These Terms apply to any and all websites from which you access the Service, provided, however that there may be additional terms and conditions on those sites that apply in addition to these Terms. We suggest you review the terms and conditions of any and all websites linked or associated with this site.
We reserve the right, in our sole discretion, to change, modify, add or remove portions of these Terms at any time. By using the Service after we post any changes to these Terms, you agree to accept those changes, whether or not you have reviewed them.
By using the Service, you agree to be legally bound and to abide by these Terms, and they shall have the same force and effect as any other physically executed contract. If you do not accept these Terms, please do not use the Service. All Services are provided on an AS IS, WHERE IS AND AS AVAILABLE basis.
Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access and use the Service, provided that you comply fully with the provisions of these Terms.
You understand that all information, data, text, files, and other materials that are generated by you and/or the merchant with whom you are corresponding through the Service (collectively, the "Content") are the sole responsibility of the person from which such Content originates. This means that you, not ActivEngage, are entirely responsible for all Content that you upload, post, or otherwise transmit via the Service. ActivEngage does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of the Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances is ActivEngage liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted or otherwise transmitted via the Service.
If applicable, we will not be liable for any delays or failures in your receipt of any SMS messages as delivery is subject to effective transmission from your network operator and processing by your mobile device. Further, by electing to initiate or otherwise communicate via SMS, you’re explicitly authorizing and consenting to ActivEngage and/or the merchant sending you text/SMS messages in connection with your use of the Service.
You understand that the technical processing and transmission of the Service, including your Content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. Certain versions of the Service provide you with the ability to request a transcript of the conversations (the “Communications”) you conduct through the Service. You will be required to provide a valid email address in order to use this optional feature, where available.
Dealing with Merchants
Your communication or business dealings with merchants through the Service, including pricing, availability, payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the merchant. You agree that ActivEngage is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence, communication or any representations or warranties of such merchants on the Service.
Merchants may provide links to other websites or web resources during the Communication. ActivEngage has no control over those websites and resources, and you acknowledge and agree that ActivEngage is not responsible for the availability of such external websites or resources, does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from those websites or resources, nor any malware, viruses or the like that may be associated with such websites or resources. You further acknowledge and agree that ActivEngage is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.
Ownership of the Communications
Ownership of Non-User Generated Content and Restrictions of Use
You acknowledge that the pop-up screens or windows associated with the Service contain information, software, photos, text, graphics and other materials (collectively, the "Non-User Content”) that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Non-User Content is copyrighted under the United States copyright laws (and, if applicable, similar foreign laws), and we, or the merchant you are communicating with, own a copyright in the selection, coordination, arrangement and enhancement of such Non-User Content. All trademarks appearing on any pop-up screen or window associated with the Service are trademarks of their respective owners. ActivEngage, the ActivEngage logo and the ActivEngage icon are trade names and the registered trademarks and service marks of ActivEngage. Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Non-User Content that they make available on pop-up screens or windows associated with the Service.
You may not copy, modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Non-User Content, in whole or in part. When Non-User Content is downloaded to your computer, you do not obtain any ownership interest in it. Modification of the Non-User Content or use of the Non-User Content for any other purpose, including, but not limited to, use of any Non-User Content in printed form or on any other website or networked computer environment is strictly prohibited unless you receive our prior written consent. Without our prior written permission, you may not frame any of the Non-User Content, or incorporate into another website or other service any of our intellectual property.
Privacy and Security
As a condition of your use of the Service, you represent and warrant that you will not use it for any purpose that is unlawful or prohibited by these Terms. In doing so, you agree to be solely responsible and liable for your acts or omissions arising from or related to your use of the Service. By ways of example, and not as a limitation, you agree not to use the Service to:
Defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal or equitable rights of others.
Publish, distribute or disseminate any harmful, inappropriate, profane, indecent, unlawful, immoral or otherwise objectionable material, information, or communication.
Transmit or upload any material to any of the pop-up screens or windows associated with the Service that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs.
Interfere with or disrupt the Service.
Interfere with or disrupt another individual's or entity's use and enjoyment of the Service.
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.
Violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law.
Disclaimers of Warranties
THE SERVICE IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT.
WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY CONTENT AND MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR SOLE RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH PRODUCT, OFFERING, CONTENT OR MATERIAL.
WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE SERVICE, THE RESULTS OF THE USE OF THE SERVICE OR ANY INFORMATION CONVEYED VIA THE SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE ARE NOT LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) YOUR USE OR YOUR INABILITY TO USE THE SERVICE; (B) THE USE OF ANY CONTENT, (C) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY MERCHANT WITH WHOM YOU COMMUNICATE THROUGH THE SERVICE; OR (E) ANY OTHER MATTER RELATING TO THE SERVICE, SPECIFICALLY INCLUDING, BUT NOT LIMITED TO, THE METHOD OF COMMUNICATION. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR USE OF THE SERVICE.
You agree to indemnify and, at our option, defend ActivEngage, and its officers, directors, employees, stockholders, agents and representatives from all third party claims, liability, damages and/or costs (including, but not limited to, reasonable attorney’s fees and expenses) arising from (i) any Content you submit, post, transmit or make available through the Service, (ii) your improper use of the Service or (iii) your violation of these Terms, or any additional terms and conditions associated with the use of the Service.
Governing Law and Choice of Forum
These Terms are governed by and must be construed in accordance with the laws of the State of Florida, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of the Service or these Terms must be filed only in the state or federal courts located in the Orange County of the State of Florida and you consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
In any action arising from the use of the Service, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney's fees.
If any provision of these Terms is unlawful, void, or for any reason unenforceable, then that provision must be modified to the minimum extent necessary to make it enforceable.
Entirety of Agreement
These Terms may be modified by our posting of changes to them on the pop-up screen or window from which you initiate your Communication, or by written agreement between us. Each time you access the Service, you will be deemed to have accepted all such changes.
We may assign our rights and obligations under these Terms. These Terms will inure to the benefit of our successors, assigns and licensees.
Nonwaiver of Default
Any failure by us to insist upon or enforce your strict performance with respect to any provision of these Terms, or to exercise any right under these Terms, will not be construed as a waiver or relinquishment to any extent of our right to assert or rely upon any such provision or right in any other instance; rather, the same will be and remain in full force and effect.