We have made updates to our Terms of Service, and Acceptable Use Policy.
These updated terms are effective on May 1, 2020 for all customers agreeing to these Terms of Service for the first time, and May 31, 2020 for all customers who agreed to a version of our Terms of Service before May 1, 2020.
If you have a separate written agreement with LossExpress, then the updates to the Terms of Service will not apply to you, but the updates to the Acceptable Use Policy will be effective after the update notice period provided in our separate written agreement.
As part of these updates, we have not changed your ability to use our services. You may continue to access your LossExpress account and use our services as you always have.
Please be aware that by continuing to use our services after May 1, 2020 (or May 31, 2020, respectively), you are accepting these updated terms.
Terms of Service
Below is a list of the substantive updates we made to our Terms of Service:
- Customer Data: We have updated the details on Customer Data, how its used, and when we delete it.
- Warranties and Disclaimer: We have clarified your remedies in connection with a breach of our warranties, and that LossExpress shall not be responsible should you choose to send Sensitive Data through the Services.
- Limitation of Liability: The limitations on our respective liabilities to each other have been changed.
- Assignment: We have made it clear that LossExpress (and its affiliates) may assign its obligations under this Terms of Service.
- Other Updates: All other updates we’ve made to our Terms of Service are to make them clearer and easier for you (and your lawyers) to understand.
LossExpress Terms of Service
Welcome to LossExpress!
LossExpress is a cloud communications company. Our services enable connectivity and the ease of communication capabilities via web-based software applications and application programming interface.
This is our Terms of Service, and it covers services provided by LossExpress. As a courtesy to you, on the left side, we’ve done our best to translate the legalese into a “human readable” format (though our legal team assures us that lawyers are humans, too). You should know though that the language on the right is the legally binding stuff. While we’ve done our best to make our terms complete, readable, and understandable, you may still have additional questions. We get that. So, feel free to contact our support team via email at firstname.lastname@example.org or write to us at the addresses below:
Dallas, TX 75087
Attention: Legal / Contracts Department
Unless you work for a company that has negotiated a separate written agreement with us, these are the terms that apply to your use of our services. You should read them.
Our services consist of both the platform and integration services that LossExpress provides to you.
And, heads up, you should really check out Section 14 because it limits our liability to you if something goes wrong.
Also, if we get into a dispute, we’ll have to figure it out in arbitration. Check out Section 18 for more details.
In these Terms of Service (hereafter “Agreement” or “Terms”), “we,”“us,”“our” or “LossExpress” will refer collectively to LossExpress, 2323 Ross Avenue, Suite 1700, Dallas, TX 75087 and its affiliates, and the terms “you,”“your” and “Customer” will refer to you. To be eligible to register for a LossExpress account in order to use the Services, you must review and accept these Terms by clicking on the “I Accept” or “Get Started” button or other mechanism provided. If you are registering for a LossExpress account in order to use the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to LossExpress that you have the authority to bind that organization to these Terms (and, in which case, the terms “you” and “your” or “Customer” will refer to that organization). The exception to this is if that organization has a separate written agreement with LossExpress covering the use of the Services, in which case that agreement will govern such use.
PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND LOSSEXPRESS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” OR “GET STARTED” BUTTON AND YOU SHOULD NOT USE THE SERVICES.
When we refer to the “Services” in these Terms, we mean to include the whole enchilada — including both: (1) the “LossExpress Services” which are the services offered and provided by LossExpress to you, which are generally comprised of our platform services, including (1) the web-based software applications, (2) the application programming interface for the LossExpress Services and (3) any cloud-based software provided to you by LossExpress in connection with your use of the platform services, with all programs, features, functions, developer tools, and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by LossExpress.
When we refer to the “LossExpress API” we mean an application programming interface for the Services (or feature of the Services) provided to you by us.
When we refer to the “Documentation” we mean all of the LossExpress API instruction manuals and guides, code samples, manuals, guides, on-line help files and technical documentation made publicly available by us for the Services, and as may be updated from time to time.
When we refer to the “Customer Application” we mean a software application, which includes (1) any software application that is provided by us via web-based application directly to our customers or (2) software application you create using developer tools provided by us, that interfaces with the Services and includes any services (web-based or other services) made available by you through that application.
IMPORTANT NOTE: THESE TERMS LIMIT OUR LIABILITY TO YOU. For more details, go to Section 14.
IN ADDITION, DISPUTES RELATED TO TERMS OR RELATED TO YOUR USE OF THE SERVICES GENERALLY MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY. For more details, go to Section 18.
Table of Contents
- 1. Changes to These Terms
- 2. Your LossExpress Account(s)
- 3. Access and Use of the Services
- 4. Customer Data
- 5. Restrictions and Requirements
- 6. Changes to the Services
- 8. Affiliates
- 9. Product Terms
- 10. Fees, Payment Terms, Taxes
- 11. Ownership and Confidentiality
- 12. Representations and Warranties; Warranty Disclaimer
- 13. Indemnification
- 14. Limitation of Liability
- 15. Term; Termination; Suspension
- 16. Survival
- 17. General
- 18. Agreement to Arbitrate
These terms might change. But we’ll send you an e-mail and let you know before we make any significant changes that impact you or your use of our services. If you keep using our services after the terms change, then you have accepted those changes.
1. Changes to These Terms
We may revise these Terms from time to time. If we do, those revised Terms will supersede prior versions. Unless we say otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. We will provide you advance notice of any material revisions. This notice will be provided in your LossExpress account portal or via an e-mail to the e-mail address owner of your LossExpress account. For other revisions, we will update the effective date of these Terms at the top of the page. We encourage you to check the effective date of these Terms whenever you visit LossExpress’ website or log in to your LossExpress account. Your continued access or use of the Services constitutes your acceptance of any revisions. If you do not agree to the revisions, you should stop using the Services.
If you want to use our services, you need to create a LossExpress account. To create a LossExpress account, you need to give us some information about yourself. The information you provide must be true and kept up to date.
You are responsible for anything that happens under each of your LossExpress accounts, including anything the users of your application do while using your application.
Also, for some phone numbers, we need to have a physical address on file for you. So, please send us your new physical address if you move.
2. Your LossExpress Account(s)
We want to make our services available for you to use 24/7, but things happen that occasionally (very occasionally) make our services unavailable. If our LossExpress services are ever available less than we commit it to be in our LossExpress service level agreement (SLA), then we will give you a service credit (check out our LossExpress SLA).
You and your affiliates may use our web-based application or APIs and published documentation to use the software or create your application that your end users can use so long as you, your affiliates, and your end users comply with these terms, and with respect to the LossExpress services our Acceptable Use Policy.
3. Access and Use of the Services
We might have to use or disclose your data for one or more of the reasons below:
- If necessary to provide you with our services;
- To address technical issues, provide support or maintain our services;
- If we need to protect LossExpress, other customers, or the public;
- If there is an emergency; or
- If the law requires.
E-mail and SMS are insecure by their nature, so please keep that in mind when using the services. There is nothing we can do about it, and therefore cannot be held responsible.
If we make reference to ‘law’ or ‘laws’ in these terms, we mean laws in the traditional sense, statutes, regulations, rules, government or court orders or judgments, etc.
4. Customer Data
If you ever stop using LossExpress (and we really hope you don’t), then we may keep your metadata. What is metadata? See below.* We may use and disclose metadata that we have as a result of your use of our services for limited purposes or as the law requires us to do so until we no longer have a use for that metadata. No matter what, we will not violate our confidentiality obligations to you in Section 11.4.
You have the ability to obtain a copy of and delete any communications content via our services, unless the law says otherwise. Any stored communications content will be deleted within specific timeframes if these terms terminate, unless the law says otherwise.
* “What is metadata?” Metadata is data that “describes other data” or “summarizes basic information about data, which can make finding and working with particular instances of data easier.” If you want to better understand metadata, it is probably best if you look it up and read about it.
4.2 Return and Deletion of Customer Usage Data & Customer Content
Upon termination of these Terms, we may retain, use, and disclose Customer Usage Data: (a) for LossExpress’ accounting, tax, billing, audit, and compliance purposes; (b) to investigate fraud, spam, or unlawful use of the Services; and/or (c) as required by applicable Law, provided that the retention, use, and disclosure of such Customer Usage Data for the foregoing purposes is subject to the confidentiality obligations as set forth in Section 11.4. We shall anonymize or otherwise delete Customer Usage Data after we no longer require it for the foregoing purposes.
4.2.1 Customer Content within the LossExpress Services. We provide you the ability to obtain a copy of and delete Customer Content via the LossExpress Services. You agree that you are solely responsible for obtaining a copy of and deleting Customer Content via the LossExpress Services. Upon termination of this Agreement, we will: (i) provide you thirty (30) days after the termination effective date to obtain a copy of any stored Customer Content via the LossExpress Services; (ii) automatically delete any stored Customer Content thirty days after the termination effective date; and (iii) automatically delete any stored Customer Content on LossExpress’ back-up systems sixty days after the termination effective date. Any Customer Content archived on LossExpress’ back-up systems will be securely isolated and protected from any further processing, except as otherwise required by applicable Law.
4.2.2 Retention if Required by law. Notwithstanding anything to the contrary in this Section 4.2, LossExpress may retain Customer Content or any portion of it if required by applicable Law.
Some “dos and don’ts” to keep in mind when using the LossExpress services:
- Don’t transfer our services, resell them, etc., except as allowed under Section 3(b);
- Don’t use our services to break the laws, regulations, rules, etc., to violate these terms, to violate our Acceptable Use Policy, or to violate someone else’s rights;
- Do make sure that LossExpress is allowed to use your data as needed to provide you our services;
- Do not use our services to improve or train similar products and services; and
- Don’t reverse engineer, etc. any software we provide.
5. Restrictions and Requirements
We are excited to see what you build with the Services. But, you should know there are some restrictions on what you can do with them and requirements that you must follow if you use the Services.
With regard to the LossExpress Services, you agree that:
- Except as provided in Section 3(b), you will not transfer, resell, lease, license or otherwise make available the LossExpress Services to third parties or offer them on a standalone basis;
- You will ensure that the LossExpress Services are used in accordance with all applicable Law and third party rights, as well as these Terms and our Acceptable Use Policy, as amended from time to time;
- You will ensure that we are entitled to use your Customer Data, as needed to provide the LossExpress Services;
- You will not use the LossExpress Services to create, train, or improve (directly or indirectly) a substantially similar product or service, including any other machine translation engine; and
- Except as allowed by applicable Law, you will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with the LossExpress Services.
We are always looking to innovate and make our services better, so our web-based software applications, APIs and SLA may change over time. We will let you know in advance if any changes aren’t backwards-compatible.
6. Changes to the Services
The features and functions of the Services, including the LossExpress API and our LossExpress SLA, may change over time. It is your responsibility to ensure that use of the Services are compatible with our then-current Services. Although we try to avoid making changes to the Services that are not backwards compatible, if any such changes become necessary, we will use reasonable efforts to let you know at least thirty (30) days prior to implementing those changes with respect to the LossExpress Services.
Your affiliates (businesses that your business controls or directly influences) can use our services, but you and your affiliates will both be responsible for everything that your affiliates do when they’re using our services, including violating of these terms. If your affiliates want to bring a claim against LossExpress, then only you may do so on your affiliates’ behalf.
Your affiliates mean any entity or person that controls you, is controlled by you, or under common control with you, such as a subsidiary, parent company, or employee. Similarly, if we refer to our affiliates, we mean an entity or person that controls us, is controlled by us, or is under common control with us. Your affiliates may use the Services pursuant to these Terms, provided that these Terms apply to your affiliates. You and your affiliates that use th Services will be jointly and severally responsible for the acts and omissions of your affiliates, including, but not limited to, their breach of these Terms. Any claim from any of your affiliates that use the Services pursuant to these Terms may only be brought against us by you on your affiliates’ behalf.
Add-ons that you may purchase through the LossExpress Marketplace may not be LossExpress products, but, instead, may be offered by third parties known as Add-on Providers. When you install an Add-on offered by a third party, you will need to agree to the Add-on Provider’s terms of service. Add-on Providers are responsible for their Add-ons — not LossExpress. So, if something goes wrong with a third party Add-on, you need to go to that Add-on Provider for help.
When you buy an Add-on, you are telling LossExpress that it’s okay for us to give the Add-on Provider information about you that they need so that they can let you use the Add-on.
If you buy an Add-on, it is for your use only and you can’t resell it to anyone else. Your end users, however, can use the Add-on if you provide it to them as part of your application.
We may make available through the LossExpress Marketplace additional features, functionality, and services (each, an “Add-on”) offered by third-party partners (each, an “Add-on Provider”). If you, at your sole discretion, choose to use an Add-on, then you will be required to accept the Add-on Provider’s terms of service (“Add-on Provider’s Terms”) as part of the Add-on installation process. You acknowledge for each Add-on you purchase through the LossExpress Marketplace, the Add-on Provider’s Terms constitute a binding agreement between you and the relevant Add-on Provider only. The Add-on Provider of each Add-on is solely responsible for that Add-on, the content therein, and any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge that you are purchasing the license to each Add-on from the relevant Add-on Provider; we are acting as agent for the Add-on Provider in providing each such Add-on to you; we are not a party to the license between you and the Add-on Provider with respect to that Add-on; and we are not responsible for that Add-on, the content therein, or any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge and agree that we, and our affiliates, are third party beneficiaries of the agreement between you and the Add-on Provider for each Add-on, and that we and our affiliates have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary thereof. The Add-on Provider’s Terms shall not modify or otherwise supersede these Terms with respect to the Services.
By purchasing an Add-on, you grant us permission to share Customer Applications and Customer Data with the Add-on Provider as necessary in order to provide you the Add-on.
The license granted to you to use any Add-on is personal to you, and is not sub-licensable to your End Users, unless an Add-on is provided to your End Users through a Customer Application. You may not provide or resell Add-ons to others.
You agree to pay the fees generated under your account(s). If you use our services in violation of these terms and cause us to be fined or penalized, we will automatically bill you for it.
9. Fees, Payment Terms, Taxes
9.1 Fees. You agree to pay fees in accordance with the rates listed under your account(s), with respect to the LossExpress Services, unless otherwise set forth in an order form or order confirmation between the parties (an “Order Form”).
Additionally, we will charge you, and you shall pay, in accordance with Section 10.3, any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or other provider as a result of your use of the Services in violation of these Terms.
You also agree to pay all applicable taxes.
If you are exempt from paying any taxes, though, please let us know and send us proof.
9.2 Taxes. Unless otherwise stated in an Order Form, you shall be responsible for and shall pay all Taxes imposed on or with respect to the Services that are the subject of this Agreement whether such Taxes are imposed directly upon you or upon us. “Taxes” mean all applicable federal, state and local taxes, fees, charges, surcharges or other similar exactions, including, without limitation, sales and use taxes, service-based taxes, utility user’s taxes or fees, excise taxes, VAT, GST, other license or business and occupations taxes, franchise fees and universal service fund fees or taxes. For purposes of this Section 10.2, Taxes do not include any Taxes that are imposed on or measured by our net income, property tax, or payroll taxes. If you are exempt from any such Taxes for any reason, we will exempt you from such Taxes on a going-forward basis once you deliver a duly executed and dated valid exemption certificate to us and we have approved such exemption certificate. If you are exempt from VAT or GST, then it is your responsibility to provide your VAT or GST registration number to us. If you provide us an exemption certificate or your VAT or GST number after you have paid Taxes, then we will provide, upon your written request, a credit to your LossExpress account for Taxes previously paid for up to a period of three (3) months from the date of receipt of your written request. If for any reason a taxing jurisdiction determines that you are not exempt from any such exempted Taxes and then assesses us such Taxes, you agree to promptly pay to us such Taxes, plus any applicable interest or penalties assessed.
Should you be required by applicable Law to withhold any tax from any payment owed to us, then you may provide us with an exemption certificate or similar document to reduce or eliminate any such withholding. Upon receipt of such certificate or document, you shall thereafter reduce or eliminate, as the case may be, such withholding. You shall provide us with documents evidencing your payment of any such withheld Tax to applicable tax authorities.
You will pay LossExpress for any LossExpress Services you use.
If you pay by credit card, then you must make sure that you have enabled auto-payment and have sufficient funds or credit available to cover payments. If you do not have sufficient funds to cover payments, then we may suspend our services.
If we approve you for invoicing, you agree to pay all fees that you owe to LossExpress in US dollars, unless we agree to another currency in writing, no later than 30 days after the date of the invoice.
If you don’t pay on time, then we may send you a late notice. If we don’t get your payment within 10 days after the date on the late notice, then we may charge a late fee and/or suspend our services. Please pay us on time.
If we suspend our services to you for your non-payment, then we are not responsible for anything bad that might happen as a result.
9.3 Payment Terms. You will make all of the payments due hereunder to LossExpress for the LossExpress Services in accordance with the following applicable payment method:
9.3.1 Credit Card Payment Terms. If you elect to pay via credit card, then you are responsible for (a) enabling auto-payment and (b) ensuring that your credit card has a sufficient positive balance to cover the payments due. If, for any reason, you have a past due balance on your LossExpress account(s), then we reserve the right to suspend the Services.
9.3.2 Invoicing Payment Terms. If you elect to receive invoices and pay in arrears and we approve you for the same, then invoices will be sent to you via e-mail as a PDF, or other agreed upon method, on a monthly basis. You will make all of the payments hereunder within thirty (30) days of the date of the invoice. Unless you and LossExpress agree otherwise in writing, all payments due pursuant to these Terms are payable in United States dollars, unless otherwise agreed to between the parties in writing. Payment obligations can’t be canceled and fees paid are non-refundable. If you are overdue on any payment and fail to pay within ten (10) business days of a written notice of your overdue payment, then we may assess and you must pay a late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by applicable Law, whichever is less. Following the notice of non-payment, we may also suspend the Services until you pay all amounts due, plus any late fees.
9.3.3 Suspension for Non-Payment. If we suspend the Services pursuant to this Section 10.3, then we will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any such suspension.
If you ever think that we charged you the wrong amount and you want to dispute it, then let us know, in writing, within 60 days of billing date for the charge in question.
9.4 Fee Disputes. You must notify us in writing if you dispute any portion of any fees paid or payable by you pursuant to these Terms. You must provide that written notice to us within sixty (60) days of the date we bill you for the charge you want to dispute, and we will work together with you to resolve the dispute promptly.
What’s ours is ours, and what’s yours is yours.
10. Ownership and Confidentiality
10.1 General. As between you and LossExpress, we exclusively own and reserve all right, title and interest in and to the Services, Documentation, our Confidential Information and Customer Service Data; as well as any feedback, recommendations, correction requests, or suggestions from you or any End User about the Services (“Contributions”). As between you and LossExpress, you exclusively own and reserve all right, title and interest in and to each Customer Application and your Confidential Information.
Please let us know what you think about LossExpress and our services. By the way, though, if you send us feedback, then we can use it and we don’t owe you anything for it.
10.2 Suggestions and Contributions. We welcome your Contributions about the Services. But please know that by submitting Contributions you agree that:
- we are not under any obligation of confidentiality with respect to your Contributions;
- we may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way;
- we own your Contributions; and
- you are not entitled to any compensation or reimbursement of any kind from us under any circumstances for your Contributions.
If you use our services, then we can use your company’s name, logos, and description of how you use our services on our website, in earnings calls, and in marketing, promotional, or other materials available to the public in accordance with any of your usage guidelines. You can also use our name and logos and reference how you use our services as long as you do so in accordance with our usage guidelines, which you can read here. Finally, we both agree to be honest about our relationship with each other — no shenanigans, please.
10.3 Use of Marks. Subject to these Terms, each of us (“Licensor”) grants the other (“Licensee”) the right to use and display Licensor’s name, logo, and your use case using the Services (the “Licensor Marks”) on Licensee’s respective websites, in earnings calls, and in other promotional or publicly distributed materials solely in connection with its respective activities pursuant to these Terms. Licensee’s use of the Licensor Marks will be in accordance with the Licensor’s applicable usage guidelines (LossExpress’ usage guidelines are available here) and will inure to the benefit of Licensor. Licensee will not use, register, or take other action with respect to any of the Licensor Marks, except if permitted in writing by Licensor. Licensee will always use the then-current Licensor Marks and will not add to, delete from, or modify any of Licensor Marks. Licensee will not, at any time, misrepresent the relationship between Licensee and Licensor. Licensee will not present itself as an affiliate or other legal agent of the Licensor. Licensee’s right to use and display the Licensor Marks pursuant to this Section 11.3 will end automatically in the event these Terms terminate.
We both agree not to tell anyone else about confidential information that we get from each other. Also, we both agree to only use each other’s confidential information as agreed to in these terms.
10.4 Confidentiality.“Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. Confidential Information does not include any information which: (a) is publicly available through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person without violation of the disclosing party’s rights; or (d) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party.
The receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with these Terms and it will not disclose such Confidential Information to any third party without the disclosing party’s prior written consent, except as otherwise permitted hereunder; provided, however, subject to Section 4, LossExpress may use and disclose your Confidential Information as necessary to provide the Services. The receiving party agrees to exercise due care in protecting Confidential Information of the disclosing party from unauthorized use and disclosure. The receiving party may disclose the Confidential Information of the disclosing party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors. The receiving party may disclose the Confidential Information of the disclosing party as required by applicable Law provided that, prior to any such compelled disclosure, the receiving party will, if permissible: (a) promptly notify the disclosing party in writing to allow the disclosing party a reasonable opportunity to resist such disclosure and/or seek a protective order, and (b) reasonably cooperate with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure. In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose the Confidential Information of the disclosing party, but only as and to the extent necessary to legally comply with such compelled disclosure.
Money alone may not be enough to make either of us whole if one of us breaks our promise of confidentiality. So, we both can seek other remedies (like gag orders), if needed.
10.5 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 11 and that, in the event of an actual or threatened breach of the provisions of this Section 11, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section 11.
If you want to record or monitor calls, messages, or any other form of communications, then be warned that there are a lot of laws that govern these types of activities. You MUST comply with every law and regulation that applies. LossExpress STRONGLY SUGGESTS that you don’t do any of these things until the person(s) you want to record/monitor have given you permission to do so. If you break any applicable laws or regulations and, as a result, LossExpress gets sued, investigated, etc., then you will pay for it all.
You promise that you are only giving LossExpress any customer data for which you’ve given required notices or gotten permission as required by law. In addition, we will only use and disclose this customer data following Section 4 above.
We promise that our services will work the way we say they will in our published documentation.
11. Representations and Warranties; Warranty Disclaimer
11.1 Representations and Warranties.
11.1.1 Recordings and Communications Monitoring. If you record or monitor telephone calls, SMS messages, or other communications using the Services, then you represent and warrant that you will comply with all applicable Laws prior to doing so at all times. We make no representations or warranties with respect to recording or monitoring of telephone calls, SMS messages, or other communications, and recommend that you always secure prior consent to record or monitor communications using the Services. You acknowledge that these representations, warranties, and obligations are essential to our ability to provide you with access to recording and monitoring features that are part of the Services, and you further agree to indemnify us and our affiliates in accordance with the terms of Section 13 (Indemnification) arising out of or related to your acts or omissions in connection with recording or monitoring telephone calls, SMS messages, or other communications, whether such claims arise under contract, tort, statute or other legal theory.
11.1.2 Customer Data. You represent and warrant that you have provided adequate notices and obtained the necessary permissions and consents to provide Customer Data to us for use and disclosure pursuant to Section 4 (Our Use of Customer Data).
11.1.3 Services. We represent and warrant that the Services will operate in accordance with applicable Documentation and will materially conform to any specifications contained therein. LossExpress’ sole obligation, and your sole and exclusive remedy, in the event of any failure by LossExpress to comply with this Section 12.1.3 will be for LossExpress to, at LossExpress’ option, re-perform the affected Services or refund to you the fees you actually paid for the affected Services.
Except for any of our explicit warranties in this Section 12 and our obligations in the SLA and support terms, we are offering our services “as is.”
Additionally, we have no liability associated with sensitive data (live social security numbers or other personally identifiable information) you choose to send through the Services.
11.2 WARRANTY DISCLAIMER. WITHOUT LIMITING OUR EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, WE HEREBY DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. EXCEPT FOR OUR EXPRESS WARRANTIES SET FORTH IN THIS SECTION 12 AND OUR OBLIGATIONS SET FORTH IN THE LOSSEXPRESS SLA AND THE SUPPORT TERMS, THE SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. LOSSEXPRESS WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU FOR SENSITIVE DATA (AS DEFINED BELOW) SENT TO LOSSEXPRESS.
“Sensitive Data” shall mean (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), financial information, banking account numbers or passwords; (c) employment, financial, genetic, biometric or health information; (id racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords, mother’s maiden name, or date of birth; (f) criminal history; or (g) any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable Law relating to privacy and data protection.
If we let you use our services that are still in Alpha or Beta testing, then you understand that they might contain bugs and defects. You understand that we don’t make any promises that Alpha or Beta services won’t have problems.
You understand that we will not be liable for any damages from your use of Alpha or Beta services.
11.3 BETA SERVICES. From time to time, you may have the option to participate in a program with us where you get to use alpha, beta, non-GA, limited release, developer preview, or any such similarly designated services, products features, and documentation offered by LossExpress (“Beta Services”). LossExpress may discontinue Beta Services at any time in its sole discretion and may decide not to make a Beta Service generally available. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, LOSSEXPRESS IS PROVIDING THE BETA SERVICES TO YOU “AS IS.” LOSSEXPRESS MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE BETA SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY OR ANY PUBLISHED DOCUMENTATION THAT STATES OTHERWISE, LOSSEXPRESS DOES NOT WARRANT THAT THE BETA SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. LOSSEXPRESS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE.
If our services violate someone else’s intellectual property right, then we will fight that fight and cover any money spent related to that fight.
13.1 Indemnification by LossExpress. We will defend, indemnify, and hold you harmless from and against all claims, demands, actions, suits, discovery demands, including, without limitation, third party subpoenas, government investigations or enforcement actions (“Claim”) brought or threatened against you by a third party and any damages, liabilities, losses, settlements, judgments, costs and expenses (including, without limitation, reasonable attorney’s fees and costs) (“Losses”) related thereto alleging the provision of the Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, or patent (“Infringement Claim”).
If we think our services may violate someone else’s intellectual property right, then we may try to obtain the right for you to continue to use our services or modify our services so they are no longer infringing. If we are unable to do either, then we may terminate these terms and close your LossExpress account(s) and refund you any unused, pre-paid fees.
13.2 Infringement Options If your use of the Services has become, or in LossExpress’ opinion is likely to become, the subject of any Infringement Claim, LossExpress may at its option and expense: (a) procure for you the right to continue using the Services as set forth herein; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms and refund you any unused pre-paid fees.
This Section 13.2 states your exclusive remedy, for any Claim by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, trademark or patent.
LossExpress will not pay for any bills, damages, costs, etc. for (1) a claim that was filed because you violated these terms and (2) any intellectual property infringement claim that arises from your use of our services with other applications, products, or services.
13.3 Limitations. LossExpress will have no liability or obligation with respect to any (a) Claim and any Losses related thereto arising out of your use of the Services in breach of these Terms or (b) Infringement Claim and any Losses related thereto arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves, and without modification, be infringing.
If someone comes after LossExpress because:
- you or your end users violate these terms;
- of something you or your end users do while using our services; or
- of something related to your application,
then you have to fight that fight and cover any money spent related to that fight.
13.4 Indemnification by You. You will defend, indemnify and hold LossExpress, its officers, directors, employees, agents, stockholders, and affiliates (“LossExpress Indemnified Parties”) harmless from and against all Claims brought or threatened by a third party against a LossExpress Indemnified Party and any Losses related thereto alleging or arising out of (a) your or any of your End Users’ breach of or activities under these Terms; (b) your or any of your End Users’ use of the Services; or (c) your acts or omissions in connection with the provision of each Customer Application, including, without limitation, any intellectual property Claims relating to each Customer Application.
It’s difficult to translate this section in plain English, but here goes… If either you or LossExpress wants to be indemnified by the other party for a particular claim, then the party requesting indemnification needs to do certain things. If these things are not done, then the other party may not have to provide the requested indemnification. See the legal language for what is required.
13.5 Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Claim, provided, however, that the failure to give such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (b) the Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party’s consent in connection with any act or forbearance required by the Indemnified Party, which consent will not be unreasonably withheld); and (c) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. The Indemnifying Party, in connection with a Claim, will pay all Losses following notice of the Claim, which shall be provided in accordance with this Section 13.5 Notwithstanding anything herein to the contrary, the Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 13 admitting liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent.
Generally speaking, neither of us owe each other for any bad things that might indirectly result from our services not working as intended, like lost business. You will, however, owe us for indirect damages if you violate Section 5 and 11.3 above. Also, we are both responsible to each other for indirect damages in satisfying your and our indemnification obligations.
Any direct damages we might owe each other cannot be more than the average monthly amount you’ve paid or should have paid in the previous 12-months. However, direct damages won’t be limited if they result from your failure to pay us on time, your breach of Sections 5 or 11.3, or satisfying your and our indemnification obligations.
14. Limitation of Liability
14.1 INDIRECT DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION 14.1 SHALL NOT LIMIT (A) YOUR LIABILITY ARISING FROM YOUR BREACH OF SECTION 5 (RESTRICTIONS AND REQUIREMENTS) OR SECTION 11.3 (USE OF MARKS); OR (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THESE TERMS.
14.2 DIRECT DAMAGES.UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM. THIS SECTION 14.2 SHALL NOT LIMIT (A) YOUR LIABILITY ARISING FROM YOUR BREACH OF SECTION 5 (RESTRICTIONS AND REQUIREMENTS), SECTION 10 (FEES, PAYMENT TERMS, AND TAXES), OR SECTION 11.3 (USE OF MARKS); OR (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THESE TERMS.
THE PROVISIONS OF THIS SECTION 14 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
These terms become effective on the day you click “I Accept” or when you or someone else starts using our services under your LossExpress account.
15. Term; Termination; Suspension
15.1 Term. These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated in accordance with Section 15.2 (Termination & Suspension) below (“Term”).
Either we or you may terminate these terms and close your LossExpress account(s) for any reason 30 days after one of us tells the other in writing. However, if there are any order form in effect, then these terms won’t terminate until all order forms has expired or been terminated.
If you significantly breach these terms, and don’t fix the breach within five (5) days of us telling you about the breach, then we may terminate these terms and close your LossExpress account(s).
Similarly, if we significantly breach these terms, and don’t fix the breach within five (5) days of you telling us, then you may terminate these terms.
We can suspend our services for several reasons, in addition to your failure to pay your fees when they are due, if: 1. you violate our Acceptable Use Policy; 2. you send fraudulent traffic; 3. your use negatively impacts the operation of our services; 4. legal conditions make it impractical for our services to operate; or 5. you file for bankruptcy or go out of business.
We’ll try to let you know if we need to suspend your LossExpress account(s) in advance if we can, but cannot guarantee this.
We will also try to work with you to remedy situations that could get your LossExpress account(s) suspended.
15.2 Termination & Suspension. Either party may terminate these Terms and close your LossExpress account(s) for any reason upon thirty (30) days written notice to the other party. Notwithstanding the preceding sentence, if there is an Order Form(s) in effect, then these Terms will not terminate until such Order Form(s) have expired or been terminated. LossExpress, at its sole discretion, may terminate these Terms and close your LossExpress account(s) in the event you commit any material breach of these Terms and fail to remedy that breach within five (5) days after LossExpress provides written notice of that breach to you. You may also terminate these Terms in the event we commit a material breach of these Terms and fail to remedy that breach within five (5) days after providing written notice of that breach to us.
In addition to suspension of the Services for non-payment of fees as described in Section 10.3 (Suspension for Non-Payment), we may also suspend the Services immediately upon notice for cause if: (a) you violate (or give us reason to believe you have violated) our Acceptable Use Policy; (b) there is reason to believe the traffic created from your use of the Services or your use of the Services is fraudulent or negatively impacting the operating capability of the Services; (c) we determine, in our sole discretion, that providing the Services is prohibited by applicable Law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; or (d) subject to applicable Law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. We will use commercially reasonable efforts to (x) provide you as much prior notice as possible of any situation that we are aware of that could lead to a right to suspend described in this paragraph, (y) work with you to remedy any situation that could lead to a right to suspend described in this paragraph if such situation can be remedied, and (z) limit any suspension as much a possible given the circumstances leading to the suspension.
Some terms are like zombies. They carry on even after these terms are terminated. That includes your payment obligations and Sections 4, 10, 11, 13, 14, 16, 17, and 18.
Upon termination of these Terms, your payment obligations, the terms of this Section 16, and the terms of the following Sections will survive (i.e. still apply): Section 4 (Customer Data), Section 10 (Fees, Payment Terms, and Taxes), Section 11 (Ownership and Confidentiality), Section 13 (Indemnification), Section 14 (Limitation of Liability), Section 17 (General), and Section 18 (Agreement to Arbitrate).
We both agree to follow the law, regulations, rules, etc. that apply to us.
Just because we don’t enforce some part of these terms against you now doesn’t mean we can’t start enforcing them against you later.
You cannot just transfer these terms or your obligations under these terms to someone else without our permission.
We can transfer these terms or our obligations under these terms without consent.
We both will be responsible for our own employees.
Except as explained in Section 18, if any part of these terms is not enforceable, the rest of the terms will still be enforceable.
If you need to notify us, you must use our headquarters’ address and send a copy to email@example.com.
This is the only set of terms that governs our relationship.
Any purchase order or other terms that you provide will not be binding or valid.
If one of us can’t keep our promises because something crazy happens beyond our control (think earthquake, massive power outage, war), then that doesn’t count as a breach of these terms.
If you’re affiliated with a government entity, these terms still apply to your use of our services.
Other than arbitration (see the next section), if we can’t agree on something and we end up having a legal dispute, then Texas laws will apply. We definitely don’t want to, but, if we have to go to court, then it will be in Dallas, Texas. Court isn’t a great option, but at least you can pick up a pair of cowboy boots while you’re in town!
17.1 Compliance with Laws. Both you and LossExpress will comply with the applicable Law relating to each of our respective activities pursuant to these Terms.
17.2 No Waiver. Our failure to enforce at any time any provision of these Terms, our Acceptable Use Policy, or E-mail Policy does not waive our right to do so later. And, if we do expressly waive any provision of these Terms or our Acceptable Use Policy, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by you and us to be legally binding.
17.3 Assignment. You will not assign or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be null and void. LossExpress may assign these Terms, in whole or in part, without consent. Subject to this Section 17.3, these Terms will be binding on both you and LossExpress and each of our successors and assigns.
17.4 Relationship. You and LossExpress are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. You and LossExpress will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents. You and LossExpress will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these Terms. Neither you nor LossExpress has the authority to commit the other of us in any way and will not attempt to do so or imply that it has the right to do so.These terms don’t create any special relationship between us, like employer-employee, joint venture, or a partnership. Nothing will change that.
17.5 Unenforceability. Except as described in Section 18 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
17.6 Notices. Any notice required or permitted to be given under these Terms will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email upon confirmation of receipt. Notices to LossExpress shall be copied to firstname.lastname@example.org, Attn: General Counsel.
17.7 Entire Agreement. Except as provided in these Terms and any attachments to these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by LossExpress, its agents or employees will create a warranty or in any way increase the scope of the warranties in these Terms. Any purchase order document or similar document provided by you shall be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon shall be void and have no effect with regard to these Terms between you and LossExpress and be non-binding against LossExpress even if signed by LossExpress after the date you accept these Terms.
17.8 Force Majeure. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
17.9 Government Terms. We provide the Services, including related software and technology, for federal government end use in accordance with these Terms. If you (or any of your End Users) are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms. All other use is prohibited and no rights other than those provided in these Terms are conferred. The Services were developed fully at private expense.
17.10 Governing Law and Venue. The enforceability and interpretation of Section 18 (Agreement to Arbitrate) will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from Section 18, these Terms will be governed by and interpreted according to the laws of the State of Texas without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 18 (Agreement to Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or the Services shall be instituted in either the state or federal courts of Dallas, Texas, and we each consent to the personal jurisdiction of these courts.
Please, please, please reach out to our Customer Support Team (they’re amazing!) before bringing a legal case.
18. Agreement to Arbitrate
Before bringing a formal legal case, please first try contacting our Customer Support. Most disputes can be resolved that way.
If our Customer Support Team can’t help you with a dispute, then we both agree to go to binding arbitration, again, in Dallas, Texas. Arbitration means a professional arbitrator will decide how to resolve our dispute instead of a judge or a jury deciding the case.
18.1 We Both Agree to Arbitrate. If a dispute cannot be resolved through our Customer Support Team, you or any of your affiliates on one hand and LossExpress and any of LossExpress’ affiliates on the other hand, all agree to resolve any dispute relating to these Terms or in relation to the Services by binding arbitration in Dallas, Texas, or in another location that we have both agreed to.
This applies to all claims under any legal theory, unless the claim fits in one of the exceptions below in Section 18.2 (Exceptions to Agreement to Arbitrate). It also applies even after you have stopped using your LossExpress account(s) or closed it. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that, too.
Pursuant to this Section 18 (Agreement to Arbitrate), you understand that you and your affiliates and LossExpress and its affiliates are giving up the right to have a judge and/or jury resolve any controversy or claim arising out of or relating to these Terms or the Services.
Despite what we said above, there are some disputes that won’t go to arbitration, but to court, like IP disputes and disputes about your violation of our Acceptable Use Policy.
We also don’t have to arbitrate small claims court cases.
18.2 Exceptions to Agreement to Arbitrate. You and your affiliates on one hand, and LossExpress and its affiliates on the other hand, agree that we will go to court to resolve disputes relating to:
- Your, your affiliates’, LossExpress’ or LossExpress’ affiliates’ intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents); or
- Your violation of our Acceptable Use Policy.
Also, any of us can bring a claim in small claims court either in Dallas, Texas, or the county where you live, or some other place we both agree on, if it qualifies to be brought in that court. In addition, if any of us brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
If we arbitrate, then we’ll do it through the American Arbitration Association (AAA). Before we even arbitrate, though, we’ll try mediation with an AAA mediator. If mediation doesn’t work, then we’ll go to arbitration through AAA with only one arbitrator (one is so much easier). And remember, the arbitrator’s decision will be final and binding.
18.3 Details of Arbitration Procedure. Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the “Rules”) and will be held with a single arbitrator appointed in accordance with the Rules. To the extent any thing described in this Section 18 conflicts with the Rules, the language of this Section 18 applies. Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 18 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of Texas and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
We both agree not to bring a class action suit against the other.
If for some reason a court decides that this term isn’t enforceable, then this entire Section 18 will go away.
18.4 Class Action Waiver. Both you and your affiliates, on one hand, and LossExpress and its affiliates on the other hand, agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor LossExpress and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other LossExpress customers, and cannot be used to decide other disputes with other customers. If a court decides that this Section 18.4 (Class Action Waiver) is not enforceable or valid, then the entire Section 18 (Agreement to Arbitrate) will be null and void (i.e., go away). But, the rest of the Terms will still apply.