ContentFly Inc d/b/a Draft (“Draft”) provides a content generation service through its website located at draft.co (“Site,” and together with such service, including any updated or new features, functionality and technology, collectively the “Services”). The Services may be provided on a subscription basis under specific subscription plans (“Subscription Plan”) or on a usage basis under specific prepaid usage plans (“Usage Plan,” and with the Subscription Plan, collectively, “Plan(s)”), in each case as offered by Draft from time to time. This Agreement applies to anyone (“You”/”Customer”) who subscribes for or uses the Services to receive Content (as defined below).
By subscribing to or using the Services, you agree to these terms. Please read them carefully as they set out the legal agreement between You (the Customer) and Draft.
THESE TERMS AND CONDITIONS (WHICH TOGETHER WITH THE APPLICABLE PLAN ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT”) CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION ON YOUR LEGAL RIGHTS, REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, OBLIGATIONS AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST DRAFT TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST DRAFT ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST DRAFT RESOLVED BY A JURY OR IN A COURT OF LAW. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A PLAN THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THIS AGREEMENT. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THIS AGREEMENT, THEN DO NOT USE THE SERVICES.
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Content” means the requested content made available by Draft to Customer through the Services;
“Customer Data” means all electronic data or information submitted by Customer and/or its Users to the Services;
“Fee” means the fees (as specified in the applicable Plan) payable by Customer to Draft for the right to receive access to the Services;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
“Term” has the meaning ascribed to that term in Section 9.1; and
“User” means an individual or entity who is authorized by Customer to use the Services, and who has been supplied a user account and password by Customer (or by Draft at Customer’s request) for the Services.
2. Provision and Use of the Services.
2.1 Provision of Services. Subject to the terms and conditions of this Agreement including payment of the applicable fees, Draft shall make the Services available to Customer for Customer’s internal business use during the Term. Customer’s right to use the Services during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in the applicable Plan(s).
2.3 Content and Content Providers. Draft engages independent third party content providers (“Content Providers”) in order to develop the Content. Content Providers are contractually bound to maintain the confidentiality of all Customer materials that they may receive through Draft. The Content provided through the Services is based on Draft’s reasonable efforts to engage with responsible and reputable Content Providers at any given time, but all Content is provided on an “As-Is” basis. Draft makes no representation or warranty regarding the Content, whether in regards to its accuracy, originality, suitability, non-infringement or otherwise. Subject to Section 4.6, Draft may (but is not required to) submit any Content to a third-party verification tool such as Copyscape to assist in identifying any plagiarism or other intellectual property infringement by Content Providers, but Draft accepts no responsibility for either failing to do so or for such third party tools failing to identify any such plagiarism or other intellectual property infringement, and Draft accepts no responsibility for any infringement by any Content of any third party rights, whether arising due to intellectual property infringement (including without limitation plagiarism) or otherwise. Customer is solely responsible for the review and approval of any and all Content prior to Customer’s use or publication. Customer is solely responsible for any decision or action that it may take, regarding the use, publication or distribution of any Content, and Draft accepts no responsibility for any consequences arising from such use, publication or distribution by Customer (including without limitation any claim for plagiarism, royalties or otherwise).
2.4 Customer. Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Draft promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws related to the Services.
2.5 Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party; (ii) use the Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Services to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (vi) attempt to gain unauthorized access to the Services or its related systems or networks.
2.6 Publicity. Neither party may issue press releases relating to this Agreement without the other party's prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party's standard guidelines.
3. FEES AND PAYMENT.
3.1 Fees. In consideration for the receipt of the Services, Customer shall pay Draft the Fees specified in the applicable Plan. Draft reserves the right to amend the Fees on not less than 60 days’ advance notice in writing to Customer. Except as set forth herein, all payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
3.2 Invoicing and Payment. Fees for the Services will be invoiced monthly in advance or as otherwise as specified in the applicable Plan. Unless otherwise stated in an invoice, charges are due immediately on the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with Draft.
3.3 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Draft's discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
3.4 Taxes. Unless otherwise stated, Draft's Fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Draft's net income or property. If Draft has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Draft with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.5 Audit Rights. Draft shall have the right to use the capabilities of the Services to monitor the use of the Services and Customer’s compliance with this Agreement.
3.6 Suspension of Services. If Customer's account is overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Draft reserves the right to suspend the Services provided to Customer, without liability to Customer, until such amounts are paid in full.
4.1 Payments Through Draft. With respect to each Content Provider identified or to which Customer is connected via the Services, for the term of Customer’s connection or other relationship with such Content Provider in relation to the Services, and for 12 months thereafter (with respect to each such Content Provider, the “Non-Circumvention Period”), Customer agrees to use the Services as the Customer’s exclusive method to request Content from such Content Provider and make payments for work to such Content Provider. If Customer uses the Services as an employee, agent, or representative of an entity, then the Non-Circumvention Period and restrictions above apply with respect to such Customer and the other employees, agents, or representatives of such entity or its successor when acting in that capacity. If Customer is aware of a breach or potential breach of this non-circumvention provision, Customer will submit a confidential report to Draft at [email protected].
4.2 Communication Through Draft. With respect to each Content Provider identified or to which Customer is connected via the Services, during the Non-Circumvention Period applicable to such Content Provider, Customer (i) will use the Services as the sole manner to communicate with such Content Provider; (ii) will not provide contact information (including any phone number, email address, physical address, social media handles, or other communication methods and tools) (hereinafter, “Contact Information”) of Customer to such Content Provider; (iii) will not use any Contact Information of such Content Provider to communicate with, solicit, contact, or find such Content Provider outside of the Services; (iv) will not ask for, provide, or attempt to identify through public means the Contact Information of such Content Provider; and (v) will not include any of Customer’s Contact Information or means by which any of Customer’s Contact Information could be discovered in Customer’s User account, except as otherwise provided by Draft.
4.3 Breach of Non-Circumvention. Customer understands and agrees that if Draft, in its sole discretion, determines that Customer has violated this Section 4, Draft may, at its option, (i) terminate Customer’s User account and/or suspend Customer’s use the Services, and/or (ii) charge Customer for all losses and costs (including any and all time of Draft’s internal workforce) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees. This Section 4 still applies if Customer chooses to cease using the Services and wishes to continue working with a Content Provider after Customer ceases using the Services. Customer agrees to notify Draft immediately if any person suggests making or receiving payments other than through the Services in violation of this Section 4 or if Customer receives unsolicited contact outside of the Services. Customer acknowledges and agrees that a violation of Section 4 is a material breach of this Agreement.
5. OWNERSHIP RIGHTS.
5.1 Rights to Content. Draft hereby assigns all of its right, title and interest in and to the Content (including the copyrights in the Content) to Customer on delivery of such Content to Customer and payment of all corresponding Fees by the Customer. All moral rights to Content are waived by Draft and the Content Providers.
5.2 Rights to the Services. Subject to the limited rights expressly granted hereunder, Draft reserves all rights, title and interest in and to the Services, including all related intellectual property rights therein. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement. Customer and its Users are permitted to access the Services solely for Customer’s internal business purposes.
5.3 Restrictions. Customer shall not (and shall not allow any third party to): (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (ii) circumvent any user limits or other timing or use restrictions that are built into the Services; (iii) remove any proprietary notices, labels, or marks from the Services; (iv) frame or mirror any content forming part of the Services; (v) access the Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Services; or (vi) otherwise use the Services in violation of applicable law (including any export law) or outside the scope expressly permitted under this Agreement. Customer may use the Content or any excerpt from the Content to promote its products or services. External citation to the Content is prohibited without Draft’s express written permission.
5.4 Customer Data. As between Draft and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Customer’s Confidential Information under this Agreement. Draft shall not access Customer's User accounts, including Customer Data, except to respond to service or technical problems or at Customer's request or as necessary for the operation of the Services or billing. Customer hereby grants Draft a non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), irrevocable, sublicensable (through multiple tiers), worldwide, royalty-free, fully paid-up, perpetual license to use, aggregate, collect, analyze and otherwise exploit the Customer Data, Content and other information relating to the performance of the Services and Draft shall be free (during and after the Term) to (i) use such Customer Data, Content and other information to improve and provide Draft’s products and services, and (ii) disclose such Customer Data, Content and other information solely in an aggregated and anonymized format that does not identify Customer or any individual (“Aggregated Data”). Draft shall own all Aggregated Data created from the Customer Data and Content.
5.5 Suggestions. Draft shall have a royalty-free, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual, unrestricted license to use or incorporate into the Services and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the Services.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, pricing and other terms reflected in the applicable Plan hereunder, the Services, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation by the Receiving Party or such third party owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7. WARRANTIES AND DISCLAIMERS.
7.1 Warranties. Each party warrants that it has the legal power to enter into this Agreement. Customer represents, warrants and agrees that (i) Customer has all rights necessary to provide any Customer Data that it provides hereunder, and to permit Draft to use the same as contemplated hereunder; and (ii) all information that Customer provides to Draft, including without limitation the Customer Data, are complete, true and accurate.
7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DRAFT MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DRAFT FURTHER DISCLAIMS ALL WARRANTIES (I) RELATING TO THE ACCURACY, RELIABILITY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR ANY PORTION THEREOF THAT IS MADE AVAILABLE THROUGH THE SERVICES; (II) THAT THE CONTENT PROVIDED THROUGH THE SERVICES WILL BE FREE FROM ERRORS, OMISSIONS, DEFECTS, OR DELAYS IN OPERATION, OR FROM TECHNICAL INACCURACIES OR OTHER ERRORS; (III) THAT THE CONTENT OR SERVICES SHALL NOT INFRINGE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY; (IV) THAT THE CONTENT OR SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION.
8.1 Indemnification by Customer. Customer shall, at its own expense, defend, indemnify and hold harmless Draft, its Affiliates and its and their directors, officers, employees and agents (the “Draft Indemnitees”) against all losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) arising in connection with any action, suit or proceeding brought by a third party against any of the Draft Indemnitees alleging that the Customer Data, or Customer's use of the Content or Services infringes or misappropriates the intellectual property or other rights of, or has otherwise harmed, a third party (“Customer Claims”). Draft shall (i) notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (ii) give Customer sole control of the defense and settlement of such Customer Claims; and (iii) cooperate with Customer in the defense or settlement of such Customer Claims; provided that Draft’s failure to do any of the foregoing will not limit Customer’s obligations except to the extent Customer is materially prejudiced thereby. Customer shall not settle any Customer Claims without Draft’s written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto.
9 LIMITATION OF LIABILITY
9.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $500 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWO MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (II) ANY CLAIMS FOR NON-PAYMENT; OR (III) ANY CLAIM UNDER SECTION 7 (INDEMNIFICATION).
9.4 Beneficiaries. Every right, exemption from liability, release, defense, immunity and waiver of whatsoever nature applicable to a party under this Agreement shall also be available and shall extend to benefit and to protect such party’s Affiliates, subcontractors, agents, licensors, suppliers, directors and/or employees and for such purposes such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to such rights, exemptions, releases, defenses, immunities and waivers.
10. TERM AND TERMINATION.
10.1 Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect on a month-by-month basis unless otherwise specified in the applicable Plan. Subject to any minimum term in the applicable Plan, either party may terminate this Agreement without cause on not less than 30 days’ prior notice, or by otherwise following any termination mechanism provided for within the Services.
10.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause under this Section 9.2 by Customer (but not otherwise), Draft may refund Customer on a pro-rata basis any prepaid fees for, in the case of a Subscription Plan, any periods after the termination of the Agreement or, in the case of a Usage Plan, any unused credits.
10.3 Termination by Draft. Customer agrees that Draft, in its sole discretion, may suspend or terminate Customer’s account (or any of its Users’ accounts) or use of the Services and remove and discard any Content within the Services, for any reason, including for lack of use or if Draft believes that Customer has violated or acted inconsistently with the letter or spirit of this Agreement. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of Customer’s use of the Services, may be referred to appropriate law enforcement authorities. Draft may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. Customer agrees that any termination of Customer’s access to the Services under any provision of this Agreement may be effected without prior notice, and acknowledges and agrees that Draft may immediately deactivate or delete Customer’s account (or any of its Users’ accounts) and all related information and files in Customer’s User account and/or bar any further access to such files or the Services. Further, Customer agrees that Draft will not be liable to Customer or any third party for any termination of Customer’s access to the Services.
10.4 Outstanding Fees. Termination or expiration of this Agreement shall not relieve Customer of the obligation to pay any Fees accrued or payable to Draft prior to the effective date of termination or expiration of this Agreement.
10.5 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 5 through 12.
11. Dispute Resolution By Binding Arbitration.
11.1 Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in this Agreement as the “Arbitration Agreement.” Customer agrees that any and all disputes or claims that have arisen or may arise between Customer and Draft, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Services, or any aspect of the relationship or transactions between the parties, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Customer may assert individual claims in small claims court, if Customer’s claims qualify. Further, this Arbitration Agreement does not preclude Customer from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against Draft on Customer’s behalf. Customer agrees that, by entering into this Agreement, Customer and Draft are each waiving the right to a trial by jury or to participate in a class action. Customer’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
11.2 Prohibition of Class and Representative Actions and Non-Individualized Relief.
CUSTOMER AND DRAFT AGREE THAT EACH OF THE PARTIES MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH CUSTOMER AND DRAFT AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
11.3 Pre-Arbitration Dispute Resolution. Draft is always interested in resolving disputes amicably and efficiently, and most Customer concerns can be resolved quickly and to the Customer’s satisfaction by emailing customer support at [email protected]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Draft should be sent to [email protected] (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Draft and Customer do not resolve the claim within sixty (60) calendar days after the Notice is received, Customer or Draft may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Draft or Customer will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Draft is entitled.
11.4 Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Draft and Customer agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If Customer’s claim is for $10,000 or less, Draft agrees that Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Customer’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
11.5 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. To the extent any Arbitration Fees are not specifically allocated to either Draft or Customer under the AAA Rules, Draft and Customer shall split them equally; provided that if Customer is able to demonstrate to the arbitrator that Customer is economically unable to pay Customer’s portion of such Arbitration Fees or if the arbitrator otherwise determines for any reason that Customer should not be required to pay Customer’s portion of any Arbitration Fees, Draft will pay Customer’s portion of such fees. In addition, if Customer demonstrates to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Draft will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
11.6 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
11.7 Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than Section 10.2 titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Section 10.2 above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of this Agreement will continue to apply.
11.8 Future Changes to Arbitration Agreement. Notwithstanding any provision in this Agreement to the contrary, Draft agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while Customer is a user of the Services, Customer may reject any such change by sending Draft written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, Customer is agreeing that Customer will arbitrate any dispute between the parties in accordance with the language of this Arbitration Agreement as of the date Customer first accepted this Agreement (or accepted any subsequent changes to this Agreement).
12. GENERAL PROVISIONS.
12.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.2 No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
12.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Draft shall be addressed to the attention of the Legal Department. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.
12.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. To the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in one jurisdiction will not in any way affect the legality, validity, or enforceability of that or any other provision in any other jurisdiction.
12.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all Plans), without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
12.8 Venue; Waiver of Jury Trial. The provincial and federal courts located in Toronto, Ontario, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.9 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service Draft or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
12.10 Export. Customer acknowledges and agrees that the Services may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Services for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Services.
12.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and the applicable Plan, the terms of this Agreement prevail unless otherwise expressly provided for in the applicable Plan. Notwithstanding any language to the contrary therein, no terms or conditions stated in any third party purchase order or in any other third party order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.