1. Definition of Service. The Service includes search engine optimization, search engine monitoring, profile optimization, business listings in specified categories, link to the Website, market search for keywords and market analysis, customer support, website enhancement in each case specifically designed to your needs. For purposes of this Agreement, the term “Service” shall mean the EMS Service, including all features and services provided by EMS under the EMS standard pricing plan as set forth on your EMS application.
2. Revisions to Terms and Pricing. From time to time, we may revise the terms and conditions of this Agreement (including, without limitation, any of the policies incorporated by reference) and the pricing for the Service (“Revisions”). Notice of Revisions to the Agreement, the terms and conditions or pricing shall be posted on the Website and deemed given and effective on the date posted to the Website. Any and all such Revisions shall be deemed a part of and included in this Agreement as if fully set forth herein in lieu of the language of this Agreement being so revised. If you do not agree to any of such Revisions, you must cancel your Service within five (5) days after posting of any such Revisions in accordance with the Cancellation provisions set forth in this Agreement. By continuing to use the Service after any of such Revisions are in effect, you thereby accept and agree to all such revisions.
3. Use of Service and Device. You agree to use our Service only for the purposes for which you subscribed for the Service. In the event EMS provides you information, including your Password, via e-mail over the Internet, you shall be solely responsible to safeguard your User IDs and Passwords.
4. Length of Service. The Service will be provided for a period starting the date of this Agreement (the “Subscription Date”) or the date we successfully process your payment, whichever is later and ending on the date set forth in your subscription on the Website or in the Application which are considered a part hereof. Thereafter, your with EMS Service shall be automatically renewed at the end of the initial and each subsequent service term on your “Subscription Date” for an additional term which shall be the same length as your initial term unless you cancel your Service before the end of the current service term. The renewal will be charged to your payment method (credit card) on file. We have the right to suspend or discontinue service generally or to disconnect the Service at any time. In addition, we reserve the right to immediately disconnect the Service at any time without notice due to non-payment or unlawful or inappropriate use of the Service. In order for you to cancel the Service, contact our Customer Care Department, via email at email@example.com or firstname.lastname@example.org at least 30 days prior to expiration of the current service term. Please refer to the EMS Cancellation Policy as set forth in this Agreement.
5. Fees and Charges. All activation and monthly charges shall be billed to your credit card or bank account by ACH/ check in advance. Cancellation and other fees shall be billed as and when incurred. EMS’s fees and charges including activation and monthly installment fees shall be as agreed and may change from time to time. New pricing will be effective the next day following posting to the Website and may be applied to renewals of existing services. In addition to fees and charges payable to us, Customer is responsible for and shall pay any and all applicable federal, state, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility and other taxes, fees and charges now in force or enacted in the future.
6. Customer Service. In the event you experience any difficulties or problems with the Service, contact our Customer Care Department via email at email@example.com or by calling 1-949-313-9157
IF YOU (THE CUSTOMER) SUBSCRIBE FOR EMS’S SEARCH ENGINE OPTIMIZATION SERVICE, YOUR SUBSCRIPTION WILL CREATE A CONTRACT BETWEEN YOU AND US (EMS) CONSISTING OF THE APPLICATION, THE APPLICABLE SERVICE DESCRIPTION, THESE TERMS AND CONDITIONS AND ALL OTHER TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT.
1. INTRODUCTION. This EMS Application, together with the Service Terms, any operating rules, policies, price schedules, these terms and conditions or other supplemental documents expressly incorporated herein by reference and published from time to (collectively, the "Agreement"), constitute the entire agreement between EMS, Inc (hereinafter referred to as “we,” “us” or EMS) and you as identified in the Application for the Service (herein after referred to as “you,” “user” or “Customer”) with respect to EMS’s Search Engine Optimization Service (as defined herein), and supersedes all prior agreements, discussions, understandings and writings between the parties regarding the subject matter of this Agreement. For purposes of this Agreement, the term EMS includes our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, attorneys and any other service provider that furnishes services or devices to you in connection with this agreement.
2. DEFINITION OF SERVICE. EMS Search Engine Optimization Service is designed to optimize the ability of your customers to find you through access to traditional search engines, specifically Google and Yahoo. For purposes of this Agreement, the term “Service” shall mean all search engine optimization, search engine monitoring, profile optimization, business listings in specified categories, links to the Website, market search for keywords and market analysis, customer support, website enhancement in each case specifically designed to your needs.
3. REVISIONS TO TERMS AND PRICING. From time to time, we may revise the terms and conditions of the Service (including, without limitation, any of the policies incorporated by reference) and the pricing for the Service (“Revisions”). Notice of Revisions to the Service, the terms and conditions or pricing shall be posted on the EMS Website www.expertmarketingservice.net ("the Website") and deemed given and effective on the date posted to the Website. Any and all such Revisions shall be deemed a part of and included in this Agreement as if fully set forth herein in lieu of the language of the Agreement being so revised. If you do not agree to any of such Revisions, you must cancel your Service within five (5) days after posting of any such Revisions in accordance with the Cancellation provisions set forth in this Agreement. By continuing to use the Service after any of such Revisions are in effect, you thereby accept and agree to all such revisions.
4. CUSTOMER REPRESENTATIONS AND COVENANTS. You hereby represent, warrant and agree to the following for the benefit of EMS:
4.1 Your name, user name, contact information and registered location are true and correct and if for business use, you are authorized to act on behalf of your company.
4.2 You agree to provide EMS with all information and documents reasonably necessary or desirable for EMS to provide the Service and to cooperate with representatives and employees of EMS in developing a program for your use of the Service. You also agree to promptly notify EMS of any changes or modifications to any documents or information provided by you to EMS under these terms and conditions.
4.2. You acknowledge that EMS relies on the information you supply and that providing false or incorrect information will prevent EMS from providing the maximum results for the Service.
4.3. You will promptly notify EMS whenever your personal or billing information changes (including, but not limited to, your name, address, e-mail address, telephone number and credit card number and expiration date).
4.4. You will be financially responsible for your use of the Service from the time it is commenced until termination or cancellation of the Service.
4.5 The person entering into this Agreement on behalf of the Customer is an authorized representative of the Customer and has full legal authority and approval to enter into this Agreement for Customer.
5.1. Service Term. We provide the Service for the length of term that you agreed to when subscribing for our Service. Your term begins on the date you first ordered service (the “Subscription Date”), or the date we successfully process your payment, whichever is later. You are purchasing the Service for the full service term as set forth in your Application.
5.2. Automatic Renewal. Your Service with EMS shall be automatically renewed at the end of the initial and each subsequent service term on your “Subscription Date” for an additional term which shall be the same length as your initial term unless you cancel your Service before the end of the current service term (See Termination of Service Section 5.4). The renewal begins on the day after the last day of your term. The renewal will be charged to your payment method (credit card) on file. If your credit card is declined, invalid, or payment is not made by the issuer of your credit card on your “Subscription Date”, without further notice EMS reserves the right to automatically recharge the payment method until payment is received, the payment method is updated, or the Service is discontinued by us for nonpayment.
5.3. Our right to disconnect. We have the right to suspend or discontinue service generally or to terminate the Service at any time. In addition, we reserve the right to immediately terminate the Service at any time without notice due to non-payment or unlawful or inappropriate use of the Service. All fees and charges owed at the time of disconnection will be immediately payable including monthly charges for the remainder of the initial or renewal term of the Service subscribed for by you. Such charges shall be billed to your credit card at the time of disconnection. In the event of termination of the Service by EMS for your non-payment or unlawful or inappropriate use of the Service, you shall not be entitled to any refund or pro-rata reduction of any charges incurred prior to date your Service is disconnected or the usage charges for the balance of your contract term. If for any reason such charges cannot be charged to your credit card, we will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.
5.4. Cancellation of Service by Customer. In order for you to cancel the Service, contact our Customer Care Department, via email at firstname.lastname@example.org prior to expiration of the current service term. If you have subscribed to an annual plan, you may cancel the service at any time prior to the end of the initial or any renewal term upon payment of the monthly charges for the balance of the term and any other charges incurred by you prior to the date of cancellation. Such charges shall be payable upon notice of cancellation and shall be charged to your credit card.
6.1. We will publish fees and charges on our Website. These fees and charges may change from time to time. New pricing will be effective the next day following posting to the Website and may be applied to renewals of existing services. We may introduce new services at special introductory pricing. Introductory pricing will not be applied retroactively to existing services and may be applied for only limited periods of time. At our discretion, we may change introductory pricing.
6.2. Billing increments. All billing policies are defined by the specific package the customer chooses. Except as otherwise specifically provided in the service plan you selected, all activation, monthly and other charges shall be billed to your credit card in advance. Cancellation and other fees shall be billed as and when incurred. Please refer to the Website for exact billing policies.
6.3. Taxes. Customer is responsible for and shall pay any and all applicable Federal, state, municipal, local or other governmental sales, use, excise, Universal Service Fees, value-added, personal property, public utility and other taxes, fees and charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Service. Such amounts are in addition to payment for the Service and will be billed to you. If Customer is exempt from payment of such taxes, you must provide EMS with an original government-issued certificate attesting to your tax-exempt status. Tax exemption will only apply from and after the date EMS receives such certificate.
6.5. Activation Fee. One-time activation fees are specified on the Website and vary according to the service chosen.
7.1. Billing. We will charge you in advance for each term of service. We do not provide monthly or other invoices for the Service. When you subscribe to the Service, you must give us a valid email address and a payment method (credit card/ ACH Authorization) that we accept. We reserve the right to stop accepting your payment method or your payments. You must advise us at once if your payment method expires, you close your account, your billing address changes, your email address changes, or your payment method is cancelled and replaced on account of loss or theft. Except for usage-based charges, we will bill in advance to your payment method all charges, fees, taxes, and surcharges for each service term. We will bill as due immediately all monthly charges and any other charges which we decide to bill as due immediately.
7.2. Payment. When you subscribe to the Service, you authorize us to collect from your payment method. This authorization will remain valid until thirty (30) days after you terminate our authority to charge your payment method.
7.3. Collection. If we disconnect the Service, you will remain liable to us for all charges for the Service and all the costs we incur to collect these charges, including, without limitation, reasonable costs of collection and attorneys’ fees. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest and charges due to insufficient credit or NSF fees.
7.4. Notices. You understand that it is difficult for us to distinguish between credit and debit cards. You agree to waive your rights under Regulation E to receive ten (10) days advance notice from us regarding the amount that we will debit from your account. While we may send you messages about your billing from time to time, we are not obligated to do so. We may change or cease our messages at any time without notice to you.
7.5. Billing Disputes. You must notify EMS in writing within seven (7) days after receiving your credit card statement or from the time funds are debited from your bank account if you dispute any EMS charge on that statement or that have been debited from your account. Your failure to provide such notice will result in the irrevocable waiver of any such dispute. If you do not understand any charge for your use of the Service, you must notify our Customer Care Department via email at email@example.com. Notification of all billing disputes shall be sent in writing by email to the following address: firstname.lastname@example.org.
8.1. Prices and Fees. EMS fees and charges for the Service shall be as notified to you during the Application process unless otherwise specifically stated in your Application for the Service. You agree to pay the applicable one-time and recurring charges. You further agree to pay any taxes and other charges required by these terms and conditions. Recurring charges will be billed and automatically charged to your credit card on the first day of every billing cycle. Your billing cycle will begin on the anniversary date of your subscription date as defined in section 5.1.
8.2. Charges to Credit or Debit Card. You agree to provide a credit card and not a debit card. If your card is a combination credit card/debit card, you authorize us to use it as a credit card. You agree that we may charge your credit or debit card for all amounts due to us without any additional or further notice or consent. You also agree to indemnify us for any claims or expenses resulting from providing a debit card instead of a credit card. If your credit card is declined, is invalid or payment is not made by the issuer of your credit card at the time that a charge is attempted, you service will be terminated until your account is paid in full and reinstatement fees may be charged.
8.3. Discontinuation of Service for Nonpayment. The Service to you may be cancelled, terminated, deactivated, denied and/or discontinued without notice at any time in the event your credit card provider denies or discontinues providing credit to you for any reason or if you fail to provide us with new credit card expiration date before the existing one expires. If your credit card fails for any reason during the ordering process, or any regular or monthly billing process, you will have 24 hours to provide EMS your new credit card information. If the credit card issue is not resolved within 48 hours, EMS will terminate and deactivate the Service and reinstatement fees may be charged. If your credit card is approved within 24 hours, your Service will remain unchanged. You agree to pay all charges owed to EMS, including, but not limited to, the reinstatement fee for reactivated services. In the event EMS utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all reasonable collection costs incurred to recover such monies, including attorneys' fees.
8.4. Promotions. EMS may limit the number of promotions you may be eligible for in a given period. Promotions may be cancelled by EMS at any time.
8.5 Cancellation Policy. All cancellation requests must be submitted in the form of an email notification to email@example.com and must be made prior to the expiration of the Service term. See the Cancellation Policy for details. Changes to the Cancellation Policy may be made at any time without notice to you and will be effective as of the day immediately following posting to our Website.
8.6. Late Payment Fees. All fees and charges are payable when due. Any fees and/or charges not paid within fifteen days after the due date shall incur a late payment fee equal to fifteen percent of the unpaid fee or charge per month until paid in full.
8.7 Refund Policy: EMS may issue 50% refund if cancelled within 3 days of placing the order. Some orders may not qualify for a refund where the services have been rendered or related work has been completed.
9.1. WARRANTIES AND DISCLAIMER
9.1.1 EMS MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICE AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. EMS DOES NOT WARRANT THAT THE SERVICE WILL RESULT IN YOUR PLACEMENT AT ANY SPECIFIC LOCATION ON ANY SEARCH ENGINE OR THAT THE SERVICE WILL OPERATE AS ANTICIPATED BY YOU OR WITHOUT ANY FAILURE, DELAY, INTERRUPTION AND/OR ERROR. EMS DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO, ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST EMS TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
9.1.2. NO CREDIT ALLOWANCES FOR INTERRUPTION OF EMS SERVICE. WE WILL NOT GIVE YOU CREDIT FOR ANY INTERRUPTION OF EMS SERVICE.
9.2.1. IN NO EVENT SHALL EMS BE LIABLE TO YOU, YOUR REPRESENTATIVES OR AUTHORIZED ASSIGNS OR ANYONE ELSE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, DELAY OR FAILURE OF THE SERVICE AND/OR THIS AGREEMENT. EMS NOT BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE, AT ANY TIME OR FROM TIME TO TIME, OR FOR ANY INTERRUPTION OF THE SERVICE INCLUDING BUT NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, EQUIPMENT, NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION, FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO ACTS OF GOD, ADVERSE WEATHER, STRIKES, FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICE, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO EMS OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND EMS’S CONTROL, INCLUDING WITHOUT LIMITATION THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF EMS’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. EMS’S TOTAL LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED THE CHARGES FOR THE SERVICE WITH RESPECT TO THE AFFECTED TIME PERIOD. THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT EMS WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE TO REIMBURSE EMS FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST EMS TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
10. INDEMNIFICATION AND WAIVER OF CLAIMS. ALL DOCUMENTS, INFORMATION, ARTWORK, COPY, PHOTOS, AUDIO MATERIALS, NOTICES, DATA AND OTHER MATERIALS AND INFORMATION PROVIDED BY YOU SHALL BE OWNED BY YOU. YOU ARE REQUIRED TO MAKE ARRANGEMENTS SATISFACTORY TO THE OWNERS OF ANY COPYRIGHTED OR OTHER MATERIALS FOR USE OF ANY SUCH MATERIALS WHICH YOU PROVIDE TO EMS FOR PURPOSES OF THE SERVICE. YOU ARE LIABLE FOR ANY AND ALL USE OF THE SERVICE AND YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS EMS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, ACTIONS, CAUSES OF ACTION, PROCEEDINGS, DAMAGES, FINES, PENALTIES, LOSSES, COSTS AND EXPENSES FOR PERSONAL INJURY OR PROPERTY DAMAGE, LOST PROFIT, LOST REVENUE INCLUDING REASONABLE ATTORNEY’S FEES AND COSTS OF INVESTIGATION FOR ANY SUCH USE THAT FAILS TO COMPLY IN ALL RESPECTS WITH THIS AGREEMENT, THESE TERMS AND CONDITIONS, THE TERMS OF SERVICE AND OTHER TERMS AND CONDITIONS APPLICABLE TO EMS’S PROVIDING YOU THE SERVICE AND ALL APPLICABLE FEDERAL, STATE AND LOCAL LAWS AND REGULATIONS. YOU FURTHER AGREE TO WAIVE, RELEASE, DISCHARGE, FORGIVE AND HOLD HARMLESS EMS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, ACTIONS, CAUSES OF ACTION, PROCEEDINGS, DAMAGES, FINES, PENALTIES, LOSSES, COSTS AND EXPENSES FOR PERSONAL INJURY OR PROPERTY DAMAGE, LOST PROFIT AND LOST REVENUE INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF INVESTIGATION, AND ANY AND ALL OTHER DAMAGES OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF THE SERVICE, THE ABSENCE OR FAILURE OF THE SERVICE, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM OUR GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OR CANCELLATION OF THIS AGREEMENT FOR ANY REASON WHATSOEVER.
11. Content. You are liable for any and all liabilities that may arise from the content of any materials which are listed in a search engine as a result of the Service. You covenant and agree that you and anyone who uses the Service and all your and their content comply at all times with all applicable Federal, state and local laws, regulations, and written and electronic instructions for using the Service.
12.1. Governing Law. The relationship between you and EMS shall be governed by the laws of California applicable to contracts entered into and to be fully performed in California without regard to its conflict of law provisions. Subject to the arbitration provisions set forth in section 13 of these terms and conditions, any claim brought under this Agreement and/or in connection with Service or these terms and conditions shall be brought in a court of competent jurisdiction in the City of Santa Ana, California and venue for any such claim shall be proper in the appropriate state or federal court located in Santa Ana, California.
12.2. No Waiver of Rights. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of the right or provision. EMS reserves all of its rights at law and equity to proceed against anyone who uses the Service illegally or improperly. All determinations by EMS under this Agreement and exercise of its rights are made and done in our sole and absolute discretion.
12.3. No Third Party Beneficiaries. Any person, firm corporation or other entity that is not a party to this Agreement shall not have any remedy, claim, liability, reimbursement, or cause of action under this Agreement. This Agreement does not create any other third party beneficiary rights.
12.4. Entire Agreement. The Application, the Terms of Service, these terms and conditions and any other terms and conditions on the EMS website constitute the entire agreement between you and EMS and govern your use of the Service, superseding any prior agreements between you and EMS and any and all prior or contemporaneous oral or written statements, understandings, writings, commitments, or representations concerning its subject matter.
12.5. Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable and any such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this agreement.
13.1. IMPORTANT NOTICE. IT IS IMPORTANT THAT YOU READ THIS ENTIRE SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY.
13.2. ARBITRATION. EMS and you agree to arbitrate in accordance with the procedures hereinafter set forth any and all disputes and claims between you and EMS except with respect to claims for amounts owed for services rendered. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to: disputes and claims arising out of or relating to this Agreement and/or any aspect of the relationship between you and EMS, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this Agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision. References to “EMS,” “us” and “you” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this Agreement or any prior agreements between you and EMS. The award of the arbitrator in any such arbitration shall be final and binding on the parties hereto and may be enforced and entered in judgment in any court of competent jurisdiction.
13.3. Informal Resolution of Disputes. Our Customer Care Department can resolve most customer concerns quickly and to the customer’s satisfaction. If you have a dispute or claim against us, you should first contact the EMS Customer Care Department at firstname.lastname@example.org and provide a detailed statement of the basis of your claim or dispute, including documents or analysis supporting your position. You agree that customer care shall be provided fourteen (14) days in which to research and respond to your claim. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved as set forth below.
13.4. Formal Notice of Disputes. A party who intends to seek arbitration must first send to the other party a written “Notice of Dispute” setting forth in detail, including submission of supporting documentation, the grounds of your dispute. The Notice of Dispute to EMS must be sent to EMS by certified mail addressed to 3857 Birch Street #573, Newport Beach, CA 92660, Attn: EMS Legal Department.
13.4.1. Resolution of Disputes. The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and EMS do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice of Dispute is received, you or EMS may commence an arbitration proceeding. The amount of any settlement offer made by you or EMS shall be non-discoverable and shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or EMS is entitled.
13.5. Rules of Arbitration. Any arbitration hereunder shall be conducted by a single arbitrator in Santa Ana, California, in accordance with the Rules of Commercial Arbitration of the American Arbitration Association.
13.6. Waiver of Judge or Jury Trial. You and EMS agree that, by entering into this agreement, you and EMS are waiving the right to a trial by judge or jury.
13.7. Waiver of Class Actions. You and EMS agree that the arbitrator may award 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. You and EMS agree that you and EMS 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 or representative proceeding. You and EMS agree that, unless you and EMS agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.
13.8. Statute of Limitations. You must present a claim within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to section 10 and 11 of the agreement), or you hereby agree to waive the right to pursue a claim based upon such event, facts, or dispute.
13.9. Exceptions to Arbitration Agreement. Notwithstanding the obligation to arbitrate and any other provisions to the contrary herein, you and we agree that (a) with respect to claims for unpaid monthly or other charges payable by you to EMS under this Agreement, we may take our dispute to small claims court or any other court of competent jurisdiction if the amount of such claim exceeds the dispute limits of the small claims court; (b) if you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement; (c) you or we may take any disputes over the validity of any party’s intellectual property rights to a court of competent jurisdiction; (d) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and (e) either you or we may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of you or EMS, pending the completion of arbitration. You agree to submit to the jurisdiction of the courts in Santa Ana, CA for any such court proceedings.
13.10. Modification of Arbitration Provisions. If EMS makes any substantive change to the arbitration provisions of this Agreement, you may cancel your service agreement with us and the arbitration provisions set forth in this Agreement shall remain in effect until such cancellation is complete. Failure to cancel within ten (10) days after notification of a change to the arbitration provisions shall constitute your acceptance of any such change.
13.11. Venue/Jurisdiction. All claims for Arbitration shall be submitted to and arbitrated in Santa Ana, California pursuant to the Rules of Commercial Arbitration of the American Arbitration Association. Any evidentiary or other hearings required by the Arbitrator shall be heard in Santa Ana, California.
14. Assignment. EMS may assign or otherwise transfer all or part of its rights or duties under the Agreement without notifying you. If we do that, any such assignment or transfer shall be fully binding on you and we will have no further obligation to you with respect to that portion of the service which is assigned or transferred. You may not assign the Agreement or the Service without our prior written agreement of EMS.
15. Survival. The provisions of this Agreement relating to indemnification, limitations on liability, warranty limitations and disclaimers, resolution of disputes, arbitration, billings and your obligation to pay for the Service provided and any additional usage charges, shall survive the termination of the Agreement and the termination of the Service.
16. Force Majeure (Events beyond the control of EMS). EMS shall be excused and free from any liability whatsoever for any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of EMS’s best efforts.
17. Software Copyright. Any software used by EMS to provide the Service and any software provided to you in conjunction with providing the Service is protected by copyright law and international treaty provisions. You may not copy the software or any portion of it. Our Website content, our materials, services, logs, service marks and trademarks are owned exclusively by EMS and are protected by trademark, copyright, or other intellectual property laws, and international treaty provisions. Infringement by you may result in civil and/or criminal prosecution.
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