Effective date: 10.15.2018
YOU MAY NOT USE THE SERVICE IF YOU ARE A COMPETITOR TO CAPTIVATEIQ.
YOU MAY NOT USE THE SERVICE IF YOU ARE UNDER THE AGE OF 13.
1.1 "Admin User" means an Authorized User who has access to certain additional features and functionalities of the CaptivateIQ Services to monitor and administer Your Account.
1.2 "Authorized User" means Your employee, contractor, or agent who is authorized to use CaptivateIQ Services and who has access to CaptivateIQ Services via unique usernames and passwords under Your Account.
1.3 "Initial Term" means the period following the Services Start Date as described in the Order Form.
1.4 "Order" means the Services Order Form signed by the Parties that references these Terms and describes the services to be provided by CaptivateIQ and the fees that will be paid by you.
1.5 "Payee" means a unique employee who received a calculated payout from the system.
1.6 "Payout" means a final calculated commission payment for a Payee.
1.7 "Your Account" means as of the Services Start Date, Your Authorized Users will receive access to a CaptivateIQ Services account.
2.1 The "Software" includes (a) the Site accessible within a web-based environment via www.captivateiq.com, (b) the CaptivateIQ's incentive compensation services and related technologies indicated in the Order, and (c) any software (including the Software, as defined below), data, reports, text, images, and content made available through any of the foregoing, and any new features added to or augmenting the Service, and all enhancements, modifications, and derivative works thereof.
This Agreement provides you access to a proprietary online subscription services consisting of an Internet based sales commission management service which includes the following functionality:
2.2 The "Services" means services provided to You by CaptivateIQ as indicated in Your Order, including CaptivateIQ Services and Support.
2.3 We may modify the Services or update the Software from time to time without notice to You. We will use commercially reasonable efforts to notify You in advance if a change is material, other than those changes which enhance or extend any features or functionality of the Services or Software.
Subject to your compliance with all the terms and conditions of this Agreement, including any payment obligations, CaptivateIQ hereby grant to you, during the term of your subscription, a non-exclusive, non-transferable, right and license to access and use the Service, for internal purposes only, and only in accordance with the applicable user documentation or other CaptivateIQ provided written instructions.
(a) You will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service; (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party (excepting Your end users as part of the purpose contemplated in Section 2.1 above); (v) use the Services for competitive research or for scoping, benchmarking, developing or providing any similar or competitive product or services; (vi) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof, (vii) use the Service to create any other product or service; or (viii) use the Service in violation of any applicable laws or regulations (including any export laws, restrictions, national security controls and regulations). You will use the Service only in compliance with (1) the Order Form, (2) the rights granted hereunder, and (3) in accordance with all applicable laws and regulations.
(b) You agree not to access the Service by any means other than through the interface that is provided by CaptivateIQ for use in accessing the Service. You will be provided with unique usernames and passwords to access the Services. Each username and password may only be used to access the Service during one concurrent login session. You will ensure that each username and password will be used by one Authorized User. You must provide true, accurate, and correct information at the time of registration and account creation, and thereafter. You will notify CaptivateIQ promptly of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Service. You are responsible for use of the Service by any and all employees and other users that you allow access to the Service.
(c) You will not (and will not allow any third party to) use the Service to email or otherwise upload any content that: (i) infringes or misappropriates any intellectual property or other proprietary or privacy rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) is unlawful, harmful, or otherwise objectionable; or (v) in the reasonable judgment of CaptivateIQ, which may expose CaptivateIQ or its users to any material harm or liability of any type.
Except for the rights expressly granted under this Section 3, CaptivateIQ retains all right, title, and interest in and to the Service and all data, software, products, works, and other intellectual property created, used, or provided by CaptivateIQ for the purposes of this Agreement. To the extent you provide CaptivateIQ with any feedback relating to the Service (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), CaptivateIQ shall own all right, title and interest in and to such Feedback, and you hereby makes all assignments necessary to achieve such ownership.
3.4 Implementation Services
If the parties enter into any statement of work describing configuration, training or other implementation services to be provided by CaptivateIQ ("SOW"), CaptivateIQ will provide such services in accordance with the terms set forth in such SOW. CaptivateIQ will have no obligation to perform any such services that are not specified in a SOW signed by both parties.
You will be required to select a payment plan and provide CaptivateIQ reasonably necessary information regarding your credit card or other payment instruments accepted by CaptivateIQ. You will pay CaptivateIQ the fees for the Service set forth in the Order Form. You will pay all invoices within 30 days of the invoice date (the "Invoice Due Date"). You agree to pay and hereby authorize CaptivateIQ to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account in accordance with this Agreement. All charges are final, non-cancelable, and nonrefundable, provided that if CaptivateIQ terminates your account on the Service without cause or if you terminate your account on the Service with cause, you will be entitled to a prorated refund of prepaid amounts. The fees paid by you are exclusive of all taxes, levies, or duties imposed by relevant taxing authorities, if any, and you will be responsible for payment of all such taxes, levies, or duties, excluding taxes based on CaptivateIQ's income. You represent and warrant to CaptivateIQ that such information is, and will be maintained as, true, complete, accurate, and up to date, and that you are authorized to use such payment instrument.
CaptivateIQ will give written notice about nonpayment then suspend account after ten (10) days after written notice. If any amount remains unpaid for ten (10) days following written notice from CaptivateIQ, CaptivateIQ may terminate this Agreement or it may suspend the Services until such time as payment is brought current, without waiving or prejudicing any other rights or remedies available to CaptivateIQ. Suspension of an account shall not result in an extension of the Term.
If CaptivateIQ believes in good faith that your usage of the Services exceeds that set forth on the applicable Order Form, you agree to allow CaptivateIQ to audit your use of the Services at any time to determine the actual use of any and all Services.
Any content, materials, software, data, or other information that You or Your Authorized Users provide to CaptivateIQ through the CaptivateIQ Services ("Your Data") is and will remain Your property. You hereby grant CaptivateIQ a worldwide, limited, revocable, non- exclusive right and license to use and reproduce Your Data solely for the purposes of providing the Services to you, and providing Support and analysis as further described below. For example, we may also have access to and see Your Data when we provide Support or if we provide other assistance or training to You or Your Authorized Users.
If your Authorized Users choose to share Your Data, you are solely responsible for that disclosure, and what any third parties do with Your Data. Likewise, you are solely responsible for any actions your Authorized Users take with respect to Your Data, including deleting or corrupting Your Data. You acknowledge that we are not responsible for the disclosure of Your Data by you or your agents (including your Authorized Users), to any third parties.
You are solely responsible for Your Data, including the content, accuracy and integrity of Your Data and for correcting errors and omissions in Your Data. You acknowledge that CaptivateIQ has no obligation to monitor any information on the CaptivateIQ Services and that we are not responsible for the accuracy, completeness, appropriateness, or legality of Your Data or any other information or content you may be able to access using the Services.
During the term of this Agreement, each party (a "Disclosing Party") may provide the other party (a "Receiving Party") with confidential and/or proprietary materials and information ("Confidential Information"). All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as "Confidential" or bearing a similar legend, and all other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, shall be considered Confidential Information; for the avoidance of doubt, the Service, any documentation, terms of this Agreement, and any and all information regarding CaptivateIQ's business, products and services are Confidential Information of CaptivateIQ. Receiving Party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section 6 shall not apply to any information that: (a) is made generally available to the public without breach of this Agreement; (b) is developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information; (c) is disclosed to Receiving Party by a third party without restriction; or (d) was in the Receiving Party's lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party's request, Receiving Party shall return to Disclosing Party all Disclosing Party's Confidential Information in its possession, including, without limitation, all copies and extracts thereof. Notwithstanding the foregoing, (i) Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that, all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party's Confidential Information as this Agreement and (ii) all Feedback shall be solely CaptivateIQ's "Confidential Information."
For the avoidance of doubt, CaptivateIQ has the right, but not the obligation, to monitor the Service. CaptivateIQ will do so if required by law or in the good faith belief that such action is protect CaptivateIQ, the Service, or other users of the Service. CaptivateIQ will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Content.
CaptivateIQ shall at all times maintain applicable industry standard controls (including but not limited to administrative, technical and physical safeguards) designed to ensure the security, confidentiality and integrity of your Confidential Information that CaptivateIQ may have access to in connection with the Services. CaptivateIQ agrees to notify you in the event of any material alterations to its systems or security controls that could significantly negatively impact the existing security controls. CaptivateIQ further agrees to notify you within forty-eight (48) hours of positive confirmation of a Security Breach. For the purposes of these Terms, a "Security Breach" means any unauthorized access to your Confidential Information that is in CaptivateIQ's possession.
Subject to your payment of fees and the customer service package you've elected, CaptivateIQ will provide standard support and maintenance set forth in the CaptivateIQ Support and Service Level Agreement.
The Service enables linking between various online third-party services such as third party email, cloud storage, and similar services ("Third-Party Services"). To take advantage of these feature and capabilities, you may be required to authenticate, register for or log into Third-Party Services through the Service or on the websites of their respective providers. By linking your account on the Service to your account on a Third Party Service, you are authorizing CaptivateIQ as your agent to access your Third Party Service account (and any information, content, materials, and features included therein) and use such Third Party Service on your behalf for the purpose of integrating your experience on the Service with such Third Party Service. Your use of the Third Party Services is governed solely by the agreement between you and the provider of such Third Party Service, and the Third Party Services provider is solely responsible for such Third Party Service.
You acknowledge and agree that CaptivateIQ will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such Third-Party Services.
You represent and warrant to CaptivateIQ that (a) you have full power and authority to enter into this Agreement; (b) you own all Your Content or have obtained all rights required to engage in your posting and other activities (and allow CaptivateIQ to perform its obligations and exercise its rights) in connection with the Services; (c) Your Content and other activities in connection with the Service, and CaptivateIQ's exercise of all rights and license granted by you herein, does not violate, infringe, or misappropriate any third party's copyright, trademark, right of privacy or publicity, or other personal or proprietary right; (d) you are thirteen (13) years of age or older; and (e) you have provided true, accurate, and correct information to CaptivateIQ in connection with your account creation and use of the Service.
THE SERVICE, INCLUDING THE SITE AND CAPTIVATEIQ'S CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND CAPTIVATEIQ EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CAPTIVATEIQ DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, OR WILL WORK WITH OR NOT INTERRUPT OR DAMAGE YOUR THIRD PARTY SERVICE OR YOUR CONTENT (INCLUDING ANY CONTENT YOU MAY STORE ON YOUR THIRD PARTY SERVICE), AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM CAPTIVATEIQ OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
This Agreement will commence on the Effective Date of the initial Order and will continue for the Initial Term, after which, subject to these Terms, it will automatically renew for successive terms of twelve (12) months each (each a "Renewal Term", and together with the Initial Term, the "Term").
Except as otherwise expressly permitted in this Agreement, this Agreement may only be terminated as follows: (a) either Party ("Terminating Party") may terminate this Agreement at any time, immediately upon written notice to the other, if: (i) the other Party attempts to assign this Agreement or delegate any obligation under the Agreement; (ii) the other Party, in full or in part, acquires ownership in or control of or is acquired by or becomes controlled by, a competitor of Terminating Party; or (iii) any assignment is made of the other Party's business for the benefit of creditors, or if a petition in bankruptcy is filed by or against the other Party, or if a receiver or similar officer is appointed to take charge of all or part of the other Party's property, or if the other Party is adjudicated as bankrupt; (b) either Party may terminate this Agreement upon written notice to the other if the other Party is in breach of any material term or condition of this Agreement and the breaching Party fails to cure the breach within thirty (30) days of receipt of notice of that breach; or (c) either Party may terminate the autorenewal of this Agreement upon written notice to the other Party, which notice is given at least sixty (60) days prior to the end of the then-current Initial Term or Renewal Term, as the case may be.
In addition to any other remedies available at law or in equity, CaptivateIQ will have the right, in its sole discretion, to immediately suspend your or any of your Payees' access to the CaptivateIQ Services in the event of (1) acts or omissions of you or your Authorized Users or Payees, not in compliance with the terms of this Agreement. We will use commercially reasonable efforts to give you prior e-mail notice of suspension under this Section, and we will resume the Services as soon as possible once the issue necessitating suspension is resolved, unless such issue is found to have been related to a material breach of this Agreement by you. We will not be liable to you for any loss, damage or inconvenience suffered as a result of any suspension, unless such suspension is necessitated due to CaptivateIQ's breach of its warranty.
Upon termination of this Agreement, CaptivateIQ will cease providing the Services and promptly invoice you for any unpaid amounts owed, and you will pay CaptivateIQ for all Services rendered and expenses incurred prior to the effective date of termination. To the extent such termination is the result of a material, uncured breach by CaptivateIQ, You are entitled to a pro-rata refund, as of the effective date of the termination, of any prepayment made by you for any Services not yet performed. CaptivateIQ will, after sixty (60) days following termination of this Agreement, irretrievably delete Your Data. To the extent termination is not due to your material, uncured breach of this Agreement (including but not limited to non-payment of any invoice), CaptivateIQ will provide you with access to Your Data during the sixty (60) days following termination, solely for the purpose of downloading Your Data to your own data storage systems, if you have given written notice prior to the end of such sixty (60) day period of your request to access Your Data. Excepted from the foregoing is any of Your Data permanently deleted in order to comply with applicable law or to avoid a security breach. You acknowledge that if your access to the Services is suspended or the Agreement is terminated, You will not have access to Your Data stored on the CaptivateIQ Services during any period of suspension, or at any time following sixty (60) days after the effective date of such termination.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, OR (B) FOR ANY DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. THE LIMITATIONS ON LIABILITY CONTAINED HEREIN SHALL NOT APPLY TO BREACHES OF SECTIONS 3, 6 OR 14.
Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. TO THE EXTENT THAT THE LAWS OF SUCH JURISDICTIONS APPLY, CAPTIVATEIQ's AND YOUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
CaptivateIQ warrants that: (a) it will perform the Services in conformity in all material respects with the Support and Service Level Agreement; (b) it will provide the Services in a professional manner, consistent with recognized industry standards and good commercial practices; (c) it will comply with all applicable law, and be duly licensed and otherwise authorized to provide the Services; and (d) it has the authority and right to enter into this Agreement and to observe and perform its respective obligations contained in this Agreement.
You warrant that you have the authority and right to enter into this Agreement and to observe and perform its respective obligations contained in this Agreement.
CaptivateIQ DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY.
You will defend, indemnify, and hold harmless CaptivateIQ from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this Agreement, any of Your Content, or your other access, contribution to, use or misuse of the Service. CaptivateIQ will provide notice to you of any such claim, suit or demand.
CaptivateIQ will indemnify, defend and hold you harmless from and against all third party claims (and all resulting, to the extent payable to third parties: damages, cost and expenses, including reasonable attorneys' fees) arising from infringement by the technology used by CaptivateIQ of any third party's U.S. intellectual property rights; provided that, you provide CaptivateIQ with prompt written notice of all claims and threats thereof, sole control of all defense and settlement activities, and all reasonably requested assistance with respect thereto. CaptivateIQ will not be responsible for any settlement it does not approve in writing. The foregoing indemnity obligations will not apply in the event you have misused the Services or otherwise breached this Agreement. In the event any claims arises pursuant to which CaptivateIQ may be required to indemnify you, or CaptivateIQ believes such a claim may arise, CaptivateIQ may, at its option: (i) secure the necessary rights and licenses for you to continue using the Service, (ii) modify the Service such that it is non-infringing, or (iii) terminate this Agreement on written notice to you (and in such event, CaptivateIQ will provide you with a pro-rata refund of all fees paid in advance for Services not yet provided). This Section 14 sets forth your sole remedy, and CaptivateIQ's exclusive liability, with respect to claims related to the infringement or violation of third party intellectual property rights.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Most user concerns can be resolved quickly and to the user's satisfaction by emailing user support at [email protected] In the unlikely event that the CaptivateIQ's support team is unable to resolve a complaint you may have (or if CaptivateIQ has not been able to resolve a dispute through binding arbitration, mediation, or small claims court instead of in courts of general jurisdiction), CaptivateIQ and you agree to arbitrate all disputes and claims between us.
Except for claims for injunctive or equitable relief or claims regarding confidentiality or intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. ("JAMS") by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provision, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in San Francisco, California. The prevailing party in any action or proceeding to enforce this Agreement will be entitled to recover reasonable costs and attorneys' fees.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to CaptivateIQ should be addressed to CaptivateIQ, Inc., 740 Murphy Drive, San Mateo, CA 94402 ("Arbitration Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If CaptivateIQ and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or CaptivateIQ may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by CaptivateIQ or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or CaptivateIQ is entitled.
Notwithstanding any provision in this Agreement to the contrary, we agree that if CaptivateIQ makes any future change to this arbitration provision (other than a change to the Arbitration Notice Address) while you are a user of the Services, such change only binding upon your receipt of written notice thereof, you may reject any such change by sending us written notice within thirty (30) calendar days of receipt of written notice of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
Governing Law. This Agreement will be governed by the laws of the United States and the State of California without regard to the principles of conflicts of law (except with respect to federal preemption principles). Unless otherwise elected by CaptivateIQ in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located within San Francisco County, California for the purpose of resolving any dispute relating to your access to or use of the Service not subject to arbitration, as set forth above.
Entire Agreement. The failure of CaptivateIQ to exercise or enforce any right or provision of this Agreement will not be a waiver of that right. You acknowledge that this Agreement is a contract between you and CaptivateIQ, even though it is electronic and is not physically signed by you and CaptivateIQ, and it governs your use of the Service and takes the place of any prior agreements between you and CaptivateIQ. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
Marketing. CaptivateIQ may use the Customer's logo and otherwise advertise its relationship with the Customer on its website or other advertising materials. However, CaptivateIQ shall obtain prior written permission from the Customer (email acceptable) prior to using any Customer's testimonials or publishing any descriptions about Customer's and its services.
Modifications. CaptivateIQ may change this Agreement from time to time. If we do this, we will indicate at the top of this page the date these terms were last revised and if applicable, we will post the material changes to this Agreement on this page. We will also use commercially reasonable efforts to notify you, either through the Service user interface, in an email notification to the email provided by you in connection with the Service, or through other reasonable means. Any such changes will become effective upon fifteen (15) days after they are posted. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Agreement, provided that disputes arising hereunder will be resolved in accordance with the Agreement in place at the time the facts giving rise to the dispute occurred. Notwithstanding the generality of the foregoing, you understand and acknowledge that you are agreeing to arbitrate disputes arising hereunder (as described in further detail under the heading "Dispute Resolution By Binding Arbitration"), and that the terms of our Arbitration Agreement will not be modified without your express agreement.