Terms & Conditions

Effective July 1st, 2023

1. Introduction

2. Changes to the Terms

3. Definitions

4. Subscription to Services

5. Service Usage Restrictions

6. Customer Obligations

7. Security

8. Fees and Payment

9. Confidentiality

10. Intellectual Property Rights

11. Representations and Warranties

12. Indemnification

13. Limitation of Liability

14. Subscription Term and Termination

15. Data Privacy

16. Class Action Waiver and Arbitration Requirement

17. Legal Terms

1. Introduction

                Emission Sentri (“Provider” or “we” “us,” “our”) provides software-as-a-service (“Software”) to individuals and businesses (the “Customer”, “you” or “your”) subject to these Terms of Service, along with any documents they expressly incorporate by reference (collectively, these “Terms”).  Please read these terms carefully as they are important because they:

• Govern your access to and use of the software.
• Explain the rights you grant to us when you use the Software
• Explain your obligations when you use the Software
• Explain our limitation of liability to you
• Contain a class action waiver and an agreement to resolve any disputes by arbitration

                Subscribing to the Software or otherwise using the Software or by checking the box provided at the end of these Terms, indicates your agreement to be bound by the Terms contained herein.  If you do not want to agree to these Terms, including the Privacy Policy, you must not access or use the Software.

                The Software is currently only available and intended for Customers in the United States.

2. Changes to the Terms

               We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Software thereafter. Your continued use of the Software following the posting of revised Terms or your checking the box provided at the end of these Terms means that you accept and agree to the changes. You are expected to check this page frequently so you are aware of any changes, as they are binding on you.

3.Definitions

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

“Affiliate” of a Person means any other Person that directly or indirectly controls, is controlled by, or is under common control with the subject Person. “Control,” for purposes of this definition, means the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 50% of the voting securities of a Person.

“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer.

“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.

“Documentation” means any manuals, instructions, or other documents or materials listed in Exhibit B that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

“Malicious Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer from accessing or using the Services or Provider Systems as intended by these Terms. Malicious Code does not include any Provider Disabling Device.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any law, regulation, rule, order, constitution, code, ordinance, statute, treaty, decree or judgment, or other legislative measure of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

“Personal Data” means information that Customer provides or for which Customer provides access to Provider, or information which Provider creates or obtains on behalf of Customer, in accordance with these Terms that: (i) directly or indirectly identifies an individual; or (ii) can be used to authenticate an individual, in case of both subclauses (i) and (ii), including Sensitive Personal Data as defined herein). Customer’s business contact information is not by itself Personal Data.

“Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information, or other content. “Processing” and “Processed” have correlative meanings.

“Provider Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Provider or its designee to disable Customer’s access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.

“Provider Materials” means the Services, any Specifications, Documentation, and Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.

“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.

“Resultant Data” means data and information related to Customer’s use of the Services with the following removed: information that identifies or could reasonably be used to identify an individual person. Provider may use, reproduce, sell, publicize, or otherwise exploit Resultant Data in any way, in its sole discretion, including without limitation aggregated with data from other customers to compile statistical and performance information related to the provision and operation of the Services.

“Sensitive Personal Data” means Personal Data that must be treated with heighted security under any Law and an individual’s (i) government-issued identification number, including Social Security number, driver’s license number, or state-issued identification number; (ii) financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual’s financial account; or (iii) biometric, genetic, health, or health insurance data.

“Services” means the Software offering insights in email to help reduce the risk of cyberattacks and fraud defense.

“Specifications” means any specifications for the Services set forth in on the Products page.

“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Provider.

• Subscription to Services

4.1 Subscription Rights. So long as Customer complies with the Terms, Provider hereby grants Customer, in accordance with the subscription, a monthly or annual, non-exclusive, non-transferable (except in compliance with Section 17.8) right to access and use the Services during the Term, only for Customer’s in accordance with the Terms.  The Software can only be installed on one email address for Customer.  The Software cannot be transferred to any other email addresses. 

4.2 Documentation License. Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 17.8) license to use the Documentation during the Term solely for Customer’s personal and not commercial purposes in connection with its use of the Services.

4.3 Materials and System Control. Except as otherwise expressly provided in these Terms, as between the parties:

(a) Provider has and will retain sole control over the operation, provision, maintenance, and

management of the Provider Materials; and

(b) Customer has and will retain sole control over the operation, maintenance, and management of,

and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer, including any: (i) information, instructions, or materials provided by any of them to the Services; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions, or actions based on such use.

4.4 Provider IP Rights. Nothing in these Terms grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Provider Materials, and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials.

4.5 Revisions. Provider reserves the right, in its sole discretion, to make any revisions to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.

4.6 Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor“).

4.7 Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, at any time, including but not limited to if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its discretion, that: (i) Customer has failed to comply with any term in these Terms, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these Terms or in any manner that does not comply with any instruction or requirement of any Specifications; (ii) Customer is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) these Terms are terminated. This Section 4.7 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement.

• Service Usage Restrictions

5.1 Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by these Terms and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as these Terms expressly permits:

(a) copy, modify, or create derivative works or improvements of the Services or Provider

Materials;

(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make

available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;

(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain

access to the source code of the Services or Provider Materials, in whole or in part;

(d) bypass or breach any security device or protection used by the Services or Provider Materials

or access or use the Services or Provider Materials other than by Customer;

(e) input, upload, transmit, or otherwise provide to or through the Services or Provider Systems,

any information or materials that are unlawful or injurious, or contain, transmit, or activate any Malicious Code;

(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any

manner the Services, Provider Systems, or Provider’s provision of services to any third party, in whole or in part;

(g) remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or

disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;

(h) access or use the Services or Provider Materials in any manner or for any purpose that

infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;

(i) access or use the Services or Provider Materials for purposes of competitive analysis of the

Services or Provider Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage; or

(k) otherwise access or use the Services or Provider Materials beyond the scope of the

authorization granted under this Section 5.1.

• Customer Obligations.

6.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Documentation and any Specifications all Customer Systems on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with these Terms.

6.2 Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under these Terms (each, a “Customer Failure“).

6.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 5.1, Customer shall immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.

6.4 Compliance with Law. In using the Provider System, Customer shall comply with all applicable laws.

• Security

7.1 Information Security. Provider will employ security measures in accordance with Provider’s data privacy and security policy as amended from time to time, a current copy of which is set forth at https://emissionsentri.com/privacy-policy/.

7.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content, accuracy and use; (b) all information provided by or on behalf of Customer in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems“); and (d) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

7.3 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) protect against any unauthorized use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.

8.Fees and Payment

8.1 Fees . Customer shall pay Provider the fees set forth on the issued invoice (“Fees“) in accordance with this Section 8.  If Provider terminates Customer’s subscription without fault of the Customer with more than 20 days remaining on the subscription, Provider shall issue Customer a pro rata refund for the time remaining on the subscription.  Unless otherwise noted herein, Provider shall not be obligated to refund Fees under any circumstances.  

8.2 Fee Increases. Provider may increase Fees after the Initial Term including any Renewal Term by providing written notice to Customer at least 15 calendar days prior to the commencement of such Renewal Term.

8.3 Taxes. All Fees payable under the Terms are exclusive of any taxes or other government charges. Customer will pay any and all sales, use, excise or other taxes, duties and charges (other than taxes assessed on the income of Provider).

8.4 Payment. Customer agrees to provide Provider with valid and updated credit card information and hereby authorizes Provider to charge the Fees to such credit card.  For monthly subscriptions, the Fees shall be charged in advance before Service begins and monthly on the anniversary date of the subscription during the Renewal Term.  For annual subscriptions, the Fees shall be charged in advance before Services begins and annually on the anniversary date of the subscription during the Renewal Term.

9.Confidentiality

9.1 Confidential Information. In connection with these Terms each party may disclose (the “Disclosing Party”) or make available Confidential Information to the other party (the “Receiving Party“). Subject to Section 9.2, “Confidential Information” means any information of a non‑public, confidential or proprietary nature, whether of a commercial, financial or technical nature, including but not limited to software models, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and all information that a reasonable person would consider to be confidential, in each case whether or not marked, designated, or otherwise identified as “confidential”, “private” or similar, in any form or medium (whether oral, written, electronic, or other),. Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the terms of these Terms are confidential.

9.2 Exclusions. The restrictions and obligations in this Section 9 shall not apply to the Disclosing Party’s Confidential Information, which:

(a) is or becomes generally available to the public other than as a result of a disclosure by the

Receiving Party (or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors (“Representatives’”) noncompliance with these Terms;

                (b) was received by the Receiving Party from a third party and not indirectly from the Disclosing Party in violation of any obligation of secrecy or non-use; or

(c) was in the possession of the Receiving Party prior to disclosure or was developed

independently from such Confidential Information, as is shown by competent evidence.

9.3 Court Orders. In case Confidential Information is required to be disclosed by the Receiving Party by virtue of an applicable Law or court order, the Receiving Party shall be allowed to do so, provided that it shall, without delay, inform the Disclosing Party in writing of receipt of such order or coming into existence of such duty and enable the Disclosing Party to reasonably to seek protection against such order or duty. The Receiving Party shall provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party, after providing the notice and assistance required under this Section 9.3, the Receiving Party remains required by Law or order to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose

9.4 Protection of Confidential Information. As a condition to obtaining access to Confidential Information, the Receiving Party shall for five (5) years following termination of these Terms not use Confidential Information of the Disclosing Party for purposes other than as required to perform its obligations under these Terms. The Receiving Party shall treat the Disclosing Party’s Confidential Information with at least the same degree of care as it would use in respect of its own confidential information of like importance, but in any event a reasonable level of care. Except as may be permitted under Section 9.3, the Receiving Party shall not disclose Confidential Information to any third party to its Representatives only on a need-to-know basis. Prior to the disclosure of the Disclosing Party’s Confidential Information to such Representatives, the Receiving Party shall inform each such person of the confidential nature of the Confidential Information and shall expressly require that the person agrees to treat the Confidential Information as is provided in these Terms. Notwithstanding due observance of these requirements, the Receiving Party shall be liable for any breach of the provisions of these Terms by such person.

The Receiving Party shall promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and notwithstanding any other provisions of these Terms, the Receiving Party’s obligations

under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

1. Intellectual Property Rights

10.1 Provider Materials. All right, title, and interest in and to the Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in Section 4.1 or the applicable third-party license, in each case subject to Section 5.1. All other rights in and to the Provider Materials are expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

10.2 Customer Data. Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.3.

10.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Provider and its Subcontractors to enforce these Terms and exercise Provider’s, and its Subcontractors’ rights and perform Provider’s and its Subcontractors’ obligations hereunder.

1. Representations and Warranties

11.1 Mutual Representations and Warranties. Customer and Provider represent and warrant to the other that:

(a) it has the full right, power, authority and capacity to enter into and perform its obligations and

grant the rights, licenses, consents, and authorizations it grants or is required to grant under these Terms;

(b) these Terms constitutes a legal, valid, and binding obligation, enforceable against the

parties according to its terms when executed and delivered.

11.2 Customer Representations and Warranties. Customer represents, warrants, and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with these Terms, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

11.3 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF MALICIOUS CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

1. Indemnification

12.1 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee“) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:

(a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in

accordance with these Terms;

(b) any other materials or information (including any documents, data, specifications, software,

content, or technology) provided by or on behalf of Customer, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by Provider;

(c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations,

warranties, covenants, or obligations under these Terms; or

(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by

Customer or any third party on behalf of Customer, in connection with these Terms.

12.2 Indemnification Procedure. Provider shall give prompt notice to Customer  of any claim for indemnification arising under this Section 12. Provider shall cooperate with the Customer at the Customer’s sole cost and expense. The Customer shall have the right to assume and to control the defense of any such claim with counsel reasonably acceptable to such Provider, at the Customer’s own cost and expense, including the cost and expense of reasonable attorneys’ fees and disbursements in connection with such defense, in which event the Customer shall not be obligated to pay the fees and disbursements of separate counsel for the Provider in such action. No settlement of any such claim or payment in connection with any such settlement shall be made without the prior consent of the Customer which consent shall not be unreasonably withheld.

13.Limitations of Liability

13.INDIRECT DAMAGES. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

13.2 DIRECT DAMAGES. PROVIDER WILL NOT BE LIABLE TO CUSTOMER FOR ANY DAMAGES RESULTING FROM CUSTOMER DISPLAYING, COPYING, USING, OR DOWNLOADING ANY SOFTWARE OR MATERIALS TO OR FROM THIS WEBSITE. EXCEPT FOR PROVIDER’S LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID TO PROVIDER UNDER THESE TERMS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

14.Subsciption Term and Termination

14.1 Term.  These Terms begin the date Customer subscribes to the Service and will continue in effect for one month or one year in accordance with such subscription (the “Initial Term”).  If Customer signs up for a monthly subscription, the subscription and these Terms will automatically renew each month on the anniversary date of the subscription until terminated by Customer or Provider (the “Monthly Renewal Term”).  If Customer signs up for an annual subscription, the subscription and these Terms will automatically renew each year on the anniversary date of the subscription until terminated by Customer or Provider (the “Annual Renewal Term”, together with the Monthly Renewal Term, the “Renewal Term”)  Customer must notify Provider of any termination at least one day prior to the monthly or annual renewal date. 

14.2 After Termination. After any termination of this Agreement, except as expressly otherwise provided in this Agreement:

(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder

will immediately terminate;

(b) Provider shall immediately cease all use of any Customer Data or Customer’s Confidential

Information and (i) upon Customer’s written request, destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Provider directly or indirectly controls, provided that, for clarity, Provider’s obligations under this Section 14.2(b) do not apply to any Resultant Data;

(c) Customer shall immediately cease all use of any Services or Provider Materials and (i)

promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Provider Materials or Provider’s Confidential Information; and (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Provider in a signed written instrument that it has complied with the requirements of this Section 14.2(c);

(d) notwithstanding anything to the contrary in these Terms, with respect to information and

materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; (ii) Provider may retain Customer Data; (iii) Customer may retain Provider Materials, in the case of each of subclause (i), (ii) and (iii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Provider may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 14.3(d) will remain subject to all confidentiality, security, and other applicable requirements of these Terms; and

(e) Provider may disable all Customer access to the Provider Materials.

14.3 Survival. The provisions set forth in the following sections, and any other right or obligation of the parties in these Terms that, by its nature, should survive termination of these Terms, will survive any termination of these Terms: Section 5.1, Section 9, Section 11.3, Section 12, Section 13, Section 14.2, this Section 14.3, Section 15, and Section 16.

1. Data Privacy

15.1 Privacy Policy. Provider’s Privacy Policy is located here: https:// emissionsentri.com/privacy-policy/.  Provider may alter such privacy policy in accordance with these Terms.

15.2. Customer’s Responsibilities. Customer agrees that Customer shall not provide any Personal Data to Provider except for any Personal Data automatically provided by Provider’s Systems as strictly necessary for Customer to receive the benefits of the Services intended under these Terms.  Customer will comply fully with all applicable Laws relating to Personal Data.

1. Governing Law, Class Action Waiver, Arbitration Requirement

16.1 Governing Law and Jurisdiction. These Terms will be governed solely by the internal laws of the State of Texas, including without limitation applicable federal law, without reference to any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties. For any claim not subject to mandatory arbitration below, the parties consent to the personal and exclusive jurisdiction of the federal and state courts of Texas in the city of Houston and County of Harris. This Subsection 16.1 governs all claims arising out of or related to these Terms, including without limitation tort claims.

Please Read The Following Provisions in Section 16 Carefully. They Affect Your Legal Rights.

16.2 Dispute Resolution and ARBITRATION REQUIREMENTS.   All disputes between Customer and Provider shall be resolved by mandatory binding arbitration.  Acceptance of these Terms constitutes a waiver of Customer’s right to litigate claims in court and all opportunity to be heard by a judge or jury.  Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.  The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees). Customer may, however, opt-out of this arbitration requirement which means Customer would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). CUSTOMER AND PROVIDER AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

16.3 When Arbitration Is Not Mandatory and Right to Opt Out.  Notwithstanding the section above (16.2), Customer and Provider agree that nothing in this arbitration agreement will be deemed to waive, preclude, or otherwise limit either Customer or Provider’s rights, at any time, to (1) bring an individual action in a U.S. small claims court, (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitration, (3) bring issues to the attention of federal, state, or local agencies, which may,  if the law permits, seek relief against Provider on Customer’s behalf (or relief against Customer on Provider’s behalf) or (4) CUSTOMER OPTS-OUT OF THESE ARBITRATION REQUIREMENTS WITHIN 30 DAYS FROM THE DATE THAT CUSTOMER FIRST CONSENTS TO THESE TERMS (the “Opt-Out Deadline”). Customer may opt-out of this arbitration requirement by emailing us at [email protected] with the following information: (1) Customer’s name; (2) Customer’s address; (3) A clear statement that Customer does not wish to resolve disputes with Provider through arbitration. Customer’s opt-out of this arbitration requirement will not negatively affect Customer’s relationship with Provider. But, Provider does have to enforce the Opt-Out Deadline, so please keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid.

16.4 CLASS ACTION WAVIER.

CUSTOMER AND PROVIDER MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER’S OR PROVIDER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION.  No arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding unless both Customer and Provider agree otherwise. The arbitrator may award injunctive relief only to the extent necessary to provide relief warranted by that party’s individual claim and only in favor of the individual party seeking relief. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.

16.5 Arbitration Procedure

Either Customer or Provider may begin arbitration proceedings. Any arbitration will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by these Terms. Customer and Provider agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879.

Any arbitration hearings will take place in either Texas or the federal judicial district that includes Customer’s billing address. In the event that Customer selects the latter, Provider may transfer the arbitration to Texas so long as Provider agree to pay any additional fees or costs which the arbitrator determines Customer incur as a result of the transfer, provided that if a Customer claim is for $25,000 or less, Customer may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules.

Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

16.6 Notice and Process

If Customer or Provider intend to seek arbitration, such party must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required) in accordance with Section 17.2 below (the “Arbitration Notice”).  A. The Arbitration Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). Customer and Provider agree to use good faith efforts to resolve the claim directly within 30 days after the Arbitration Notice is received, but if we do not reach an agreement within such time, Customer or Provider may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Customer or Provider shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.

1. Legal Terms

17.1 Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

17.2 Notices. The parties will give all notices and communications between the parties in writing by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid addressed to a party at the address below or such other address that such party may provide in accordance with this Section 17.2. A notice given under this Agreement will be effective on the other party’s receipt of it, or if mailed, the earlier of the other party’s receipt of it and the fifth business day after mailing it.

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If to Provider:	To the email address or physical address provided on the invoice
If to Customer:	To the email address or physical address provided at the time of subscription to the Service

17.3 Interpretation. When a reference is made in these Terms to an article or section, such reference shall be to an article or section of these Terms unless otherwise indicated. The headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes,” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation. When a reference is made to an agreement, instrument, or other document it means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and when reference is made to a statute it means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

17.4 Entire Agreement. This Agreement represents the entire understanding relating to the subject matter hereof and prevails over any prior or contemporaneous, conflicting or additional communications.  This Agreement can only be modified by a written amendment signed by the party against whom enforcement of such modification is sought. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement; (b) second, any other documents incorporated herein by reference.

17.5 Assignment. Customer may not, without the prior written consent of Provider, assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void.

17.6 Force Majeure. Force Majeure.  Provider will not be liable for any failure or delay in performing an

obligation under this Agreement that is due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, flood, earthquake, explosion, generalized lack of availability of raw materials or energy (a “Force Majeure”). Customer may terminate this Agreement if a Force Majeure Event affecting the Customer continues substantially uninterrupted for a period of 15days or more.

17.7 Waiver. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches; and the waiver of any breach shall not act as a waiver of subsequent breaches.

17.8 No Third-Party Beneficiaries. No provision of this Agreement is intended, nor shall it be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any customer, affiliate, stockholder, partner, member, director, officer or employee of any party hereto or any other person or entity.

17.9 Severability. In the event any provision of this Agreement is held by a court of other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. The parties further agree that in the event such provision is an essential part of this Agreement, they will begin negotiations for a suitable replacement provision.

17.10 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

17.11 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.