Terms of Service
Date of Last Revision: July 7, 2023
YOU MAY NOT USE THE SERVICE IF YOU ARE A COMPETITOR TO ACTIVENGAGE.
YOU MAY NOT USE THE SERVICE IF YOU ARE UNDER THE AGE OF 18.
1. Description of the Service.
The “Service” includes (a) the Site, (b) ActivEngage’s chat services and related technologies, and (c) any software, data, reports, text, images, sounds, video, 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.
2. Access; Restrictions
Subject to your compliance with all the terms and conditions of this TOS, including any payment obligations, you may access and use the Service only for its intended purpose during the term of your subscription for the Service.
You agree not to access the Service by any means other than through the interface that is provided by ActivEngage for use in accessing the Service. You may not share individual login credentials for the Service, and you will ensure that each user has separate login credentials. You must provide true, accurate, and correct information at the time of registration and account creation, and thereafter. You may not misrepresent your affiliation with a person or entity.
You will not display, distribute, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sublicense, sell, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit (other than internal business use for its intended purpose) or make the Service available to any third party. You will comply with this TOS, and any codes of conduct, policies or other notices ActivEngage provides you or publishes in connection with the Service.
You will only access and use the Service for lawful and authorized purposes, and in no event in connection with competitive research or for scoping, benchmarking, developing, or providing any similar or competitive product or service. In addition, you may not exceed the scope of your authorized use of the Service.
You will not use the Service to (or assist another person 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, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, hateful racially, ethnically or otherwise objectionable; or (v) in the sole judgment of ActivEngage, which may expose ActivEngage or its users to any harm or liability of any type.
You shall not, and ActivEngage expressly reserves any right or permission to, retain, reproduce, communicate or otherwise use or exploit the Service in or in connection with any activities which involve, or are intended to result in, the training of artificial intelligence or machine learning algorithms, models, systems, platforms, services or other technologies (collectively, “AI Tech”), or the generation of new or derivative content or works (including, without limitation, text, images, sounds and performances) by or using such AI Tech (“Output”), including, without limitation, Output which is intended to or does replicate, imitate or evoke the style, manner, method, performance or approach of ActivEngage (whether or not in the same or a different genre or medium of expression).
You may not interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service.
You will not harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications.
You may not obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
You will be required to select a payment plan and provide ActivEngage information regarding your credit card or other payment instruments accepted by ActivEngage. You represent and warrant to ActivEngage 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. You agree to pay and hereby authorize ActivEngage 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 TOS. All charges are final, non-cancelable, and nonrefundable, provided that if ActivEngage terminates your account on the Service without cause, you will be entitled to a prorated refund of prepaid amounts. All fees may be changed by ActivEngage at any time and such increased fee amount will be notified to you and applicable in the following billing cycle (or such other future time notified to you by ActivEngage). ActivEngage may charge fees for features of the Service that were previously free. Unpaid trial use of the Service is subject to limitations, as may be described in our documentation or otherwise on our Site.
You agree to pay ActivEngage the applicable fees in accordance with your selected payment plan on or before the applicable payment date. In addition, you agree that you will pay any setup fees, and any initial ongoing fee to ActivEngage at the time of purchase and prior to deployment. All payments are non-refundable and shall be made in US Dollars.
If you are more than ten (10) days late with a payment, you shall be subject to a late charge at a rate of one percent per month (or the highest rate permitted by law, if less) on all late payments. ActivEngage shall have the right to terminate your access to use of the Service and this TOS upon seven (7) days written notice to you if you fail to make any payment.
Your access to and use of the Services, and this TOS, will automatically renew for a period equal to that of your initial subscription at the end of each subscription (initial and renewals) unless either party terminates this TOS in accordance with Section 13 below. ActivEngage reserves the right to adjust your fees upon renewal.
4. Proprietary Rights
Subject to the limited rights expressly granted herein, ActivEngage reserves all rights, title, and interest in and to the Site and Service, including all related intellectual property rights. You acknowledge and agree that ActivEngage is the owner of all proprietary rights to the Service and its processes and that you have no claims thereto. Upon payment in full and subject to your compliance with this TOS, ActivEngage grants you a non-exclusive, non-sublicensable, and non-transferable license to access and use the Service. You may not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm, or methodology to access, acquire, copy, or monitor the Service. No license or right to use any trademark or service mark of ActivEngage or any third party is granted to you in connection with the Service. You agree that nothing contained in this Agreement shall give you any claim or interest in any marks, names, copyrights or other rights of ActivEngage, and you agree to never assert or claim any such interest.
All comments, feedback, information, ideas, or materials that you submit through or in association with the Site or the Service shall be considered non-confidential. By submitting such comments, feedback, information, ideas, or materials to ActivEngage: (i) you represent and warrant that ActivEngage’s use of your submission does not and will not breach any agreement, violate any law, or infringe any third party's rights; (ii) you represent and warrant that you have all rights to enter into this TOS; (iii) you understand and agree that ActivEngage is free to use in any manner all or part of the content of any such communications on an unrestricted basis without the obligation to notify, identify or compensate you or anyone else; and (iv) you grant ActivEngage all necessary rights, including a waiver of all privacy and moral rights, to use all comments, feedback, information, or materials, in whole or in part, or as a derivative work, without any duty by ActivEngage to anyone whatsoever. You acknowledge that you are responsible for and bear all risk as to the use or distribution of any comments, feedback, information, ideas, or materials.
5. Your Content; Your Responsibilities
You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, publish, provide or otherwise link, transmit or store in connection with or relating to the Service (“Your Content”). While you retain ownership of Your Content, by posting Your Content on or through the Service, you hereby do and will grant ActivEngage a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with your use of the Service.
You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices; (c) transmission to ActivEngage’ third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service and (d) transmission to certain Third-Party Services (as defined in below). Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. ActivEngage will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
You shall provide ActivEngage with notice of any special promotions and/or changes to the marketing plans and programs in place on the date your began your subscription not less than three (3) business days prior to the date which you wish to have the promotion or changes identified by ActivEngage.
For purposes of this TOS, “Confidential Information” shall include the terms of this TOS, Your Content, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the parties regarding the Service and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the receiving party; (4) the receiving party becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the receiving party; or (5) is aggregate data regarding use of the Service that does not contain any personally identifiable or Customer-specific information.
Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this TOS or as directed by you; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their obligations in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section 6 will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.
In addition to the foregoing, you, and your employees, agents or representatives shall not at any time or in any manner, either directly or indirectly, divulge, disclose or communicate in any manner, any information that is proprietary to ActivEngage, including, but not limited to, ActivEngage’s business processes and reporting features and analytics. You and your employees, agents and representatives recognize the substantial investment by ActivEngage in the creation of such proprietary information and agree to protect such information and treat it as strictly confidential.
7. Account Security; Monitoring
You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. You will promptly notify ActivEngage if you learn of a security breach related to the Service, including the compromise or loss of any of your login credentials.
ActivEngage reserves the right to access your account in order to respond to your requests for technical support or to ensure proper functioning of the Service. For the avoidance of doubt, ActivEngage has the right, but not the obligation, to monitor the Service, Content, or Your Content. ActivEngage will do so if required by law or in the good faith belief that such action is protecting ActivEngage, the Service, or other users of the Service.
You agree to comply with all laws, rules and regulations applicable to you and/or your access to and/or use of the Service, including without limitation, all laws, rules, and regulations regarding consumer privacy and data protection (“Applicable Laws”).
You acknowledge and agree that the Service and the transmission of data may be subject to United States export controls. You agree to comply with all applicable U.S. and foreign laws.
9. Data Protection Terms
ActivEngage may receive data regarding or related to visitors (each, a “Visitor”) in a variety of ways (including but not limited to chat on your website, chat on your social media pages, over text, and through other third party websites through which we engage your customers and potential customers), potentially including personally identifiable information (collectively, “Visitor Data”), in connection with its provision of the Service. Visitor Data may include, without limitation, full name, contact information (telephone and/or email address), vehicle of interest, appointment date, IP address, geocoded zip code / location code, browser, operating system, and/or URLs visited.
Visitor Data will be used or otherwise processed only to provide the Service. As between the parties, you retain all right, title and interest in and to Visitor Data. ActivEngage acquires no rights in Visitor Data, other than the rights you grant to ActivEngage to provide the Service.
ActivEngage will not disclose Visitor Data outside of ActivEngage or its controlled subsidiaries and affiliates except (1) to you and/or our service providers in connection with our provision of the Service, (2) as described in this TOS, (3) to our business partners provided their use of the data does not violate this Agreement, or (4) as required by law. For the avoidance of doubt, ActivEngage may share certain Visitor Data with service providers or business partners to ultimately deliver such Visitor Data to dealerships and other end users.
ActivEngage will not disclose Visitor Data to law enforcement unless required by law. If law enforcement contacts ActivEngage with a demand for Visitor Data, ActivEngage will attempt to redirect the law enforcement agency to request that data directly from Visitor. Upon receipt of any other third-party request for Visitor Data, ActivEngage will reject the request unless required by law to comply. If the request is valid, ActivEngage will attempt to redirect the third party to request the data directly from Visitor. ActivEngage will not provide any third party: (a) direct, indirect, blanket or unfettered access to Visitor Data; (b) platform encryption keys used to secure Visitor Data or the ability to break such encryption; or (c) access to Visitor Data if ActivEngage is aware that the data is to be used for purposes other than those stated in the third party’s request.
We may provide additional details regarding the security policies and procedures we utilize to process Visitor Data (“Security Policies and Procedures”) to you upon request. For clarification, the Security Policies and Procedures constitute our Confidential Information. The Security Policies and Procedures may be modified from time to time, in our discretion, provided that we will use commercially reasonable efforts to notify you if we modify the Security Policies and Procedures in a manner that materially reduces protections for Visitor Data.
You agree to designate any requirements you have regarding data elements collected, retention requirements, and reporting or access required when you register for the Service, or subsequently through our customer support process. If supported by the Service, we will use commercially reasonable efforts to comply with such requirements.
For clarification, ActivEngage is not responsible for ensuring its data processing activities, its Security Policies and Procedures, and/or its provision of the Service comply with any Applicable Laws or industry standards. Without limiting the foregoing, you are solely responsible for ensuring that your use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards requirements and will ensure that you do not store credit card and social security data in the Service. In addition, you specifically acknowledge and agree that: (i) ActivEngage is not acting on your behalf as a Business Associate or subcontractor (as such terms are used, defined, or described in the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”)); (ii) the Service is not HIPAA-compliant; and (iii) you may not use the Service in any manner that would require ActivEngage or the Service to be HIPAA-compliant.
Without limiting your other indemnification obligations hereunder, you will defend, indemnify, and hold harmless ActivEngage from and against any claims, actions or demands, including, but not limited to, any and all losses, liabilities, damages, fines, penalties, costs, expenses and/or fees (including reasonable legal and accounting fees), arising or resulting from any claims or allegations that your use of the Service, ActivEngage’s provision of the Service, and/or ActivEngage’s processing of Visitor Data violates any Applicable Laws or industry standards.
10. Mobile Services
The Service may include certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
11. Apple-Enabled Software Applications
ActivEngage may offer Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in this TOS, the following terms and conditions apply:
ActivEngage and you acknowledge that this TOS are concluded between ActivEngage and you only, and not with Apple, and that as between ActivEngage and Apple, ActivEngage, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store TOS.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store TOS.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be ActivEngage’ sole responsibility, to the extent it cannot be disclaimed under applicable law.
ActivEngage and you acknowledge that ActivEngage, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between ActivEngage and Apple, ActivEngage, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
12. Representations and Warranties; Disclaimer
You represent and warrant to ActivEngage that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow ActivEngage to perform its obligations and exercise its rights) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and ActivEngages’ exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; (iv) you are eighteen (18) years of age or older, and (v) you have provided true, accurate, and correct information to ActivEngage in connection with your account creation and use of the Service.
THE SERVICE, INCLUDING THE SITE AND ACTIVENGAGE’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 ACTIVENGAGE 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. ACTIVENGAGE 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 ACTIVENGAGE OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS. ACTIVENGAGE MAKES NO WARRANTIES OR REPRESENTATIONS AS TO INCREASED BUSINESS, FAVORABLE PUBLIC REACTION AND/OR POSITIVE RESPONSE TO THE SERVICE PROVIDED.
Provided that you provide ActivEngage with at least thirty (30) days prior written notice in accordance with the procedures set forth on the Site, you have the right to terminate your account effective as of the end of your then-current initial or renewal subscription term (Monthly/ Quarterly/ Annual/ Other) as specified by you during your enrollment for the Service and if subscribing to ActivEngage SEO services a minimum, non-cancellable 6 month term. Your termination will be effective as of 11:59 pm PST on the last day of the last paid period. in the event of termination by Client, Client must be current on all payments before the effective date of termination.ActivEngage reserves the right to modify, suspend, or discontinue the Service (or any part thereof) and remove and discard any of Your Content in the Service, without liability and for any reason, and at any time, and without notice, including if we believe that you have violated this TOS, or if you do not accept and agree to be bound by any modification to this TOS. ActivEngage will use good faith efforts to provide reasonable contemporaneous notice to you prior to suspension or termination of your account by ActivEngage. All of Your Content on the Service may be permanently deleted by ActivEngage upon any termination of your account in its sole discretion. ActivEngage may terminate this TOS and your right to access and use the Service, without cause, upon ninety (90) days written notice. Upon termination of this TOS or your right to access and use the Service, ActivEngage shall prevent your access to and use of the Service.
If this Agreement expires or terminates and you subsequently request to access the Services to extract Your Content and/or Visitor Data from the Services (and provided that ActivEngage did not terminate the Agreement for cause), you agree that you will enter into a new subscription agreement with ActivEngage for a period of one month. You will pay to ActivEngage the fees applicable to such new subscription for the Services prior to being granted access. The fees will be based on the fees that were most recently in effect for your expired or terminated subscription.
14. Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL ACTIVENGAGE BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SAVINGS, 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 SIX (6) 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 ALLOCATES THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS. IN ADDITION TO THE FOREGOING, ACTIVENGAGE IS NOT LIABLE FOR ANY LOSSES OR DAMAGES ARISING FROM CONTENT, ERRORS, OR OMISSIONS IN THE SERVICE.
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, ACTIVENGAGE’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
15. Indemnification and Release
You will defend, indemnify, and hold harmless ActivEngage from and against any claims, actions or demands, including, but not limited to, any and all losses, liabilities, damages, fines, penalties, costs, expenses and/or fees (including reasonable legal and accounting fees), arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. ActivEngage will provide notice to you of any such claim, suit or demand. ActivEngage reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting ActivEngage’ defense of such matter. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
16. Dispute Resolution By Binding Arbitration
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 support@ActivEngage.com.
ActivEngage and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
• claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
• claims that arose before this or any prior agreements (including, but not limited to, claims relating to advertising);
• claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
• claims that may arise after the termination of this TOS.
References to ‘ActivEngage’, ‘you’, and ‘us’ include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this TOS, you and ActivEngage are each waiving the right to a trial by jury or to participate in a class action. This TOS evidence a transaction in the interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this TOS.
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 ActivEngage should be addressed to ActivEngage, Inc., 2701 Maitland Center Parkway, Suite 300, Maitland, FL 32751 (“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 ActivEngage and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or ActivEngage may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by ActivEngage or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or ActivEngage is entitled.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, ‘AAA Rules’) of the American Arbitration Association (“AAA”), as modified by this TOS, and will be administered by the AAA. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless ActivEngage and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. ActivEngage will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the AAA Rules. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA Rules.
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND ACTIVENGAGE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and ActivEngage agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
Assignment. You may not assign, transfer, or sublicense this TOS or any rights or obligations you have under this TOS without the prior written consent of ActivEngage, which shall not be unreasonably withheld. ActivEngage may assign, sublicense, or transfer this TOS, or any of its rights or obligations under this TOS, in whole or in part, without restriction.
Force Majeure. ActivEngage shall be liable to you for any failure or delay in performing its obligations hereunder during any period in which such performance is prevented or delayed by causes beyond its reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquakes, storms, flood, war, embargo, riot, acts of terrorism, cyberattacks, or the intervention of any government authority.
Governing Law. This TOS will be governed by the laws of the United States and the State of Florida without regard to the principles of conflicts of law (except with respect to federal preemption principles). Unless otherwise elected by ActivEngage in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located within Orange County, Florida 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. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this TOS must be filed within six (6) months after such claim or cause of action arose or be forever barred.
Entire Agreement. This TOS, as may be modified from time to time, contains the entire understanding of the parties with respect to the subject matter addressed herein and supersede, replace and merge all prior understandings, promises, representations and agreements, whether written or oral, relating thereto. Both parties had the opportunity for the advice of counsel, and therefore agree that this TOS should not be construed in favor of either party. The failure of ActivEngage to exercise or enforce any right or provision of this TOS will not be a waiver of that right. You acknowledge that this TOS is a contract between you and ActivEngage, even though it is electronic and is not physically signed by you and ActivEngage, and it governs your use of the Service and takes the place of any prior agreements between you and ActivEngage. If any provision of this TOS 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 TOS remain in full force and effect.
Marketing. You grant ActivEngage a limited license to use your name, company name, logo, and/or trademarks and to identify you as an ActivEngage user or customer, and for other similar marketing or promotional purposes on ActivEngage’s website and in other communications and collateral materials provided to existing or potential ActivEngage customers, partners, and investors. To decline ActivEngage this right you need to email firstname.lastname@example.org stating that you do not wish to be used as a reference.
Modifications. ActivEngage may change this TOS 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 TOS on this page for a reasonable period of time. 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 the earlier of (a) your use of the Site and/or Service with actual knowledge of the change, or (b) 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 TOS, provided that disputes arising hereunder will be resolved in accordance with the TOS in place at the time the facts giving rise to the dispute occurred.
Waiver of Jury Trial. FOR THEIR MUTUAL BENEFIT, YOU AND ACTIVENGAGE WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT.