TERMS & PRIVACY POLICY

TEXT MESSAGING FROM CLEVER FOOLS 

PRIVY, LLC. (HEREIN REFERRED TO AS “PRIVY”, “WE”, “US” AND/OR “OUR”) PROVIDES A PLATFORM FOR ANY BUSINESS TO USE TO GROW ITS EMAIL LIST AND OFFERS A VARIETY OF SERVICES IN CONNECTION WITH THE PLATFORM, INCLUDING SUBSCRIBER MARKETING AND FORM COMPLETION SERVICES (THE “PRIVY SERVICE”). BY SIGNING UP AND USING THE PRIVY SERVICE, YOU, THE USER OF THE PRIVY SERVICE, REPRESENT THAT: YOU ARE A REPRESENTATIVE OF AN ORGANIZATION (HEREIN REFERRED TO AS “CUSTOMER”, “YOU”, AND/OR “YOUR”), YOU ARE DULY AUTHORIZED TO ENTER INTO THESE TERMS AND CONDITIONS WHICH CONSTITUTE A CONTRACTUAL AGREEMENT (THE “AGREEMENT”), AND YOU AND THE ENTITY YOU REPRESENT DO HEREBY AGREE TO THIS AGREEMENT , THE ACCEPTABLE USE POLICY, AND THE PRIVY PRIVACY POLICY WHICH ARE INCORPORATED INTO AND GOVERNED BY THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT, IF YOU ARE USING THE PRIVY SERVICE ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, AND THE TERMS “CUSTOMER”, “YOU”, AND “YOUR” ALSO INCLUDE SUCH ENTITY.

1. THE PRIVY SERVICE

  1. Provision of Services. Privy will make the Privy Service available to Customer pursuant to the Agreement. Subject to the terms and conditions of this Agreement, Privy hereby grants Customer a non-exclusive right to access and use the Privy Service solely for its internal business purposes. Privy retains the right to change, modify, disable, or otherwise terminate access to the Privy Service at any time for any reason or no reason.

  2. Limitations: The Privy Service will be used or accessed only by an authorized representative of Customer. As a condition of your use of and access to the Privy Service, you agree to comply with any application-, tool-, or content-specific rules published within the Privy Service as well as the Privy Acceptable Use Policy, which Privy may modify or supplement in its discretion from time to time (with notice to you of material changes).

  3. Customer Responsibilities. Customer will (a) be responsible for its compliance with this Agreement and use of the Privy Service; (b) be solely responsible for the accuracy, quality, integrity and legality of the Customer Materials (as defined below); (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Privy Service and

associated documentation (the “Documentation”) and notify Privy promptly of any such unauthorized access or use; and (d) use the Privy Service only in accordance with the Agreement, the Documentation and applicable laws and regulations. Without limitation of the foregoing, Customer represents, warrants and covenants that: it has (and will have) the right to provide any information about an identified or identifiable natural person, household of device to Privy and will provide such information to Privy in compliance with applicable laws and that all such information has been (and will have been) obtained in compliance with all applicable laws and that all such information shall be true, accurate, complete and correct and correspond to the natural person to which it purports to relate, including to any natural person intended to be contacted in connection with the Privy Service (if any); and it has (and will at all times have) provided any notice and obtained any consents necessary to enable Privy to lawfully provide the Privy Service to Customer, including without limitation (if applicable) obtaining any consent from natural persons required by applicable law for Privy to send email and/or text messages on Customer’s behalf to natural persons.

2. PRICING & CANCELLATION

  1. Pricing. Privy will maintain a pricing page here. By using the Privy Service, you agree to pay Privy the amount set forth on the pricing page for the particular Privy Service to which you are subscribing. Privy will provide you with fourteen (14) days’ advance notice of any pricing changes via email, and your continued use of the Privy Service following such notice period will constitute your acceptance of these changes.

  2. Payment. If you are paying subscriber to the Privy Service, Privy will use a third-party payment processor to request your credit card information and process payment. All subscription plans will automatically renew on the same day each month as the initial payment, until cancelled.

  3. Cancellation. If you'd like to cancel your paid subscription, please email billing@privy.com or login to your account and follow the instructions provided in our cancellation page FAQ. Once you cancel your subscription, Privy will no longer charge your credit card for future subscription payments, and your account will be disabled down to a non-paid account level. Please note that:

      •  Downgrading the Privy Onsite, Email, Text or Starter Plan subscription will not automatically cancel or downgrade your other subscriptions;

      •  Downgrading or cancelling your connected e-commerce store (such as Shopify) will not automatically cancel your subscription;

      •  Uninstalling or removing Privy from your store will not automatically cancel your subscription.

      •  Any annual plan cannot be cancelled or closed until the next annual renewal date.

    As stated above, you must email billing@privy.com to request assistance with cancelling your account or login to your account and follow the instructions provided in our cancellation page FAQ.

  1. Refunds. Privy does not provide partial refunds for unused monthly or annual plans, unless a system malfunction caused a problem. You must submit a billing dispute to billing@privy.com no later than seven (7) days from the date on which the disputed fee was charged. In the event that both parties undertake good faith efforts to resolve the billing dispute but are unable to reach a resolution for such dispute within thirty (30) days, you agree that Privy may cancel the Privy Service. For our full refund policy, see our Billing, Payments, & Refunds | FAQ.

  2. Privy's Termination Rights. Privy maintains the full right to terminate your access to the Privy Service at any time for any reason.

3. OWNERSHIP AND CONFIDENTIALITY

  1. Privy’s Ownership Rights. Privy exclusively owns all right, title and interest in and to the Privy Service and Documentation. Except for the express access right granted hereunder, Privy reserves all rights, title and interests in and to the Privy Service, Documentation and Privy’s confidential information.

  2. Feedback. Customer may from time to time provide blog statements, suggestions, comments for enhancements or functionality or other feedback (collectively, “Customer Feedback”) to Privy with respect to the Privy Service. Privy will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Privy a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Customer Feedback; and (b) use the Customer Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Customer Feedback and/or any subject matter of the Customer Feedback.

  3. Public Areas. The Privy Service may feature community areas and other public forums, including but not limited to a blog (the "Public Areas"). If you use a Public Area you are solely responsible for your own Customer Feedback, the consequences of posting your Customer Feedback, and your reliance on any information in the Public Areas or other areas of the Privy Service. If you feel threatened or believe that someone else is in danger, you should contact your local law enforcement agency immediately. Any information you share, including without limitation any discussions with others, in any online Public Area is by design open to the public and is not private. Privy reserves the right, but shall not be obligated, to record any dialogue or exchanges in the Public Areas of the Privy Service. Privy shall have no responsibility for any actions taken, or failures to take action, with respect to the Public Areas of the Privy Service or any submissions by you or other users. As with any public forum on any website, the information you post may show up in third-party search engine results.

  1. Customer Materials: As between Privy and Customer, the email addresses and other information about Customer’s subscribers collected by the Customer or made available through the Privy Service and any content created by Customer and/or made available through the Privy Service including the subscriber marketing products within the Privy Service (collectively, the “Customer Materials”) will be owned by Customer. Customer hereby grants to Privy a non-exclusive, royalty-free, fully paid up, and worldwide ongoing license to copy, modify (including the right to create derivative works of), display and use the Customer Materials solely in connection with performing the Privy Service. In addition, Privy may collect and utilize data and other information, including without limitation the Customer Materials, in aggregated or other de-identified form, derived from use and performance of the Privy Service and its related products and services under this Agreement for Privy’s own business purposes, for the purposes of developing, delivering and enhancing Privy’s products and services, and for internal evaluation of trends, system usage, security threats, intrusions and other similar internal purposes. Our data collection, use, and disclosure practices, including the use of browser cookies, are outlined more fully in our Privacy

    Policy (which may change from time to time).

  2. Use of marks and case studies: Privy may, at its sole discretion, reference the Customer as a user of the Privy Service in Privy marketing collateral, including website content, blog content, email messages, and more.

  3. No legal advice: Privy does not provide legal advice. Customer acknowledges that Privy will not render any opinions regarding Customer Materials or Customer’s obligations with respect to end user notices, consents and permissions. Any consultation, training and forms provided by Privy are provided for informational purposes only, and not for the purpose of providing legal advice. CUSTOMER MUST CONSULT WITH ITS OWN LEGAL COUNSEL FAMILIAR WITH CUSTOMER’S UNIQUE REQUIREMENTS AND LEGAL/ REGULATORY OBLIGATIONS RELATED TO THE COMPLIANT USE OF THE SERVICES OBTAINED PURSUANT TO THIS AGREEMENT.

4. REPRESENTATIONS, WARRANTIES AND EXCLUSIONS

Customer represents, warrants and covenants to Privy as follows: (a) it has full power and authority to enter into and perform this Agreement; (b) this Agreement has been duly authorized and constitutes a binding obligation enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy laws or other laws affecting the rights of creditors generally; (c) the person(s) executing this Agreement on Customer’s behalf has actual authority to bind Customer to this Agreement; and (d) Customer’s execution and performance of this Agreement does not and will not violate or conflict with any provision of Customer’s governing corporate instruments or of any commitment, agreement or understanding that such party has or will have to or with any person or entity.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, PRIVY MAKES NO, AND DISCLAIMS ANY AND ALL, WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. PRIVY DOES NOT GUARANTEE THAT THE PRIVY SERVICE WILL MEET ALL OF CUSTOMER’S REQUIREMENTS. CUSTOMER REPRESENTS AND ACKNOWLEDGES THAT PRIVY DOES NOT WARRANT THAT THE PRIVY SERVICE WILL OPERATE AT ALL TIMES IN AN UNINTERRUPTED OR ERROR FREE FASHION, AND PRIVY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO ANY SUCH INTERRUPTION OR ERROR.

5. INDEMNIFICATION

Customer will defend Privy against any claim made or brought against Privy by a third party (a “Claim”) arising out of Customer’s use of the Privy Service and will indemnify Privy for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Privy in connection with any such Claim; provided that (a) Privy will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Privy’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Privy of all liability) and (c) Privy reasonably cooperates with Customer in connection therewith.

6. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL PRIVY BE LIABLE TO CUSTOMER 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 PRIVY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PRIVY BE LIABLE FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

7. TERMINATION; MISCELLANEOUS

  1. Term. The term of this Agreement will commence upon Customer’s sign up and acceptance of this Agreement. Thereafter, the term of this Agreement will automatically continue provided, however, that Privy may terminate this Agreement and the availability of the Privy Service to Customer at any time without notice. If Customer desires to discontinue the Privy Service, Customer must notify Privy of its intent to terminate the relationship and Customer may uninstall and discontinue the Privy Service at Customer’s own expense.

  2. Right to Suspend. Privy may temporarily suspend Customer’s or any of Customer’s end users’ access to any portion of the Privy Service if Privy reasonably determines that: (a) there is a threat or attack on the Privy Service or other event that may create a risk to the Privy Service, Customer or any other customer of Privy; (b) Customer’s use of the Privy Service or any Customer Materials disrupts or poses a security risk to the Privy Service or any other Privy customer; or (c) Customer is using the Privy Service in violation of the Agreement, including but not limited to, using the Privy Service for fraudulent or illegal activities (collectively, “Service Suspensions”). Privy will provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of Privy Service following any Service Suspension. Privy will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur as a result of any Service Suspension.

  3. Data Processing Addendum. The terms of the Data Processing Addendum shall apply to: (i) the processing (as defined in the GDPR) of personal data (as defined in the GDPR) that is regulated by the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) by Privy solely on behalf of Customer, if any; and (ii) from and after the CCPA Effective Date (as defined in the DPA), the processing (as defined in the CCPA) of personal information (as defined in the CCPA) that is regulated by the California Consumer Privacy Act of 2018 (the “CCPA”) by Privy solely on behalf of Customer, if any.

  4. Copyright Policy; Objectionable Content: If you believe your rights have been violated by, or you otherwise object to, any posting, content or information on the Privy Service, please contact us promptly so we can evaluate the claim and take appropriate action. If your complaint includes a claim of copyright infringement, the following policy will apply:

    It is Privy’s policy to respond promptly to claims of copyright infringement, and to remove, or disable access to, infringing material. If you believe that any of the content or materials appearing on the Privy Service contain infringements, please send a notice to our designated agent at the address stated below. Your notice should contain the following: a physical or electronic signature of a person (i.e., claimant) authorized to act on behalf of the copyright owner; identification of the copyrighted work claimed to be infringed; identification of the content or material claimed to be infringing; a reference or link to the infringing material or activity, or the subject of the infringing activity, including information to enable us to locate that material or reference; the address, telephone number or email address of the claimant; a statement that the claimant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notice is accurate and, under penalty of perjury, that the claimant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Privy will also terminate a user's account if a user is deemed to be a repeat infringer, namely, one who has been notified of bona fide infringing activity more than twice. Our designated agent, to whom you should direct your infringement claim (or other complaints), is:

    Attention: Ben Jabbawy
    Privy, LLC.
    201 South St, 2nd Floor
    Boston, MA 02111
    Telephone Number:
    617-852-5292
    E-mail: info@privy.com

  1. Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise.

  2. Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms. To the extent any provision cannot be enforced in accordance with the stated intentions of the parties, such provision will be deemed not to be a part of this Agreement.

  3. Governing Law. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules of conflict of laws. Each of the parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in the Commonwealth of Massachusetts (the “Massachusetts Courts”) for any litigation among the parties arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts.

  1. Notices. All notices under this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by confirmed facsimile or e-mail; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt.

  2. Entire Agreement. This Agreement, including these Terms and Conditions and the documents incorporated by reference herein, including the DPA, Privacy Policy and Acceptable Use Policy, constitutes the entire agreement between the parties with respect to the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. Privy reserves the right to make changes to this Agreement, including these Terms and Conditions, from time to time without prior notice.

  3. Titles. All article and section titles herein are provided for general information and reference only. Thus, the subject matter in each section herein will not be construed by reference to the title nor will the scope of section be limited in any manner based on the title of that section.

  4. Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree (each a “Force Majeure Event”); provided that, (a) the party relying upon this Section 7.11 will have given the other party written notice thereof promptly and, in any event, as soon as reasonably possible under the circumstances; and (b) will take all steps reasonably necessary to mitigate the effects on the other party of the Force Majeure Event upon which such notice is based.

8. PRIVY PARTNER MESSAGING PROGRAM TERMS

  1. By signing up for text messages powered by Privy, its service providers and/or affiliates, you agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages (e.g. cart reminders) from and/or on behalf of the company identified at sign-up (the “Privy Partner”), including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. Consent to receive automated marketing text messages is not a condition of any purchase. Msg & Data rates may apply.

  2. Message frequency will vary. Privy Partner reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. Privy Partner also reserves the right to change the short code or phone number from which messages are sent and will notify you when that occurs.

  3. Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. Privy Partner, its service providers and the mobile carriers supported by the program are not liable for delayed or undelivered messages.

  4. You also agree to the Privy Partner’s Terms and Privacy Policy, made available by the Privy Partner directly.

  5. Privy Partner is able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless).

  6. Cancellation.  Text the keyword STOP, END, CANCEL, UNSUBSCRIBE or QUIT to the Privy Partner phone number to cancel. After texting STOP, END, CANCEL, UNSUBSCRIBE or QUIT to the phone number you will receive one additional message confirming that your request has been processed. You acknowledge that the text message platform may not recognize and respond to unsubscribe requests that do not include the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands and agree that Privy Partner and its service providers will have no liability for failing to honor such requests. If you unsubscribe from a text message program, you may continue to receive text messages from Privy Partner through any other programs you have joined until you separately unsubscribe from those programs.

  7. Help.  Text the keyword HELP to the Privy Partner phone number to return customer care contact information.

  8. Customer Care.  If you are experiencing any problems, please visit https://support.attentivemobile.com/help/ and submit the form with details about your problem or your request for support, or email support@attentivemobile.com.

  9. Dispute Resolution

    1. General. In the interest of resolving disputes between you and Privy Partner in the most expedient and cost effective manner, you and Privy Partner agree that any dispute arising out of or in any way related to these messaging terms and conditions ("Messaging Terms") or your receipt of text messages from Privy Partner or its service providers will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Messaging Terms, or your receipt of text messages from Privy Partner or its service providers whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of when a claim arises. YOU UNDERSTAND AND AGREE THAT, BY AGREEING TO THESE MESSAGING TERMS, YOU AND PRIVY PARTNER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THESE MESSAGING TERMS SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.

    2. Exceptions. Notwithstanding subsection (a) above, nothing in these Messaging Terms will be deemed to waive, preclude, or otherwise limit the right of you or Privy Partner to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) file suit in a court of law to address an intellectual property infringement claim.

    3. Arbitrator. Any arbitration between you and Privy Partner will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Messaging Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting the Privy Partner directly. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

    4. Notice; Process. If you or Privy Partner intend to seek arbitration, then the party seeking arbitration must first send a written notice of the dispute to the other party by U.S. Mail ("Notice"). The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). You and Privy Partner will make good faith efforts to resolve the claim directly, but if you and a Privy Partner do not reach an agreement to do so within 30 days after the Notice is received, you or the Privy Partner may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Privy Partner must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. (e) Fees. If you commence arbitration in accordance with these Messaging Terms, the Privy Partner will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. If the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse the Privy Partner for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. You and Privy Partner agree that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from you or Privy Partner made within 14 days of the arbitrator's ruling on the merits.

    5. No Class Actions. YOU AND PRIVY PARTNER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Privy Partner agree otherwise in a signed writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.

    6. Modifications to this Arbitration Provision. Notwithstanding anything to the contrary in these Messaging Terms, if Privy Partner make any future change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to the Privy Partner, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and that Privy Partner.

    7. Enforceability. If an arbitrator decides that applicable law precludes enforcement of any of the limitations of subsection (f) above (addressing class, representative and consolidated proceedings) as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in court. If any other provision of these Messaging Terms is found to be unenforceable, the applicable provision shall be deemed stricken and the remainder of these Messaging Terms shall remain in full force and effect.