Terms and Conditions
Terms and Conditions
PLEASE READ THESE SERVICE TERMS AND CONDITIONS CAREFULLY. THESE SERVICE TERMS AND CONDITIONS (“AGREEMENT”) GOVERN ACCESS TO AND USE OF THE SERVICES (AS DEFINED BELOW) PROVIDED BY ENGAGE TECHNOLOGIES GROUP, INC. (“ENGAGE”) TO THE CUSTOMER IDENTIFIED IN THE ORDER FORM (“SUBSCRIBER”). CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. ENGAGE AND SUBSCRIBER ARE SOMETIMES REFERRED TO IN THIS AGREEMENT COLLECTIVELY AS THE “PARTIES” AND INDIVIDUALLY AS A “PARTY.”
ENGAGE COMMITS TO PROTECTING THE PRIVACY AND DATA PROTECTION RIGHTS OF INDIVIDUALS. BY EXECUTING AN ORDER THROUGH THE ENGAGE WEBSITE OR OUR PAYMENT SYSTEM, SUBSCRIBER AGREES TO THE TERMS OF THIS AGREEMENT AND ACKNOWLEDGES TO HAVE READ ENGAGE’S PRIVACY POLICY (AVAILABLE AT https://clarityperformance.com/privacy-policy ) AND ENGAGE’S COOKIE POLICY (AVAILABLE AT https://clarityperformance.com/cookie-policy ) WHICH ARE INCORPORATED HEREIN BY REFERENCE.
IF AN INDIVIDUAL IS ACCEPTING THIS AGREEMENT ON BEHALF OF SUBSCRIBER, SUCH INDIVIDUAL REPRESENTS THEY HAVE THE AUTHORITY TO BIND SUBSCRIBER AND ITS AFFILIATES TO THE TERMS AND CONDITIONS SET FORTH HEREIN. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND SUBSCRIBER MAY NOT USE THE SERVICES. THIS AGREEMENT IS MADE AND ENTERED INTO AS OF THE DATE THAT SUBSCRIBER EXECUTES AN ORDER FORM WITH ENGAGE (“EFFECTIVE DATE”).
THE PROCESSING OF PERSONAL DATA BY ENGAGE ON BEHALF OF THE SUBSCRIBER IS GOVERNED BY THE PROVISIONS OF THE DATA PROTECTION AGREEMENT (AVAILABLE AT https://clarityperformance.com/data-processing-addendum )
Our Customer Terms of Service is a contract that governs our customers’ use of the ENGAGE services. It consists of the following documents:
- General Terms: These contain the core legal and commercial terms that apply to your use of our products and services. Any references to Master Terms mean these General Terms.
- Data Protection Agreement (DPA): This explains how we process your data and includes the EU (European Union) Standard Contractual Clauses.
By using the Subscription Service or receiving the Consulting Services, you agree to these terms. We update these terms sometimes. If you have an active ENGAGE subscription, we will let you know when we update the terms via in-app notification or by email (if you subscribe to receive email updates).
General Terms Last modified January 2024
General Terms
- Definitions
- Use of Services
- Subscriber Data
- Fees
- Term & Termination
- Intellectual Property Infringements
- Confidentiality
- Publicity
- Indemnification
- Disclaimers and Liability
- Miscellaneous
1. Definitions
1.1.“Add-Ons” means additional product enhancements (including Limit increases and other addons) that are made available for purchase and are listed in the ‘Add-Ons & Limit Increases’ and the ‘Technical Limits and Definitions’ sections of our Products and Services Catalog.
1.2.“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3.“Agreement” or “Customer Terms of Service” means these General Terms and all materials referred to or linked to in here, unless otherwise stated. Throughout this Agreement, we link to knowledge base articles to help facilitate your use of our products and services and manage your ENGAGE Account; however, these knowledge base articles are for your information only, and they are not incorporated into this Agreement.
1.4.“Authorized Payment Method” means a current, valid, payment method accepted by us, as may be updated from time to time and which may include payment through your account with a third party.
1.5.“Billing Period” means the period for which you agree to prepay fees under an Order Form. This may be the same length as the Subscription Term specified in the Order Form, or it may be shorter. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
1.6.“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential, or a reasonable person would consider confidential. Confidential Information includes all information concerning: the Disclosing Party’s customers and potential customers, past, present, or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether it is designated as confidential.
1.7.“Contact” means a single individual (other than a User) whose Contact Information is stored by you in the Subscription Service.
1.8.“Contact Information” means the name, email address, phone number, online username(s), and similar information submitted by visitors to your landing pages on the Subscription Service or uploaded by you to the Subscription Service. “Consulting Services” means the professional services provided to you by us, which may include training services, installation, integration, or other consulting services.
1.9.“Customer Data” means all information that you submit or collect via the Subscription Service. Customer Data does not include ENGAGE Content.
1.10.“Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
1.11.“DPA” means the ENGAGE Data Protection Agreement at https://clarityperformance.com/data-processing-addendum .
1.12.“Email Send Limit” means the number of emails that you may send in any given calendar month.
1.13.“Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
1.14.“ENGAGE Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services, including Enrichment Data.
1.15.“Jurisdiction-Specific Terms” means the additional terms that apply to your subscription, depending on your location.
1.16.“Order” or “Order Form” means the ENGAGE-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services.
1.17.“Personal Data” means any information relating to an identified or identifiable individual where (i) such information is contained within Customer Data and (ii) is protected as personal data, personal information, or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
1.18.“Sensitive Information” means credit or debit card numbers; financial account numbers or wire instructions, government issued identification numbers (such as Social Security numbers, passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR (as defined in the DPA) or any other applicable law relating to privacy and data protection.
1.19.“Subscription Fee” means the amount you pay for the Subscription Service.
1.20.“Subscription Service” means all of our web-based applications, tools and platforms that you have subscribed to under an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via https://www.engagetg.com or another designated URL, and any ancillary products and services, including website hosting, that we provide to you. ENGAGE Payments are excluded from Subscription Services and are governed separately under the ENGAGE Payments Terms of Use.
1.21.“Subscription Term” means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
1.22.“Third-Party Products” means non-embedded products and professional services provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-ENGAGE apps available from, for example, our communities, directories, and links made available through the Subscription Service and non-ENGAGE services listed on services.engagetg.com.
1.23.“Third-Party Sites” means third-party websites linked to from within the Subscription Service, including Communications Services.
1.24.“Total Committed Subscription Value” means the aggregate amount of Subscription Fees paid or payable to us during your then-current Subscription Term(s) for all of your ENGAGE accounts, but this amount excludes fees for renewals, Consulting Services, and applicable taxes.
1.25.“Users” means your employees, representatives, consultants, contractors, or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service. “ENGAGE”, “we”, “us” or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section. “You”, “your” or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer and your Affiliates included in the scope of your purchase.
2. Use of Services
2.1.Access. During the Subscription Term, we will provide your Users access to use the Subscription Service as described in this Agreement and the applicable Order. We may provide your Users access to use our Free Services at any time by activating them in your ENGAGE account. We might provide some or all elements of the Subscription Service through third party service providers. You must ensure that all access, use and receipt by your Users is subject to and in compliance with this Agreement. You may provide access and use of the Subscription Service to your Affiliate’s Users or allow them to receive the Consulting Services purchased under an Order; provided that, all such access, use and receipt by your Affiliate’s Users is subject to and in compliance with the Agreement and you will at all times remain liable for your Affiliates’ compliance with the Agreement.
2.2.Engage Platform. Subject to the terms and conditions of this Agreement, Engage grants to Subscriber a limited, non-exclusive, non-transferable (except as permitted in Section 11.2), non-sublicensable right during the term of the applicable Order Form to allow its Users to access and use the Engage Platform, the FTP Server or API Kit, as applicable, and the other Engage Materials, in each case solely for Subscriber’s internal business operations in connection with the Recipient Services. Subscriber’s and its Users’ right to use the Engage Platform is subject to, and contingent upon compliance with, the Scope Limitations. Subscriber hereby acknowledges and agrees that it will be solely responsible for obtaining and maintaining any equipment, software, internet connectivity, networking infrastructure, ancillary services, and other tangible embodiments of technology not provided by Engage that are needed to connect to, access, or otherwise use the Engage Platform, Engage Materials, or FTP Server, including as set forth in the related Documentation. Subscriber will be solely responsible and liable for implementing, securing, and maintaining such technology, and Engage will have no liability to Subscriber for any failure or non-fulfillment by Subscriber to do so.
2.3.Usage Data. Engage, the API Kit, the Subscriber Portal, and the Engage Platform collect, generate, and derive Usage Data for Engage’s business purposes, including to: (a) track usage for billing purposes; (b) monitor the performance, security, integrity, availability, and stability of the Engage Platform, Subscriber Portal, and API Kit; (c) prevent or address technical issues with the Engage Platform, Subscriber Portal, and API Kit; and (d) improve the Engage Platform, Subscriber Portal, and API Kit and develop derivative and new products and services. Subscriber will not, and will require that its Users do not, interfere with the collection of Usage Data. As between the Parties, Engage owns all right, title, and interest, including all intellectual property rights in and to, the Usage Data, the know-how and analytical results generated in the processing and use of Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to the Engage Platform, API Kit or any other Services made based on the Usage Data. Engage will not disclose Usage Data externally, including in benchmarks or reports, unless such Usage Data has been (a) de-identified so that it does not individually identify Subscriber, its Users, or Recipients, or any other person and (b) aggregated with usage data from other users of the Services.
2.4.Use of the Documentation. Subject to the terms and conditions of this Agreement, Engage grants to Subscriber a limited, non-exclusive, non-transferable (except as permitted in Section 11.2) license, without right of sublicense, during the term of this Agreement, to reproduce, without modification, and internally use, and allow its Users to internally use, a reasonable number of copies of the Documentation solely in connection with its and their use of the Engage Platform, FTP Server, and API Kit in accordance with this Agreement.
2.5.Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your ENGAGE account (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your ENGAGE account.
2.6.Subscriber Portal. Recipient Services. Subject to the terms and conditions of this Agreement, during the term of the applicable Order Form Engage will use commercially reasonable efforts to (a) make the Subscriber Portal available 24 hours a day, 7 days a week for access by Recipients (except for scheduled downtime, emergency maintenance, and any unavailability caused by circumstances beyond Engage’s reasonable control, including Force Majeure Events), and (b) subject to the terms of the Recipient Terms of Service (available at https://www.engagetg.com/terms/), provide the Recipient Services to such Recipients.
2.7.Modifications to the Service. Engage reserves the right to modify or discontinue all or any part of Services at any time (including by limiting or discontinuing certain features or functionality of the Services), temporarily or permanently, without notifying Subscriber (except that Engage will provide Subscriber with thirty (30) days’ prior notice in the event of any deprecation of any material feature or functionality of the Service). Engage will have no liability for any change or modification to the Services or any suspension or termination of access to or use of the Services as a result thereof. Notwithstanding the foregoing, any such change or modification will apply on a going-forward basis with respect to any Order Forms entered into or renewed after Engage’s implementation thereof 2.8 Prohibited and Unauthorized Use. You will comply with our Acceptable Use Policy at https://www.engagetg.com/acceptable-use (“AUP”).
2.8.Prohibited and Unauthorized Use. You will not use the Subscription Service in any way that violates the terms of the AUP or for any purpose or in any manner that is unlawful or prohibited by this Agreement. You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA), so you may not use the Subscription Service where your communications would be subject to such laws. You may not use the Subscription Service in a way that would violate the Gramm-Leach-Bliley Act (GLBA). Nothing contained in this section limits the usage restrictions specific to Sensitive Information under the Agreement. You will notify us promptly of any unauthorized use of your Users’ identifications and passwords or your account by following the instructions at http://help.engagetg.com.
2.9.No Sensitive Information. YOU ACKNOWLEDGE THAT THE SUBSCRIPTION SERVICES HAVE NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION EXCEPT AS OTHERWISE STATED IN THE DATA PROCESSING AGREEMENT AND ACCORDINGLY YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION EXCEPT AS OTHERWISE STATED IN THE DATA PROCESSING AGREEMENT. WE WILL NOT HAVE AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT, PROCESS OR MANAGE SENSITIVE INFORMATION EXCEPT AS OTHERWISE STATED IN THE DATA PROCESSING AGREEMENT.
2.10.Customer Responsibilities. To realize the full value of the Subscription Service and Consulting Services, your participation and effort are needed. Resources that may be required from you include a project manager, one or more content creators, a sales sponsor, an executive sponsor, and a technical resource (or equivalent). Responsibilities that may be required include planning of marketing programs; setting of a content creation calendar; creating blog posts, social media content, Calls-To-Action (CTAs), downloads, emails, nurturing content, and other materials; acting as internal liaison between sales and marketing; providing top level internal goals for the use of the Subscription Service; attending regular success review meetings; and supporting the integration of the Subscription Service with other sales and marketing systems.
2.11.Free Trial. If you register for a free trial, we will make the applicable Subscription Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Subscription Service before the free trial ends, all your data may be permanently deleted, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those will apply as well.
2.12.Legacy Products. If you have a legacy ENGAGE product, some of the features and limits that apply to that product may be different than those that appear in these General Terms. If you have legacy ENGAGE products, we may choose to move you to our then-current products at any time.
2.13.Security. Engage will maintain an industry-standard security program designed to prevent unauthorized access to or use of Subscriber Data. For purposes of this Agreement, Confidential Information of Subscriber does not include Subscriber Data.
2.14.No Support. Engage is under no obligation to provide support or maintenance services for the Services to Subscriber, Recipients or Users. To the extent Subscriber or its Users experience any issues relating to the Services, please contact Engage at [email protected] or 208-902-9030.
2.15.White Labelling. Subscriber Branding License. The Order Form may specify that the Content and/or Subscriber Portal be White Labelled. Subject to the terms and conditions of this Agreement, Subscriber grants to Engage, during the term of this Agreement, a non-exclusive, non-transferable license to use, store, reproduce and display on the Content and Subscriber Portal Subscriber’s trademarks, service marks, logos, company name, domain names, and other branding elements of Subscriber, including any audio, video, text, or photographs owned, licensed, or otherwise authorized to be used by Subscriber (collective, “Subscriber Branding”) solely in connection with such White Labelling of the Content and Subscriber Portal.
2.16.Reservation of Rights. Engage grants to Subscriber a limited right, as set forth in Section 2.2 and Section 2.3, to use the Engage Platform, the FTP Server or API Kit, as applicable, and the other Engage Materials. Subscriber will not have any rights to the Engage Platform, API Kit or any other Engage Materials, FTP Server, Documentation, or Usage Data, or any other Services, except as expressly granted in this Agreement. As between the Parties, Engage reserves to itself all rights to the Services, Engage Materials, and Usage Data not expressly granted to Subscriber in accordance with this Agreement (excluding any Subscriber Branding included on the Content and Subscriber Portal).
2.17.Feedback. If Subscriber or any of its Users provides any feedback to Engage concerning the functionality and performance of the Services (including identifying potential errors and improvements), Subscriber hereby grants Engage an unrestricted, perpetual, irrevocable, non-exclusive, fully paid-up, royalty-free license to exploit such feedback in any manner and for any purpose, including to improve the Services and to create other products and services. Engage will have no obligation to provide Subscriber or its Users with attribution for any such feedback.
3. Subscriber Data
3.1.Integration. The Subscription Services require that Engage has ongoing access to accurate, complete, and up to date Subscriber Data, and certain rights to access and use the Subscriber Data. Subscriber will provide to Engage, or cause the provision to Engage of, access to Subscriber Data via the method set forth in the applicable Order Form.
3.1.1.API Kit License. To the extent API Kit is selected as the integration method in the applicable Order Form and subject to the terms and conditions of this Agreement, Engage hereby grants Subscriber, during the term of the applicable Order Form, a non-exclusive, royalty-free, fully paid-up, non-sublicensable, non-transferable (except as permitted in Section 11.2) license to use the API Kit in accordance with the Documentation solely for purposes of integrating and making the Subscriber Data available to Engage. Subscriber will update the Subscriber Data accessible and/or made available through the API Kit regularly and immediately after any call, request, or submission initiated by Engage via the API Kit.
3.1.2.FTP Server License. To the extent FTP Server is selected as the integration method in the applicable Order Form and subject to the terms and conditions of this Agreement, Engage hereby grants Subscriber, during the term of the applicable Order Form, a non- exclusive, royalty-free, fully paid-up, non-sublicensable, non-transferable (except as permitted in Section 11.2) license to access and use the FTP Server solely for purposes of making the Subscriber Data available to Engage. Subscriber will update the Subscriber Data accessible and/or made available on the FTP Server on a regular basis and, in any event, promptly after Engage’s reasonable written request.
3.1.3.Third-Party Technology. To the extent Third-Party Technology is selected as the integration method in the applicable Order Form, Subscriber Data will be made available to Engage by Engage’s integration of its information technology systems with certain software or other technology used by Subscriber that are provided to Subscriber by third parties (“Third-Party Technology”), provided that, as of the commencement of such Order Form, Subscriber has obtained all necessary and sufficient rights, permissions, (sub)licenses, and authority from such third parties which are required for Engage to use, access, and otherwise exploit such Third-Party Technology solely for purposes of integrating Engage’s information technology systems with such Third-Party Technology in order to access and transmit to Engage’s information technology systems the Subscriber Data stored, retained, collected, or uploaded thereon.
3.2.Data License. Subject to the terms and conditions of this Agreement, Subscriber hereby grants Engage, during the term of this Agreement, a worldwide, non-exclusive, royalty-free, fully paid-up, irrevocable, sublicensable, non-transferable (except as permitted in Section 11.2) license to collect, use, store, modify, reproduce, transmit, and otherwise process Subscriber Data solely for purposes of providing the Subscription Services.
4. Fees and Payment
4.1.Subscription Fees. The Subscription Fee will remain fixed during the initial term of your subscription unless: (i) you upgrade products or base packages, (ii) you subscribe to additional features or products, or (iii) otherwise agreed to in your Order. We may also choose to decrease your fees upon written notice to you.
4.2.Payment of Fees. If you are paying by credit card, you authorize us to charge your Authorized Payment Method for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. In the event of a failed attempt to charge your Authorized Payment Method (for example, if your Authorized Payment Method has expired or is no longer valid), we reserve the right, and you authorize us, to retry billing your Authorized Payment Method. If you update your Authorized Payment Method to remedy a change in validity or expiration date, we will automatically resume billing; we may also receive updates on your Authorized Payment Method through our payment service providers and automatically resume billing. We may suspend your access in accordance with the ‘Suspension’ section or terminate your account in accordance with the ‘Termination for Cause’ section if we remain unable to successfully charge a valid Authorized Payment Method.
4.3.Fee Adjustments at Renewal. Upon renewal, we may increase your fees up to our current list price set out in our Products and Services Catalog. If this increase applies to you, we will notify you at least thirty (30) days before your renewal, and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either party can choose to terminate your subscription at the end of your then-current term by giving the notice required in the ‘Notice of Non-Renewal’ section below.
4.4.Payment against invoice. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form. Any amount not paid when due will be subject to finance charges equal to 1.8% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. The subscriber will reimburse any costs or expenses (including reasonable attorneys’ fees) incurred by Engage to collect any amount not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts.
4.5.Engage Membership Subscription Plans. Engage currently offers up to three (3) membership plan options for Subscriber. The subscriber chooses their desired plan level (i.e., Silver, Gold, or Platinum). Each Membership Subscription selected (monthly or annual) is practice location-specific which means the Subscriber must purchase an individual membership package for every practice location at which they intend to use the Engage Services in United States dollars.
4.6.Upon at least 45 days’ prior written notice to Subscriber, Engage shall have the right to increase fees for Services specified on an Order Form by the greater of (a) 6% of the applicable existing fees; or (b) the percentage increase from the preceding 12 months in the Consumer Price Index or, if this index ceases to be published, any other consumer price index published in substitution. Increases shall apply to all Order Forms executed or renewed after the effective date of the increase.
4.7.Payment Information. You will keep your business information up to date, including your company name, address, and primary contact. You will also keep your Authorized Payment Method and billing information up to date for the payment of incurred and recurring fees, including your tax information. Changes may be made on your Billing Page within your ENGAGE account. You authorize ENGAGE to continue to charge your Authorized Payment Method for applicable fees during your Subscription Term and until all outstanding Fees are paid in full. All payment obligations are non-cancelable, and all amounts paid are nonrefundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are an ENGAGE Solutions Partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.
4.8.Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You will have no liability for any taxes based upon our gross revenues or net income. If you are in the European Union, all fees are exclusive of any VAT, and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST. If you are located in Canada, all fees are exclusive of GST, PST and HST.
4.9.Withholding Tax. Other than net income taxes imposed on Engage, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Engage after all such taxes are paid are equal to the amounts that Engage would have been entitled to in accordance with this Agreement as if the taxes did not exist.
5. Term and Termination
5.1.Term. This Agreement will commence on the Effective Date and, unless terminated earlier, will continue until the expiration or earlier termination of all Order Forms. Each Order Form will commence upon the start date of the Initial Subscription Term set forth therein and, unless terminated earlier in accordance with this Agreement, will continue until the expiration of that Initial Subscription Term.
5.2.Notice of Non-Renewal. Upon expiration of the Initial Subscription Term, the Order Form will automatically renew for additional successive terms equal in length to that Initial Subscription Term unless and until, at least 30 days before the end of the then-current Subscription Term, either Party provides written notice to the other Party that it does not want to renew.
5.3.Early Cancellation. You may choose to cancel your subscription early at your convenience provided that we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of the Subscription Term. See the ‘Notice of Non-Renewal’ section for information on how to cancel your subscription.
5.4.Termination for Material Breach. Either Party may terminate this Agreement or any Order Form if the other Party does not cure its material breach of this Agreement or applicable Order Form within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 4.1 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. If the Subscriber fails to timely pay any fees, Engage may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due.
5.5.Post-Termination Obligations; Effect of Termination. If this Agreement expires or is terminated for any reason, upon the effective date of such expiration or termination, all outstanding Order Forms and access to the Services will automatically terminate and Subscriber will pay to Engage all outstanding payment obligations, which will become immediately due and payable, any and all liabilities accrued prior to such date will survive, and promptly following such date, Subscriber will provide Engage with a written certification signed by an authorized Subscriber representative certifying that all use of the Engage Platform, FTP Server, and Engage Materials by Subscriber and its Users has been discontinued. In addition to the rights and obligations set forth in the immediately preceding sentence, upon any earlier termination of this Agreement or any Order Forms then in effect prior to the expiration of their then-current Subscription Term for any reason other than an uncured material breach by Engage, Subscriber will pay to Engage, for each such Order Form, a fee equal to one twelfth (1/12) of the fees paid by Subscriber for an annual Subscription Term or, in the event that any Subscription Term for any such Order Forms is for a period less than one calendar year, a fee equal to one twelfth (1/12) of the fees that would have otherwise been paid by Subscriber had Subscriber purchased Services for an annual Subscription Term (“Termination Fee”). The Termination Fee will become immediately due and payable upon the effective date of any such earlier termination. The following provisions will survive the expiration or termination of this Agreement for any reason: 1, 1.1, 2.8, 2.9, 2.17, 4, 5.2, 6, 7, 8, 9, 10, and 11.
5.6.Suspension
5.6.1.uspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the ENGAGE email send service that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty (unless applicable laws or regulations provide otherwise) to prescreen, control, monitor or edit your Customer Data or Customer Materials.
5.6.2.Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a reactivation fee to reinstate the Subscription Service.
5.6.3.Suspension for Present Harm. If your website, or use of, the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth or storage, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service.
5.6.4.We will make commercially reasonable efforts to limit the suspension to the affected portion of the Subscription Service, and each party will make reasonable efforts to promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
6. Intellectual Property Infringement
6.1.Defense of Infringement Claims. Engage will, at its expense, either defend or settle any claim, proceeding, or suit brought by a third party (“Claim”) against Subscriber alleging that the Subscriber Portal (excluding any Content or other information made available through the Subscriber Portal) or Subscriber’s use (in accordance with this Agreement) of the Engage Platform or API Kit infringes or misappropriates any third party patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if: Subscriber gives Engage prompt written notice of the Claim; Subscriber grants Engage full and complete control over the defense and settlement of the Claim; Subscriber provides assistance in connection with the defense and settlement of the Claim as Engage may reasonably request; and Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing portion of the Engage Platform or API Kit). The subscriber will not defend or settle any Claim subject to defense under this Section without Engage’s prior written consent. Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing but Engage will have sole control over the defense and settlement of the Claim.
6.2.Indemnification of Infringement Claims. Engage will indemnify Subscriber from and pay all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim subject to defense under Section 7.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of such a Claim (other than attorneys’ fees and costs incurred without Engage’s consent after Engage has accepted defense of the Claim); and all amounts that Engage agrees to pay to any third party to settle any such Claim.
6.3.Remediation. If any such Claim subject to defense under Section 7.1 is brought or threatened, Engage may, at its sole option and expense: (a) procure the applicable rights to continue making the Subscriber Portal available without infringement or procure for Subscriber the right to continue to use the Engage Platform or API Kit, as applicable; (b) modify the Subscriber Portal, Engage Platform or API Kit, as applicable, to make it non-infringing; or (c) replace the affected aspect of the Subscriber Portal, Engage Platform or API Kit, as applicable, with non-infringing technology having substantially similar capabilities. If none of the foregoing is commercially practicable, or if a Claim alleging infringement or misappropriation of any intellectual property right by the Subscriber Portal, Engage Platform or API Kit that is not subject to defense under Section 7.1 is brought or threatened, then Engage may, at its sole option, terminate the applicable Order Forms or this Agreement upon notice to Subscriber.
6.4.Exclusions from Obligations. Engage will have no obligation under this Section 7 for any infringement or misappropriation to the extent that it arises out of or is based upon use of the Engage Platform, Subscriber Portal, or API Kit in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; the Engage Platform, Subscriber Portal, or API Kit are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; use of the Engage Platform or API Kit by Subscriber or its Users for purposes not intended or outside the scope of the license granted to Subscriber; Subscriber’s or its Users’ failure to use the Engage Platform or API Kit in accordance with instructions provided by Engage, if the infringement or misappropriation would not have occurred but for such failure; any modification of the Engage Platform, Subscriber Portal, or API Kit not made or authorized in writing by Engage where such infringement or misappropriation would not have occurred absent such modification; or any Subscriber Branding (except to the extent the infringement or misappropriation arises out of Engage’s use of the Subscriber Branding in violation of the license granted to Engage under Section 2.16).
6.5.Limited Remedy. This Section 7 states Engage’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Subscriber Portal (other than to the extent arising out of Engage’s use of the Subscriber Branding in violation of the license granted to Engage under Section 2.16), the Engage Platform or the API Kit.
7. Confidentiality
7.1.The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by us to provide some or all elements of the Subscription Service or Consulting Services and except for your ENGAGE Solutions Partner bound by confidentiality obligations), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.2.The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; (ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and (iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure, including in circumstances where the Disclosing Party refuses to provide their consent or fails to respond to the Receiving Party’s inquiries in connection with the request to disclose the Confidential Information.
8. Publicity
8.1.You grant us the right to add your name and company logo to our customer list and website. You can opt-out of this use by filling out the Publicity Opt-Out form at https://bit.ly/ClarityPublicityOptOut.
9. Indemnification
9.1.You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an Action) brought against us (and our officers, directors, employees, agents, service providers, licensors, and Affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you or your Affiliates, (b) your or your Affiliates’ noncompliance with or breach of this Agreement, (c) your or your Affiliates’ use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information.
9.2.We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You will not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
10. Disclaimers; Limitation of Liability
10.1.Performance Warranty. We warrant that: (i) the Subscription Service and Consulting Services will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service; provided however, this warranty will not apply to you if you only use the Free Services.
10.1.1.In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance. If we cannot correct such non-conformance within sixty (60) days from the date when you notified us of the non-conformity (the “Remedy Period”), then either party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period. If you terminate the Agreement for this reason, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.
10.1.2.We will not have any obligation or liability under this section if the non-conformance is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or (iii) use of the Subscription Service in violation of or outside the scope of this Agreement.
10.2.THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED UNDER THIS SECTION.
10.2.1.Subscriber Warranties. Subscriber represents and warrants to Engage that: (a) Subscriber and its Users will comply with all applicable laws in connection with its obligations under this Agreement and their use of the Services; and (b) Subscriber will provide all notices required, and will obtain all necessary and sufficient rights, permissions, capacity, consents, and authority, to fully comply with and perform its obligations, and grant the rights and licensed granted to Engage, under this Agreement (including Section 2.8, Section 2.9, Section 3.1(c), and Section 3.2), in each case without violation of applicable laws, infringement, misappropriation, or dilution of any third-party rights (including intellectual property, publicity, privacy, or other proprietary rights of Recipients), or breach of any terms or conditions in any agreement or privacy policies with a third party (including the providers of Third-Party Technology); and (c) prior to making any Subscriber Data with respect to a given Recipient available to Engage, Subscriber will have received the express written consent of that Recipient to receive at least one text message (which text message may be considered telemarketing under applicable law and may be sent using an automatic telephone dialing system or other automated technology) from Engage at the phone number made available to Engage as part of the Subscriber Data.
10.3.Disclaimer of Warranties. EXCEPT AS SET FORTH IN THE ‘PERFORMANCE WARRANTY’ SECTION AND WITHOUT LIMITING OUR OBLIGATIONS IN THE ‘PROTECTION OF CUSTOMER DATA’ SECTION OF THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE SUBSCRIPTION SERVICE, DATA SYNCHED TO OR MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, ENGAGE CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, ENGAGE CONTENT AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
10.4.Healthcare Disclaimer. The Services’ features and functionality are only intended to enable Subscriber to make available to its Recipients medical or other healthcare-related services and information. Engage does not have any oversight or control over the care provided by Subscriber to Recipients. SUBSCRIBER AND ITS USERS ARE NOT EMPLOYEES, REPRESENTATIVES, OR AGENTS OF ENGAGE, AND MUST NOT REPRESENT, OR IN ANY WAY INDICATE, SUGGEST, OR IMPLY, THEY ARE AFFILIATED WITH ENGAGE OR THAT THE SUBSCRIBER IS CREDENTIALED, ENDORSED, RECOMMENDED, OR EVALUATED BY ENGAGE IN ANY MANNER. Subscriber is solely responsible for any and all medical or other healthcare-related services and information provided to Recipients and is also solely responsible for obtaining their informed consent for any medical or other healthcare-related services and information provided to them. As between Subscriber and Engage, the Content made available through the Services is not and should not be considered medical or healthcare advice or a substitute for individual medical or healthcare advice, diagnosis, or treatment. The information available through the Services (including Content) should not be construed as a representation or warranty by Engage that any procedure, treatment, advice, or guidance is safe, appropriate, or effective for Recipients.
10.5.No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY
10.6.Limitations of the Services. SUBSCRIBER HEREBY ACKNOWLEDGES AND AGREES THAT ENGAGE IS NOT A PROVIDER OF MEDICAL OR HEALTHCARE SERVICES OR PRODUCTS AND THAT SUBSCRIBER IS SOLELY RESPONSIBLE FOR ALL MEDICAL OR HEALTHCARE SERVICES, PRODUCTS AND INFORMATION PROVIDED TO RECIPIENTS THROUGH, OR FACILITATED BY, THE SERVICES. SUBSCRIBER IS SOLELY RESPONSIBLE FOR ALL INTERACTIONS AND RELATIONSHIPS WITH RECIPIENTS WHETHER OR NOT FACILITATED BY THE SERVICES (INCLUDING ANY DIAGNOSIS, TREATMENT, ADVICE, SUGGESTIONS, RECOMMENDATIONS, OR CARE PROVIDED TO RECIPIENTS). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUBSCRIBER UNDERSTANDS THAT THERE ARE LIMITATIONS ON THE EFFICACY OF THE SERVICES IN ENABLING THE DIAGNOSIS, TREATMENT, AND/OR CARE OF A RECIPIENT, AND THAT CERTAIN SITUATIONS MAY REQUIRE URGENT AND/OR IN- PERSON CARE FOR THE RECIPIENT, INCLUDING AT A HOSPITAL OR CLINIC. SUBSCRIBER IS SOLELY RESPONSIBLE FOR ENSURING THAT THE CARE, TREATMENTS, RECOMMENDATIONS, DIAGNOSES, SUGGESTIONS, AND ANY OTHER ADVICE PROVIDED TO RECIPIENTS THROUGH OR IN CONNECTION WITH THE SERVICES AT ALL TIMES MEETS APPLICABLE STANDARDS OF CARE AND THAT SUBSCRIBER WILL EXERCISE ITS BEST PROFESSIONAL JUDGMENT IN PROVIDING ANY SUCH ADVICE. ENGAGE WILL NOT BE LIABLE TO SUBSCRIBER OR TO ANY THIRD PARTY (INCLUDING RECIPIENTS) OR RESPONSIBLE FOR (1) THE MEDICAL OR OTHER HEALTHCARE-RELATED SERVICES OR INFORMATION PROVIDED TO RECIPIENTS OR (2) ANY RELIANCE PLACED ON THE CONTENT PROVIDED BY ENGAGE TO SUBSCRIBER OR RECIPIENTS. ENGAGE MAKES NO REPRESENTATIONS OR WARRANTIES AND SUBSCRIBER IS SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY, APPROPRIATENESS, AND QUALITY OF THE CONTENT PROVIDED BY ENGAGE TO SUBSCRIBER OR RECIPIENTS THROUGH THE SERVICES AND ENGAGE IS UNDER NO OBLIGATION TO DO SO. ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE SERVICES.
10.7.LIMITATIONS OF LIABILITY
10.7.1.Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ENGAGE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF ENGAGE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.7.2.Cap on Liability. UNDER NO CIRCUMSTANCES WILL ENGAGE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO ENGAGE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
10.7.3.Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ENGAGE TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
10.8.Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
10.9.Third Party Products. WE AND OUR AFFILIATES DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
11. Miscellaneous
11.1.Amendment; No Waiver. We may modify any part or all the Agreement by posting a revised version at http://legal.engagetg.com. The revised version will become effective and binding the next business day after it is posted. We will provide you with notice of this revision by email or in-app notification. If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the current terms posted at https://legal.engage.com will apply. However, if we can no longer reasonably provide the subscription to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Subscription Services will terminate upon our notice to you and we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
11.2.Force Majeure. Except for payment obligations of amounts due under this Agreement, neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; pandemic; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. Engage and Subscriber may each terminate the applicable Order Form upon providing five (5) days’ prior written notice, in which case Subscriber will refund to Subscriber any pre-paid fees paid by Subscriber under the applicable Order Form which will be prorated for the termination portion of the then-current subscription term.
11.3.Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
11.4.Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
11.5.Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Subscription Service, the Consulting Services, and our processing of Customer Data. We always reserve the right to disclose any information as necessary to satisfy any law, regulation, legal process, or governmental request. We will comply with our Code of Business Conduct and Ethics (a/k/our Code of Use Good Judgment) which can be found on our Investor Relations page on engage.com; the Code of Use Good Judgment is incorporated into this Agreement, but any other linked materials available on our Investor Relations Page are for information only and not incorporated into these terms. You will comply with all applicable laws in your use of the Subscription Service and Consulting Services, including any applicable export laws. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury in your use and receipt of the Subscription Service and Consulting Services. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.
11.6.Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
11.7.Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Idaho, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Ada County, Idaho in connection with any action arising out of or in connection with this Agreement.
11.8.Notices. To ENGAGE: Notice will be sent to https://clarityperformance.com/about-us set forth in the Jurisdiction Specific Terms and will be deemed delivered as of the date of actual receipt. To you: your address as provided in our ENGAGE Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all your account information current. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 11.4. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
11.9.Entire Agreement. This Agreement (including each Order), along with our Data Processing Agreement (available at https://clarityperformance.com/data-processing-addendum ), Engage’s Privacy Policy (available at https://clarityperformance.com/privacy-policy ), Engage’s Cookie Policy (available at https://clarityperformance.com/cookie-policy ) is the entire agreement between us for the Subscription Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral, or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance, supplier portal, or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written comments made by us regarding future functionality or features of the Subscription Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
11.10.Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any ENGAGE Affiliate or in the event of merger, reorganization, sale of all or substantially all our assets, change of control or operation of law.
11.11.No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or will confer upon any third-party person or entity any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
11.12.Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any similar legislation enacted, will not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern this Agreement or the rights and obligations of the parties under this Agreement.
11.13.Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Affiliates compliance with the terms of this Agreement.
11.14.Survival. The following sections will survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees’, ‘Prohibited and Unauthorized Use’, ‘Early Cancellation’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Intellectual Property’, ‘Customer’s Proprietary Rights’, ‘Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’. Additionally, the ‘Retrieval of Customer Data’ sections and the ‘Beta Services’ page will survive expiration or termination of this Agreement.
11.15.Precedence. In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.
11.16.By agreeing to our Terms and Conditions you also agree to our Business Associate Agreement (BAA) found here: https://claritypatienteducation.com/business-associate-agreement