Last Updated: March 16, 2022
IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE ENGAGELI, INC. (“ENGAGELI”) WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE "SERVICES") IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS OF SERVICE, WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
BY CLICKING/CHECKING THE "I AGREE" BUTTON/BOX, ACCESSING THE ENGAGELI WEBSITE OR BY UTILIZING THE ENGAGELI SOFTWARE, OR SERVICES DERIVED FROM EITHER, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL EXHIBITS AND INCORPORATED POLICIES (COLLECTIVELY, THE “AGREEMENT”). THE ENGAGELI SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THE AGREEMENT.
Engageli will provide the Services, and You may access and use the Services, in accordance with this Agreement. Engageli may provide any of the Services hereunder through any of its Affiliates.
System Requirements. Use of the Services requires one or more compatible devices, Internet access (third party fees may apply), and certain software (third party fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, Your ability to access and use the Services may be affected by the performance of these factors. High speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility.
DEFINITIONS. The following definitions will apply in this Agreement, and any reference to the singular includes a reference to the plural and vice versa.
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by or is under common control with that Party.
For purposes of this Agreement,
“control” means an economic or voting interest of at least fifty percent (50%) or, in the absence of such economic or voting interest, the power to direct or cause the direction of the management and set the policies of such entity.
“End User” means a Facilitator or Participant who uses the Services.
“Facilitator” means an instructor or other individual who leads an online session using the Services.
“Online session” means any use of the Services by one or more individual.
“Participant” means a student or individual other than the Facilitator who participates in an online session using the Services.
“Purchasing Entity” means an educational institution or other individual or entity that enters into an agreement with Engageli permitting the Purchasing Entity’s Facilitators and Participants to use the Services.
- SERVICES. Your use of the Services requires that you have been granted a trial subscription or there is an agreement in place between Engageli and the Purchasing Entity through which You have been granted access to the Services, in which case the provision of the Services shall be governed by such agreement and no Facilitator or Participant shall have any rights with respect thereto. In furtherance and not in limitation of the foregoing, Engageli may, in its sole discretion, discontinue the Services or modify the features of the Services from time to time without prior notice and
- Beta Services. Engageli may, from time to time, offer access to services that are classified as a Beta or “test” version. Access to and use of a Beta or “test” version may be subject to additional agreements. Engageli makes no representations that a Beta or “test” version will ever be made generally available and reserves the right to discontinue or modify a Beta or “test” version at any time without notice. Beta and “test” versions are provided as is, may contain bugs, errors or other defects, and Your use of a Beta or “test” version is at Your sole risk.
- USE OF SERVICES AND YOUR RESPONSIBILITIES. You may only use the Services pursuant to the terms of this Agreement. You are solely responsible for Your use of the Services and shall abide by, and ensure compliance with, all Laws in connection with Your use of the Services, including but not limited to Laws related to recording, intellectual property, privacy and export control. Use of the Services is void where prohibited.
- Registration Information. You may be required to provide information about Yourself in order to register for and/or use certain Services. You agree that any such information shall be accurate. You are entirely responsible for maintaining the security of Your user account and login credentials and agree not to disclose or provide access through the same to any third party.
- Your Content. You agree that You are solely responsible for the content ("Content") sent or transmitted by You or displayed or uploaded by You in using the Services and for compliance with all Laws pertaining to the Content, including, but not limited to, Laws requiring You to obtain the consent of a third party to use the Content and to provide appropriate notices of third party rights. You represent and warrant that You have the right to upload, post or display the Content via the Services and that such use does not violate or infringe on any rights of any third party. Under no circumstances will Engageli be liable in any way for any (a) Content that is transmitted or viewed while using the Services, (b) errors or omissions in the Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content. Although Engageli is not responsible for any Content, Engageli may delete any Content, at any time without notice to You, if Engageli becomes aware that it violates any provision of this Agreement, or any law. You retain copyright and any other rights You already hold in Content which You submit, post or display on or through, the Services.
- Recordings. You are responsible for compliance with all recording laws. Facilitator(s) can choose to record online sessions. By using the Services, You are giving Engageli consent to record and store recordings for any or all online sessions that You join, if such recordings are stored in our systems. If You do not consent to being recorded, You can choose to leave the online session.
- Prohibited Use. You agree that You will not use the Services to: (i) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the Services; (ii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts Engageli’s networks, Your or other Engageli accounts, or the Services; (iii) engage in activity that is illegal, fraudulent, false, or misleading, (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions or graphics of the Services, for which a patent is pending; or (vi) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, discriminatory, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (vii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of Engageli or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or Engageli's security systems. (ix) use the Services in violation of any Engageli policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings, and You agree that You are solely responsible for compliance with all such laws and regulations.
- Limitations on Use. You may not reproduce, resell, or distribute the Services or any reports or data generated by the Services for any purpose unless You have been specifically permitted to do so under a separate agreement with Engageli. You may not offer or enable any third parties to use the Services, display on any website or otherwise publish the Services or any Content obtained from the Services (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.
- NOTIFICATION AND RESPONSIBILITY FOR VIOLATIONS. If You become aware of any violation of this Agreement in connection with use of the Services by any person, please contact Engageli at firstname.lastname@example.org. Engageli assumes no responsibility or liability for violations. Engageli may investigate any complaints and violations that come to its attention and may take any (or no) action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User profiles. Under no circumstances will Engageli be liable in any way for any data or other content viewed while using the Services, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content.
- ELIGIBILITY. You affirm that You are at least 16 years of age and are otherwise fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. Your access may be terminated without warning if we believe that You are under the age of 16 or are otherwise ineligible.
- INTENDED USE; RESTRICTION ON USE BY CHILDREN. The Services are intended for education and general business use. Engageli is not intended for use by individuals under the age of 16.
- TERMINATION. Upon any termination of the trial subscription or agreement pursuant to which You have been granted access to the Services, Engageli may, in its sole discretion, terminate Your access to the Services.
- PROPRIETARY RIGHTS. Engageli and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks, service marks, logos, and domain names ("Engageli Marks") associated or displayed with the Services. Engageli’s intellectual property is for your use only, shall be non-transferrable, and is intended for a single-user only. Except for rights expressly granted to you by Engageli in writing, Engageli retains all rights to title to and interest in the Services and related intellectual property. You shall not claim ownership, share, remove, copy, reproduce, disseminate or otherwise interfere with Engageli’s rights over Engageli’s intellectual property. To the extent that you contribute, in whole or in part, to any derivative(s), improvement(s) or modification(s), or make any suggestions, enhancement requests, recommendations, comments, feedback, ideas or the like, to Engageli’s intellectual property (“Improvements”), you hereby assign to Engageli all right, title and interest in and to such Improvements with effect from the date of their creation (including by way of an assignment of future intellectual property). You may not frame or utilize framing techniques to enclose any Engageli Marks, or other proprietary information (including images, text, page layout, or form) of Engageli without express written consent. You may not use any meta tags or any other "hidden text" utilizing Engageli Marks without Engageli's express written consent.
- COPYRIGHT. You may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights. Engageli may deny access to the Services to any User who is alleged to infringe another party's copyright. Without limiting the foregoing, if You believe that Your copyright has been infringed, please notify Engageli as specified here: DMCATakedown@engageli.com.
- EXPORT RESTRICTIONS. You acknowledge that the Services, or a portion thereof, are or may be subject to the Export Administration Regulations, 15 C.F.R. Parts 730-774, of the United States and may be subject to other applicable country export control and trade sanctions laws (“Export Control and Sanctions Laws”). Engageli will provide the U.S. export classification(s) applicable to its Services upon request. You may not access, use, export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of Export Control and Sanctions Laws. You represent and warrant that: (i) You (a) are not citizen of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine) and that You will not access or use the Services, or export, re-export, divert, or transfer the Services, in or to such countries or territories; (b) are not persons, or owned 50% or more, individually or in the aggregate by persons, identified on the U.S. Department of the Treasury’s Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders Lists; and (c) are not persons on the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List, or U.S. Department of State proliferation-related lists; (ii) You will not put Engageli’s Services to a Military End Use, as defined in 15 C.F.R. 744.21; (iii) no Content created or submitted by You is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control and Sanctions Laws; and (iv) You will not take any action that would constitute a violation of, or be penalized under, U.S. antiboycott laws administered by the U.S. Department of Commerce or the U.S. Department of the Treasury. You are solely responsible for complying with the Export Control and Sanctions Laws and monitoring them for any modifications.
- NO HIGH RISK USE. The Services are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. The Services shall not be used for or in any HIGH RISK environment.
- INJUNCTIVE RELIEF. You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sub-licensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to Engageli, its Affiliates, suppliers and any other party authorized by Engageli to resell, distribute, or promote the Services ("Resellers"), and under such circumstances Engageli, its Affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
- NO WARRANTIES.YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED "AS IS" AND MAY CONTAIN BUGS, ERRORS OR OTHER DEFECTS, AND YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. ENGAGELI, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ENGAGELI, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. ENGAGELI DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. ENGAGELI CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. USE IS AT YOUR OWN RISK.
- INDEMNIFICATION. You agree to indemnify, defend and hold harmless Engageli, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys' fees) arising from Your use of the Services, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity or applicable law.
- LIMITATION OF LIABILITY.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ENGAGELI OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ENGAGELI, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ENGAGELI'S, ITS AFFILIATES', SUPPLIERS' AND RESELLERS' MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF (A) THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS, OR (B) ONE HUNDRED DOLLARS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
- AGREEMENT TO ARBITRATE; WAIVER OF CLASS ACTION. If You are located in the United States, You agree to resolve disputes only on an individual basis, through arbitration pursuant to the provisions of Exhibit A. The parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or any other proceeding in which any party acts or proposes to act in a representative capacity.
- Choice of Law and Forum. This Agreement shall be governed by and construed under the laws of the State of California, U.S.A., as applied to agreements entered into and to be performed in California by California residents. Except as provided in Exhibit A, the Parties consent to the exclusive jurisdiction and venue of the state courts located in and serving Santa Clara County, California and the federal courts in the Northern District of California.
- Waiver and Severability. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
- General Provisions. This Agreement embodies the entire understanding and agreement between the Parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the Parties respecting such subject matter. Engageli may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. Engageli will exercise commercially reasonable business efforts to provide notice to You of any material changes to this Agreement. Within ten (10) business days of posting changes to this Agreement (or ten (10) business days from the date of notice, if such is provided), they will be binding on You. If You do not agree with the changes, You should discontinue using the Services. If You continue using the Services after such ten-business-day period, You will be deemed to have accepted the changes to the terms of this Agreement. In order to participate in certain Services, You may be notified that You are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Agreement. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.
This Exhibit A to the Terms of Service describes the further provisions which apply to the Binding Arbitration and Class Action Waiver.
- Disputes. A dispute is any controversy between You and Engageli concerning the Services, any software related to the Services, Your account, Engageli’s advertising, marketing, or communications, or any term of this Agreement, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of Your or Engageli’s intellectual property rights. As part of the best efforts process to resolve disputes, and prior to initiating arbitration proceedings, each party agrees to provide notice of the dispute to the other party, including a description of the dispute, what efforts have been made to resolve it, and what the disputing party is requesting as resolution, to legal@Engageli.com.
- Small Claims Court Available. You may initiate an action in Your local Small Claims Court if You meet the court’s requirements. However, if such a claim is transferred, removed or appealed to a different court, Engageli reserves the right to require arbitration.
- Arbitration Procedure. Disputes not resolved pursuant to Section A or B shall be resolved through arbitration. The American Arbitration Association (“AAA”) will conduct any arbitration under its Commercial Arbitration Rules. For more information, see www.adr.org. Arbitration hearings will take place in Santa Clara County, CA or other mutually agreed location. A single arbitrator will be appointed. The arbitrator must: (a) follow all applicable substantive Law; (b) follow applicable statutes of limitations; (c) honor valid claims of privilege; (d) issue a written decision including the reasons for the award. The arbitrator may award damages, declaratory or injunctive relief, and costs (including reasonable attorneys’ fees). Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction.
- Arbitration Fees. If You are unable to afford the arbitration costs, Engageli will advance those costs to You, subject to the arbitrator’s determination if costs should be reimbursed to Engageli if Engageli prevails. For disputes involving more than $75,000, the AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
- Conflict with AAA Rules. This Agreement governs if there is a conflict with the AAA’s Commercial Arbitration Rules.
- Requirement to File Within One Year. Notwithstanding any other statute of limitations, a claim or dispute under this Agreement must be filed in Small Claims Court or noticed for arbitration within one year of when it could first be filed, or such claim will be permanently barred.
- Severability. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts will not be arbitrated but will be resolved in court, with the balance resolved through arbitration. If any provision of this Exhibit A is found to be illegal or unenforceable, then that provision will be severed; however, the remaining provisions shall still apply and shall be interpreted to as nearly as possible achieve the original intent of this Exhibit A, inclusive of the severed provision.