PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY USING THE SERVICES AND THE WEBSITE, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, THEN YOU MAY NOT USE THE SERVICES OR ACCESS THE WEBSITE.
SinglePlatform Terms of Service
SinglePlatform may modify, add, or delete portions of this Agreement at any time. If SinglePlatform has made significant changes to this Agreement, SinglePlatform will post a notice on its website for at least thirty (30) days after the changes are posted and will indicate the date of the last revision. Any revisions to this Agreement will become effective the earlier of (i) the end of such thirty (30) day period or (ii) the first time Business accesses or use the Services after such changes. Business further agrees to any modification to this Agreement by continuing to use the Services after the effective date of any such modification.
SinglePlatform reserves the right to modify, revise, suspend or discontinue any aspect of the Services in whole or in part, either temporarily or permanently and with or without notice, and Business acknowledges that SinglePlatform is not obligated to support or update the Services in any manner. If SinglePlatform discontinues any material aspect of the Services in its entirety that Business is using, SinglePlatform will provide Business with advance notice and an opportunity to cancel its account.
In consideration of the promises and covenants described below, and other good and valuable consideration, the parties agree as follows:
1. Services. Subject to the terms and conditions set forth herein and any other applicable terms and conditions set forth on its website or on third party sites, SinglePlatform may make some or all of the Services available to Business.
(a) Storefront Service. The SinglePlatform Storefront Service enables Business to manage, display, update and distribute the Business Content on and to SinglePlatform's network (the "Network") of third party local and national websites, mobile applications, and SinglePage mobile site and website (the "Storefront Service").
(c) Reputation Management Service. The SinglePlatform reputation management service will enable Business to review information, including reviews and other material (the “Reviews”), found on various third party sites all in one place and related reputation management products and services (the “Reputation Management Service”).
SinglePlatform neither endorses nor assumes any liability for any Reviews. Business acknowledges and agrees that all content presented to it in connection with the Reputation Management Service may be owned by third parties and may not be used by Business without permission from SinglePlatform, the third party service that hosts the content and the specific content provider outside of the Platform. For clarity, Business may not use, edit, reproduce, perform, display, reformat, update, copy, publish/republish, post, transmit or distribute any Reviews from the Platform in any form or by any means without prior written permission from SinglePlatform, the third party service that hosts the content and the specific content provider, and Business is solely responsible for obtaining permission before reusing any copyrighted material that is made available via the Reputation Management Service. Any unauthorized use of the Reviews may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties and SinglePlatform does not warrant or represent that Business’ use of materials displayed on, or obtained through, the Reputation Management Service will not infringe the rights of third parties.
(d) Third Party Websites, Services and Content. The Services may contain links to websites that are controlled by third parties and access to certain third-party services (including SinglePlatform’s customers, partners and affiliates), which may include other products, marketing and advertising services, social bookmarking services, social network platforms, publication and delivery services, payment processing services and other payment intermediaries or websites (each, a "Third Party Service"). Business agrees to be subject to any additional applicable terms of service for any Third Party Service it signs up to receive, including those listed here.
Business agrees to abide by the terms and conditions of any applicable Third Party Service. Notwithstanding anything set forth herein to the contrary, Business will abide by this Agreement regardless of anything to the contrary in its agreement with any third party and shall not use such Third Party Service to avoid the restrictions set forth in this Agreement.
SinglePlatform may terminate any Third Party Service's ability to interact with the Services at any time, with or without notice, and in its sole discretion, with no liability to Business or to any third party. Any Third Party Service may take actions to impact SinglePlatform’s ability to make available some or all of the features of the Services at any time, with or without notice, and SinglePlatform will not be liable to Business or to any third party for any such actions. SinglePlatform accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, any Third Party Service.
Under no circumstances will SinglePlatform be responsible for any third party content it hosts on its website, including any business content provided by any of its customers.
2. Fees; Payment Terms. The fees and packages applicable for the Services are available on the SinglePlatform website and/or quoted to Business by a SinglePlatform sales representative and reflected in a receipt (the "Fee Schedule"). Once Business has completed any applicable free trial period or exceeded any limits described on the applicable Fee Schedule, it will be subject to fees in accordance with any applicable Fee Schedule. Unless otherwise specified, applicable fees will be billed on an automatically recurring basis based on the package the Business has selected, even if it is not actively using the Services.
It is Business’ responsibility to ensure that its payment information is up to date and that any invoices are paid on time. Business agrees to pay for the Services in advance of the time period during which such Services are provided. Subject to applicable laws, rules, and regulations, payments received will be first applied to the oldest outstanding invoice in Business’ billing account.
ACH and checks may be accepted for prepayments of at least twelve months in SinglePlatform’s discretion. Fees are only payable in the currencies made available to Business when it purchases the Services.
Unless otherwise provided, Business agrees that until and unless it notifies SinglePlatform of its desire to cancel the Services, it will be billed on an automatically recurring basis to prevent any disruption to its use of the Services, using the credit card or other billing information on file with SinglePlatform. Any invoiced payments will be invoiced to Business and payable upon receipt of invoice and if Business fails to pay any amount due to SinglePlatform within five days of its due date, SinglePlatform may, at its option, suspend the Services or terminate this Agreement.
If SinglePlatform is for any reason unable to effect automatic payment, it will attempt to notify SinglePlatform and Business’ account may be disabled or terminated until payment is received or SinglePlatform may, in its discretion, place Business’ account in “suspend” status and charge Business based on the then-current suspend fee schedule. If Business fails to pay the fees as specified herein, SinglePlatform may pursue the collection costs incurred by it, including any arbitration and legal fees, and reasonable attorneys' fees. SinglePlatform will have no obligation to activate new orders or activate new packages for customers who have an outstanding balance on their account.
SinglePlatform is required to collect and remit sales tax from its customers located in certain state and local jurisdictions, including those jurisdictions where software delivered as a service is taxable and where SinglePlatform and its parent and affiliates maintain a physical presence. SinglePlatform determines Business' local taxing jurisdiction based on the billing address that it lists in its SinglePlatform account. Fees set forth in the applicable Fee Schedule do not take into account any taxes. Business agrees to be responsible for and to pay any sales, personal property, use, VAT, excise, withholding, or any other taxes that may be imposed, based on this Agreement or the Services, excluding taxes based on net income payable by SinglePlatform. Notwithstanding anything set forth herein to the contrary, any disputes about any charges to Business under this Agreement must be submitted to SinglePlatform in writing within 60 days of the date such charges are incurred. Business agrees to waive all disputes not brought within the 60 day period, and all such charges will be final and not subject to challenge.
Discounts and coupon codes, if any, are reserved for first-time accounts or first-time customers only and are only valid towards the initial purchase and do not affect the renewal or recurring price, unless otherwise expressly set forth in the discount or coupon terms. Any account found in violation of these policies will be reviewed and the appropriate charges will be added to the account. Coupon abuse will not be tolerated and may result in the suspension or termination of Business’ account.
3. Cancellation; Term and Termination. SinglePlatform may, in its sole discretion, terminate Business’ account or its access to or use of the Services, disable Business’ account or access to the Services, remove all or a portion of any information that Business provides to SinglePlatform in connection with Business’ use of the Services, such as Business Content or Reviews, or put Business’ account on inactive status, in each case at any time, with or without cause, with or without notice and without refund. SinglePlatform shall have no liability to Business or any third party because of such termination or action, except that SinglePlatform will refund a pro rata portion of any prepaid amounts if SinglePlatform terminates Business without cause.
Business may terminate or cancel the Services at any time by contacting SinglePlatform customer support. In such event, Business shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation.
BUSINESS IS SOLELY RESPONSIBLE FOR TERMINATING ITS ACCOUNT AND THIS AGREEMENT. SINGLEPLATFORM IS NOT RESPONSIBLE FOR BUSINESS’ FAILURE TO PROPERLY TERMINATE ITS ACCOUNT AND THIS AGREEMENT OR FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES BUSINESS INCURS AS A RESULT OF ITS FAILURE TO PROPERLY TERMINATE ITS ACCOUNT AND THIS AGREEMENT.
If Business’ account is canceled or classified (at SinglePlatform’s sole discretion) as inactive, SinglePlatform has the right to permanently delete any of Business’ data immediately.
Upon termination, this Agreement and any rights granted to Business hereunder shall terminate except that (a) all sections of this Agreement that by their nature should survive termination will survive termination, including Sections 1 (Services), 3 (Cancellation; Term and Termination), 4(d) (Limitations; Restrictions on Use), 5 (Ownership), 6 (Warranties and Disclaimers; Release), 7 (Indemnity), 8 (Limitation of Liability), and 13 (Miscellaneous) and (b) SinglePlatform shall have the right, but not the obligation, to remove or modify the Images and Storefront from the Network; provided, however, that upon Business' written request, SinglePlatform will remove the Images and Storefront from the Network. Upon termination, SinglePlatform will not remove or modify any other Business Content, including, without limitation, the locations, addresses, hours and other text-based Business Content or any images Business uploaded without use of the Storefront Service.
4. Access to and Use of the Services.
(a) Submission of Data. In connection with registering for and using the Services, Business agrees (i) to provide accurate, current and complete information about Business and its organization, including any Business Content; and (ii) to maintain and promptly update such data and any other information Business provides to SinglePlatform, in order to keep such information accurate, current and complete.
(b) Business’ Products and Services; Content. Business is solely responsible for (i) its products and services, including any and all injuries, illnesses, damages, claims, liabilities and costs suffered in respect thereto, including all costs of procuring and delivering the same and any licensing or other legal obligations and (ii) the accuracy, quality, integrity, legality, reliability and appropriateness of all Business Content. Business represents and warrants that owns or has secured all rights and interest in and to the Business Content required for SinglePlatform to use the Business Content as contemplated by this Agreement and that if it shares website credentials with SinglePlatform in order for SinglePlatform to perform the Website Integration Service, that it has the right to do so.
(c) Compliance with Laws. The Services shall only be used for lawful purposes and Business agrees to use the Services only in compliance with this Agreement and all other applicable U.S., state, local and international laws in Business’ jurisdiction(s), including: (i) laws relating to advertising, sales or promotional efforts or practices, redemption, refunds and provision of Business’ products or services; and (ii) laws that govern false, unfair and deceptive practices, coupons, gift cards/certificates, defective products or services, unclaimed property, alcohol or tobacco, health and safety, fire, and hygiene standards and accessibility. Business further agrees to refrain from unethical, false or misleading advertising, promotions or sales efforts and practices in connection with its use of the Services. Business is responsible for determining whether the Services are suitable for it to use in light of any regulations. If Business is subject to a particular regulation and it uses the Services, then SinglePlatform will not be liable if the Services do not meet those requirements.
(d) Limitations; Restrictions on Use. Business agrees that it shall not interfere with or disrupt the Services or the technology platform used by SinglePlatform to provide the Services (including, without limitation, all related ideas, systems, software, interfaces, tools, templates, processes, algorithms, trade secrets and other technologies, and information, the "Platform"). Business further agrees to comply with the following in connection with its use of the Services:
- not access or use the website in a way that uses technology or other means to access, index, re-render, frame, mirror, truncate, add to, inject, filter or link to the website that is not authorized by SinglePlatform (including by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized use, download, linking, framing, reproduction, access to, or distribution of the Services);
- not use any deep-link, page-scrape, robot, crawl, index, spider, offline reader, click spam, macro programs, internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, index, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor any portion of the Services for any unauthorized purpose;
- not use Services in a way that, to be determined in our sole discretion, damages, disables, overburdens, impairs, or gains unauthorized access to the Services, including SinglePlatform’s servers, computer network, or user accounts;
- not use the Services in a way that removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Services;
- may not copy, display, distribute, download, license, modify, publish, re-post, reproduce, reuse, sell, transmit, use to create a derivative work, or otherwise use the content of the Services for public or commercial purposes without our express written permission (unless they are owned by you);
- not interfere with or disrupt the Services or any related websites or servers or networks connected to the Services; and
- not restrict or inhibit any other user from enjoying and using the Services.
Except to the extent expressly permitted by applicable law and to the extent SinglePlatform is not permitted by that applicable law to exclude or limit the following rights, Business shall not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Platform or the Services; remove any proprietary notices or labels from the Platform or Services; modify, translate, or create derivative works based on the Platform or Services; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Platform or Services. Business shall not use the Platform or Services in violation of applicable law or third party rights (including, without limitation, third party terms of service of members of SinglePlatform's Network).
5. Ownership. This is an Agreement for access to the Services, and, except with respect to the license set forth in Section 1(b) hereof, Business is not granted a license to any software by this Agreement. As between the parties, SinglePlatform will be the sole owner of all right, title, and interest in and to the Network, Platform, Services, Website Code and any analytics or similar data extracted or derived from their operation, including, without limitation, all intellectual property rights therein. The Services, including any trademarks, tradenames, service marks, or other intellectual property incorporated into the Services, are owned by SinglePlatform or its affiliates or licensors, and are protected by United States and international intellectual property laws.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICES AND ANY RELIANCE BY BUSINESS UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY BUSINESS BECAUSE OF SUCH USE OR RELIANCE, IS AT BUSINESS’ SOLE RISK. SINGLEPLATFORM DOES NOT WARRANT THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE, NOR DOES SINGLEPLATFORM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. SINGLEPLATFORM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SINGLEPLATFORM IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
SINGLEPLATFORM SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR BUSINESS’ COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES.
IN ADDITION, SINGLEPLATFORM DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR (a) THE ACCURACY OR RELIABILITY OF ANY THIRD PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANY THIRD PARTY, OR (b) ANY CONTENT, PRODUCTS OR SERVICES BUSINESS PURCHASES OR OTHERWISE OBTAINED FROM ANY THIRD PARTY.
NO CLAIM MAY BE ASSERTED BY BUSINESS AGAINST SINGLEPLATFORM MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. BUSINESS’ SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SERVICES, IF ANY, SHALL BE FOR BUSINESS TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SERVICES.
TO THE EXTENT APPLICABLE LAW PERMITS, BUSINESS RELEASES SINGLEPLATFORM FROM ANY CLAIMS OR LIABILITY RELATED TO (a) ANY CONTENT POSTED ON BUSINESS’ WEBSITE, (b) THE BUSINESS CONTENT, (c) THE WEBSITE INTEGRATION SERVICES, (d) THE REPUTATION MANAGEMENT SERVICES AND ANY REVIEWS AND (e) ANY THIRD PARTY SERVICES.
BUSINESS HEREBY WAIVES CALIFORNIA CIVIL CODE SECTION 1542 (IF IT IS A CALIFORNIA RESIDENT), AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION (IF IT IS A RESIDENT OF SUCH JURISDICTION).
7. Indemnity. Business hereby accepts all liability arising out of any action or claim based on the Business Content, Reviews or the Services, including any Third Party Services or other content it accesses through the Services.
Business will defend, indemnify and hold harmless SinglePlatform and its affiliates, underlying service providers (including Third Party Service Providers), business partners, publishers, third-party suppliers and providers, account providers, licensors, officers, directors, employees, distributors and agents from and against any damages, losses, liabilities, penalties, settlements and expenses (including, without limitation, costs and reasonable attorneys' fees) in connection with any claim or action that arises from (i) any actual or alleged breach by Business of this Agreement, (ii) the Business Content (including its use or reliance on any third party’s content), (iii) the Website Integration Service, (iv) the Reputation Management Service, including any use of any Reviews outside of such service in violation of this Agreement, (v) any Third Party Services, or (vi) any acts or omissions by Business. Business agrees to provide SinglePlatform with prompt written notice in the event of any such claims or actions. In addition, Business acknowledges and agrees that SinglePlatform has the right to seek damages when Business uses the Services for unlawful purposes, in an unlawful manner, or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
8. Limitation of Liability. EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF SINGLEPLATFORM, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SINGLEPLATFORM NOR ITS AFFILIATES, UNDERLYING SERVICE PROVIDERS (INCLUDING THIRD PARTY SERVICE PROVIDERS), BUSINESS PARTNERS, PUBLISHERS, THIRD-PARTY SUPPLIERS AND PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS AND AGENTS WILL BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF ANY CLAIM OR ACTION FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, PROFITS AND GOODWILL, EVEN IF FORESEEABLE OR IF SINGLEPLATFORM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), OR (D) AGGREGATE DAMAGES IN EXESSS OF $100.
Business agrees that SinglePlatform has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.
9. Monitoring. SinglePlatform has no obligation to review any Business Content or Reviews, but may, in its sole discretion, edit or remove any part of the Business Content or Reviews at any time for any reason, including, without limitation, due to inappropriate or illegal content or inaccuracy.
Business agrees that SinglePlatform may, in its sole discretion, but is not obligated to, monitor or record any of Business' telephone conversations and chat texts with SinglePlatform (and those of Business' employees and agents) for quality control purposes, for purposes of training SinglePlatform's employees and for SinglePlatform's own protection. Business acknowledges that not all telephone lines or calls are recorded by SinglePlatform and that SinglePlatform does not guarantee that recordings of any particular telephone calls will be retained or capable of being retrieved.
10. Backups. To the extent permitted by applicable law, SinglePlatform may make and preserve copies of all data it provides to SinglePlatform as necessary to provide the Services, for internal back-up, analytics and other legal or regulatory purposes. Notwithstanding the foregoing, Business is solely responsible for making frequent backup copies of any such data.
11. Prohibited Persons. Certain entities and individuals are prohibited from using the Services pursuant to trade and economic sanctions and export and control laws imposed by the U.S. or other governments. For example, the U.S. Department of the Treasury, through the Office of Foreign Assets Control (“OFAC”), prohibits U.S. companies and their subsidiaries from engaging in all or certain commercial activities with certain sanctioned countries (each a “Sanctioned Country”) and certain individuals, organizations, entities, or domain names including without limitation, certain “Specially Designated Nationals” (“SDN”) listed by OFAC. Business is prohibited from registering or signing up with, subscribing to, or using the Services if Business is located in a Sanctioned Country or is listed as, or associated with an SDN, as determined by SinglePlatform in its sole discretion. Registration, signing-up or using the Services from any Sanctioned Country is a material violation of this Agreement, and grounds for immediate account termination by SinglePlatform without the right to recover any data.
12. International Use; Prohibited by Law. In recognition of the global nature of the Internet, Business agrees to comply with all local rules where it is located regarding online activities and the Services. More specifically, but without limitation, Business agrees to comply with all applicable laws regarding the transmission of technical data exported to or from the United States or the country in which Business is located. The Services are controlled and operated by SinglePlatform from its offices within the United States (although we may share data with third parties around the world to assist us in providing the Services) and SinglePlatform makes no representation that the Services are appropriate or available for use in other locations. Those who access the Services from other locations do so at their own initiative and risk, and are fully responsible for compliance with all applicable laws in those locations. SinglePlatform does not offer the Services where prohibited by law.
(a) Assignment. Business may not assign any of its rights hereunder. SinglePlatform may assign all rights to any other individual or entity in SinglePlatform's sole discretion, including, without limitation, to any of its affiliates.
(b) Third Party Beneficiary. SinglePlatform’s affiliates, underlying service providers, business partners, publishers, third-party suppliers and providers (including Third Party Service Providers), account providers, licensors, officers, directors, employees, distributors and agents are expressly made third party beneficiaries of this Agreement. Except as set forth in the immediately preceding sentence, nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective permitted successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.
(c) Further Assurances. Business agrees to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
(d) Force Majeure. SinglePlatform is not liable for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond its reasonable control, including fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for it to perform its obligations hereunder.
(e) Entire Agreement; Waiver. This Agreement constitutes the entire agreement, and supersedes all prior negotiations (oral or written), between the parties. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
(f) Full Force and Effect. If any provision hereof is determined to be unenforceable, this Agreement will otherwise remain in full force and effect and enforceable.
(g) No Agency. The relationship of the parties is that of an independent contractor. Neither party shall have the right to bind each other to any obligation to third parties.
(h) Titles. The titles of the paragraphs of this Agreement are for convenience only and have no legal or contractual effect.
(i) Notices. Notices under this Agreement shall not be effective until provided in writing to Business at either the mailing address (via U.S. postal mail) or email address in Business' SinglePlatform account and to SinglePlatform by U.S. postal mail only to the following address: General Counsel, Constant Contact, Inc., 1601 Trapelo Road, Waltham, MA 02451.
(j) Governing Law and Legal Action.
For all Businesses who signed up to use the Services prior to June 15, 2016, the following terms shall apply:
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Boston, Massachusetts.
For all Businesses who signed up to use the Services on or after June 15, 2016, the following terms shall apply:
Business hereby submits to the exclusive jurisdiction of the American Arbitration Association (“AAA”) in connection with any dispute relating to, concerning or arising out of this Agreement, whether in contract, tort, fraud, misrepresentation or any other legal theory. The arbitration will be conducted before a single arbitrator and will be held at the AAA location in Boston, Massachusetts, unless Business is a “consumer” as defined under the AAA rules. Disputes with consumers, as therein defined, will be resolved by binding arbitration conducted under the AAA’s Consumer Arbitration Rules, as applicable. Consumers may request that the arbitration occur in or near the city/state stated in Business’ account record with us. The procedures for commencing an arbitration are available here (provided however, that Business may assert claims in small claims court, if Business’ claims qualify and so long as the matter remains in such court only on an individual, non-class basis).
ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER BUSINESS NOR SINGLEPLATFORM MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER SUBSCRIBERS OR USERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
Only a court, and not an arbitrator, shall determine the validity and effect of the class action waiver. Even if all parties have opted to litigate a claim in court, Business or SinglePlatform may elect arbitration with respect to any claim made by a new party or any new claims later asserted in that lawsuit.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this paragraph. In the event Business is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, SinglePlatform will pay as much of Business’ filing, administrative, and arbitrator fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If Business initiates a litigation or any other proceeding against SinglePlatform in violation of this paragraph, Business agrees to pay SinglePlatform’s reasonable costs and attorneys’ fees incurred in connection with its enforcement of this paragraph.
The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, exclusive of conflict or choice of law rules.
The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
Last Updated June 2016