1. Description of Service and Acceptance of Terms
1.1 The Service. TLC is an online information service which entitles the Member to receive one (1) marketing video, infographic, or promoted podcast on a monthly basis (collectively, the "Content"). MS agrees to distribute the Content across MS channels to promote the member’s purposes. In consideration of these services, you (the “Member”) agree to pay a monthly subscription fee subject to a one (1) month free trial as outlined in Paragraph 2 of Section 4 of this Agreement.
1.2 “Video” is defined as editing and adding supporting graphics, music, and stock video in the creation of a marketing video clip of up to three (3) minutes in length. MS will not produce (film) video – all video footage must be supplied and input given according to the Video Builder Survey. The Member must supply adequate raw video footage. MS is responsible for editing, music, graphics and up to three revisions.
1.3 “Infographic” is defined as a one-page image or PDF used as a marketing piece to show a marketing concept graphically. MS will design and edit the infographic if the client requests an infographic and provides the necessary input according to the Infographic Builder survey.
1.4 “Podcast” is defined as one (1) remote recorded, hosted Podcast with the MS Podcast team and the guest/contributor of the Member’s choosing. MS will provide a finished podcast ready for posting, including a graphic. Podcasts are recorded using MS-supplied remote recording technology at no cost to the Member. MS professional broadcasters facilitate the recording via an electronic application. The podcasts are recorded remotely from the studio at MS. Guests can be anywhere in the world as long as they have a broadband connection. Upon recording, MS will edit and post the podcasts on the MS podcast player. The podcast player is then posted to MarketScale.com and can be posted to as many of the Member’s websites and social media channels as the Member may choose. Members have full rights to post.
1.5 Revisions. Each piece of Content is limited to three (3) total revision requests by you, and you are only entitled to one (1) piece of Content each month.
1.6 Acceptance. Your use of the TLC (including access to the Content) is conditioned on your compliance with this Agreement.
MS furnishes the TLC for your business needs. By using the TLC or by clicking a box that states that you accept and agree to this Agreement, you signify your unconditional agreement to be bound by this Agreement, including any future modifications, and to abide by all applicable laws, rules and regulations (“Applicable Law”). Please read through this Agreement carefully. If you do not agree to be bound by this Agreement and to abide by Applicable Law, you may not use the TLC and must discontinue use of the TLC immediately. Your use of the TLC is subject to your continued compliance with this Agreement.
2. Changes to This Agreement
We may need to make changes to this Agreement from time to time for many reasons. For example, we may need to reflect updates in how the services work or changes in the law. You should look at this Agreement regularly. It is posted on the MS website here. If we make a material change to this Agreement, we may notify you by sending an email to the email address you most recently provided to us prior to the material change taking effect. Therefore, it is important that you keep your account information, including email address, updated. Any material change to this Agreement will be effective automatically 10 days after the revised Agreement is first posted or, for users who register or otherwise provide opt-in consent during this 10-day period, at the time of registration or consent, as applicable, unless the law requires us to make the change effective sooner.
Your continued use of the TLC following any modification constitutes your acceptance of and agreement to be bound by this Agreement as so modified.
3. Access and Use of the Services.
3.1 Access Changes. MS may change, suspend or discontinue the TLC, in whole or in part, at any time. MS may also impose limits on certain features and services offered on the TLC or restrict your access to parts or all of TLC without notice or liability. You acknowledge that from time to time the TLC may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which MS may undertake from time to time; or (iii) causes beyond the control of MS or which are not reasonably foreseeable by MS.
3.2 Content Ownership. MS grants you ownership of any Content developed for you. You acknowledge that MS reserves the right to post Content developed for you to MS channels.
3.3 Content Quality. MS uses various technologies to provide you with an optimal experience. That said, quality of Content, including resolution, may be affected by the format of the Content, your location, the speed and bandwidth of your internet service, and the devices used, among other factors. HD and 4K Ultra HD availability for certain Content depends on your internet service and device capabilities. The time it takes you to begin playing or downloading Content will vary based on a number of factors, including your location, internet bandwidth, the number of devices simultaneously connecting to the same network, the Content you have selected, and the configuration of the device you are using. As a result, MS is unable to make any warranties about the Content in these respects.
3.4 Compatible Devices. In order to access the Content, you will need to use a computer, mobile device, streaming media player, or other device that meets system and compatibility requirements.
3.5 Internet Service and Data Usage. In order to access the Services, you must have a high-speed broadband, wireless or similar internet connection from an internet service provider that meets certain technical specifications. Please note that some features of the Services may require higher internet bandwidth. You are responsible for any costs associated with your internet service used to access the Services. Your use of the Services may count toward your data usage, depending on the terms of your agreement with your internet service provider.
3.6 No Spam/Unsolicited Communications and Submissions. You may not use the TLC to harvest information about users for the purpose of sending, or to facilitate or encourage the sending of, unsolicited bulk or other communications. You understand that we may employ technical measures to prevent spam or unsolicited bulk or other communications from entering, utilizing, or remaining within our computer or communications networks. If you send spam, advertising, or other unsolicited communications of any kind through the Services, you acknowledge that you will have caused substantial harm to MS and that the amount of such harm would be extremely difficult to measure. As a reasonable estimation of such harm, and by way of liquidated damages and not as a penalty, you agree to pay MS $50 for each actual or intended recipient of such communication.
3.7 Limitations. You shall not interfere (or permit the use of your subscription by a third party to interfere) with the operation or use of the TLC through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or any other means expressly prohibited by any provision of this Agreement. MS may, in its sole discretion, and at any time, with or without notice, suspend, disable or terminate your subscription, and/or access to all or any part of the services at any time, with or without prior notice, for any reason or no reason at all, without liability. You agree not to sell, transfer or assign your subscription or any subscription rights.
3.8 Software Downloads. In order to participate in the TLC or access certain Content, you may be notified that it is necessary to download software or other materials or agree to additional terms and conditions. Unless otherwise provided by these additional terms and conditions, they are hereby incorporated into this Agreement.
3.9 Customer Service. If we can be of help to you, please do not hesitate to contact your Account Manager or visit education.marketscale.com for assistance on some of the tools you have been provided with. We aim to deliver first-class customer service, but in the unlikely event that a customer service representative provides information that is inconsistent with this Agreement, please be aware that this Agreement will control.
4. Subscriptions and Billing
We require you to create an account in order to access the TLC. Only the account holder, and those with permission from the account holder, may create an account.
4.1 Subscriptions. We charge a subscription fee to access the TLC. You can find the specific details regarding your subscription at any time by logging in to the TLC and viewing your subscription details. Subscription fees are non-refundable.
If you don't want your subscription to renew, you can cancel it before the renewal by logging into your account and following the cancellation instructions that are provided. If you cancel your subscription, you will still have access to the TLC for the remainder of time you have already paid for.
4.2 Free Trial. The first thirty (30) days immediately following your initial sign up represent a Free Trial and the TLC will be free of charge for those thirty (30) days. You may opt out of the TLC at any time. If you opt out before the end of the thirty (30)-day Free Trial period, you will not be billed. If you opt out before work on your Content has started, the opportunity for a Free Trial has still terminated. While a user may opt out and any time, and re-subscribe at any time, no user (defined as a user within the same client company) may receive a second Free Trial period, unless otherwise stated by the MS Account Manager.
Once your free trial period ends, the Payment Service will begin billing your Payment Method for your subscription fees (plus any applicable taxes), unless you duly cancel prior to the end of your Free Trial. For that reason, unless otherwise indicated in the free trial description, you will be asked to set up a valid Payment Method when redeeming a Free Trial offer.
You will not receive a notice from MS that your free TLC trial has ended and that payment for your subscription is due. If you wish to avoid charges to your Payment Method, you must duly cancel your subscription prior to midnight Eastern Time on the last day of your free trial period. You may cancel your subscription at any time. The Payment Service will continue to bill your Payment Method for your subscription on a recurring basis corresponding to the term of your subscription until you duly cancel or the account or applicable Service is otherwise suspended or discontinued pursuant to this Agreement.
4.3 Billing. By providing a credit card or other payment method for your subscription to the TLC ("Payment Method"), you are expressly agreeing that we or an independent third-party selected by, but not affiliated with, us (the “Payment Service”) are authorized to charge you a monthly subscription fee on, any other fees for additional services you may purchase, and any applicable taxes in connection with your use of your subscription to the Payment Method. If you want to use a Payment Method that is different from the one you used during registration, or if there is a change in your credit card validity or expiration date, you may edit your Payment Method information by logging in on the TLC and viewing your subscription details. If your Payment Method expires and you do not update your Payment Method information or duly cancel your subscription before it automatically renews, you authorize the Payment Service to continue billing, and you will remain responsible for any uncollected amounts. If we are unable to obtain a valid Payment Method, we may, at our discretion, suspend and/or cancel your subscription and access to the TLC without further notice.
As used in this Agreement, "billing" shall indicate either a charge or debit, as applicable, against your Payment Method. The subscription fee will be billed at the beginning of your subscription or expiration of your free trial period, if any, whichever is earlier, and in connection with every automatic renewal thereafter, unless and until you duly cancel your subscription or the Services are otherwise discontinued pursuant to this Agreement.
The Payment Service will automatically bill your Payment Method when on or about the same calendar day corresponding to your subscription cycle. For example, if you purchase a monthly subscription that begins on January 10, the Payment Service will bill your Payment Method January 10, February 10, March 10, and so on each month, unless and until you duly cancel your subscription. For subscribers whose subscription starts with a free trial, billing will commence upon the expiration of the free trial and continue monthly as set forth above. The interval of time between each payment due date shall be thirty (30) or thirty-one (31) days depending on the month and be referred to herein as a "Billing Period."
MS reserves the right to change the terms of your TLC subscription, including price, from time to time, effective as of the beginning of your next Billing Period following the date of the change. If MS changes the subscription fee or other charges for your TLC subscription, we will give you advance notice of these changes and you will have the opportunity to cancel your subscription prior to incurring the new charges. However, we will not be able to notify you of changes in any applicable taxes.
4.4 Billing Rates. The current rate of subscription is four hundred and ninety-five dollars ($495.00). This amount will be auto-billed every thirty (30) days.
4.5 Ongoing Subscription. Your subscription will continue in effect unless and until you duly cancel your subscription or the account or service is otherwise suspended or discontinued pursuant to this Agreement. If you do not provide materials or information to enable the creation of your Content for any given month, the subscription rolls to the next month, and you are not entitled to any sort of credit for the Content of the previous month.
You must cancel your subscription before your next payment date in order to avoid the next billing. The Payment Service will bill the renewal subscription fee plus any applicable taxes to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information). If you duly cancel your subscription, cancellation will be effective at the end of the then-current Billing Period. This means that you will have continued access to your subscription for the remainder of that period, but you will not receive a refund. You will also forfeit any service or referral credits upon cancellation. PAYMENTS ARE NON-REFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY-USED SUBSCRIPTION PERIODS.
If you cancel your subscription, you will receive any work that is underway. This also applies if you opt out during the Free Trial.
4.6 HOW TO CANCEL YOUR SUBSCRIPTION.
YOU CAN CANCEL YOUR SUBSCRIPTION BY SIGNING INTO YOUR TLC ACCOUNT AND FOLLOWING THE INSTRUCTIONS PROVIDED. YOU ARE RESPONSIBLE FOR CANCELING YOUR SUBSCRIPTION IF YOU NO LONGER WISH TO RECEIVE THE CONTENT FROM THE TLC.
If you cancel your subscription, revisions may no longer take place unless otherwise stated by the MS Account Manager.
4.7 Unpaid Amounts. It is important that each subscriber honor the payment obligations to which the subscriber agreed. Accordingly, we reserve the right to permit the Payment Service to retry billing your Payment Method after failed attempts (e.g., if your Payment Method is rejected). We also reserve the right to permit the Payment Service or another third party to pursue any amounts you fail to pay in connection with your subscription. You will remain liable for all such amounts and all costs incurred in connection with the collection of these amounts, including, without limitation, bank overdraft fees, collection agency fees, reasonable attorneys’ fees, and arbitration or court costs.
5. Accounts and Registration.
You are responsible for all uses of your account, including use of your account by others to whom you provide access. By allowing others to access your account or to create profiles within your account, you agree to be responsible for ensuring that they comply with this Agreement and you agree to be responsible for their activity using the Services.
You take full responsibility for your use of the TLC Content. All registration information you submit must be accurate and must be kept updated by you. Your failure to do so will constitute a breach of the Agreement, which may result in immediate termination of your account.
You are responsible for maintaining the confidentiality of all your passwords and are responsible for all use of your account. It is therefore critical that you do not share your account information with anyone. Please keep your password confidential. Notify your Account Manager if you suspect any unauthorized use of your account. Please also make sure to notify us if your registration information changes, in case we need to contact you.
It is your responsibility to notify us of any changes in such information, including, but not limited to your contact information. You may be held liable for losses incurred by MS in the event someone else uses your account as a result of your failure to keep your account information secure and confidential and you agree to indemnify MS from any third-party claims arising from such actions. You agree not to use the account, username, email address or password of another subscriber at any time and not to allow any other person to use your account. You agree to notify MS immediately if you suspect any unauthorized use of, or access to, your account or password.
We reserve the right to immediately terminate or restrict your TLC subscription or your use of the services or access to Content at any time, for any or no reason, without prior notice, and we shall have no liability to you for any such termination. Furthermore, even after your account subscription and/or access to the TLC is terminated by you or MS, this Agreement will remain in full force and effect with respect to your past and future use of the TLC. One reason we may terminate your TLC subscription or your use of the services or access to Content is if such use places an undue burden on our networks or servers. Alternatively, we may use technology to limit activities, such as the number of calls to the MS servers being made, and you agree to respect these limitations and not take any steps to circumvent, avoid, or bypass them.
You agree that your account and/or subscription is non-transferable. Any rights to your account and/or TLC services or Content terminate upon your death.
MarketScale, the MarketScale logo, and other MarketScale marks, graphics, logos, scripts, and sounds are trademarks of MarketScale. None of the MarketScale trademarks may be copied, downloaded, or otherwise exploited.
9. Disclaimer of Warranties, Limitation of Liability, and Indemnity.
9.1 Disclaimer of Warranties.
TLC SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND MS DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE TLC. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MS EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FOR A COURSE OF PERFORMANCE OR COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MS MAKES NO WARRANTY THAT YOUR USE OF THE TLC WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO TLC SERVICES WILL BE CORRECTED, THAT THE TLC OR THE SERVERS ON WHICH IT IS AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY INFORMATION OBTAINED BY YOU ON, THROUGH OR IN CONNECTION WITH THE TLC OR THIRD-PARTY SERVICES (INCLUDING, BUT NOT LIMITED TO, THROUGH USER CONTENT OR THIRD-PARTY ADVERTISEMENTS) WILL BE ACCURATE, RELIABLE, TIMELY OR COMPLETE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW UNDER NO CIRCUMSTANCES WILL MS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) RESULTING FROM USE OF THE TLC, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF THE TLC, ATTENDANCE AT A MS OR TLC EVENT, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH THE TLC, ANY USER CONTENT, ANY THIRD-PARTY ADVERTISEMENT OR THIRD-PARTY SERVICE TRANSMITTED ON, THROUGH OR IN CONNECTION WITH THE TLC, WHETHER ONLINE OR OFFLINE. YOUR USE OF USER CONTENT, THIRD-PARTY ADVERTISEMENTS, THIRD-PARTY SERVICES AND THE GOODS OR SERVICES PROVIDED BY ANY THIRD-PARTIES IS SOLELY YOUR RESPONSIBILITY AND AT YOUR OWN RISK.
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE TLC, AND ANY INFORMATION TRANSMITTED OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW YOU ASSUME RESPONSIBILITY FOR THE ENTIRE COST OF ANY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM, COMPATIBLE DEVICE OR OTHER PROPERTY OR RECOVERY OR RECONSTRUCTION OF LOST DATA NECESSITATED BY YOUR USE OF THE TLC.
9.2 Limitation on Liability
YOU AGREE THAT MS AND ITS EMPLOYEES, OFFICERS, MEMBERS AND DIRECTORS ARE NOT LIABLE TO YOU OR ANY THIRD PERSON FOR DAMAGES OF ANY KIND, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING OUT OF OR RESULTING IN ANY WAY FROM OR IN CONNECTION WITH THE SERVICES, THE CONTENT, OR ANY ERRORS OR OMISSIONS IN THE TECHNICAL OPERATION OF THE SERVICES, EVEN IF MS IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE SERVICES (COLLECTIVELY, THE “RELEASED MATTERS”). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MS’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO MS, SOLELY FOR THE TLC DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM. YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF MS’ ACTS OR OMISSIONS OR YOUR USE OF TLC SERVICES ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE TLC.
BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
In connection with this waiver and release, you acknowledge that you are aware that you may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those which you now know or believe to be true. Nevertheless, you intend by this Agreement to release fully, finally and forever all Released Matters under this Agreement. In furtherance of such intention, the releases set forth in this Agreement shall be and shall remain in effect as full and complete releases notwithstanding the discovery or existence of any such additional or different claims or facts relevant thereto.
MS makes no representation or warranty whatsoever regarding the completeness, accuracy, currency or adequacy of any information, facts, views, opinions, statements or recommendations contained on the Services and/or the Content. Reference to any product, process, publication or service of any third party by trade name, domain name, trademark, service mark, logo, manufacturer, or otherwise does not constitute or imply its endorsement or recommendation by MS.
10. Arbitration Agreement
Please read the information below very carefully. It affects your rights in the event of a dispute between you and MS.
(1) MS, its agents, employees, predecessors in interest, successors, and assigns, and you agree that any, “Disputes” (as defined herein) between you and MS, regarding the TLC and/or any aspect of your relationship with MS will be resolved in a binding, confidential, individual and fair arbitration process, and not in court. The term “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and MS, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory. The term “Dispute” specifically includes, but is not limited to, any and all claims between you and MS in any way related to or concerning this Arbitration Agreement, any other aspect of this Agreement of Use (including their applicability and their conformance to applicable law), any products or services provided by MS, any billing disputes, and any disputes relating to telephonic, text message, or any other communications either of us received from the other. The only exceptions to this Arbitration Agreement are that (i) each of you and MS retains the right to sue in small claims court and (ii) each of you and MS may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights. Disputes over whether these exceptions apply shall be resolved by the court in which such action has been brought; all other disputes over arbitrability shall be resolved by the arbitrator. Each of you and MS agrees to give up the right to sue in court. Each of you and MS also agrees to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you and MS (see subparagraph 9 of this Arbitration Agreement below). There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow this Agreement. The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages).
(2) This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive termination of this Agreement.
(3) Any arbitration between you and MS will be conducted in accordance with the Federal Arbitration Act. The arbitrator is bound by the terms of this Agreement.
(4) If either you or MS wants to arbitrate a Dispute, you or MS must first send by mail to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the TLC service to which the Notice relates, and the relief requested. Your Notice to MS must be sent by mail to Arbitration Notice of Dispute, Bank of America Plaza, 901 Main St Suite 5300, Dallas, TX 75202. MS will send any Notice to you at the contact information we have for you or that you provide. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute. If you and we do not resolve the Dispute within those first 45 days, either you or we may initiate arbitration.
(5) You and MS acknowledge and agree to abide by the following rules for arbitration: (a) YOU AND MS MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF; (b) MS will pay arbitration costs; (c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (d) each side pays his, her or its own attorneys' fees, except as otherwise provided in paragraph 8 below.
(6) Regardless of how the arbitration proceeds, each of you and MS shall cooperate in good faith in the exchange of non-privileged documents and information as necessary, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions.
(7) Each of you and MS may incur attorneys’ fees during the arbitration. Each side agrees to pay his, her or its own attorneys' fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys' fees, and in such instance, the fees awarded shall be determined by the applicable law(s). If the arbitrator, at the request of the winning party, finds that the losing party brought a Dispute or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by Applicable Law.
(8) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. The arbitrator may not order MS to pay any monies to or take any actions with respect to persons other than you, unless MS explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. Further, unless MS expressly agrees, the arbitrator may not consolidate other persons’ claims with yours, and may not otherwise preside over any form of a representative, multi-claimant or class proceeding.
(9) You and MS agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or court order.
(10) With the exception of subpart (a) in paragraph (5) (i.e., the waiver of the ability to proceed on behalf of multiple claimants or a purported class), if any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in paragraph (5) is found invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, but the rest of this Agreement, including the provisions governing where actions against MS must be pursued, the choice of governing law, and our mutual waiver of the right to a trial by jury, will remain in effect and apply to any claim that, for this or any other reason, proceeds in court rather than in arbitration.
11. Limitation on Time to Bring a Claim
YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TLC SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, THE CONDUCT COMPLAINED OF SHALL BECOME INCONTESTABLE AND SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
12. Governing Law and Choice of Forum
This Agreement will be governed by, and construed in accordance with, the laws of the State of Texas, without regard to its conflict of law provisions. Except with respect to Disputes to be resolved through an arbitration process in accordance with the Arbitration Agreement contained above, you and MS agree to submit to the exclusive jurisdiction of the courts located in Dallas, Texas to resolve any Dispute arising out of this Agreement or the TLC.
YOU HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD-PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
SUBJECT TO APPLICABLE LAW, YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TLC MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, THE CONDUCT COMPLAINED OF SHALL BECOME INCONTESTABLE AND SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
13. General Information
13.1 No Waiver. The failure of MS to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. If we fail to act in response to a violation of this Agreement, you should not assume that we do not object to the violation or even that we are aware of it. In addition, you may not construe a waiver of any provision of this Agreement with respect to any party as a waiver of that provision (or any other provision) with respect to either that party or any other party. Further, MS’ decision to delay exercising or enforcing any right or remedy under this Agreement shall not constitute a waiver of such right or remedy. Even if MS acts in a way that appears to you to be inconsistent with this Agreement, MS’ action shall not be deemed a waiver or constructive amendment of this Agreement.
13.2 Other. The Section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. Except as otherwise expressly provided herein, if any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
You agree that any notices MS may be required by Applicable Law to send to you will be effective upon MS’ sending an e-mail message to the e-mail address you have on file with MS or publishing such notices on the informational page(s) of the TLC. Additionally, from time to time, we may communicate with you about the services and this Agreement electronically (e.g., emails to your registered email address, notices on the TLC Site and other access points). You consent to receive electronic communications from MS and further agree that any notices, agreements, disclosures, and other communications that we send to you electronically will satisfy any applicable legal notification requirements. We recommend that you keep a copy of any electronic communications we send to you for your records.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and MS as a result of this Agreement or your use of the TLC. A printed version of this Agreement and of any notice related to it shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other business documents and records originally generated and maintained in printed form.
Nothing contained in this Agreement limits MS’ right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the TLC or information provided to or gathered by us in connection with such use.
This Agreement, along with any other policies expressly incorporated into this Agreement by reference, constitute the entire agreement between you and MS with respect to the subject matter hereof and supersede all prior or contemporaneous written or oral agreements between us with respect to the subject matter hereof. This Agreement may not be amended, nor any obligation waived, without MS’ written authorization.
If you would like to contact us with any questions regarding this Agreement, please contact your Account Manager.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.