Business User Terms of Service
THIS BUSINESS USER TERMS OF SERVICE ("AGREEMENT") IS A BINDING AND VALID LEGAL AGREEMENT BETWEEN (1) THE INDIVIDUAL OR ENTITY LISTED ON THE REGISTRATION PAGE (THE "REGISTRATION PAGE") ACCESSED VIA THE WEBSITE OR MOBILE APP (AS DEFINED BELOW) (COLLECTIVELY, "CLIENT" OR "YOU") AND (2) MESSAGERA, INC. ("PRESENCE.AI", "WE", OR "US"). THIS AGREEMENT, INCLUDING ALL TERMS LISTED ON THE REGISTRATION PAGE SET FORTH THE ENTIRE AGREEMENT BETWEEN CLIENT AND US.
BY CLICKING "I AGREE" OR USING THE PRESENCE.AI SERVICE DESCRIBED HEREIN, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT DESIRE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, CLICK "I DO NOT AGREE" AND DO NOT USE PRESENCE.AI PLATFROM DESCRIBED HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ALL AUTHORIZED USERS TO THIS AGREEMENT. IN THAT CASE, THE TERMS "CLIENT", "YOU" OR "YOUR" SHALL ALSO REFER TO SUCH ENTITY AND ITS AUTHORIZED USERS, AS APPLICABLE. IF YOU DO NOT HAVE SUCH AUTHORITY, YOUR ORGANIZATION AND YOU MAY NOT USE THE PRESENCE.AI SERVICE. YOU ACKNOWLEDGE THAT THIS AGREEMENT IS A CONTRACT BETWEEN YOUR ORGANIZATION, YOU AND US, EVEN THOUGH IT IS ELECTRONIC AND IS NOT PHYSICALLY SIGNED AND IT GOVERNS YOUR USE OF THE PRESENCE.AI SERVICE.
IF YOU WISH TO PRINT OUT THIS AGREEMENT, YOU SHOULD HIGHLIGHT THIS TEXT, RIGHT-CLICK, SELECT "COPY" THEN "PASTE" IT INTO A DOCUMENT IN YOUR WORD PROCESSING PROGRAM.
The following capitalized terms shall have the meanings ascribed to them as follows:
"Account Owner" means an employee of Client who has been authorized by the Client and assigned a unique username-password combination to access and use the Presence.ai Service and given the ultimate ownership and control of the Presence.ai Service account for which Client has registered; the Account Owner is also an Authorized User.
"Authorized User" means an employee of Client who has been authorized by the Client and assigned a unique username-password combination to access and use the Presence.ai Service.
"Consenting Customers" is any current or potential customer of Client that has affirmatively consented in writing (electronically or otherwise) to communicate with Client via use of the Presence.ai Service.
"Client Data" means any data, files, text, graphics, images, software, works of authorship of any kind, and information or other materials that Client transmits to, uploads to, transfers to, processes on, stores in, or causes to interface with, Client’s and/or Authorized User’s Account(s) or the Presence.ai Service.
"Client Landline Number" shall mean an active voice number capable of SMS messaging and which the Client has an existing contract authorizing use of the applicable voice number with a current carrier where such contract details the use of voice services with the applicable current carrier and where the voice number is either a land-line or non-wireless or non-tolle free number.
"Client Social Network Information" is all Client information from Client’s social network accounts (Facebook, Twitter, etc.) that Client makes available to Presence.ai through use of the Presence.ai Service.
"Documentation" means the user documentation for the Presence.ai Service that Presence.ai makes generally available to users.
"Internal Use" means use of the Presence.ai Service to communicate with Consenting Customers only.
"Privacy and Security Policy" means Presence.ai’s privacy and security policy related to use of the Platform accessible at https://presence.ai/tos/privacy.html
"Presence.ai Materials" means the Presence.ai Service, any software programs, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by Presence.ai or its personnel in connection with providing the Presence.ai Service and related services.
"Presence.ai Service" means Presence.ai’s intelligent messaging assistant solution generally made available to its customers and all related services provided through use of the solution.
2. Account Registration Process
2.1 In order to access and use the Presence.ai Service, Client will need to register and create an account ("Account") and, via registration, identify and appoint an Account Owner through provision of either an email address or mobile phone number and the creation of a password. The Account Owner shall be enabled to use its credentials to invite individuals to become Authorize Users (and assign roles permitted via the functionality of the Presence.ai Service). Client and its Account Owner are solely responsible for explaining to each Authorized User how other Authorized Users (depending on role assignment) may have rights to access an Authorized User’s account and obtain information through such access or use of an Authorized User’s account. Client is solely responsible for ensuring that it complies with all applicable laws (employment or otherwise) in obtaining an Authorized User’s consent to access accounts and obtain information.
2.2 Client agrees to provide accurate, current and complete information about the Account, which includes all individual Authorized User Accounts. Presence.ai reserves the right to suspend or terminate the Client Account or any individual Authorized User’s Account, if any information provided during the registration process or thereafter is or becomes inaccurate, false or misleading.
2.3 Client is responsible for maintaining the confidentiality of Client’s passwords and Account, including all user names and passwords information assigned to its Authorized Users, and agrees to notify Presence.ai if any of the passwords is lost, stolen, or disclosed to an unauthorized third-party, or otherwise may have been compromised. Client is responsible for all activities that occur under the Client Account, including the activities carried out by individual employees.
2.4 As part of the Account registration, a 10 digit telephone number shall be assigned to Client (the "Presence.ai Number"). The Presence.ai Number is licensed to Client for use of the Presence.ai Service during the Term. Upon termination of the Term, the Presence.ai Number shall revert automatically back to Presence.ai. Client has no right or interest in the Presence.ai Number other than the limited right to use the Presence.ai Number for use of the Presence.ai Service during the Term. Alternatively, Client may use a Client Landline Number and/or Client’s Facebook or Twitter account (the "Social Network Account") in order to use the Presence.ai Service. Client is solely responsible for ensuring that its use of another telephone number or its Social Network Accounts complies with all laws and agreements with all applicable third parties and agrees to indemnify and hold Presence.ai harmless for any violation of any such laws or agreements by Client. Notwithstanding the foregoing, if Client registers a Client Landline Number for use, the Client shall provide the number for such Client Landline Number, full contact information of the Client, including legal name, address, phone number and email, and the date the Client Landline Number was obtained and put into service by the Client.
3. Rights to Use the Presence.ai Service; Rights to Amend This Agreement
3.1 Subject to Client’s compliance with this Agreement, Presence.ai grants Client a limited, non-exclusive, non-transferable, revocable license during the Term to access and use the Presence.ai Service via Presence.ai’s cloud-based services (subject to Client’s having a valid Account as described in Section 7 below), solely for Client’s Internal Use. Such access and use is expressly limited to Authorized Users. Client’s rights in the Presence.ai Service will be limited to those expressly granted in this Section 3. Presence.ai and its licensors reserve all rights and licenses in and to the Presence.ai Service not expressly granted to Client under this Agreement. Presence.ai may change or update the Presence.ai Service or certain features thereof from time to time, without prior notice to Client.
3.2 We are 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). We 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. 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 firstname.lastname@example.org. Notwithstanding the foregoing, we will 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.
4. Prohibitions and Use Policies.
4.1 Client acknowledges that the Presence.ai Service contains trade secrets of Presence.ai and its licensors, and, in order to protect such trade secrets and other interests that Presence.ai and its licensors may have in the Presence.ai Service, Client may not, and Client agrees not to, reverse engineer, decompile or disassemble the Presence.ai Service. In addition, Client may not, and Client agrees not to: (i) sell or sublicense the Presence.ai Service; (ii) modify the Presence.ai Service; (iii) distribute or copy the Presence.ai Service in whole or in part; (iv) use the Presence.ai Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement or Presence.ai’s applicable documentation; (v) access or use any areas of the Presence.ai Service for which Presence.ai has not granted Client authorization, or tamper or interfere with Presence.ai’s computer systems or the technical delivery systems of Presence.ai’s providers; or (vi) encourage, authorize, or enable anyone to do any of the foregoing.
4.2 Client acknowledges and agrees that Presence.ai is not required to monitor or police communications or data transmitted through the Presence.ai Service and that Presence.ai shall not be responsible for the content of any such communications or transmissions. Client shall use the Presence.ai Service exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Client shall keep confidential and not disclose to any third-parties, and shall ensure that Authorized Users keep confidential and do not disclose to any third-parties, any user identifications, account numbers or account profiles.
4.3 Client represents and warrants that all use and usage of the Presence.ai Service will at all times comply with all applicable laws, including but not limited to the rules, policies and regulation of the Federal Communications Commission ("FCC"), and all Laws relating to Do-Not-Call provisions; unsolicited marketing; telemarketing; faxing; telemarketing; email marketing; spamming or phishing; data security or privacy; international communications; account or debt collection; recording of calls or conversations; export control; export of technical or personal data; end user, end-use, and destination restrictions imposed by the United States or foreign governments; consumer protection; pornography; trade practices; false advertising; unfair competition; anti-discrimination; harassment; defamation; intellectual property; or securities.
4.4 Any text messages sent and/or received through use of the Presence.ai Service are subject to standard text messaging rates charged by applicable third parties. Additionally, text messages sent and/or received count towards any applicable monthly quota as any other messages do. Any users, including Client or Consenting Customer, whether sending or receiving text messages through use of the Presence.ai Service, should be aware that standard text messaging rates may apply. Client agrees that it is solely Client’s responsibility for ensuring all Consenting Customers are aware that messaging fees may apply. Please be aware that texting charges can fluctuate internationally.
4.5 CLIENT ACKNOWLEDGES THAT THE PRESENCE.AI SERVICE IS NOT DESIGNED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. YOU REPRESENT AND WARRANT THAT YOU AND YOUR END USERS WILL NOT USE THE PLAN SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT.
5. TCPA Compliance
5.1 Certain communication practices, including without limitation, the placing of commercial messages; the sending of unsolicited SMS, or other messages; and the use of certain automated telephone equipment to place certain calls – is regulated in the United States by the Federal Telephone Consumer Protection Act of 1991 (also known as the "TCPA") (available at http://www.fcc.gov/document/telephone-consumer-protection-act-1991), the Junk Fax Prevention Act of 2005, and under a number of similar state, municipal or local laws, regulations, codes, ordinances and rules. Client hereby agrees, represents and warrants that:
5.1.1 Client is the creator of the content of, and is solely responsible for determining the destination(s) and recipient(s) of, all outbound communications made using Presence.ai Service ("Customer Communication");
5.1.2 All content, communications, files, information, data, and other content provided for transmission through your use of the Presence.ai Service will be provided solely for lawful purposes, and in no event shall any Customer Communication or any content thereof be in violation of the TCPA, Junk Fax Prevention Act, or any other law; and
5.1.3 No unsolicited advertisements, commercial messages, solicitations, marketing or promotional materials, or commercial messages or content will be transmitted or distributed through use of the Presence.ai Service in any form or in any manner
5.1.4 Client hereby covenants to only use the Presence.ai Service for communications with Consenting Customers and Client is solely responsible for receiving each Consenting Customer’s prior written consent and agreement to receive commercial messages for or on behalf of Client.
5.1.5 At Presence.ai’s sole option and without further notice, Presence.ai may use technologies and procedures, including without limitation, filters, that may block or terminate such unsolicited advertisements without delivering them.
5.1.6 Client agrees to indemnify and hold harmless Presence.ai, and any third-party vendors of Presence.ai from any and all third party claims, losses, damages, fines, or penalties arising: (i) out of Client’s violation or alleged violation of the TCPA or Junk Fax Prevention Act or any similar regulation or legislation; or (ii) otherwise related to any voicemail, text, and/or fax spam, solicitations, or commercial messages that Client may send and/or receive using the Presence.ai Service.
6.1 Depending on the Service plan for which you registered your Account, you will have selected a payment plan and will have agreed to have provided correct credit card or other payment instruments and billing information. You understand and agree that we can and do use third-party payment processors and you authorize us (and our payment processing vendors) to bill your credit card or other payment instruments in accordance with your payment plan. We may elect to bill you through an invoice, in which case, full payment shall be due as specified on the applicable invoice. Past due fees are subject to a finance charge of 1.5% per month or the highest amount permitted by applicable law (if less), plus all expenses of collection.
6.2 Changes to your fees may be made in accordance with your chosen payment plan provided, however, if no such terms are included, we have the right to change the fees for your payment plan on thirty (30) days notice to you sent to the email of your Account Owner. Your continued use of the Presence.ai Service shall constitute your agreement to any price changes. You agree that you must dispute any charges levied by us against you within 60 days after the earlier of the date (i) we bill your credit card or other payment processors or (ii) we invoice you. All amounts paid to us by you are non-refundable.
Presence.ai and its licensors reserve sole and exclusive ownership of Presence.ai Materials, and all copyrights, patents, trademarks, and other intellectual property rights therein. Presence.ai Materials do not include Client Data. Client may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing on the Presence.ai Service. If Client provides Presence.ai with any suggestions, comments, or other feedback regarding the Presence.ai Service ("Feedback"), Client acknowledges that such Feedback will become the exclusive property of Presence.ai, and Presence.ai may use (or not use) any such Feedback in any manner and for any purpose, without compensation to Client and without implying or creating any interest on Client’s part in any of Presence.ai’s products or services that may be based on such Feedback. Client hereby irrevocably assigns and agrees to assign to Presence.ai all right, title, and interest in any Feedback Client provides.
8. Term and Termination; Suspension.
8.1 This Agreement will commence on the date your registration is completed and continue until your Account or this Agreement is terminated as described herein (the "Term"). All service plans associated with your account that are billed and paid (i) monthly will automatically renew for additional one (1) month periods and (ii) yearly will automatically renew for additional one (1) year periods.
8.2 You may deactivate your Account at any time by following the protocols required under the Presence.ai Service or otherwise contacting us at email@example.com and following our manual deactivation protocols. You will remain responsible for any fees that may be owed to us under your applicable service plan.
8.3 Presence.ai may suspend your Account (including individual Authorized User’s Account) and Client’s use of the Presence.ai Service as Presence.ai deems appropriate to prevent, investigate, or otherwise address any suspected misuse of the Presence.ai Service. Additionally, we may also completely deactivate and delete your Account and terminate this Agreement at any time for any reason, or no reason, with or without notice. Upon termination, Presence.ai shall have no obligation to maintain Client Data or provide Client Data to you. If your Account is terminated by you, we will use your Client Data solely as permitted under the Client Data License.
8.4 Either of us may terminate this Agreement (including the associated service plan) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty(30) days after receipt of a written notice thereof.
8.5 Upon the expiration or termination of this Agreement, Client will, within thirty(30) days after receipt of Presence.ai’s invoice, pay all accrued and unpaid fees. All provisions of this Agreement that, by their nature, should survive termination of this Agreement, shall survive.
9. Data Ownership; Access to Information
9.1 Presence.ai does not claim any ownership rights in Client Data. Nothing in this Agreement will be deemed to restrict any rights that Client may have to use and exploit Client Data. Client hereby grants to Presence.ai a non-exclusive, perpetual, worldwide license to use, reproduce and transfer Client Data solely in connection with Client’s use of the Presence.ai Service, our development and improvement of the Presence.ai Service (including, without limitation, machine learning, neural networks, etc.), and Presence.ai’s provision of the Presence.ai Service to Client (the "Client Data License"). Client represents and warrants that Client or Client’s licensors own all right, title and interest in and to Client Data and that Client has all rights in Client Data necessary and sufficient to transmit to, upload to, transfer to, process on, store in, or cause to interface with, Client’s Account or the Presence.ai Service, and to grant the rights contemplated by this Agreement. Client is solely responsible for all of Client Data, including but not limited to the development, transmission, operation, maintenance, storage, claims, and use of Client Data.
9.2 Client consents to Presence.ai’s access, collection, transmission, storage, monitoring, copying, processing, analysis and use of Client Data to administer, develop and improve the Presence.ai Service and Presence.ai’s other products and services, and to monitor compliance with this Agreement.
9.3 Presence.ai maintains the right, title, and interest in and to any data or information regarding the use or optimizing the use or sale of the Presence.ai Service, so long as such data does not include Client Data.
9.4 Client hereby consents to Presence.ai accessing and using Client Social Network Information in order to provide the Presence.ai Service on behalf of Client.
10. Data Maintenance
Presence.ai will follow its internal archival procedures for Client Data; provided, however, in the event of any loss or corruption of Client Data, Presence.ai will be required only to use commercially reasonable efforts to restore the lost or corrupted Client Data from the latest backup of such Client Data maintained by Presence.ai. Presence.ai shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Client Data caused for any reason. PRESENCE.AI’S EFFORTS TO RESTORE LOST OR CORRUPTED COMPANY DATA PURSUANT TO THIS SECTION 9 SHALL CONSTITUTE PRESENCE.AI’S SOLE LIABILITY AND COMPANY’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF COMPANY DATA.
11. Privacy and Security Policy
Presence.ai’s Privacy and Security Policy is incorporated herein for all purposes and each Party agrees to the provisions contained therein. If any portion of this Agreement conflicts with any portion of the Privacy and Security Policy, the Privacy and Security Policy shall govern for all purposes.
Disclaimer. TO THE EXTENT PERMITTED BY LAW, THE PRESENCE.AI SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE," AND PRESENCE.AI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. SPECIFICALLY AND WITHOUT LIMITING THE FOREGOING IN ANY WAY, PRESENCE.AI SPECIFICALLY DISCLAIMS ANY WARRANTY: (i) THAT ANY SERVICE OR PRODUCT OFFERED BY PRESENCE.AI WILL MEET ANY PARTICULAR REQUIREMENTS; (ii) THAT SERVICE OR PRODUCT OFFERED BY PRESENCE.AI WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN ANY PRODUCT WILL BE CORRECTED; OR (iii) RELATING TO THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF YOUR USE OF THE PRESENCE.AI SERVICE OR ANY CUSTOMER COMMUNICATIONS, DATA, INFORMATION, OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF ANY OF THE FOREGOING. THE PARTIES AGREE, AND IT IS THEIR INTENTION, THAT IN NO EVENT SHALL ANY WARRANTY PROVIDED BY LAW APPLY UNLESS REQUIRED TO APPLY BY APPLICABLE STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. TO THE EXTENT THAT PRESENCE.AI CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT PRESENCE.AI CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
Client will indemnify, defend and hold harmless Presence.ai and its officers, directors, employee and agents, from and against any third-party claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and professional fees, arising out of or in any way connected with (i) Client’s access to or use of the Presence.ai Service, (ii) any viiolation of this Agreement by Client, or (iii) the Client Data, provided that Presence.ai: (a)promptly notifies Client in writing of the claim; (b)grants Client sole control of the defense and settlement of the claim; and (c)provides Client, at Client’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. For purpose of this Section, Client shall mean Client and any Authorized User.
14. Limitation of Liability
14.1 Consequential Damages. IN NO EVENT SHALL PRESENCE.AI BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT, COVER, OR SUBSTITUTION GOODS OR SERVICES; LOSS OF USE, DATA, EQUIPMENT, PRODUCTS, BUSINESS OPPORTUNITIES, OR PROFITS; INTERRUPTION OF BUSINESS; TRANSACTIONS ENTERED INTO OR NOT ENTERED INTO; OR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, REPUTATIONAL, OR PUNITIVE DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF PRESENCE.AI HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF – OR COULD HAVE FORESEEN — SUCH COSTS, LOSSES, OR DAMAGES.
14.2 Direct Damages Cap. EXCEPT AS SET FORTH BELOW, PRESENCE.AI’S TOTAL AGGREGATE LIABILITY TO CLIENT SHALL NOT EXCEED, IN ANY EVENT, THE FEES PAYABLE BY CLIENT TO PRESENCE.AI HEREUNDER DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE DATE OF THE EVENT(S) GIVING RISE TO THE LIABILITY.
14.3 Scope and Exceptions. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION ENTITLED (LIMITATION OF LIABILITY):
I. SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW;
II. SHALL NOT DISCLAIM, LIMIT, OR CAP CLIENT’S OBLIGATIONS TO PRESENCE.AI;
III. REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES; AND
IV. SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT AND SHALL APPLY IN ANY AND ALL CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION IN THE EVENT OF ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY PROVIDED HEREIN.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
15. Export Control
Client agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Presence.ai Service, nor any direct product thereof, are: (i) downloaded or otherwise exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations, including but not limited to nuclear, chemical, or biological weapons proliferation.
16. Dispute Resolution
16.1 In the event of any dispute, claim, question, or disagreement between Client and Presence.ai ("Dispute"), Client and Presence.ai shall first use reasonable best efforts to settle the dispute, claim, question, or disagreement. To this end, Client and an authorized member of Presence.ai's legal department (or other representative of Presence.ai designated by the legal department) shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither Client nor Presence.ai shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.
16.2 Notwithstanding the adjudication requirement above, for any Disputes involving ten thousand dollars ($10,000) or less, either party may choose to resolve such Dispute through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution provider mutually agreed upon by the parties, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator's decision shall be final and legally binding.
16.3 In the event of any litigation (including arbitration) between Client and Presence.ai, the non-prevailing party shall reimburse the prevailing party for all reasonable and documented attorneys' fees, costs, and expenses relating to the Dispute.
16.4 Client agrees that any Disputes shall be adjudicated in the state and federal courts of the State of California, U.S.A. Venue for any Disputes shall be the court of proper jurisdiction in the City and County of San Francisco, California. Client agree to submit to the exclusive jurisdiction of such courts with respect to any Disputes and agree not to bring any Disputes in any other court or adjudicative body. Client hereby consent to venue and personal jurisdiction in such courts with respect to such Disputes and irrevocably waive any right that Client may have to assert that such forum is not convenient or that any such court lacks jurisdiction.
16.5 Client agrees that any breach of Presence.ai’s intellectual property rights will cause Presence.ai irreparable harm for which monetary damages will be inadequate and Presence.ai may, in addition to other remedies available at Law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement.
16.6 Some jurisdictions may place limits on governing law, venue, and/or dispute resolution provisions, so certain of the foregoing requirements in this section may not apply to Client.
16.7 If you are an individual Authorized User, you have the right to opt-out and not be bound by the binding arbitration requirement by sending written notice of your decision to opt-out to the Email address firstname.lastname@example.org AND by U.S. Mail to Messagera, Inc., 121 2nd St - Ste #500, San Francisco, CA 94105. The notice must be sent within the later of 30 days of May 16, 2016 or your first use of the Presence.ai Services, whichever is later. If you opt-out of the binding arbitration requirement, we also will not be bound by the requirement. Account Owners may not opt-out of the binding arbitration requirements.
17. Class Action Waiver
Any actions, lawsuits, or shall be conducted solely on an individual basis and the Parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or in any other proceeding in which any party acts or proposes to act in a representative capacity.
Client agrees that Presence.ai may identify Client as a customer of the Presence.ai Service, and display Client’s name and logo (if any) in connection with such identification, on Presence.ai’s websites and in Presence.ai’s other published marketing materials. Presence.ai will use good-faith efforts to comply with any reasonable trademark usage guidelines Client provides to Presence.ai in connection with Client’s name and logo.
18.1 Consumer Notice. The following specific consumer rights notice is hereby provided under California Civil Code Section 1789.3 to California customers and users of the Products: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at (916) 445-1254.
18.2 Assignment. Neither Party may assign this Agreement without the other Party’s prior written consentand any attempt to do so will be void, except that Presence.ai may assign this Agreement, without Client’s consent, to a successor or acquirer, as the case may be, in connection with acquisition of Presence.ai by operation of law or via the sale of all or substantially all of Presence.ai’s assets. Notwithstanding the foregoing, if any successor or acquirer of Presence.ai or its assets is a direct competitor of Client, Client shall have the right to terminate this Agreement without further obligation provide a notice of termination is delivered by Client to Presence.ai and any such successor or aqcquirer within thirty (30) days after notice is delivered to Client by Presence.ai or its successor/assignor of such acquisition. Subject to the foregoing, this Agreement will bind and benefit the Parties and their respective successors and assigns.
18.3 No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by either Party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.
18.4 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
18.5 Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii)one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) twenty-four (24) hours after having been sent via electronic mail to the contact person at the address listed in each instance on Key Agreement Terms page unless a Party notifies the other Party in writing of a change to the contact person and/or the contact person’s contact information. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either Party to the other Party in accordance with this Section.
18.6 Waiver. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of each Party.
18.7 Entire Agreement. This Agreement, constitutes the complete and exclusive agreement of the Parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the Parties hereto.
18.9 Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.
18.10 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.