Please read these Agency Cyber Guarantee Terms carefully as they contain important information about your legal rights, remedies and obligations. By creating an account or otherwise using the Agency website, service or platform, you agree to comply with and be bound by these Agency Cyber Guarantee Terms.
Please note: These Agency Cyber Guarantee Terms contain an arbitration clause and class action waiver that applies to all Agency Members. If you reside in the United States, this provision applies to all disputes with Agency. If you reside outside of the United States you are not authorized to partake in the Agency Cyber Guarantee, but notwithstanding the foregoing this provision applies to any action you bring against Agency while you were physically located in the United States. It affects how disputes with Agency are resolved. By accepting these Agency Cyber Guarantee Terms, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
The Agency Cyber Guarantee (as defined below) does not apply to Members or any individuals who are located outside of the United States. It also does not apply to Members who are using Agency as a beta user, for testing, or as a trial, whether free or discounted or not. Additionally the Member must be fully paid, the account must be always in good standing, and the Member cannot cancel their membership during the Agency Cyber Guarantee process. There is no Agency Cyber Guarantee or equivalent to individuals or Members based outside of the United States.
Last Updated: August 31, 2021
Except as permitted by law, these Agency Cyber Guarantee Terms do not affect your statutory rights. If you would like a written copy of the Agency Cyber Guarantee Terms, please email us.
The Agency Cyber Guarantee
Agency agrees to assist you, as a Member, to repair or replace your Covered Property (as defined below) damaged or destroyed as a result of a Covered Loss (as defined below), subject to the limitations, exclusions and conditions in the Agency Cyber Guarantee Terms. Agency shall only be liable to you for one (1) claim payment per fully paid membership year.
You must comply with all of the requirements and conditions in these Agency Cyber Guarantee Terms in order to be eligible to receive any payments for Covered Losses. Your failure to fully comply will prevent your recovery for any Covered Losses. Please carefully review the definitions of "Covered Losses,""Covered Property," "Exclusions" and "Excluded Losses" below so that you may identify and protect property not covered by the Agency Cyber Guarantee.
You acknowledge and agree to use your best efforts to communicate with the Affected Third Party ("ATP", as defined below) as soon as possible after you discover any loss, issues, or damage to your Covered Property. You must notify Agency as well as the ATP about your complaint and attempt to resolve the loss or damage with the ATP within twenty-four (24) hours of when the issue occurs. You may fulfill this obligation by submitting a claim via the Agency Customer Service at: [email protected].
You acknowledge and agree that any amount of Covered Losses payable to you under the Agency Cyber Guarantee will be reduced by the amounts you have already collected for the same Covered Losses from a source other than the Agency Cyber Guarantee, including without limitation: (i) amounts received under an insurance policy, guarantee or indemnity; (ii) a security deposit; (iii) product warranties; or (iv) payment directly by the ATP, or warranty or general settlements, or other party or an insurer or guarantor of such party.
Key Defined Terms
The following capitalized terms shall have the following meanings:
"Actual Cash Value" means the amount it would cost to repair or replace damaged or destroyed Covered Property as a result of a Covered Loss, measured on the date of occurrence of such Covered Loss, with material of like kind and quality, with proper deduction for obsolescence and physical depreciation.
"Agency Cyber Guarantee Payment Request Form" means Agency’s standard form as amended from time to time, accessible through emailing Agency Support Team ([email protected]), that a Member uses to request payment from Agency pursuant to these Agency Cyber Guarantee Terms.
"Qualified Economic Loss" is the loss of time, income, or actual loss of Covered Property and the time it takes to remediate such a loss, if any, (according to bona fide Agency Member contracts or agreements in force prior to the established time of loss) by you, as a Member, resulting from a Covered Loss. Qualified Economic Loss does not include non-continuing charges and expenses or any loss of time, income, or actual loss during any period in which the Covered Property would not have been used for any reason other than a Covered Loss. The Qualified Economic Loss will be measured starting from the time of occurrence of the Covered Loss and ending when the Covered Property can be made ready for use under the same or equivalent physical and operating conditions that existed prior to the loss.
"Covered Property" means personal property under the exclusive control of all times by the Member located in the Territory that has been registered on the Agency site as a Registered Device and that is (i) owned or legally controlled by you as a Member during the period of the ATP’s security breach and (ii) listed by you on the Agency Platform and in compliance with the Agency Terms.
"Covered Losses" means and is limited to loss of direct personal income and time (that must be supported by documentation), costs to repair, remediate or replace to a Member’s Covered Property caused by the security breach of an ATP. Covered Losses do not include any losses or damage described under Excluded Losses below.
"Covered Property" means and is limited to:
- Device(s) that:
- Have all required Agency software installed, in Agency-specified settings, and are all up-to-date and running without interruption by Member
- Have at all times updated to the latest operating system version from the device manufacturer and/or any
- Do not have modified operating systems or have been "jailbroken"
- Are generally available for purchase in the United States from a major retailer
- Member has a proof of purchase
- Have no aftermarket components or customizations, not done by the original manufacturer
- Online or social media accounts that:
- You have only accessed or logged in from Agency registered device(s) in past ninety (90) days
- Have login credentials associated with (1) an email address using two factor authentication ("2FA"), and (2) using an email address added to Digital ID Protection dark web monitoring within Agency
- Have accounts with 2FA or if the account does not offer 2FA, the password must be strong and unique like those generated by Apple, Google Chrome, or 1Password
- Limited to these online or social platforms (Gmail, Facebook, Instagram, Tik Tok, Twitter, LinkedIn, Office365, Yahoo, Hotmail, AOL, Outlook, iCloud, WhatsApp, ProtonMail, YouTube, Reddit, Snapchat, Pinterest, Medium, eBay, Amazon, Walmart, Apple, Target, BestBuy, ATT, T Mobile, Verizon)
The foregoing only applies to Members that:
- Are in good standing that have properly activated device(s) with Agency for no less than ninety (90) days
- Have not been in breach of the Agency Terms of Service
- Have the device(s) in their physical possession at the time of the breach event
- Have passwords required to access all their device(s).
- Have not granted access to any other person, entity, or third party the Member’s personal account information
- Have followed and implemented the advice and tactics provided by Agency such as removing apps, changing passwords, or other related security recommendations
"Excluded Losses" has the meaning set forth in Section III below.
"Exclusions" means any of the following:
- Currency, money, precious metal in bullion form, crypto currencies, tokens, artwork, collectibles, notes or securities.
- Devices that are used exclusively for a business purpose.
- Devices that were purchased by a business or to be used for a business purpose
- Computer files or applications, including but not limited to photos, contacts, documents, music, and/or any loss, corruption, inability to access any of the foregoing or any electronic data
- Incident which is caused by attacks, errors, bugs or internal causes of the platform, website, application, or device itself. By way of example OS vulnerability or a Data Breach
- Online accounts, email, social media, websites, or software linked to a business account or used for a business purpose
- Shared devices, accounts, software, including those shared with other Agency members
- Loss of funds, stolen funds, wire fraud, ID theft
- Any loss borne out of a dishonest act, criminal activity, illegal activities, or nefarious and immoral actions by the Member
- Any loss or damage caused by any delay
- Any physical damage to device(s)
- Anything related to, indirectly or directly arising from, or whatsoever related to acts of any public authority or government, war, acts of terrorism, insurrection, rebellion, seizure, quarantine, acts of law enforcement, and acts of God.
- Any liability Member may owe any third party
- Any personal information, records, medical files, governmental forms, or the related
- Any damage related to or arising from bank accounts, investments, brokerage, credit cards, credit or finance related apps/accounts/websites.
- Fraudulent charges or unauthorized purchases on any accounts
- Members residing or using device(s) outside of the United States
- Attacks or breaches arising from devices which had the Agency service disabled in any capacity in the past 45 days.
- Losses incurred prior to 90 days after signing up for Agency or arising out of previous security incidents and compromises ("Pre-existing Issue").
- Losses arising out of unknown circumstances or not arising from a verifiable cyber-crime event.
"Reimbursement Limit"depends on the account type you have registered for:
- Personal: five thousand US dollars ($5,000) only.
- Pro: ten thousand US dollars (US $10,000) only.
- Family: two (2) individually capped at ten thousand US dollars (US $10,000) only.
"Recovery Limit" depends on the account type you have registered for:
- Personal: twenty thousand US dollars ($20,000) only.
- Pro: sixty-five thousand US dollars (US $65,000) only.
- Family: two (2) individually capped at sixty-five thousand US dollars (US $65,000) only.
"Recovery Sublimit" limits the Recovery Activity by the type of Covered Losses:
- Malware, Virus, Spyware, Adware, or related event: 25% of Recovery Limit
- Ransomware or Cyber Extortion related event: 25% of Recovery Limit
- Email or Social Engineering related event: 25% of Recovery Limit
- Online Account Theft related event: 25% of Recovery Limit
"ATP" means the third-party account or application breached or accessed directly on Covered Property for the period during which you incurred the Covered Losses.
"Territory" means the fifty (50) United States only.
- Device(s) that:
Limitations and Exclusions
The Agency Cyber Guarantee pays Covered Losses only and does not pay for any of the following ("Excluded Losses"):
- any losses caused by or arising out of access by a third party that the Member has at any point authorized to access Covered Property(s).
- any Losses in excess of the Reimbursement Limit.
- any losses, damages, cost or expense of whatsoever nature, directly or indirectly, caused by, relating to or resulting from any of the following:
- Excluded Property;
- acts of nature, including, but not limited to, earthquakes and weather-related events such as hurricanes, protests, government action, and tornadoes.
- indirect or remote causes;
- interruption of business, loss of market and/or loss of use
- loss, damage, or deterioration arising from any delay;
- mysterious disappearance, loss, or shortage disclosed on taking inventory, or any unexplained loss;
- enforcement of any law or ordinance;
- any liability to you or any other entity;
- identity theft or identity fraud
- arising out of or related to any systemic failures or compromises, such as but not limited to: operating systems, software manufacturers, internet and telecommunication systems or networks, device manufacturers, software dependencies, third party service providers, data breaches, or zero-day vulnerabilities.
- any losses, damages, cost or expense of whatsoever nature, directly or indirectly, caused by or resulting from any of the following, regardless of any other cause or event contributing thereto:
- any Member initiated or any 3rd party act or act of war, terrorism, insurrection or rebellion;
- actual or threatened malicious use of poisonous biological or chemical materials;
- nuclear reaction or radiation or radioactive contamination;
- seizure or destruction under quarantine or custom regulation, or confiscation by order of any governmental or public authority;
- contraband, or illegal transportation or trade;
- any dishonest act, including but not limited to theft, committed by you or any persons or entities retained by you to do anything in connection with Covered Property, unless such persons or entities are a ATP or Invitee and such act is done without your knowledge; or
- any fees or income that may be charged to another party by a Member related to the Covered Property
- any costs or damages arising from reputational harm, slander, liable, etc
- costs arising out of the loss of, loss of use of, damage to, corruption of, inability to access, or inability to manipulate, any and all Electronic Data will not be paid. "Electronic Data" means information, facts or programs, or any computer file stored in any format as or on, created or used on, or transmitted to or from any Electronic Media. "Electronic Media" means computer software, including systems and applications software, hard or floppy disks, CDROMS, tapes, drives, cells, data processing devices or any other media format which are used with, electronically controlled equipment.
- any and all consultant, legal, attorney, or related third party fees that you may elect to use, hire, or take advantage of.
Agency Cyber Recovery
- In the event of a Covered Loss, Agency will at its sole discretion, employ its own resources in a good faith effort attempt to remediate, fix, or recover (collectively the "Recovery Activity") the Covered Property.
- The value of the Recovery Activity shall not exceed the Recovery Limits and the applicable Recovery Sublimit of the Member
- Agency shall set its own rates for the Recovery Activity services it performs, but by way of example the current rates for August 2021 range from $175 to $950 per hour.
- Agency at its sole discretion can use third parties, contractors, subject matter experts, tools, and software to perform Recovery Activity.
- In no event will Member owe Agency any additional fees related to Recovery Activity exceeding the Recovery Limit.
- Agency at its sole discretion will determine the appropriate level of Recovery Activity,
- Agency at its sole discretion will determine when to conclude the Recovery Activity, when the Recovery Activity is performed, when Recovery Activity is complete, and if continued Recovery Activity is no longer warranted.
- Agency at its sole discretion will determine when the Recovery Limit and Recovery Sublimit has been reached.
Conditions to the Agency Cyber Guarantee
In order to be eligible to obtain payment or Recovery Activity under these Agency Cyber Guarantee Terms, you must fully comply with each of the following conditions. Your failure to fully comply will prevent your recovery of any Covered Losses. In all cases, the onus will be upon you to demonstrate that you have complied with the following conditions.
You must have incurred Covered Losses.
You must have used reasonable efforts in connection with the ATP that effects Covered Property to comply with Agency’s terms that can be viewed and read at https://getagency.com/terms/
You must report the cyber event to Agency within twenty-four (24) hours by email to [email protected]. You have three (3) days following the date of the event to open a claim by contacting customer support directly.
For all Covered Property which is damaged or destroyed due to a violation of law or criminal act or misdemeanor and for which you are filing an Agency Cyber Guarantee Payment Request Form, you must file a police report listing such Covered Property and provide Agency with a copy of such report, certified by you as true and correct.
You must provide Agency with proof of ownership of, or legal responsibility for, the Covered Property in the form of receipts, photographs, videos, documents or other customary forms of proof (including, but not limited to, appraisal or valuation forms or notices addressed to you) certified by you as true and correct and reasonably acceptable to Agency.
Within three (3) days after you have incurred a Covered Loss, you must (i) complete and file a completed Agency Cyber Guarantee Payment Request Form and (ii) deliver a signed and sworn proof of loss to us, unless we provide a written extension of such deadline. The proof of loss must state your knowledge and belief as to the following:
- The time, cause and origin of the Covered Loss, and evidence and proof of such loss in the form of receipts, photographs, videos, documents and other verifiable forms of proof.
- The ownership, leasehold or other interest of you and all other parties in the Covered Property for which Covered Loss is claimed.
- The Actual Cash Value and replacement value of each item of the Covered Property, as well as the amount of such loss or damage to each item of such Covered Property.
- The identity of and other information known about the ATP,
- The date when you contacted the ATP to request payment for the loss you are claiming, and the date on which the ATP declined or failed to pay for the loss.
- In the event you are claiming loss of income or use you must submit to Agency proof of such loss in the form of a paystub, downtime from a trusted source or other related sources of proof, timekeeping and information
As part of the signed and sworn proof of loss described above, you must provide Agency with all information it reasonably requests in order to determine the Actual Cash Value with respect to Covered Property, including: the original purchase price of such Covered Property, the date such Covered Property was acquired, the condition of such Covered Property and the estimated cost of repair or replacement of such Covered Property.
You must (i) protect and preserve damaged Covered Property from further loss or damage and (ii) promptly separate the damaged and undamaged Covered Property, put it in the best possible order, and furnish a complete inventory of the lost, destroyed, damaged and undamaged property showing in detail the quantities, costs, Actual Cash Value, and amount of loss claimed.
You must, as often as may be reasonably requested by Agency or its designees (i) exhibit all that remains of any damaged Covered Property and sign the written records of examination; and (ii) produce for examination all books of accounts, business records, bills, invoices, and vouchers (either originals or certified copies if originals are lost).
You must permit Agency or its designee(s) to make inspections of Covered Property at all reasonable times. You must also at all times follow all instructions and advice provided by Agency in order to resolve the issues with your Covered Property. However, the right to make inspections, the making of inspections, and any analysis, advice, or inspection report will not constitute an undertaking by Agency or Agency’s insurer to determine or warrant that damaged Covered Property is safe or healthful. We will have no liability to you or any other person because of any inspection or failure to inspect.
You must cooperate with Agency, including signing any documents, and timely responding to any reasonable requests for additional information or documentation that Agency or its designees may require or request to process the applicable Agency Cyber Guarantee Payment Request Form.
Disposition of Member Payment Requests
Agency Cyber Guarantee Payment Request Form
Agency will complete its processing of any Agency Cyber Guarantee Payment Request Form that you file within a reasonable period following the date you have (a) completed and filed an Agency Cyber Guarantee Payment Request Form, and (b) provided Agency with all information and materials that you are required to provide to comply with the conditions set forth in "Conditions to the Agency Cyber Guarantee" above. In any event, we will use commercially reasonable efforts to complete processing of your Agency Cyber Guarantee Payment Request Form within six (6) months after our receipt of such documents and information. If you receive an Approved Payment Request (as defined below), then as a condition to payment to you under the Agency Cyber Guarantee, you will be required to execute and deliver to Agency the "Agency Cyber Guarantee Approved Payment Request Agreement", which includes your agreement:
- to assign to Agency or its insurer any rights and remedies you may have to recover amounts paid to you with respect to an Approved Payment Request (defined below) from the ATP or from any other party that is financially responsible for the Approved Payment Request;
- to reasonably cooperate with us, including, at our request, appearing as a witness in any court, arbitration or like proceeding, if we seek to recover the amount paid to you with respect to an Approved Payment Request from the ATP or from an Invitee or from any other party;
- to release and hold harmless Agency and its insurer and all officers, directors, employees, contractors and agents of Agency from any further liability or obligations with respect to the facts and circumstances of the matters and incident set forth in the Agency Cyber Guarantee Payment Request Form;
- if requested, to treat as "confidential information" the amount of any payment made under the Agency Cyber Guarantee; and
- to refund to us any amounts in excess of the Covered Loss in the Approved Payment Request as a result of a systems or payment processing error.
The duration of the processing period of any Agency Cyber Guarantee Payment Request Form that you file will depend on factors that include, but are not limited to: (i) the amount of payment that you are requesting for the Covered Loss; (ii) the complexity of the damage or attack and the origination of the issues or event that damaged the Covered Property; (iii) the nature of the Covered Property and the nature of the Covered Losses; (iv) the completeness and type of documentation and information that you provide Agency regarding the Covered Losses; and (v) the number of Agency Cyber Guarantee Payment Request Forms that are currently being processed for other Members.
Approved Payment Request
If you have filed an Agency Cyber Guarantee Payment Request Form and such a payment request is approved in whole or in part for a Covered Loss (any such approved payment request, an "Approved Payment Request"), you will be paid the amount of the Covered Loss as calculated by Agency or its designees. The process for such calculation of Covered Losses is described under "Determination of the Amount of the Covered Loss" below. You will be notified by Agency and, as a condition of payment hereunder, you will be required to deliver to Agency an executed Approved Payment Request Agreement. Agency may use third party service providers to assist in the processing of the Agency Cyber Guarantee Payment Request Forms and Agency or its designees may use third party service providers to assist in the investigation and adjustment of payment requests relating thereto.
Determination of the Amount of the Covered Loss
The amount of Covered Losses will be computed as of the date of loss, at the location of the loss, and for not more than your interest, subject to the following:
- For all Covered Property, the loss amount will be the lesser of (i) the Actual Cash Value; (ii) the cost to repair such damaged Covered Property; or (iii) the loss of income.
- Any amount of any Covered Losses payable under the Agency Cyber Guarantee will be reduced by the amount already paid to you or for your benefit by a ATP, Invitee or other source (such as an insurer or other responsible party) for the same Covered Loss.
- Covered Losses will be paid in the currency of the United States of America.
The Agency Cyber Guarantee is not an insurance policy. To the extent you desire protection beyond the Agency Cyber Guarantee, Agency strongly encourages you to purchase insurance that will cover you and your property for losses in the event your loss is not within the terms of the Agency Cyber Guarantee.
Acknowledgments and Agreements by the Member
You acknowledge and agree that:
- The Agency Cyber Guarantee is a guarantee of obligations of an ATP to you and is dependent upon you pursuing any rights and remedies you may have to recover amounts paid by Agency to you with respect to an Approved Payment Request from the ATP or from any other party that is financially responsible for the Approved Payment Request.
- Agency provides Members with the Agency Cyber Guarantee benefits described herein solely for the purpose of promoting use of the Agency Platform by building customer loyalty and strengthening customer confidence as to use of the Agency Platform.
- These Agency Cyber Guarantee Terms are not intended to constitute an offer to insure, do not constitute insurance or an insurance contract, and do not take the place of insurance obtained or obtainable by you. Furthermore, these Agency Cyber Guarantee Terms are not an insurance service agreement or insurance policy.
- The benefits provided under these Agency Cyber Guarantee Terms are solely as set forth in the paragraph entitled "Agency Cyber Guarantee" above and such benefits are not assignable or transferable by you, including without limitation any transfer or assignment by operation of law or in connection with your divorce or death.
- Agency and/or its insurer reserve the right to independently investigate (or to have independently investigated) at our sole discretion and expense, the facts and circumstances of a payment request set forth in any Agency Cyber Guarantee Payment Request Form that you file with Agency, notwithstanding your delivery of all information and materials that you are required to provide Agency in order to comply with the conditions set forth in the paragraph entitled "Conditions to the Agency Cyber Guarantee."
- If you file a Agency Cyber Guarantee claim and such claim is proven to be fraudulent, Agency has the right to terminate the claim and terminate your account and membership to Agency. Agency may retain your membership fee to cover the administrative costs of undertaking the investigations required for the claim. If the fraud was discovered after payment was made, the Member must return and forfeit all sums of money to Agency and Agency has the right to pursue other legal actions.
You acknowledge and agree that if you make a claim under this Agency Cyber Guarantee, you give Agency consent to review all communications between you and the allegedly ATP.
Agency reserves the right, at any time, to offset or deduct from the amounts payable or paid by Agency to you under these Agency Cyber Guarantee Terms, any amounts that it may have in its possession, or to subsequently collect, from any other person or entity who is obligated to compensate you for losses or damages.
Because these Agency Cyber Guarantee Terms constitute a guarantee agreement, the theory of exoneration applies. Thus, if the Covered Property in question or the risk associated with that Covered Property changes materially, Agency will be entitled to exoneration with respect to any potential guaranty obligation under these Agency Cyber Guarantee Terms.
Modification or Termination of Agency Cyber Guarantee Terms
To the extent permissible by applicable law in your jurisdiction, Agency reserves the right to modify or terminate these Agency Cyber Guarantee Terms, at any time, in its sole discretion.
If Agency terminates these Agency Cyber Guarantee Terms, Agency will provide you with notice by email at least thirty (30) days before such termination and Agency will continue to process all Agency Cyber Guarantee Payment Request Forms that you filed prior to the effective date of termination, but your right to file any new Agency Cyber Guarantee Payment Request Forms will immediately terminate.
If Agency modifies these Agency Cyber Guarantee Terms, we will post the modification on the Agency Platform at https://www.GetAgency.com/guarantee. Agency will continue to process all Agency Cyber Guarantee Payment Request Forms that you filed prior to the effective date of the modification.
In addition to and without limiting Agency’s rights set forth above in the immediately preceding paragraph, Agency reserves the right to modify or terminate these Agency Cyber Guarantee Terms generally or in any jurisdiction, at any time, in its sole discretion, if: (i) these Agency Cyber Guarantee Terms are construed to be an offer to insure or constitute insurance or an insurance contract or insurance service agreement by any governmental or regulatory authority in any jurisdiction; (ii) Agency is required to obtain a license or permit of any kind to continue to provide these Agency Cyber Guarantee Terms in any jurisdiction; or (iii) Agency determines or a court or arbitrator holds that the provisions of these Agency Cyber Guarantee Terms violate applicable law. If Agency modifies or terminates these Agency Cyber Guarantee Terms in accordance with the foregoing, Agency will process all Agency Cyber Guarantee Payment Request Forms that you file prior to or as of the effective date of such modification or termination unless such processing is prohibited by law, regulation, ordinance, order, or decree of any governmental or other authority; (iv) if Agency receives any notice from its insurers that modify any of its’ requirements, coverages, or obligations related to this agreement or its’ ability to offer the Agency Cyber Guarantee.
Agency and/or Agency’s insurer have the right to subrogate against any person or entity whatsoever who allegedly is responsible for causing the losses or damages in question, even if that person or entity is you. Further, you hereby agree that, with respect to any payments made under the Agency Cyber Guarantee by, or on behalf of, Agency, you will assist in and cooperate fully with Agency regarding any and all efforts at subrogation.
Disclaimers and Limitations of Liability
If you choose to use the Agency Platform as a Member, you do so at your sole risk. The Agency Cyber Guarantee is provided "as is", without warranty of any kind, either express or implied.
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Agency Platform remains with you. . Neither Agency nor any other party involved in creating, producing, or delivering the Agency Platform will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure, or for any damages for (1) personal or bodily injury or emotional distress arising out of or in connection with these Agency Cyber Guarantee terms, (2) from the use of or inability to use the Agency Platform, (3) of from any communications, interactions or meetings with other users of the Agency Platform or other persons with whom you communicate or interact as a result of your use of the Agency Platform. Agency will not be liable for any such damages described above, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Agency has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
Except for Agency’s obligation to pay amounts to you pursuant to an Approved Payment Request under these Agency Cyber Guarantee Terms, in no event will Agency’s aggregate liability arising out of or in connection with (a) these Agency Cyber Guarantee Terms; (b) your use of or inability to use the Agency, and (c) any Covered Property, exceed the amounts paid by you to Agency in the six (6) month period prior to the event giving rise to the liability, or one hundred dollars ($100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Agency and you. Some jurisdictions do not allow the exclusion for certain limitations of liability, so the above limitations may not apply to you.
Dispute Resolution and Arbitration Agreement
- This Dispute Resolution and Arbitration Agreement shall apply if you (i) reside in the United States; or (ii) do not reside in the United States, but bring any claim against Agency in the United States (to the extent not in conflict with Section 15 (Agnecy Waivers) of the Agency Terms).
- Overview of Dispute Resolution Process. Agency is committed to participating in a consumer-friendly dispute resolution process. To that end, these Agency Cyber Guarantee Terms provide for a two-part process for individuals to Section X.1 applies: (1) an informal negotiation directly with Agency’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association ("AAA") using its specially designed Consumer Arbitration Rules (as modified by this Section X). Specifically, the process provides:
- Claims can be filed with AAA online (www.adr.org);
- Arbitrators must be neutral and no party may unilaterally select an arbitrator;
- Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
- Parties retain the right to seek relief in small claims court for certain claims, at their option;
- The initial filing fee for the consumer is capped at $200;
- The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
- The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
- Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Agency each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. The party who intends to seek arbitration must first send to the other party a Notice of Dispute, which must include: (a) your name; (b) your Account number; (c) the services (if any) to which the claim pertains; (d) a description of the nature and basis of the claim or dispute; (e) an explanation of the specific relief sought and the basis for the calculations; (f) the party’s signature; and (g) if the party has retained an attorney, the party’s signed statement authorizing the other party to disclose confidential Account records to its’ attorney if necessary in resolving the claim.
- We will contact you at the email address you have provided to us; you can contact Agency’s customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
- Agreement to Arbitrate.You and Agency mutually agree that any dispute, claim or controversy arising out of or relating to these Agency Cyber Guarantee Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the Agency Platform, the Member Services, or the Collective Content (collectively, "Disputes") will be settled by binding arbitration (the "Arbitration Agreement"). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Agency agree that the arbitrator will decide that issue.
- Exceptions to Arbitration Agreement. You and Agency each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent.
- Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified here. The AAA Rules are available at http://www.adr.org/or by calling the AAA at 1–800–778–7879.
- Modification to AAA Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Agency agrees that any required arbitration hearing may be conducted, at your option, (a) in the county where you reside; (b) in Los Angeles County; (c) in any other location to which you and Agency both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
- Modification of AAA Rules - Attorney’s Fees and Costs. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the AAA rules. Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, Agency agrees it will not seek, and hereby waives all rights it may have under applicable law or the AAA rules, to recover attorneys’ fees and expenses if it prevails in arbitration.
- Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
- Jury Trial Waiver. You and Agency acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
- No Class Actions or Representative Proceedings.You and Agency acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and Agency both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.
- Severability. Except as provided in Section X.11, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
- Changes. Notwithstanding the provisions of Section VII ("Modification or Termination of Agency Cyber Guarantee Terms"), if Agency changes this Section X ("Dispute Resolution and Arbitration Agreement") after the date you last accepted these Agency Cyber Guarantee Terms (or accepted any subsequent changes to these Agency Cyber Guarantee Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of Agency’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Agency in accordance with the provisions of the "Dispute Resolution" section as of the date you last accepted these Agency Cyber Guarantee Terms (or accepted any subsequent changes to these Agency Cyber Guarantee Terms).
- Survival. Except as provided in Section X.12 and subject to Section 16(j) of the Agency Terms, this Section X will survive any termination of these Agency Cyber Guarantee Terms and will continue to apply even if you stop using the Agency Platform or terminate your Agency Account.
You agree to release, defend, indemnify, and hold Agency and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with the Agency Cyber Guarantee and these Agency Cyber Guarantee Terms.
These Agency Cyber Guarantee Terms constitute the entire and exclusive understanding and agreement between Agency and you regarding the Agency Cyber Guarantee and these Agency Cyber Guarantee Terms, and supersede and replace any and all prior oral or written understandings or agreements between Agency and you regarding the Agency Cyber Guarantee.
You may not assign or transfer these Agency Cyber Guarantee Terms, by operation of law or otherwise, without Agency’s prior written consent. Any attempt by you to assign or transfer these Agency Cyber Guarantee Terms, without such consent, will be null and of no effect. Agency may assign or transfer these Agency Cyber Guarantee Terms, at its sole discretion, without restriction. Your right to terminate the Agreement with Agency remains unaffected. Subject to the foregoing, these Agency Cyber Guarantee Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Unless specified otherwise, any notices or other communications to Members permitted or required under this Agreement, will be in writing and given by Agency via email.
Controlling Law and Jurisdiction
These Agency Cyber Guarantee Terms will be interpreted in accordance with the State laws of California.
Waiver and Severability
The failure of Agency to enforce any right or provision of these Agency Cyber Guarantee Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Agency. Except as expressly set forth in these Agency Cyber Guarantee Terms, the exercise by either party of any of its remedies under these Agency Cyber Guarantee Terms will be without prejudice to its other remedies under these Agency Cyber Guarantee Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Agency Cyber Guarantee Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Agency Cyber Guarantee Terms will remain in full force and effect.
If you have any questions about these Agency Cyber Guarantee Terms, please email us at: [email protected].