Terms of Use Agreement
Effective Date: April 16, 2018
Essential Marketing Systems, Inc. (hereinafter “EMS”) provides the websites bestlocalreviews.com and fivestarreviewsystem.com and their associated content and services (collectively “Website”) on a limited basis. The following terms and conditions contained within this agreement (hereinafter “Agreement”) govern your use of and access to the Website and contain important information about your rights, duties, and obligations when using the Website. If you do not agree with the terms and conditions contained within this Agreement, you are expressly prohibited from using the Website and must discontinue your use of the Website immediately. “You” is defined to include holders of a Member Account.
EMS MAY, FROM TIME TO TIME, MODIFY, LIMIT, CHANGE, DISCONTINUE, OR REPLACE THE WEBSITE. EMS RESERVES THE RIGHT TO MODIFY, LIMIT, CHANGE, DISCONTINUE, OR REPLACE THE WEBSITE IN ITS SOLE AND ABSOLUTE DISCRETION. IN THE EVENT EMS MODIFIES, LIMITS, CHANGES, OR REPLACES THE WEBSITE, YOUR USE OF THE WEBSITE AFTER SAID MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT CONSTITUTES YOUR MANIFESTATION OF ASSENT TO THE MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT.
1. Warranties and Representations
You warrant and agree that you have the right, power, and legal capacity to enter into this Agreement and to adhere to the terms and conditions hereunder and that you are not prohibited from entering into this Agreement by any preexisting agreement. You warrant and agree that you are a human individual that is eighteen (18) years of age or older and that you are not a bot, script, or other computer or machine, excluding search engine spiders. If you are entering into this Agreement on behalf of a third party, you warrant and agree that you are an authorized representative of that third party and have the authority to bind that third party to the terms of this Agreement. You warrant and agree that you will access the Website from your own computer or mobile device and that you will not impersonate any person or entity or forge any identifiers of origin or source, such as IP addresses or packet headers, in accessing or using the Website. You agree to comply in good faith, with the terms of this Agreement.
In particular, you agree to comply with all laws, statutes, regulations, ordinances, or treaties, whether local, state, provincial, national, or international, including, without limitation, the FTC’s Guides Concerning the Use of Endorsements Testimonials and Advertising, 16 CFR Part 255.
2. Software as a Service Provider
EMS provides software to the holder of a Member Account upon registration for a Member Account (as hereinafter further defined) to enable the holder of a Member Account to solicit reviews, testimonials and feedback from its customers (“Reviewer”) and provide business development and related tools to holders of a Member Account.
A. Reviews and Testimonials
Through use of the Website, a Reviewer is provided the ability to rate, via use of stars, the holder of a Member Account. The Reviewer is then provided the opportunity to write a review for publication to a third party website for which the Reviewer owns an account, such as Google, and for which the holder of a Member Account has selected for publication of such review (“Review”). Holder of a Member Account acknowledges and agrees that it is responsible for identifying to which website(s) a Review is published, as well as for maintaining links related to the same, and that EMS is not responsible for the content of any Review or the action of any such third party website on which the Review may appear. EMS does not maintain such Reviews, but rather such Reviews are stored by the third party website and subject to the terms of use, privacy policy and other agreements that govern those third party websites. You are responsible for ensuring that all Reviews and other use of the third party review websites are in compliance with such websites’ terms of use, privacy policy and other agreements that govern those third party websites.
Rather than publishing its review to third party websites, a Reviewer may also write a review to be sent directly to the holder of a Member Account (“Testimonial”).
The Reviewer may publish a review or testimonial separately not using the Website, and EMS is not responsible for any such review or testimonial.
B. Referrals Via Digital Coupons and Flyers
Holder of a Member Account acknowledges and agrees that EMS is providing it with the ability to generate referrals by sending Reviewers Digital Coupons and/or Flyers and that it is the holder of the Member Account’s sole responsibility to use in compliance with all laws, statutes, regulations, ordinances, or treaties, whether local, state, provincial, national, or international, including, without limitation, the FTC’s Guides Concerning the Use of Endorsements Testimonials and Advertising, 16 CFR Part 255 and the Health Insurance Portability and Accountability Act (HIPPA).
C. Hosting Location
The Website is hosted in the United States. The services provided on the Website are not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject EMS to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Website and services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
3. Member Account Acknowledgements and Agreements
EMS may provide you with the ability to register a member account (“Member Account”), which may provide you with access to additional areas and features of the Website which are not accessible to non-members, including but not limited to the ability to request Reviews and Testimonials from Reviewers, the ability to request that Reviewers upload the same to the Internet, access to an RSS feed of customer Testimonials, the ability to create digital coupons and flyers, a custom web page, and other customization options. Your Member Account is protected by a username and password. You further understand and acknowledge that your providing access to your Member Account via your username and password, including to a Partner, is your responsibility and you do so at your own risk. You acknowledge that you are solely responsible for maintaining the security and confidentiality of your username and password and for any access to your Member Account. In the event your Member Account is accessed without your authorization, you agree to immediately provide notice to EMS.
You have a duty to and agree to ensure that the information that You provide through your Member Account is truthful, current, complete, and accurate. You understand and agree that you have an ongoing duty to update and keep current the information provided through your Member Account if and when that information changes. You are expressly prohibited from creating a Member Account that impersonates another person, contains offensive or obscene language, or otherwise violates the rights of a third party. You expressly agree that you will not use your Member Account to interfere with or disrupt a third party’s enjoyment and use of the Website. EMS reserves the right to restrict access to, suspend, disable, or delete your Member Account at any time, in its sole discretion, and without prior warning. You are expressly prohibited from selling, leasing, lending, assigning, or otherwise transferring your Member Account.
By creating a Member Account, you understand and agree that effectiveness or availability of EMS’s services, including but not limited to the Five Star Review System, may be conditional upon the actions of third party search engines and review websites. In order to ensure that the link to your review page on third party websites is in working order, you must test those links regularly, and we recommend that this be done on a weekly basis. EMS is not responsible for and will not be held liable for a change in the link structure of third party websites, including but not limited to search engines or review websites. EMS further makes no representation or warranty regarding, and cannot control, the actions of third party websites and/or search engines and thus the ultimate effectiveness of the Website.
By creating a Member Account, you understand and agree that you are utilizing EMS’s Website to contact your Reviewers to solicit reviews of your goods or services and/or provide your coupons and flyers. You understand that EMS requires certain information in order to contact Reviewers, and you agree to provide such information. You agree that EMS will in no event incur liability for any action taken on your behalf or at your direction, including but not limited to communications with your clients and/or the submission of coupons to your clients. You approve of and are solely responsible for the content of any communications and/or submission of coupons and flyers to your clients.
By creating a Member Account, you represent and warrant that you are not bound by or a party to any exclusive arrangement, whether contractual or otherwise, that would prohibit you from using the Website and it’s associated services.
By creating a Member Account, EMS may provide you with access to its Five Star Review subscription service, which may provide you with the ability to send your customers to your selected review websites, gather ratings and testimonials and upload those testimonials to third party websites (hereinafter “Five Star Review System). EMS’s Five Star Review System is subject to a money back guarantee. If you are not satisfied with EMS’s Five Star Service, EMS will provide you with a refund of the first month’s service fee, excluding any non-refundable set-up fees. To be eligible, you must provide EMS with notice of your dissatisfaction in writing no later than five (5) days prior to the second month’s billing date. You understand and agree that, under the terms of this Agreement, you are provided a single license to use the Five Star Review System for a single business, business location, or company department. The licensed rights provided under this Agreement are expressly made conditional upon your compliance with the above sentence, and your use of a single subscription to the Five Star Review System for more than a single business, business location, or company department will constitute a material breach of this Agreement and copyright infringement.
Your subscription to the Five Star Review System will be automatically renewed each month on the date that your subscription began or, in the event that any subsequent month is shorter in length, on the last day of the month. Upon each renewal, unless you cancel your subscription, your selected payment method will be charged without requiring your prior authorization. To cancel EMS’s Five Star Review System, you must provide EMS with notice in writing of your intent to cancel no later than five (5) days prior to the next month’s billing date at [email protected]. Cancelled or discontinued accounts will be deleted after a period of 1 year and standard setup fees will be charged to setup a new account ordered thereafter.
By creating a Member Account, EMS may also provide you with Local Search Optimization services (hereinafter “Local Search Optimization”). You understand and agree that EMS’s Local Search Optimization customers are subject to the terms and conditions of this Agreement, unless otherwise replaced by separate terms and conditions previously agreed upon between EMS and You, in writing.
4. Privacy Policy
EMS has adopted its Privacy Policy to provide you with notification of its collection and use of your personal and personally identifiable information. EMS hereby incorporates its Privacy Policy into this Agreement by reference as if fully stated herein and you agree to be bound by the terms of the Privacy Policy.
5. Limited License
You understand and agree that the Website is the property of EMS and is protected by all applicable laws, intellectual property or otherwise. The Website may not be used, modified, copied, distributed, framed, reproduced, crawled, aggregated, reverse engineered, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the prior written consent of EMS. The foregoing prohibition on crawling and aggregation will not apply to search engines or non-commercial and publicly available archives that appropriately comply with EMS’s robots.txt file.
EMS hereby grants you a limited, non-exclusive, non-sublicensable, royalty free, non-assignable, and revocable license to use the Website. You are expressly prohibited from reproducing, modifying, distributing, publishing, licensing, creating derivative works of, selling, publicly displaying, or publicly performing the Website outside of the uses expressly stated in this Agreement.
6. User Content
EMS may allow you to create user content through or to upload user content to the Website, including but not limited to links, images, reviews, videos, trademarks, trade names, logos, design marks, profile information and preferences (hereinafter “User Content”). You hereby grant EMS a non-exclusive, perpetual, irrevocable, sublicensable, assignable, worldwide, fully paid, and royalty-free license to use, copy, perform, display, create derivative works of, and distribute any and all User Content that you submit to the Website in any form (now known or later developed) for all purposes of the Website.
You warrant that you have all right, title, and interest in and to any and all User Content that you generate through or upload to the Website, that you submit all User Content to the Website free of liens or other encumbrances, that your User Content will not violate any law, statute, ordinance, or treaty, whether state, provincial, national, or international, and that your User Content will not violate the rights of third parties.
You agree that EMS may identify you, including with use of your logo, as a client in EMS’s client lists and other marketing materials and may use, on a royalty-free basis, your User Content in training, public case studies, and other marketing materials published by EMS, including online via the Internet.
By creating User Content through or uploading User Content to the Website, you expressly and intentionally waive any and all claims of a violation of your right of privacy or publicity arising out of the use of your User Content for the purposes of the Website, including but not limited to in reviews, coupons, or marketing materials.
7. Referral Program
EMS provides holders of a Member Account with rewards for referrals to the EMS’s Website that are originated by a specific Member Account holder and result in subscription purchases. By participating in any of the following Referral Programs, you represent and warrant that you are not bound by or a party to any exclusive arrangement, whether contractual or otherwise, that would prohibit you from using the Website and its associated services. Multi-location users of the Five Star Review System will not receive any Referral Program commissions that arise from any of their multiple locations.
All Referral Program commission compensation under this Agreement is expressly made conditional upon Affiliate Account, Partner Account, and Refer-A-Friend holder’s compliance with the terms and conditions of this Agreement and any other terms and conditions promulgated by EMS (the “Binding Terms”). If EMS terminates your Affiliate Account, Partner Account or Member Account due to your violation of the Binding Terms, then you forfeit all subsequent commission compensation. The determination of whether a subscriber is qualified for the purposes of EMS’s Referral Program will be determined in EMS’s sole and absolute discretion. The following Referral Programs are subject to change and may be discontinued at any time and within the sole and absolute discretion of EMS. Please refer to our Referral Program page, which may change from time to time, for more information, which page is hereby incorporated herein by reference. Commissions are not paid on set-up fees.
A. Affiliate Account
EMS may provide you with the ability to use your Member Account as an affiliate account for the purpose of generating affiliate marketing revenue (“Affiliate Account”). An Affiliate Account will receive a 20% commission on the subscription fee of any subscriber, which shall be defined as the holder of a Member Account who purchases from and pays to EMS at least two consecutive months of Five Star Review System services and identifies the Affiliate Account via its affiliate code upon registration (each, a “Qualified Subscriber”). Failure by the subscriber to enter the affiliate code or maintain registration and payment for two consecutive months will result in no commission for the Affiliate Account. EMS is not responsible for subscriber’s entry of an inaccurate affiliate code and the resulting loss of a commission to Affiliate Account holder.
An Affiliate Account must acquire an affiliate code specific to the Affiliate Account in order to qualify for this particular Referral Program. An Affiliate Account is not eligible for participation in any other Referral Program or any other fee available therein. All Affiliate Account commission compensation is terminated upon the termination or deletion of the Affiliate Account holder’s Member Account.
B. Partner Account
EMS may provide you with the ability to use your Member Account on behalf of other holders of Member Accounts and in order to gain full access to said holder of Member Account (“Partner Account”). So long as the holder of a Member Account provides authorization to the Partner Account, Partner Account holders may set up the account for a Member Account holder, remit payment using Partner Account’s payment method, and access the Member Account, including all customer lists and other information made available therein. The holder of the Member Account to which the Partner Account has access is ultimately responsible for any and all actions relating to that Member Account and releases EMS from any liability arising from the Partner Account access to the Member Account.
A Partner Account will receive a 20% commission on the subscription fee of any Qualified Subscriber. Failure by the subscriber to enter the affiliate code or maintain registration and payment for two consecutive months will result in no commission for the Partner Account. EMS is not responsible for subscriber’s entry of an inaccurate affiliate code and the resulting loss of a commission to Partner Account holder.
A Partner Account must acquire a partner code specific to the Partner Account in order to qualify for this particular Referral Program. A Partner Account is not eligible for participation in any other Referral Program or any other fee available therein. All Partner Account commission compensation is terminated upon the termination or deletion of the Partner Account holder’s Member Account.
C. Refer-A-Friend Program
EMS may provide you with the ability to use your Member Account for purposes of generating referrals for new subscribers. The holder of a Member Account is entitled to a $50 referral fee when a new Member Account is created through referral by the holder of the Member Account so long as the new Member Account identifies the holder of the Member Account upon registration and maintains registration, with payment, for at least two (2) consecutive months.
8. Third Party Websites
You understand and agree that the Website may contain links to content and websites owned or controlled by third parties. You understand and agree that EMS will not be held liable for the content of websites that it does not own or control, including, without limitation, review sites and search engines. You are responsible for ensuring compliance with any such third party website terms of use or other agreements. EMS is not responsible for any action taken by third party websites with respect to your ranking, rating or online reputation.
9. Idea Submission Policy
You understand and agree that any feedback that you provide to EMS concerning the Website will be considered non-confidential and EMS (as well as any designee of EMS) shall be entitled to the unrestricted use and dissemination of the feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
10. User Conduct
You expressly agree that you will not use the Website, your Member Account, Partner Account or your Affiliate Account to violate any law, statute, ordinance, regulation, or treaty, to violate the rights of third parties, or for a use outside of the customary and intended uses of the Website, your Member Account, or your Affiliate Account. Specifically, you are expressly prohibited from:
a. Transmitting unsolicited commercial email messages, or spam, through the Website or to users of the Website;
b. Harassing, stalking, or threatening other users or third parties;
c. Using a robot, spider, scraper, or other automated technology to access the Website;
d. Imposing a disproportionate load on the Website or its server infrastructure or otherwise attempting to interfere with the operation of the Website;
e. Fraudulently modifying or inflating any ranking or rating systems on the Website;
f. Posting or transmitting content that threatens or encourages bodily harm or destruction of property;
g. Posting or transmitting content that infringes upon the intellectual property rights of other users or third parties;
h. Posting or transmitting content that is defamatory, invasive, obscene, pornographic, or offensive;
i. Posting or transmitting content that constitutes fraud, an unwanted commercial solicitation, a phishing scam, a pyramid scheme, or a chain letter; and
j. Posting or transmitting content that constitutes false advertising, including but not limited to a violation of Part 255 of the FTC’s false advertising regulations.
11. EMS as Interactive Computer Service.
EMS is a provider of the Website, which is an interactive computer service as those terms are defined under Section 230 of the Communications Decency Act. Consequently, EMS will not be treated as the publisher or speaker of any tortious content posted to or through the Website. EMS reserves the right to remove any content from the Website that it determines is offensive, unlawful, threatening, defamatory, obscene, or otherwise objectionable, which will be determined in EMS’s sole and absolute discretion.
12. Payment Terms
EMS may charge fees or charges to you for your purchase of services from EMS, including but not limited to the Five Star Review System. You agree to pay all fees or charges on time, and EMS may terminate or disable your access to the Website, your Member Account, or your Affiliate Account if you fail to pay any amount owing to EMS when due.
You agree to pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with your use of the Website. All costs and fees are quoted and payable in United States Dollars.
You agree that you will not initiate any chargebacks to EMS unless otherwise authorized by EMS in writing. You understand and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against EMS.
In the event you dispute the amount or validity of any payments made under this Agreement, you must notify EMS in writing within five (5) days after the due date for such payments. You understand that your failure to notify EMS of any dispute within five (5) days will constitute your express waiver of any claims related to the disputed payment.
EMS reserves the right at any time to modify or discontinue the Website or any of its associated services without notice and in its sole and absolute discretion. EMS reserves the right at any time to modify the price charged for the services offered through the Website.
All payments are final and non-refundable.
13. Term and Termination
This Agreement will remain in full force and effect until terminated under the terms of this Agreement. You may terminate your Member Account, Partner Account or Affiliate Account by sending written notice to EMS at [email protected]. EMS may terminate this Agreement without liability at any time, without notice, and for any reason, including but not limited to for your violation of a term or condition of this Agreement.
14. Disclaimer of Warranties
EMS DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE OR SERVICES PURCHASED THROUGH THE WEBSITE. EMS PROVIDES THE WEBSITE AND THE SERVICES SOLD THROUGH THE WEBSITE ON AN AS-IS BASIS AND WITH NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, THIS EXCLUSION MAY NOT APPLY.
EMS WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CONTENT POSTED ON THE WEBSITE, ANY THIRD PARTY LINKS POSTED ON THE WEBSITE, OR ANY CONTENT TRANSMITTED THROUGH THE WEBSITE WHETHER OR NOT THAT CONTENT IS TRANSMITTED THROUGH MEMBER ACCOUNTS OR AFFILIATE ACCOUNTS. EMS DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DESTRUCTION OF IDENTITY, UNAUTHORIZED ACCESS TO A MEMBER ACCOUNT, OR ALTERATION THEREOF. EMS RESERVES THE RIGHT TO DISCONTINUE THE WEBSITE AT ANY TIME.
EMS FURTHER DISCLAIMS ANY WARRANTY WITH REGARD TO SEARCH ENGINE RESULTS AND RANKINGS BASED UPON THE PROPRIETARY ALGORITHMS OF SEARCH ENGINE PROVIDERS THAT ARE SUBJECT TO CHANGE. EMS FURTHER DISCLAIMS ANY WARRANTY WITH REGARD TO THE CONTINUED OPERATION OF ANY THIRD PARTY REVIEW WEBSITE AND ITS EFFECT UPON ANY SEARCH ENGINE RESULTS AND RANKINGS.
15. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT THE QUALITY AND EFFECTIVENESS OF THE WEBSITE AND SERVICES PROVIDED BY EMS MAY VARY WITH CHANGES IN THIRD PARTY TECHNOLOGY OVER WHICH EMS HAS NO CONTROL, INCLUDING BUT NOT LIMITED TO CHANGES IN OR MODIFICATIONS TO SEARCH ENGINE ALGORITHMS, THIRD PARTY WEBSITE AGREEMENTS, SUSPENSION OF ACCOUNTS, DELETION OF BUSINESS LISTINGS OR REVIEWS, OR THE MODIFICATION, SUSPENSION, OR DELETION OF THIRD PARTY REVIEW WEBSITES. YOU FURTHER ACKNOWLEDGE AND AGREE THAT EMS IS NOT RESPONSIBLE FOR OR LIABLE FOR ANY REVIEW, TESTIMONIAL OR OTHER FEEDBACK AND ITS IMPACT ON YOU AND/OR YOUR BUSINESS AS WELL AS YOUR BREACH OF TERMS OF USE, PRIVACY POLICY OR OTHER AGREEMENTS OF THIRD PARTY REVIEW OR OTHER WEBSITES. EMS WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, OR LIABILITIES ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF THE WEBSITE OR YOUR USE OF SERVICES SOLD THROUGH THE WEBSITE, INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, OR EXEMPLARY DAMAGES. YOU UNDERSTAND AND AGREE THAT THE MAXIMUM AMOUNT THAT EMS CAN BE HELD LIABLE TO YOU UNDER ANY CIRCUMSTANCE IS THE AMOUNT THAT YOU PAID FOR SERVICES PURCHASED THROUGH THE WEBSITE, AND IN NO CASE WILL THAT AMOUNT EXCEED $100. IF NO AMOUNT IS PAID BY YOU TO EMS, YOU AGREE THAT YOU WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY UNLESS OTHERWISE PERMITTED BY LAW.
SOME STATES OR PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES. IF YOUR STATE OR PROVINCE DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, YOU SHOULD SEEK LEGAL COUNSEL TO UNDERSTAND YOUR LEGAL RIGHTS UNDER THE LAW OF YOUR STATE.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
16. Indemnification
You agree to hold harmless, indemnify, and defend EMS, its officers, employees, agents, successors, and assigns, from any and all claims, demands, losses, damages, rights, and actions of any kind, including without limitation property damage, infringement, personal injury, and death, that either directly or indirectly arises out of or is related to your use of the Website, your use of any services purchased through the Website, your violation of any term or condition of this Agreement, your violation of any applicable law, statute, ordinance, regulation, or treaty, whether local, state, national, or international, or your violation of the rights of a third party. Your obligation to defend EMS under the terms of this Agreement will not provide you with the right to control EMS’s defense, and EMS reserves the right to control its defense regardless of your contractual requirement to defend EMS.
17. Assignment
You hereby understand and agree that you are prohibited from assigning your rights and obligations under this Agreement. EMS may assign its rights and obligations under this Agreement at any time, including but not limited to in a sale of the Website.
18. Resolution of Disputes and Governing Law
This Agreement will be interpreted under and governed by the laws of the State of Hawaii without giving effect to any conflicts of laws principles. You agree that any claim or dispute that you may have against EMS will be exclusively resolved through arbitration.
YOU AND EMS AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT, YOUR USE OF THE WEBSITE, OR THE PURCHASE OF SERVICES FROM EMS, INCLUDING ANY DISPUTES CONCERNING THE VALIDITY, INTERPRETATION, VIOLATION, BREACH, OR TERMINATION OF THIS AGREEMENT. ARBITRATION UNDER THIS AGREEMENT WILL BE HELD IN KIHEI, HAWAII AND IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATION PROCEEDING WILL BE DECIDED BY A SINGLE ARBITRATOR AND THE ARBITRATOR WILL DECIDE THE ARBITRATION PROCEEDING BY APPLYING THE LAWS AND LEGAL PRINCIPLES OF THE STATE OF HAWAII AND THE FEDERAL LAWS OF THE UNITED STATES. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES. YOU AND EMS AGREE THAT BOTH PARTIES WILL BE REQUIRED TO BE PRESENT WITHIN THE STATE OF HAWAII IN ORDER TO PERFORM THEIR OBLIGATIONS UNDER THIS AGREEMENT. YOU AND EMS AGREE TO SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.
19. COPPA Compliance
The Website is not directed to persons under the age of thirteen (13) and EMS will not knowingly collect personally identifiable information from children under the age of thirteen (13). If EMS inadvertently collects personally identifiable information, EMS will delete the personally identifiable information in accordance with its security protocols, upon notice.
20. Copyright Policy
The Website, and the content contained within, as defined by the EMS Terms of Use Agreement, is the property of EMS. EMS grants you a limited license to access and use the Website.
EMS will respond to specific notices of copyright infringement that comply with the Digital Millennium Copyright Act. EMS may expeditiously remove copyright infringing materials from its Website, regardless of EMS’s liability, upon receipt of a notice that complies with the terms of the Digital Millennium Copyright Act’s § 512, located at 17 U.S.C. § 512(c)(3). EMS, upon removal of any materials that are alleged to be infringing, will make a good faith attempt to notify the owner or uploader of the materials so that they may respond with a counter-notification under 17 U.S.C. § 512(g)(3).
If you believe that content hosted on the Website infringes upon your copyright rights, please follow the Digital Millennium Copyright Act steps outlined below:
1. If you are a copyright owner, or the authorized agent of a copyright owner, and you believe that content hosted on the Website infringes upon your copyright rights, you may submit a notification pursuant to the Digital Millennium Copyright Act by providing our registered Copyright Agent with the following information in writing:
a. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b. Identification of the copyrighted work claimed to have been infringed, or, if multiple works have been allegedly infringed, a specific list of such works and their specific location on the Website;
c. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit EMS to locate the material;
d. Information reasonably sufficient to permit EMS to contact you, such as an address, telephone number, fax number, and, if available, an email address;
e. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
f. A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Counter-Notification
a. If you believe that content has been removed from the Website in error, you may file a counter-notification with EMS’s designated Copyright Agent that complies with the requirements of 17 U.S.C. § 512(g)(2) and (g)(3) outlined below. Upon receipt of a counter-notification complying with the requirements of 17 U.S.C. § 512, EMS may return the allegedly infringing content to the Website.
b. A counter-notification must include:
i. Identification of the specific materials that have been removed from the Website;
ii. Your name, address, telephone number, and email address;
iii. A statement that, under penalty of perjury, you have a good-faith belief that the material was removed or disabled as a result of mistake or misidentification of the material;
iv. A statement that you consent to federal district court jurisdiction in the district in which your address is located or, if your address is outside of the United States, that you consent to jurisdiction in any district in which EMS may be found and that you will accept service of process from the person who provided notification or their agent; and
v. Your physical or electronic signature.
3. EMS will maintain a designated Copyright Agent, who will receive notifications of alleged infringement. You recognize that if you fail to comply with the requirements of the Digital Millennium Copyright Act’s notification requirements, your DMCA notice may not be processed. Notices of infringement and counter-notifications may be sent to:
Designated Agent: Essential Marketing Systems, Inc. Attn: Susan Sommers
821 Kumulani Drive
Kihei, HI 96753
21. Data
Our Website will maintain certain data that is transferred to the Website for the purpose of the performance of the Website services, as well as data relating to use of the services. Although we perform regular routine backups of data, you are primarily responsible for all data transferred or that relates to any activity you have undertaken using the Website services. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
22. Electronic Contracting
Your use of the Website includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO THE WEBSITE, INCLUDING NOTICES OF CANCELLATION AND APPLICATIONS.
23. Additional Provisions
A finding that any term or provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of this Agreement. Any term or provision of this Agreement that is found to be invalid or unenforceable will be reformed to the extent necessary to make it valid and enforceable.
You understand and agree that no term or provision of this Agreement will be deemed to have been waived and no breach will be deemed to have been consented to unless said waiver or consent is in writing and signed by the party to be charged.
This Agreement and the Privacy Policy incorporated by reference constitute the entire agreement between you and EMS with respect to the Website. You understand and agree that there are no further understandings, agreements, or representations with respect to the Website that are not specified in this Agreement. You understand and agree that any additional provisions that may appear in any communication from you will not bind EMS.
Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
EMS AND YOU BOTH AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE OR ANY SERVICES PURCHASED THROUGH THE WEBSITE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. FAILURE TO ASSERT SAID CAUSE OF ACTION WITHIN ONE YEAR WILL PERMANENTLY BAR ANY AND ALL RELIEF.
YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST EMS ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
All rights not expressly granted herein are reserved to EMS.
CONTACT US
In order to resolve a complaint regarding EMS to receive further information regarding use of our services, please contact EMS as set forth below or, if any complaint with us is not satisfactorily resolved, and you are a California resident, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 "R" Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
Essential Marketing Systems, Inc.
821 Kumulani Drive
Kihei, HI 96753