Introduction
Thanks for using EmotionTrac, Inc.'s products, services, websites, and app some of which are branded and doing business as "EmotionTrac" and "EmotionTrac's Services" (collectively Services).
These Terms and Conditions ("Terms") contain the terms under which EmotionTrac Inc., provides Services to you and describe how the Services may be accessed and used and together with the website's Privacy Notice, AI Terms, and other published policies, as well as any order forms which are hereby incorporated by reference, constitute our legally binding agreement ("the Agreement"). If you will be using the Services on behalf of an organization, you agree to these Terms on behalf of that organization and you represent that you have the authority to do so. In such case, "you" and "your" will refer to that organization.
These Terms contain a choice of law provision. If you are accessing the websites or app from outside the United States, the laws and regulations of your country of access do not govern this agreement, your access to the websites or app, or your purchase of any products or services.
Your use of our websites or app or purchase of our products or services are deemed your consent to be bound by the terms of this Agreement. IF YOU DO NOT WANT TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT USE THIS WEBSITES OR APPS OR PURCHASE OUR PRODUCTS OR SERVICES. THIS AGREEMENT INCLUDES A MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER WHICH MEANS YOU AGREE TO SUBMIT ANY CLAIM TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT AND THAT YOU AGREE TO PROCEED WITH ANY CLAIM INDIVIDUALLY AND NOT AS A MEMBER OF A CLASS ACTION. IF YOU WANT TO OPT-OUT OF THE MANDATORY ARBITRATION AGREEMENT, SECTION 14 BELOW DESCRIBES THE OPT-OUT PROCEDURES YOU MUST FOLLOW.
1. Payments.
1.1. Fees for Services.
You agree to pay EmotionTrac for each campaign or Service purchased or used, in accordance with the pricing and payment terms presented to you for that Service. Where applicable, you will be billed using the billing method you enter at the time of purchase. If you have elected to pay the fees by credit card, you represent and warrant that: a) the credit card information you provide is true and accurate b) you are duly authorized to use such credit card for purchase, c) charges incurred by you will be honored by your credit card company and d) you will pay charges incurred by you, including all applicable taxes.
Fees must be received before Services will be rendered. Fees paid by you are non-refundable, except as provided in these Terms and contracts between you and EmotionTrac Inc.
1.2. Credit Card Processing Fees.
Where applicable, a 3% convenience fee will be charged for processing credit card transactions; to avoid this fee pay via ACH or check.
1.3. Payment Information.
You are solely responsible for maintaining true and accurate payment information associated with your account and you will promptly notify EmotionTrac of any changes to such information. EmotionTrac reserves the right to cancel any order and to suspend or terminate your account if we have reason to believe you have provided inaccurate, incomplete, outdated, or fraudulent payment information to us or for any other reason we, in our sole discretion believe appropriate.
1.4. Taxes.
You are responsible for paying Taxes associated with your purchase. If we have a legal obligation to collect sales tax for which you are responsible, we will calculate the sales tax based upon the billing information we have about you and charge you that amount (which may be the highest prevailing rate then in effect, if your billing information is incomplete or inaccurate), unless you provide us with a valid tax exemption certificate acceptable to the appropriate taxing authority.
If you provide us with a tax exemption certificate, you represent and warrant that it accurately reflects your tax status and that you will keep such documents current and accurate.
If we subsequently determine, in our sole discretion, that your tax exemption document is valid, we will refund the sales tax collected.
1.5. Collection Costs.
In the event you fail to pay any amount when due, you agree to reimburse the company for all reasonable costs incurred in collecting the overdue amount. These costs may include, without limitation, collection agency fees, court costs, and reasonable attorneys' fees, to the extent permitted by applicable law.
2. EmotionTrac IP.
You acknowledge that content published by us or available through the Services is protected by copyright, trademark, patent, or other proprietary rights and laws and are the property of EmotionTrac, its service providers, and/or third parties. Neither these Terms nor your use of the Services grants you ownership in the Services or the content you access through the Services (other than your Content). All trademarks and service marks displayed on the websites or app are the property of EmotionTrac or the respective owners. You may not use or display any trademarks or service marks owned by EmotionTrac without our prior written consent and you may not otherwise use or display any other trademarks or service marks displayed in the Services without the written permission of the respective owner.
3. Privacy.
In the course of using the Services, you may submit content to EmotionTrac (including your personal data and the personal data of others) or third parties may submit content to you through the Services (all of the above will be referred to as "your Content"). We know that by sharing your Content, you are trusting us to treat it appropriately. Please review EmotionTrac's Privacy Notice, detailing how we treat your Content. By purchasing a Campaign or other EmotionTrac Services you agree that EmotionTrac may use and share your Content in accordance with the EmotionTrac Privacy Notice and applicable data protection laws.
4. Confidentiality.
EmotionTrac will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including the EmotionTrac Privacy Notice). However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms by EmotionTrac); (b) was lawfully known to EmotionTrac before receiving it from you; (c) is received by EmotionTrac from a third-party without knowledge of breach of any obligation owed to you; (d) is shared in the context of your account being migrated to an organization's Enterprise account, if your account is registered using a work email address within that organization; or (e) was independently developed by EmotionTrac without reference to your Content. EmotionTrac may disclose your Content when required by law or legal process, but only after EmotionTrac, if permitted by law, uses commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.
5. AI Terms.
You acknowledge that the Services, including but not limited to, our chatbot/assistant, "Bernie" incorporate artificial intelligence and by using our Services or Bernie you agree to be bound by our AI Terms which are incorporated herein by reference.
6. Your Content.
The Services display content provided by others that is not owned by EmotionTrac. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. EmotionTrac is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Services unless you have first obtained the permission of its owner, or are otherwise authorized by law to do so.
6.1. You Retain Ownership of Your Content.
You retain ownership of all of your intellectual property rights in your Content. EmotionTrac does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
6.2. Limited License to Your Content.
You grant EmotionTrac a worldwide, royalty-free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, for the limited purposes of providing the Services to you and as otherwise permitted by the EmotionTrac privacy policies. This license for such limited purposes continues even after you stop using our Services, with respect to aggregated or de-identified data derived from your Content and any residual backup copies of your Content made in the ordinary course of EmotionTrac's business. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. If you provide EmotionTrac with feedback about the Services, we may use your feedback without any obligation to you.
6.3. Content Review.
You acknowledge that, in order to ensure compliance with legal obligations, EmotionTrac may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law, industry standards, or these Terms. However, EmotionTrac otherwise has no obligation to monitor or review any content submitted to the Services.
6.4. Services Feedback.
We welcome your suggestions, reviews, and feedback about our products and services ("Feedback"). You grant EmotionTrac a worldwide, perpetual, irrevocable, royalty-free license to use, copy, modify, and incorporate the Feedback into our products and services without restriction or compensation to you. Feedback will not be treated as your confidential information. This clause does not transfer ownership of any of your pre-existing intellectual property.
6.5. Third-Party Resources.
EmotionTrac may publish links in its Services to internet websites or apps maintained by third parties including, but not limited to, social media platforms. EmotionTrac does not own or control these third-party websites. Your use of these links and third-party services is subject to their terms and conditions, privacy notices, and published policies. EmotionTrac does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with such third-party services are the property of their respective owners.
7. Account Management.
7.1. Keep Your Password Secure.
If you have been issued an account by EmotionTrac in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not EmotionTrac, are responsible for any activity occurring in your account (other than activity that EmotionTrac is directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify EmotionTrac immediately. Accounts may not be shared and may only be used by one individual per account.
7.2. Keep Your Details Accurate.
EmotionTrac occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate.
7.3. Remember to Backup.
You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, EmotionTrac will not be liable for any failure to store, or for loss or corruption of your Content.
7.4. Account Inactivity.
EmotionTrac may terminate your account and delete any Content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, we will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.
8. Security.
EmotionTrac will store and process your Content in a manner consistent with industry security standards. EmotionTrac has implemented appropriate technical, organizational, and administrative systems, policies, and procedures designed to help ensure the security, integrity, and confidentiality of your Content and to mitigate the risk of unauthorized access to or use of your Content.
If EmotionTrac becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data related to your account ("Security Incident"), EmotionTrac will take reasonable steps to notify you without undue delay, but in any event within 72 hours of becoming aware of the Security Incident. EmotionTrac will also reasonably cooperate with you with respect to any investigations relating to a Security Incident to prepare any required notices, and provide any other information reasonably requested by you in relation to any Security Incident, where such information is not already available to you in your account or online through updates provided by EmotionTrac.
8.1. PCI Compliance.
We utilize payment processors that are compliant with the Payment Card Industry Data Security Standards (the "PCI Standards").
9. User Requirements.
9.1. Legal Status.
You may only use the Services if you have the power to form a contract with EmotionTrac. If you do not have the power to form a contract, you may not use the Services. If you are not an individual, you warrant that you are validly formed and existing under the laws of your jurisdiction of formation, that you have full power and authority to enter into these Terms.
9.2. Minors.
"Minors" are individuals under the age of 18. None of the Services are intended for use by Minors. If you are a Minor in your place of residence, you may not use the Services. By using the Services, you represent and warrant that you are not a Minor.
9.3. Embargoes.
You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law from receiving the Services, or are on the U.S. Department of Commerce's Denied Persons List or Entity List, or the U.S. Treasury Department's list of Specially Designated Nationals, you are not permitted to purchase any paid Services from EmotionTrac. You will ensure that: (a) your end users do not use the Services in violation of any export restriction or embargo by the United States; and (b) you do not provide access to the Services to persons or entities on any of the above lists.
10. Acceptable Uses.
10.1. Legal Compliance.
You represent and warrant that you will comply with all laws, regulations, and industry standards applicable to your use of the Services.
10.2. Your Responsibilities.
You are responsible for your conduct, Content, and communications with others while using the Services. You must comply with the following requirements when using the Services:
(a) You may not purchase, use, or access the Services for the purpose of building a competitive product or service or for any other competitive purposes.
(b) You may not misuse our Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions that we provide.
(c) You may not circumvent or attempt to circumvent any limitations that EmotionTrac imposes on your account (such as by opening up a new account to conduct a survey that we have closed for a Terms violation).
(d) Unless authorized by EmotionTrac in writing, you may not probe, scan, or test the vulnerability of any EmotionTrac system or network.
(e) Unless authorized by EmotionTrac in writing, you may not use any manual or automated system or software to extract or scrape data from the websites or other interfaces through which we make our Services available.
(f) Unless permitted by applicable law, you may not deny others access to, or reverse engineer, the Services, or attempt to do so.
(g) You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services.
(h) You may not engage in abusive or excessive usage of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. EmotionTrac will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to EmotionTrac.
(i) You may not use the Services to infringe the intellectual property rights of others, or to commit an unlawful activity.
(j) Unless authorized by EmotionTrac in writing, you may not resell or lease the Services.
(k) If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless EmotionTrac has agreed with you otherwise. You may not use the Services in a way that would subject EmotionTrac to those industry-specific regulations without obtaining EmotionTrac's prior written agreement. For example, you may not use the Services to collect, protect, or otherwise handle "protected health information" (as defined in 45 C.F.R. 160.103 under United States federal regulations) without entering into a separate business associate agreement with EmotionTrac that permits you to do so.
(l) You may not register accounts by "bots" or other automated methods.
(m) Your Content and use of the Services may not violate our Content Policy.
(n) No part of the video content may be reproduced or transmitted in any form or by any means, electronic, mechanical, or verbally, including photocopying, recording or any information storage and retrieval system, without permission in writing from the publisher, producer, or creator. Any reproduction or illegal distribution of the content in any form will result in immediate action against the person concerned. Federal law provides severe civil and criminal penalties for the unauthorized reproduction, distribution or exhibition of copyrighted materials. Copyright infringement is investigated by the FBI and may constitute a felony.
11. Suspension and Termination of Services.
11.1. By You.
You can terminate your account at any time and delete your test data by contacting [email protected]. Such termination will result in the deactivation or disablement of your account and access to it, and the deletion of content you collected through use of the Services. For clarity, we will not grant a refund where you have used our Services, collected responses, and/or downloaded your responses unless the termination is due to our material, uncured breach or a refund is required by law.
11.2. By EmotionTrac.
EmotionTrac may suspend performance or terminate your Account for any of the following reasons: (a) you have materially breached these Terms and failed to cure that breach within 30 days after EmotionTrac has so notified you in writing; (b) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or (c) you fail to pay fees for 30 days past the due date. Additionally, EmotionTrac may limit, suspend, or terminate the Services to you: (i) if you fail to comply with these Terms, (ii) if you use the Services in a way that causes legal liability to us or disrupts other's use of the Services; or (iii) if we are investigating suspected misconduct by you. Also, if we limit, suspend, or terminate the Services you receive, we will endeavor to give you advance notice and an opportunity to export a copy of your Content from that Service. However, there may be time sensitive situations where EmotionTrac may decide that we need to take immediate action without notice. EmotionTrac will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action. EmotionTrac has no obligation to retain your Content upon termination of the applicable Service.
11.3. Further Measures.
If EmotionTrac terminates your account or otherwise stops providing the Services to you because you repeatedly or egregiously breach these Terms, EmotionTrac may take measures to prevent the further use of the Services by you, including blocking your IP address.
12. Changes and Updates.
12.1. Changes to Terms.
EmotionTrac may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. The most current version will always be posted on the EmotionTrac website. If an amendment is material, as determined in EmotionTrac's sole discretion, EmotionTrac will notify you by email. Notice of amendments may also be posted to EmotionTrac's blog or upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require EmotionTrac to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.
12.2. Changes to Services.
EmotionTrac constantly changes and improves the Services. EmotionTrac may add, alter, or remove functionality from a Service at any time without prior notice. EmotionTrac may also limit, suspend, or discontinue a Service at its discretion. If EmotionTrac discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to export a copy of your Content from that Service. EmotionTrac may remove content from the Services at any time in our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.
13. Disclaimers and Limitations of Liability.
13.1. Disclaimers.
The information, materials, and services provided by EmotionTrac are for general informational and business purposes only and are not intended, and should not be construed, as legal advice. EmotionTrac is not a law firm, does not engage in the practice of law, and does not establish an attorneyclient relationship with any user, lawyer, or law firm through the use of its products or services. Attorneys and law firms using EmotionTrac's services remain solely responsible for complying with all applicable ethical, professional, and legal obligations to their clients. Users should not rely on any information provided by EmotionTrac as a substitute for independent legal judgment. If you require legal advice, you should consult with a licensed attorney in the appropriate jurisdiction. EMOTIONTRAC, ITS AGENTS, AND REPRESENTATIVES ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL AVAILABLE THROUGH THE SERVICES. WHILE WE SEEK TO KEEP THE INFORMATION AVAILABLE THROUGH THE SERVICES ACCURATE AND UP-TO-DATE, WE CANNOT GUARANTEE AND SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE OR LOSS RELATED TO THE ACCURACY OR TIMELINESS OF ANY INFORMATION WE PROVIDE OR MAKE AVAILABLE TO YOU.
While it is in EmotionTrac's interest to provide you with a great experience when using the Services (and we love to please our customers), there are certain things we do not promise about them. We try to keep our online Services up, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EMOTIONTRAC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REPRESENTATIONS REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES. EMOTIONTRAC DOES NOT MAKE ANY WARRANTY THAT THE SERVICES WILL MEET ANY REQUIREMENTS, OR THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT DEFECTS (IF ANY) WILL BE CORRECTED. EMOTIONTRAC MAKES NO WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES.
13.2. Exclusion of Certain Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EMOTIONTRAC, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF EMOTIONTRAC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.3. Limitation of Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF EMOTIONTRAC ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO EMOTIONTRAC FOR USE OF THE SERVICES AT ISSUE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US$200.00.
13.4. Consumers.
We acknowledge that the laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If you are such a consumer, nothing in these Terms limits any of those consumer rights.
13.5. Indemnification.
You will indemnify and hold harmless EmotionTrac and its affiliates, officers, agents, and employees ("Indemnified Entities") from all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) ("Indemnification Amounts") arising out of a third-party claim regarding or in connection with your or your end users' use of the Services or breach of the Agreement, to the extent that such liabilities, damages, and costs were caused by you or your end users.
14. Pre-Dispute, Mandatory Binding Arbitration and Class Action Waiver
14.1. Informal Dispute Procedures.
We try to address any disputes without initiating a formal process. You agree that prior to submitting any claim or dispute to arbitration for resolution, to make a good faith effort to resolve it informally, including to have at least one telephone or video conference conversation between you and us, personally.
To initiate a good faith effort to informally resolve a dispute, you agree to notify us in writing by U.S. mail to: 10802 Lake Wynds Court, Boynton Beach, FL 33437 and notifying us of the nature of the dispute, the basis of your claims, and the resolution you are seeking, including any monetary amount with as much detail as you can provide so that we can gain a sufficient understanding of the dispute. Within sixty (60) days following our receipt of this notice, you agree to engage in good faith efforts to resolve the dispute, including personally participating in a telephone or videoconference call with us. If the dispute is not resolved within sixty (60) days (which period can be extended by agreement by the parties), you or we may commence an arbitration to resolve the dispute consistent with the process set forth below. Compliance with, and completing, this informal dispute resolution process is a condition precedent to commencing an arbitration. You and we agree to toll any applicable statute of limitations and filing fee deadlines while the parties engage in this informal dispute resolution process from the date we receive your notice. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration.
14.2. Mandatory Binding Arbitration Agreement & Class Action Waiver.
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY AND THAT THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Arbitration is a manner of resolving a "Claim" without filing a lawsuit. "Claim" means any dispute between you, EmotionTrac or its affiliates, agents or representatives or any involved third party relating to your account, your use of the Website, your relationship with EmotionTrac or this Agreement. This includes Claims based on contract, tort, equity, statute, or otherwise, as well as Claims regarding the scope and enforceability of this provision. It includes all Claims by or against you, EmotionTrac and/or any affiliated person, company and/or agent or representative and all Claims that arise from or relate in any way to your use of the products or services, your attempted use of the products or services, the use of the Website and any act or omission by EmotionTrac or any third party related to your use or attempted use of the products or services. You, EmotionTrac, or any involved third party may pursue a Claim.
You and EmotionTrac agree that, except as set forth below, we will resolve any Claims, controversies, counterclaims, or other disputes between you and EmotionTrac or you and a third-party agent of EmotionTrac through final and binding arbitration instead of through court proceedings. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to binding arbitration, in accordance with the Consumer Arbitration Rules of the American Arbitration Association ("AAA Rules"). This arbitration agreement applies to any existing or future Claims that you have not individually filed in a court of law or in arbitration prior to the date that you agreed to these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879, You and we hereby waive any right to a jury trial of any Claim. The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration proceedings will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs, or other documents submitted or exchanged any any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may be lawfully required in judicial proceedings relating to the arbitration, by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies, or as specifically permitted by state law. The Federal Arbitration Act (the "FAA"), 9 U.S.C. 1-16, as amended and federal arbitration law apply to this agreement. A court of competent jurisdiction will exclusively determine whether the parties have entered into a valid and enforceable agreement to arbitrate their Claims, including, without limitation, whether any conditions precedent to the commencement of an arbitration have been completely satisfied.
Any party to the arbitration may, at any time, more than ten (10) days before arbitration, serve an offer of compromise in writing upon any other party to the action. Offers of compromise, pursuant to these Terms, will be adjudicated and interpreted in accordance with the California Code of Civil Procedure, Section 998.
If you demonstrate the costs of arbitration will be prohibitive as compared to the costs of litigation, EmotionTrac will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate. Notwithstanding the foregoing, if your attorney is paying the administrative costs, filing fees, arbitrator fees, another associated arbitral costs on your behalf and your attorneys' may recover all or a portion of those fees only if you obtain an award in arbitrations, your attorney must evenly split all costs with us initially. In the final award, the arbitrator may apportion the costs of the arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
You may not bring Claims in arbitration on a class or representative basis. Neither you nor EmotionTrac may act as a class representative or private attorney general, nor participate as a member of a class of claimants with respect to any Claim. (For more details, see the Mass Arbitration Process Requirements section below.) The arbitrator can decide only your an/or EmotionTrac's individual Claims.
If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be severed, but the remainder of this Section shall continue in full force and effect. If for any reason a claim proceeds in court, rather than in arbitration, you and EmotionTrac each waive any right to a jury trial. No waiver of any provision of this Section of the Terms and Conditions will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms and Conditions. The arbitrator may award, in arbitration, the same damages and other relief available under applicable law, including injunctive and declaratory relief, as if the action were brought in court on an individual basis. Notwithstanding anything to the contrary in the foregoing or herein, the arbitrator may not issue a "public injunction" and any such "public injunction" may be awarded only by a federal or state court. If either party seeks a "public injunction", all other Claims and prayers for relief must be adjudicated in arbitration first and any prayer or Claim for a "public injunction" in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party's Claim or prayer for public injunctive relief. In doing so, the federal or state court is bound under the principles of claim or issue preclusion by the decision of the arbitrator. This Section of the Terms and Conditions will survive the termination of your relationship with EmotionTrac.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR EMOTIONTRAC WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
14.3. Exceptions.
This arbitration agreement does not preclude you or EmotionTrac from seeking action by federal, state, or local governmental agencies.
Binding arbitration does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, trademark infringement, or dilution.
As an exception to binding arbitration, you and EmotionTrac both retain the right to pursue, in a small claims court, any Claim that is within that court's jurisdiction and proceeds on an individual (non-class) basis, including overdue account matters within the small claims court's jurisdiction. EmotionTrac will not demand arbitration in connection with any individual Claim that you properly file and pursue in a small claims court, so long as the Claim is pending only in that court. In the event that a Claim has already been filed in arbitration, the party that filed that Claim will, within ten (10) days of receiving such notice, withdraw their claim from Arbitration. The parties will then proceed with the Claim exclusively in small claims court. A party may apply to any court of competent jurisdiction to enforce the terms of this paragraph. In addition, you and EmotionTrac retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions. Any such request shall not be deemed incompatible with these Terms and Conditions, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms and Conditions.
14.4. Commencing Arbitration.
You and EmotionTrac agree to commence any arbitration proceeding within one (1) year after the Claim arises (the one (1) year period includes the required pre-dispute procedures set forth above) and that any arbitration proceeding commenced after one (1) year shall be barred.
For your convenience, the arbitration may be conducted in the federal district where you reside. If both you and EmotionTrac agree, the arbitration may be held by telephone or through written submissions.
14.5. Mass Arbitration Process Requirements.
If twenty-five (25) or more similar Claims are asserted against EmotionTrac at or around the same time by the same or coordinated counsel or are otherwise coordinated (and your Claim is one such Claim), you understand and agree that the resolution of your Claim might be delayed. You also agree to the following process and application of the AAA Multiple Consumer Case Filing Fee Schedule and Supplementary Rules. Twenty (20) Claims shall be selected to proceed to individual arbitration proceedings as part of a first batching process, ten (10) of which will be selected by the claimants and ten (10) of which will be selected by EmotionTrac. The remaining Claims shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those Claims until they are selected to proceed to individual arbitration proceedings as part of the staged process described herein. If the parties are unable to resolve the remaining Claims after the conclusion of the initial twenty (20) proceedings, the parties shall participate in a global mediation session before a retired state or federal court judge, for which EmotionTrac will pay the mediator's fee. If the parties are unable to resolve the remaining Claims through mediation at this time, then forty (40) Claims shall be selected to proceed to individual arbitration proceedings as part of a second batching process, twenty (20) of which will be selected by the claimants and twenty (20) of which will be selected by EmotionTrac. (If there are fewer than forty (40) Claims remaining, all shall proceed.) The remaining Claims shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those Claims until they are selected to proceed to individual arbitration proceedings as part of the staged process described herein. In any batching process, a single arbitrator shall preside over each proceeding, and only one proceeding may be assigned to each arbitrator unless the parties agree otherwise. If the parties are unable to resolve the Claims after the conclusion of the forty (40) proceedings, the parties shall participate in another global mediation session before a retired state or federal court judge, for which EmotionTrac will pay the mediator's fee. If the parties are unable to resolve the remaining Claims in mediated at this time, this staged process shall continue with no more than one hundred (100) Claims proceeding at any time in a staged order that is selected randomly or by the AAA, until all the coordinated Claims, including your Claim, are adjudicated or otherwise resolved. At any time during these proceedings, we agree to participate in a global mediation session should your counsel request it, in an effort to resolve all remaining Claims. Any applicable statute of limitations on your Claims and filing fee deadlines shall be tolled for Claims subject to this section regarding "Mass Arbitration Process Requirements", from the time Claims are selected for the first batch of proceedings until the time your claim is selected to proceed in arbitration, withdrawn, or otherwise resolved. A court of competent jurisdiction shall have authority to enforce this section and, if necessary, to enjoin the filing or prosecution of arbitration demands against EmotionTrac. Should a court of competent jurisdiction decline to enforce these "Mass Arbitration Process Requirements", you and we agree that your and our counsel shall engage in good faith and with the assistance of a Process Arbitrator to devise and implement procedures that ensure that arbitration remains efficient and cost-effective for all parties. Either party may engage with the AAA to address reductions in arbitration fees.
14.6. Award.
The arbitrator shall follow Florida substantive law and any ordered relief shall be binding. The arbitrator may award any form of individual relief including injunctions and punitive damages. The arbitrator may award costs or fees to a prevailing party. Nothing herein shall be construed to limit the arbitrator's ability to award remedies provided by applicable law. Any award rendered shall include a written opinion and shall be final subject to appeal under the FAA.
14.7. Enforceability.
This provision survives termination of your account or relationship with EmotionTrac, bankruptcy, assignment or transfer. If the class action waiver is deemed unenforceable (i.e. unenforceability would allow arbitration to proceed as a class or representative action) then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
14.8. Miscellaneous.
Failure or any delay in enforcing this arbitration provision in connection with any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims except all Claims must be brought within the one (1) year limitation period set forth above. This provision is the entire arbitration agreement between you and EmotionTrac and shall not be modified except in writing by EmotionTrac.
14.9. Amendments.
EmotionTrac reserves the right to amend this arbitration provision at any time. Your continued use of any EmotionTrac Services following the post of an amendment to this arbitration agreement constitutes your consent to such changes. Should the changes to this arbitration agreement be material, EmotionTrac will provide you notice and an opportunity to opt-out. Your continued use of the Services is affirmation of your consent to such material changes.
YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION AGREEMENT WITHIN 30 DAYS OF PURCHASE OF SERVICES, IF SERVICES ARE UNUSED, BY WRITING EMOTIONTRAC AT THE ADDRESS PROVIDED BELOW.
FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY SERVICES YOU PURCHASED, PRIOR TO USING OR ATTEMPTED OR ATTEMPTING TO USE THE SERVICES, WITHIN THIRTY (30) DAYS OF YOUR FIRST PURCHASE OF SERVICES. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST PURSUE YOUR CLAIM THROUGH ARBITRATION AS SET FORTH IN THIS AGREEMENT.
15. Contracting Entity.
Unless otherwise specified in relation to a particular Service, the Services are provided by, and you are contracting with, EmotionTrac, Inc.
For any Service provided by EmotionTrac, the following provisions will apply to any terms governing that Service:
Contracting Entity and Notice address. References to "EmotionTrac", "we", "us", and "our" are references to EmotionTrac, Inc., located at: 10802 Lake Wynds Court, Boynton Beach, FL 33437. Notices sent to EmotionTrac pursuant to this Agreement shall be mailed to this address by certified mail return receipt requested.
16. Electronic Documents and Signatures.
All information communicated through the websites and app are considered electronic communications. When you communicate with us through the websites, app, or other forms of electronic media, such as e-mail, you are communicating with us electronically. You agree that we may communicate with you electronically and that such communications, as well as notices, disclosures, agreements and other communications that we provide to you electronically are equivalent to communications in writing and have the same force and effect as if they were in writing and signed by the party sending the communication.
17. Additional Terms.
17.1. Assignment.
You may not assign these Terms without EmotionTrac's prior written consent, which may be withheld in EmotionTrac's sole discretion. EmotionTrac may assign these Terms at any time without notice to you.
17.2. Entire Agreement.
These Terms (including the Additional Terms) constitute the entire agreement between you and EmotionTrac, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void.
17.3. Independent Contractors.
The relationship between you and EmotionTrac is that of independent contractors, and not legal partners, employees, or agents of each other; the Parties will so represent themselves in all regards.
17.4. Interpretation.
This Agreement will not be construed in favor or against either party by reason of authorship. The use of the terms "includes", "including", "such as," and similar terms, will be deemed not to limit what else might be included.
17.5. No Waiver.
A party's failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.
17.6. Severability.
If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.
17.7. Third Party Beneficiaries.
There are no third-party beneficiaries to these Terms.
17.8. Governing Law.
These Terms are governed solely by the internal laws of the State of Florida without regard to: a) its conflict of laws provisions that would apply the substantive laws of another jurisdiction to the parties' rights or duties; b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or c) other international laws.
17.9. Jurisdiction.
Except if prohibited by applicable law, each party submits to the personal and exclusive jurisdiction of the state courts located in Palm Beach County, Florida, and the federal courts located in the Southern District of Florida with respect to the subject matter of those terms.
17.10. Force Majeure
No Delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by epidemics, pandemics, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes, or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party's reasonable control.
17.11. Survival.
Any provision of this Agreement that by its nature should survive termination or expiration will survive, including but not limited to those relating to confidentiality, intellectual property rights, ownership, warranties and disclaimers, indemnification, limitation of liability, payment obligations, and governing law and dispute resolution.
EmotionTrac DMCA POLICY
EmotionTrac Inc. respects the intellectual property rights of others and expects its visitors, participants, and clients to do the same. In accordance with the Digital Millennium Copyright Act of 1998 ("DMCA"), the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, and specifically in accordance with 17 USC 512(c)(3), EmotionTrac will respond expeditiously to claims of copyright infringement committed using the EmotionTrac's Service, App, and/or any website (the "Site") if such claims are reported to EmotionTrac's Designated Copyright Agent identified below.
Before submitting a DMCA notice, it's important to consider if the manner in which the material is used falls under fair use. You are required to give consideration to whether a use of material is fair before submitting a takedown notification. If you are not sure whether material infringes your copyright, or if it is subject to fair use protections, you should first consider seeking legal advice.
Please be advised that under Section 512(f) of the DMCA, "you shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it."
DMCA Notice of Alleged Infringement ("Notice") If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing a DMCA Notice of Alleged Infringement and delivering it to EmotionTrac's Designated Copyright Agent. Upon receipt of Notice as described below, EmotionTrac will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged content from the Site. Please note that if you fail to comply with all of the requirements of this section and of 17 USC 512(c)(3) your DMCA notice may not be valid.
• Identify the copyrighted work that you claim has been infringed, or if multiple copyrighted works are covered by your Notice you may provide a representative list of the copyrighted works that you claim have been infringed.
• Identify the material or link you claim is infringing (or the subject of infringing activity) and to which access is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site or the exact location where such material may be found.
• Provide your company affiliation (if applicable), mailing address, telephone number, and, if available, email address.
• Include both of the following statements in the body of the Notice:
• "I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."
• "I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
• Provide your full legal name and your electronic or physical signature.
• Deliver this Notice, with all items completed, to EmotionTrac's Designated Copyright Agent:
Copyright Agent EmotionTrac, Inc. 10802 Lake Wynds Court, Boynton Beach, FL 33437 [email protected].
DMCA Counter-Notice of Alleged Infringement If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have authorization from the copyright holder, the holder's agent, or pursuant to law, to post and use the material in your content, you may send a Counter-Notice containing the following information to EmotionTrac's Copyright Agent:
• Your physical or electronic signature;
• Identification of the content that was removed or to which access has been disabled as a result of mistake or a misidentification of the content; and
• Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in Palm Beach County, Florida, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
• If a Counter-Notice is received by the Copyright Agent, EmotionTrac may send a copy of the Counter-Notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten business days. Unless the copyright owner files an action seeking a court order against EmotionTrac or the person who has posted allegedly infringing content, the removed content may be replaced, or access to it restored, in ten business days or more after receipt of the Counter-Notice.
EmotionTrac Policy Regarding Repeat Infringers
EmotionTrac does not condone or tolerate copyright infringement or any violation of the intellectual property rights of EmotionTrac or of others. EmotionTrac reserves the right to terminate the access and/or use privileges of any person who has been determined to be a "repeat infringer" of the copyrights of EmotionTrac or others. EmotionTrac reserves the right to define the criteria by which EmotionTrac will determine that a person is a "repeat infringer". In the event that 'repeat infringer' is defined by statute, law, or regulation as applicable to 17 USC 512, EmotionTrac will adopt that definition as a minimum standard. Without limiting EmotionTrac's right to define "repeat infringer", as a general rule, EmotionTrac will define a "repeat infringer" as any person or entity about whom EmotionTrac has received two or more DMCA Notices of Alleged Infringement. EmotionTrac will take into account all relevant facts and circumstances when determining whether or not termination of access and/or use privileges of a "repeat infringer" is appropriate.
REGARDLESS OF WHETHER EMOTIONTRAC TERMINATES ACCESS AND/OR USE PRIVILEGES OF ANY PERSON OR ENTITY, 'REPEAT INFRINGER', OR OTHERWISE, EMOTIONTRAC IN NO WAY WAIVES ANY RIGHT TO PURSUE ANY AVAILABLE REMEDY AT LAW OR IN EQUITY AGAINST COPYRIGHT INFRINGERS OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS VIOLATORS, NOR WILL EMOTIONTRAC INDEMNIFY OR PROVIDE LEGAL REPRESENTATION TO ANY ALLEGED INFRINGER IN ANY ACTION ARISING FROM THE ALLEGED INFRINGER'S USE OF ANY EMOTIONTRAC WEBSITE OR SERVICE, EXCEPT AS EXPRESSLY DESCRIBED IN THIS NOTICE.