These EngageApps Terms of Service ("TOS") between you ("Client") and EngageApps("EngageApps"), as updated from time to time, and together with the documents and policies referred to herein (collectively, the "Agreement"), govern Client's access to and use of the EngageApps Service, the EngageApps Software, and the EngageApps Content. By accessing or using the EngageApps Services in any manner, Client is agreeing to the Terms of Service.
1.1 EngageApps Service Subscriptions. EngageApps Service Subscriptions. EngageApps will make the EngageApps Service available to Client during the Subscription Term identified on the Order. Unless indicated otherwise in the Order, the Subscription Term and the Agreement will automatically renew for: an additional period of time equal to the length of the initial Subscription Term, unless one party notifies the other of its intent not to renew: (i) in the case of annual or longer Subscription Terms, at least thirty (30) days in advance of the expiration of the Subscription Term or then-current renewal period, or (ii) in the case of shorter than annual Subscription Terms, at least ten (10) days in advance of the expiration of the Subscription Term. EngageApps will provide standard support for the EngageApps Service to Client during the Subscription Term at no additional charge. EngageApps's standard support terms are available at www.EngageApps.com/support-terms.php. During the Subscription Term and any subsequent renewal periods, EngageApps will use commercially reasonable efforts to make the EngageApps Service available according to EngageApps's Service Level Schedule, which is available at www.EngageApps.com/sla.php, and subject to planned downtime and any unscheduled emergency maintenance according to EngageApps's Maintenance Policy referenced in the EngageApps Service Level Schedule.
1.2 Trials of EngageApps Service. EngageApps may make the EngageApps Service, or specific features and functions available without charge, for limited periods of time for evaluation purposes. Trial use to evaluate the use of EngageApps Service, or specific features and functions will be for the term specified by EngageApps. Client acknowledges that the free EngageApps Service or EngageApps Applications may have limited features, functions, indexing capacity, account storage or other limitations. Notwithstanding anything in these TOS to the contrary, Client understands and acknowledges that the provisions of Section 10 do not apply to a free trial of the EngageApps Service.
2.1 Purchased Volumes. The EngageApps Service and any EngageApps Applications licensed to Client for use with the EngageApps Service, are provided to Client according to the capacity, usage and storage volumes Client purchases, as listed on the Order. If Client exceeds such volumes purchased, then promptly upon EngageApps's request, Client agrees to execute an Order for such additional volume, as may be applicable, payable pursuant to Section 3.
2.2 Transmissions of Client Content. Client is responsible for obtaining and maintaining all telecommunications, broadband and computer equipment and services needed to access and use the EngageApps Service and for paying all charges related thereto. Client is the owner and/or controller of all of Client Content that Client transmits to the EngageApps Service. Client is responsible for the security of Client Content when transmitted to and from the EngageApps Service, including any additonal encryption of any Client Content transmitted to and from the EngageApps Service, or stored on the EngageApps Service.
2.3 Client Responsibility for Users and Client Content. Client is solely responsible for: (a) Users' compliance with the Agreement, (b) the accuracy, quality and legal use of Client Content and the means by which Client acquired Client Content (including without limitation Client Data), and (c) taking steps to maintain appropriate security, protection, and backup of Client Content, (which may include the use of encryption technology to protect Client Content from unauthorized access), and routine archiving of Client Content. Client is responsible for securing, protecting and maintaining the confidentiality of Client's account username, passwords and access tokens. Client may not share Client passwords or access codes with a third party. Client is responsible for any access and use of the EngageApps Service via Client's or its Users' accounts and for all activity that occurs in connection with Client's or its Users' accounts, regardless of whether the activities were undertaken by Client, a User or a third party. EngageApps will not be liable for any loss or damage arising directly or indirectly from Client's failure to maintain the security of Client's account and password or for unauthorized access to Client's account. Client agrees to notify EngageApps immediately if Client believes that an unauthorized third party may be using Client's account or if Client's account information is lost or stolen. Client agrees to not transmit or store within the EngageApps Service: (i) any protected health data, as defined in the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") as amended and supplemented by the Health Information Technology for Economic and Clinical Health Act, including the HIPAA omnibus final rule; (ii) financial information protected under the Gramm-Leach-Bliley Act; or (iii) information protected by the International Traffic in Arms Regulations ("ITAR"), or export-controlled as provided in Section 11.
2.4 EngageApps Applications from EngageApps. There are certain EngageApps Applications available that the Client may elect to license and use in connection with the EngageApps Service. A list of such EngageApps Applications, (including some EngageApps Applications that may only be licensed from EngageApps with the additional purchase of professional services under EngageApps's standard terms).
2.5 Third Party Content or Resources. Third Party Content is not considered part of the EngageApps Service and is not supported by EngageApps. The EngageApps Software may contain features or functions that enable the interoperation of the EngageApps Service with Third Party Content. To use such features or functions, however, Client may be required to obtain access separately to such Third Party Content from their respective providers, and Client may be further required to grant EngageApps access to Client accounts with such providers. If Client installs or enables (or directs or otherwise authorizes EngageApps to install or enable) Third Party Content for use with the EngageApps Service, Client hereby authorizes EngageApps to allow the provider of such Third Party Content to access Client Data as necessary for the interoperation of such Third Party Content with the EngageApps Service. Client agrees that EngageApps is not responsible or liable for disclosure, modification or deletion of Client Data resulting from access to Client Data by such Third Party Content, nor is EngageApps liable for any damages that Client may incur, directly or indirectly, as a result of Client use of, and/or reliance upon, any Third Party Content, sites or resources.
2.6 Hardware. EngageApps does not support or provide warranties for any third party hardware, including but not limited to operating systems, software, card readers, printed cards, printers, computers, mobile devices, network equipment or broadband services – please contact your supplier or manufacturer for assistance, service or support.
2.7 Balance Obligations. Client agrees to accept full responsibility to provide current and up-to-date customer policies and to comply with any rules, statutes, regulations or policies set forth by state, federal, national or international law including, but not limited to outstanding card balances, fees, decrementing of balances and/or the surrendering of unclaimed property. EngageApps will be held harmless where disputes occur between Client and Customer regarding policies, balances, points or transactions. As a reference to specific laws and regulations contact your state or check the following site: http://www.ncsl.org/research/financial-services-and-commerce/gift-cards-and-certificates-statutes-and-legis.aspx
2.8 Communications. We reserve the right to send messages to you to inform you of (a) changes or additions to the Site, the Products, this Agreement or the Fee Schedule (defined below), (b) violations of this Agreement or actions relating to your privilege to access and use the Site or the Products, (c) any other matter related to the Site, the Products or this Agreement or (d) for marketing and other purposes. Nothing in this provision shall require or obligate us to send any notice if no notice is required or mandated elsewhere in this Agreement. You may unsubscribe from our marketing communications at any time, although you will continue to receive transactional messages from us. You agree that we may, but are not obligated to, monitor or record any of your telephone conversations and chat texts with us for quality control purposes, for purposes of training our employees and for our own protection. You further agree that any Account Users or anyone else you authorize to use your account consents to such monitoring or recording as well. You acknowledge that not all telephone lines or calls are recorded by us and that we do not guarantee that recordings of any particular telephone calls will be retained or are capable of being retrieved. BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE THAT WE MAY CONTACT YOU VIA TELEPHONE (EITHER BY A LIVE PERSON, AUTOMATIC DIALER, PRERECORDED MESSAGE OR A COMBINATION OF THE FOREGOING) TO DISCUSS THE PRODUCTS AND YOU CONSENT TO SUCH CONTACT. FURTHER, YOU CONSENT TO RECEIVE SUCH PHONE CALLS AT THE TELEPHONE NUMBER YOU ENTERED ON THE SITE. You do not need to agree to this provision in order to use the Application or the API and if you would like us not to contact you by telephone, please send an email to email@example.com. Upon request, we may also contact you via telephone (including by automatic dialer or prerecorded message) or text you in order to provide you with your password or other information you request.
2.8 Prohibition on Spam; The Application and API may not be used for the sending of unsolicited email messages (sometimes called "spam"). All messages sent by means of the application or the API shall be in compliance with our Anti-Spam Policy. You are responsible for ensuring that your use of the Application and the API do not generate a number of spam or other complaints in excess of industry norms. We may terminate your access to or use of the Application and the API if we determine that your level of spam or other complaints is higher than industry norms, as determined by us in our sole discretion. As a matter of privacy, we will not share with you information about those recipients who complain about your use of the Products or file a spam report against you. You agree to import, access or otherwise use only contact lists in connection with the Application and the API for which all listed parties have consented to receive correspondence from you. We reserve the right without notice to take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk email and/or other unauthorized email from entering, utilizing or remaining within our network.
3.1 Fees and Taxes. Client agrees to pay all fees and charges specified in the Orders. Subscription licenses to the EngageApps Service, the EngageApps Software, and associated fees incurred are non-cancelable and non-refundable. Overdue charges will accrue interest monthly at the rate of 10% of the then-outstanding unpaid balance, or the maximum rate permitted by law, whichever is lower. Charges must be paid in advance, either annually or in accordance with any different billing period stated in the Order. All payments are due and payable either within thirty (30) days from the date of EngageApps's invoice or such other period, if any, stated in the Order. All fees and charges quoted are exclusive of applicable taxes and duties, including any applicable sales and use tax. Client is responsible for paying any taxes assessed based on Client's purchases under the Agreement.
3.2 Credit Card Payments. If Client is permitted to pay by credit card, Client: (i) will provide EngageApps with valid credit card information, (ii) hereby authorizes EngageApps to charge such credit card for all items listed in the Order for the initial Subscription Term, and any renewal term(s). Such charges shall be paid in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. Client is responsible for providing complete and accurate billing and contact information and notifying EngageApps in a timely manner of any changes to such information.
4.1 EngageApps Ownership; As between Client and EngageApps, EngageApps owns and reserves all right, title, and interest in and to the EngageApps Service, the EngageApps Software, the EngageApps Applications and the EngageApps Content, including all intellectual property rights therein. No rights are granted to Client hereunder other than as expressly set forth herein. Client grants to EngageApps a perpetual, irrevocable, worldwide, nonexclusive, transferable, sub-licensable right and license to commercially exploit in any manner EngageApps deems fit any Suggestions or feature requests that the Client provides to EngageApps.
4.2 License to EngageApps Service, EngageApps Software and EngageApps Content. Subject to Client's continued compliance with the terms and conditions of this Agreement, including timely payment of the fees set forth in the applicable Order, EngageApps grants Client a limited, revocable, non-exclusive, non sub-licensable, non-transferrable license to do the following solely during the Subscription Term:
4.3 License Restrictions. The granting of rights to Client in Section 4.2 is subject to the following restrictions and limitations: Client will not, and will not permit any third party to: (a) reverse engineer (except to the extent specifically permitted by statutory law), decompile, disassemble or otherwise attempt to discover source code, object code or underlying structures, ideas or algorithms of the EngageApps Service, the EngageApps Software, the EngageApps Content or any software, documentation or data related to the EngageApps Service, EngageApps Software or EngageApps Content, (b) modify, translate or create derivative works based on the EngageApps Service, EngageApps Software or EngageApps Content, (c) use the EngageApps Service, EngageApps Software or EngageApps Content for any purpose other than its own internal purposes; or (d) use the EngageApps Service, the EngageApps Software, or EngageApps Content other than in accordance with the Agreement and in compliance with all applicable laws and regulations (including but not limited to any applicable privacy and funds handling regulations).
4.4 License to Use. Client agrees to use the EngageApps per the terms of the licensing structure set forth by EngageApps. EngageApps are licensed to a single location. A location is defined as, and limited to a single department, office, mobile vehicle, cart, shop, or any similar situation that will process transaction for the Clients Customers. The definition of locations also applies to the use of the EngageApps API service regardless of whether the API calls come from one location or multiple locations. Single locations can install EngageApps on up to 4 devices at one time in the same location. Additionally, a single headquarters, head office, central management point, franchiser or owner associated to the location may install a single license to remotely manage day-to-day Management Operations of EngageApps. Management Operations only include reporting, inventory management, user administration, bulk additions or account corrections, but would not include the processing of any customer transactions with the exception of bulk adding of accounts. Violation of the terms will lead to account suspension and/or termination without refunding of any remaining balances. EngageApps reserves the right collect for unlicensed use of the software as permitted by law. Additional penalties and prosecution could be assessed by local, state or federal authorities for violations of these terms.
5.1 Ownership. By submitting or posting Client Content on the EngageApps Service, Client is representing that Client is the owner of such materials and/or has the necessary rights, licenses, and authorization to distribute it.
5.2 Access to and Use of Client Content. By submitting or posting Client Content on areas of the EngageApps Service, Client grants EngageApps a worldwide, royalty free, non-exclusive license to access and use such Content on the EngageApps Service for the purpose of providing the EngageApps Service to Client, responding to Users' request for technical assistance with respect to the EngageApps Service, or at Client's request, in connection with Client support matters.
5.3 Security and Protection of Client Data. EngageApps will maintain administrative, physical and technical safeguards to protect the security of Client Data.
6.1 Termination for Convenience. Client may terminate Client's account and/or stop using the EngageApps Service at any time and for any or no reason by notifying EngageApps of Client's termination of Client's account. EngageApps will provide Client at least thirty (30) days' advance notice of any material change to EngageApps Service or of its intent to discontinue the EngageApps Service. There are no refunds for termination for convenience. At the end the Subscription Term, due to expiration or termination, Client access to the EngageApps Service will be discontinued.
6.2 Suspension or Termination for Cause. A party may terminate this Agreement for cause if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the cure period specified in this section. In the case of annual Subscription Terms, the cure period is thirty (30) days from the date of notice, and in the case of Subscription Terms shorter than one (1) year, the cure period is ten (10) days.
6.3 Effect of Termination. Upon termination of Client's account or subscription to the EngageApps Service:
6.4 Return of Client Content. Upon request by Client made before the effective date of termination of a EngageApps Service subscription, EngageApps may assist Client with the transition of Client Content for a fee. Ten (10) days following expiration or termination of Client's Cloud Service account or subscription, EngageApps shall have no obligation to maintain or provide any of Client Content and Client hereby authorizes EngageApps thereafter to delete all Client Content that is in its possession or under its control, unless EngageApps is otherwise legally prohibited from doing so.
7.1 Confidential Information. The Receiving Party shall use 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). The Receiving Party will: (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, 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 confidentiality obligations to the Receiving Party containing protections no less stringent than those herein.
7.2 Compelled Disclosure of Confidential Information. Notwithstanding the foregoing terms of Section 7.1, the Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
THE ENGAGEAPPS SERVICE IS PROVIDED TO CLIENT ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ENGAGEAPPS DISCLAIMS ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS WITH RESPECT TO THE ENGAGEAPPS SERVICE, INCLUDING ANY REPRESENTATIONS OR WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. TO THE EXTENT SUCH A LAW APPLIES TO CLIENT, SOME OR ALL OF THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO CLIENT, AND CLIENT MAY HAVE ADDITIONAL RIGHTS.
ENGAGEAPPS AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (THE "ENGAGEAPPS ENTITIES") SHALL NOT BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, CONTENT, DATA, SECURITY OF DATA, OR LOSS OF OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF A ENGAGEAPPS ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE ENGAGEAPPS ENTITIES SHALL NOT BE RESPONSIBLE FOR ANY LIABILITY OR DAMAGES ARISING IN CONNECTION WITH OR RESULTING FROM: (I) CLIENT USE OR INABILITY TO USE THE ENGAGEAPPS SERVICE, INCLUDING AS A RESULT OF ANY: (A) TERMINATION OR SUSPENSION OF CLIENT ACCOUNT, (B) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS, (C) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR GOODS; OR (D) ANY INVESTMENT, EXPENDITURE, OR COMMITMENT BY CLIENT IN CONNECTION WITH THIS AGREEMENT OR CLIENT USE OF OR ACCESS TO THE ENGAGEAPPS SERVICE; (II) ANY CHANGES MADE TO THE ENGAGEAPPS SERVICE OR ANY TEMPORARY OR PERMANENT CESSATION OF THE ENGAGEAPPS SERVICE OR ANY PART THEREOF; (III) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR DELETION OF CLIENT CONTENT; (IV) THE DELETION OF, DESTRUCTION, DAMAGE, LOSS, CORRUPTION OF, OR FAILURE TO STORE, SEND OR RECEIVE ANY CLIENT CONTENT, TRANSMISSIONS OR DATA ON OR THROUGH THE ENGAGEAPPS SERVICE; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE ENGAGEAPPS SERVICE; AND (VI) ANY OTHER MATTER RELATING TO THE ENGAGEAPPS SERVICE.
IN ANY CASE, THE AGGREGATE LIABILITY OF THE ENGAGEAPPS ENTITIES UNDER THIS AGREEMENT OR ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT THAT CLIENT ACTUALLY PAID ENGAGEAPPS UNDER THIS AGREEMENT FOR THE ENGAGEAPPS SERVICE AND/OR THE ENGAGEAPPS SOFTWARE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. TO THE EXTENT SUCH A LAW APPLIES TO CLIENT, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO CLIENT, AND CLIENT MAY HAVE ADDITIONAL RIGHTS.
10.1 Indemnification by EngageApps. EngageApps will defend Client, and pay all damages (including attorneys' fees and costs) finally awarded against Client, or that are agreed to in a court-approved settlement, to the extent a claim, demand, suit or proceeding is made or brought against Client by a third party (including those brought by the government) alleging that the EngageApps Software infringes or misappropriates such third party's United States patent, copyright, trademark or trade secret (a "Client Claim"), provided that Client: (i) provides EngageApps with prompt written notice of the Client Claim, (ii) gives EngageApps sole control of the defense and settlement of the Client Claim (except that EngageApps may not settle any Client Claim that requires any action or forbearance on Client's part without Client's prior consent, which Client will not unreasonably withhold or delay), and (iii) gives EngageApps all reasonable assistance, at EngageApps's expense. EngageApps will have no obligation under the foregoing provision to the extent a Client Claim arises from Client breach of the Agreement, Client Content, Third Party Content, EngageApps Content or the combination of the EngageApps Software with: (a) Client Content, (b) Third Party Content (c) any software other than the EngageApps Software, or (d) any hardware or equipment. EngageApps may in its sole discretion and at no cost to Client: (1) modify the EngageApps Service and/or EngageApps Software so that it no longer infringes or misappropriates a third party right, (2) obtain a license for Client's continued use of the EngageApps Software, in accordance with the Agreement, or (3) terminate this Agreement and refund Client any prepaid fees covering the unexpired Subscription Term.
10.2 Client Indemnity of EngageApps. Unless expressly prohibited by applicable law, Client will defend, and pay all damages (including attorneys' fees and costs) finally awarded against EngageApps, or that are agreed to in a court-approved settlement, to the extent a claim, demand, suit or proceeding is made or brought against a EngageApps Entity by a third party (including those brought by a government entity) that: (i) alleges that Client Data, Client Content, Client Apps or Client's use of the EngageApps Service infringes or misappropriates such third party's patent, copyright, trademark or trade secret, or violates another right of a third party, (ii) arises out of the activities of Users, (iii) alleges that Client Data, Client Content, Client Apps or Client use of the EngageApps Service violates applicable law or regulation, or (iv) arises out of a dispute between Client and another Client of EngageApps (each, a "EngageApps Claim"), provided that EngageApps: (a) gives Client prompt written notice of the EngageApps Claim, (b) gives Client sole control of the defense and settlement of the EngageApps Claim except that Client may not settle any EngageApps Claim that requires any action or forbearance on EngageApps's part without EngageApps's prior consent (that EngageApps will not unreasonably withhold or delay), and (c) EngageApps gives Client all reasonable assistance, at Client expense.
The EngageApps Service, the EngageApps Software, and/or EngageApps Content, or any feature or part thereof, may not be available for use in all jurisdictions, and EngageApps makes no representation that the EngageApps Service, the EngageApps Software, and/or EngageApps Content, or any feature or part thereof is appropriate or available for use in any particular jurisdiction. To the extent Client chooses to access and use the EngageApps Service, the EngageApps Software, and/or EngageApps Content, Client does so at Client's own initiative and at Client's own risk, and Client is responsible for complying with any applicable laws, rules, and regulations. Client's and its Users' use of the EngageApps Service, the EngageApps Software, and/or EngageApps Content is subject to the customs and export control laws and regulations of the United States and may also be subject to the customs and export laws and regulations of other countries. Client and its Users will fully comply with all applicable customs and export control laws and regulations of the United States and any other country where Client or its Users use the EngageApps Service, the EngageApps Software, and/or EngageApps Content. Client certifies that Client and its Users are not on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department's List of Specially Designated Nationals, and the Commerce Department's List of Denied Persons or Entity List. Client further certifies that Client or its Users shall not export, re-export, ship, transfer or otherwise use the EngageApps Service, the EngageApps Software, and/or EngageApps Content in any country subject to an embargo or other sanction by the United States, including, without limitation, Iran, Syria, Sudan and North Korea, and that Client or its Users shall not use the EngageApps Service, the EngageApps Software, the and/or EngageApps Content for any purpose prohibited by U.S. laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. Client or its Users are prohibited from sending to Client's account any data or software that cannot be exported without prior written government authorization, including but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of this Agreement.
12.1 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Middle District of Florida, Orlando Division and the parties hereby consent to personal jurisdiction and venue therein. EngageApps may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of intellectual property or other proprietary rights of EngageApps, its Affiliates, or any third party. Neither the Uniform Computer Information Transactions Act ("UCITA"), nor the United Nations Convention for the International Sale of Goods shall apply to this Agreement.
12.2 Independent Contractors; No Third Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. The third-party licensors of EngageApps Content are express third-party beneficiaries of the Agreement. There are no other third-party beneficiaries of this Agreement
12.3 Amendment; Severability. This Agreement may only be amended by a written amendment signed by both parties, unless otherwise provided herein. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, invalid or unenforceable, the provision shall be modified by the court and interpreted so as best to accomplish the objectives and intent of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the remainder of the Agreement will remain in full force and effect.
12.4 Assignment. Client may not assign, delegate or sublicense any of Client's rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of EngageApps.
12.5 No waiver. The failure of EngageApps to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision or of any other right or provision. All waivers must be in a signed writing to be effective.
12.6 Force Majeure. EngageApps and its Affiliates, subsidiaries, officers, directors, employees, agents, partners and licensors will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond EngageApps's or its Affiliates', officers', directors', employees', agents', partners', or licensors' reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
12.8 Notices to Client and Consent to Electronic Communications. Client consents to receiving electronic communications and notifications from EngageApps in connection with Client's use of the EngageApps Service and the Agreement. Client agrees that any such communication will satisfy any legal communication requirements, including that such communications be in writing. EngageApps may provide Client with notices regarding the EngageApps Service, including changes to this Agreement, by email to the email address of Client's administrator (and/or other alternate email address associated with Client Account if provided), by regular mail, or by postings on EngageApps's website and/or the EngageApps Site. Notices that are provided by posting on the EngageApps Site will be effective three (3) days after posting. Notices that are provided by email will be effective when EngageApps sends the email. It is Client responsibility to keep Client email address current. Client will be deemed to have received any email sent to the email address then associated with Client's account when EngageApps sends the email, whether or not Client actually receives the email.
12.9 Survival. The following sections shall survive the termination or expiration of the Agreement: 2.2, 2.3, 2.5, 4.1, 5, 6.3, 6.4, and 7-12.