest extent allowed by law, under no circumstances will Presence.ai be responsible for any loss or physical damage, including personal injury or death, resulting from anyone's use (including your use) of the the Presence.ai Service, any Data, or any interactions between users of the Presence.ai Service, whether online or offline.
We apologize in advance for the equivalent of electronic yelling but applicable law requires the use of all-caps.
THE PRESENCE.AI SOFTWARE, THE PRESENCE.AI SERVICE, AND ALL RELATED PRESENCE.AI CONTENT ARE PROVIDED "AS-IS" AND PRESENCE.AI DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. PRESENCE.AI CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE PRESENCE.AI SOFTWARE OR THE PRESENCE.AI SERVICE AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU FULLY ASSUME ALL RISKS ARISING OUT OF OR RELATED TO YOUR USE OF THE PRESENCE.AI SOFTWARE OR THE PRESENCE.AI SERVICE.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, IN NO EVENT WILL PRESENCE.AI BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ALSO LOST PROFITS ARISING FROM YOUR USE OF THE PRESENCE.AI SOFTWARE OR THE PRESENCE.AI SERVICE, EVEN IF PRESENCE.AI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND TO THE FURTHEST EXTENT PERMITTED BY APPLICABLE LAW, PRESENCE.AI'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF $250.00 OR THE AMOUNTS PAID BY YOU TO PRESENCE.AI FOR YOUR USE OF THE PRESENCE.AI SERVICE.
Rule No. 10—Binding Arbitration; Class Action Waiver.
The term "Dispute" means any dispute, claim, or controversy between you and us or any of our affiliates regarding this website or any service thereon, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Rule No. 10 (with the exception of the enforceability of the Class Action Waiver clause below). "Dispute" is to be given the broadest possible meaning that will be enforced. If you have a Dispute with us or any affiliate of ours or any of our or their officers, directors, employees or agents that cannot be resolved through negotiation within the time frame described in the "Notice of Dispute" clause below, other than those matters listed in the Exclusions from Arbitration clause, you and the entity that you have a Dispute with agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
YOU AND US AND OUR AFFILIATES AGREE THAT ANY CLAIM FILED BY YOU OR BY US OR OUR AFFILIATE IN SMALL CLAIMS COURT ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO [_____________] AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR PHONE NUMBER USED TO USE THE PRESENCE.AI SERVICE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US OR OUR AFFILIATES THROUGH ARBITRATION.
IF YOU HAVE A DISPUTE WITH US OR ANY OF OUR AFFILIATES, YOU MUST SEND WRITTEN NOTICE [__________________] TO GIVE US OR OUR AFFILIATE YOU HAVE A DISPUTE WITH THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. If we or our affiliate you have a Dispute with does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you, us or our affiliate you have a Dispute with may pursue your claim in arbitration.
ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION, UNLESS BOTH YOU AND THE ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION (the "Class Action Waiver").
If you elect to resolve your Dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association ("AAA"), www.adr.org, or JAMS www.jamsadr.com. The terms of this section govern in the event they conflict with the rules of the arbitration organization selected by the parties.
Because the Presence.ai Service provided to you concerns interstate commerce, the Federal Arbitration Act ("FAA") governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes ("Supplementary Procedures") shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with the entity you had a Dispute with as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to the entity you have a Dispute with or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Arbitration may be initiated in either San Francisco, California or the county in which you reside. In the event that you select the county of your residence, we may transfer the arbitration to San Francisco, California in the event that we agree to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator.
If any clause within this Section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section, and the remainder of this Section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, and the Dispute will be decided by a court of law located within the City and County of San Francisco pursuant to Rule 11.
This Rule No. 10 shall survive any termination of this Agreement or the provision of the associated Presence.ai Services to you.
Rule No. 11—California Is A Pretty Nice Place.
This Agreement and performance under this agreement shall be governed by the laws of the State of California and the validity, interpretation and effect shall be governed by the laws of California applicable to contracts executed and performed wholly therein. If, and only if, Rule No. 10 is found to be illegal or unenforceable, the Federal and State courts within the city and county of San Francisco, California shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts.
Rule No. 12—This is It.