Last Updated: July 2, 2020
Welcome to eatNgage!
eatNgage Corporation (“eatNgage”, “we”, “us”, “our”) makes available our online engagement platform and associated products, tools, support, documentation and other services to facilitate personal, meal-centered business meetings with prospective clients remotely via online conferences and measure prospects’ interest, engagement and levels of commitment through simple and interactive features including a professional email template database, automated reminders, intuitive scheduler, budget management tools, team analytics dashboard, access to local restaurant menus, instant video conferencing and email tracking.
By placing an Order for our Services, you, and the entity or organization you represent, as applicable (“you”, “your”, “Customer”) accept and agree to this Agreement in its entirety. If you are agreeing to this Agreement for the use of our Services by an organization, you are agreeing on behalf of that organization in which case, references to “you” in this Agreement means the organization where applicable. You must have the authority to bind that organization to this Agreement, otherwise you must not place an Order or use any portion of our Services on behalf of that organization.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH STATES THAT, UNLESS YOU OPT OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES, BOTH PARTIES AGREE TO RESOLVE ALL DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS. PLEASE READ SECTION 10 CAREFULLY.
- Who May Use Our Services. Our Services are available only to persons or organizations that can form legally binding contracts under applicable law. Our Services are directed towards adults and use of our Services by children under the age of 18 is not permitted. If you do not qualify, you are not permitted to use our Services.
- Use of our Services. Subject to the terms of this Agreement (including the Acceptable Use Policy set forth in section 12 below) and any payment if applicable, we hereby grant you a limited, non-exclusive, non-transferable, revocable license during the Subscription Term to access and use our Services for their ordinary and intended purposes in accordance with this Agreement. To the extent permitted by law, you shall not attempt, and will use your best efforts to prevent your employees and contractors from attempting, to reverse engineer, decompile, deconstruct, disassemble, modify or create derivative works from, publicly perform or display, resell or make available to unauthorized third parties our Services, in whole or in part.
- Third Parties. We may provide links to Third-Party Services, including but not limited to food service providers and delivery services. We also utilize or access certain Third-Party Services as part of the infrastructure of our Services. Third-Party Services are not under our control and we are not responsible for the performance of any Third-Party Services or any information or materials advertised by any Third-Party Services. We make no representation and assume no liability for Third-Party Services including any loss you may incur by your use of or reliance on any goods, services or information available through Third-Party Services. We are not responsible for the food arriving on time, nor the quality of the food, nor any issues arising as a result of the restaurant or delivery company or any third party associated with making or delivering the food. Your use of Third-Party Services is at your own risk and discretion and is governed by the terms and policies of the relevant third-party, including its privacy practices. Links to Certain Third-Party Services are provided to you as a convenience and the availability of such links on our Platform does not constitute our approval, endorsement or recommendation of any such Third-Party Services for you. You may select an option within our Services or otherwise establish a connection between our Services and certain compatible Third-Party Services (e.g., email exchange, video conference provider, or CRM solution). By doing so you authorize us to use or share your data (e.g., your account credentials, “contacts”) with such Third-Party Services and you acknowledge that we are not responsible for any losses you incur that arise from any actions or use of your data by any Third-Party Services that you connect to, or access through our Services.
- Registration. You may register for and create an Account and generate separate login credentials for each User accessing our Services under your Account subject to the terms of your Order. By completing the Account registration process, you consent to any and all Additional Terms that may appear as part of the Account registration process, and all such Additional Terms are incorporated into this Agreement by reference. You agree to provide true, accurate, current and complete information about yourself and your organization, as applicable, in your Order, as requested during the Account registration process and elsewhere on our Services, and agree to update such information if it changes. We reserve the right to suspend your access to your Account without liability if, in our sole determination, you violate any of the terms of this Agreement.
- Your Obligations. You may not use anyone else’s Account, and you may not permit anyone besides your Users to use your Account. User login credentials generated under your Account may only be used by the single User to whom it is assigned, and may not be shared with, or used by any other person, including other Users. You agree to notify us immediately of any unauthorized access or use or suspected unauthorized access or use of your Account or our Services.
- Your Administrator. The User who places your initial Order will be designated as your Administrator and you may specify additional Users as Administrators through the account management console on the Platform, each of whom will have the rights to access and administer your Account. You are responsible for: (a) designating your Administrator(s), (b) managing your Administrator(s)’ access to your Account and account management console; and (c) ensuring that all activities of your Administrator(s) that occur under your Account comply with this Agreement. Your Administrator(s) will have the ability to access your Account, including the ability to terminate a User’s access to our Services under your Account and to access, monitor, use, modify, withhold, or disclose any data available to your Users including data associated with their User-specific login credentials established under your Account. You agree that our responsibilities do not extend to the internal management or administration of our Services for you and that we are merely a content and meeting management platform.
- Your Users. You must ensure that all use of our Services by your Users complies with this Agreement. You will inform your Users of the terms of this Agreement, and you are solely responsible for your Users and all activities occurring under your Account, including but not limited to maintaining the confidentiality of all login credentials associated with your Account. You will obtain and maintain all required consents from your Users to allow (a) Administrators to have the access described in this Agreement; and (b) our provision of our Services to your Users.
- Invitations to Prospects. You may use our Services or any other means of communications (e.g., third-party email applications or social media) to invite Prospects to access certain features of our Services. You may allow your Prospects to invite their affiliates to access our Services as part of the same invitation, in which case, any individuals invited to access our Services by your Prospects, as authorized by you, will also be considered your Prospects. Your use of our Services shall be in accordance with this Agreement, including, without limitation, the Acceptable Use Policy, and your use of any third-party means of communications or Third-Party Service shall be in accordance with their applicable terms and conditions. You are at all times solely in control of and responsible for choosing the Prospects you invite to use our Services and for your interaction with your Prospects through our Services or otherwise. You agree to obtain any necessary consents prior to sending an invitation to your Prospects, and to inform them of, provide any necessary options for (e.g., “unsubscribe”, “opt-out”, “opt-in”) and receive any necessary consents for your interactions with your Prospects through our Services, including but not limited to the collection and use of any data generated by our Services for you with respect your Prospect’s interaction with Your Content (“Prospect Data”). Your invitations to and interactions with your Prospects are solely between you and them, and you release and forever discharge us from any such claims relating to your Prospect. You agree that we will not be responsible for any loss or damage incurred as the result of any such interactions. We are not obligated to become involved in any dispute between you and your Prospects.
- You will, at your own expense, respond to questions and complaints from your Users, Prospects or third parties relating to yours, your Users’ or your Prospects’ use of our Services. You will use commercially reasonable efforts to resolve support issues before escalating them to us.
- Modifications of our Services. We reserve the right to modify, update, upgrade, and otherwise change or discontinue any features and structure of our Services, or portion thereof, and we may do so at any time. We will give you reasonable notice prior to implementing any changes that would decrease functionality or eliminate features and shall receive your prior consent to any changes that would substantially decrease your then-current use of our Services during the Subscription Term. We may elect to make certain upgrades or additional features available for an additional fee, which would require your prior consent. We reserve the right to interrupt the operation of our Services in order to perform maintenance, to implement the above-described changes and as we reasonably believe we are required to do so by a legal or government authority. We will endeavor to perform maintenance and implement changes at periods of lower usage across all of our customers.
- Additional Products, Features or Services. If your Order includes services to be provided by us beyond those included in our standard packages, then such additional services also shall be subject to any Additional Terms provided to you by us, and all services provided by us shall qualify as Services hereunder. We may make new applications, features or functionalities for our Services available from time to time, the use of which may be contingent upon your agreement to Additional Terms.
- Security and Availability. We work hard to maintain the security of our Services and implement security measures consistent with industry practice. However, as with all information transmitted or accessed through the Internet including by e-mail, there are inherent security limitations which we cannot and will not rectify and for which we will not be No measure of security is foolproof, so please keep this in mind when deciding the information and Your Content that you choose to provide through our Platform and Services. You are required to notify us of any security breach or unauthorized use of your Account, but we also appreciate your help in notifying us at firstname.lastname@example.org of any misuse of our Services or vulnerabilities in our Services, should you encounter them. We will maintain commercially reasonable and industry standard technical and organizational security measures to transfer, store, and process Your Content and your Prospect Data with the intention to protect the security, confidentiality and integrity of Your Content provided by you through your use of our Services.
- Acceptable Use Policy. The following types of content and/or use of our Services is illegal or prohibited by us and we reserve the right to investigate and take appropriate action against anyone who, in our sole discretion, violates this provision or any other provision of this Agreement. You agree not to use our Services to:
- upload or distribute any content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, pornographic, vulgar, obscene, malicious, invasive of another’s privacy, hateful, or racially, ethnically, or similarly disparaging;
- perform illegal or unlawful acts in any way or violate any applicable local, state, national or international law and any regulations having the force of law;
- “stalk” or otherwise harass another;
- incite violence in any way;
- harm minors in any way;
- upload or distribute any content that you do not have a right to make available under any law or under contractual, employment or fiduciary relationships, including but not limited to content that infringes or violates any patent, copyright, trademark, trade secret, moral, privacy, publicity, confidentiality or other rights of any party;
- communicate in a manner that is prohibited by applicable law or regulation, including but not limited to those relating to unsolicited bulk or commercial email such as “spam” or “pyramid schemes”;
- attempt to obtain sensitive personal data about any person regarding financial accounts (e.g., bank, credit, debit account numbers), government issued identification (e.g., Social Security, driver’s license, passport numbers), health status (physical or mental), racial or ethnic origin or other information that is protected by law or regulation;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through our Services;
- upload any material that 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;
- intentionally or unintentionally interfere with or disrupt our Services or servers or networks connected to our Services, or disobey any requirements, procedures, policies or regulations of networks connected to our Services, including using any device, software or routine to bypass our robot exclusion headers or otherwise act in a manner that negatively affects other customers’ or Prospects’ ability to use our Services;
- attempt to access or search our Services or our other customers’ content, to scrape or download other customers’ content, or otherwise use, upload content to, or create new links, reposts, or referrals in our Services through the use of any engine, software, tool, agent, device or mechanism (including automated scripts, spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by us or other generally available third party web browsers;
- use our Services, content or any information derived from them, including but not limited to by deconstruction, decompiling or reverse engineering, to engage in competition with us, to defame or disparage us, or to otherwise interfere with our business;
- incorporate our Services into your own products and/or services, rebrand or resell our Services, unless provided for by a separate agreement between you and us; and/or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through our Services.
- Compliance with Laws. You represent and warrant that your use of our Services will comply with all applicable laws and regulations. You are responsible for determining whether our Services are suitable for you to use in light of any regulations that may apply to you, such as HIPAA, GLB, EU Data Privacy Laws, or other laws. You may be required to adhere to and are responsible for complying with any applicable standards relating to such regulations such as (a) accurately describing the sender of your email messages in the “from” line, (b) clearly and accurately stating the subject of your email in the “subject” line, (c) including your physical address in your communications and (d) providing recipients of your emails with clear and direct “opt-out” or “unsubscribe” options. If you are subject to regulations (like HIPAA) and you use our Services, then we are not liable if our Services do not meet those requirements. You may not use our Services for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce.
- Billing and Payment.
- We offer both paid and trial Accounts. The price, duration and any payment terms shall be as set forth in your Order, and if not, then according to our price list then in effect when you submit or renew your Order (“Fee Schedule”). We reserve the right to change our Fee Schedule without prior notice, but no such change shall apply retroactively. You will pay us all applicable fees for our Services as described on your Order (“Fees”), in the currency indicated on the Order or if none is indicated, then in US Dollars and such Fees are exclusive of any taxes, duties or tariffs. Fees are non-refundable except as required by law or as otherwise specifically permitted in this Agreement. You will not receive any refunds or credits for your reduction in the products or features of our Services to which you subscribe, or for any partial Subscription Term unused with an open Account, however, your Account will remain active for the remainder of such a Subscription Term.
- Trial Accounts and Auto-Renewal. IF YOUR ACCOUNT IS SET TO AUTO-RENEWAL OR IS IN A TRIAL PERIOD, THEN AFTER YOUR SUBSCRIPTION TERM OR TRIAL PERIOD, AND AGAIN AFTER EACH SUBSEQUENT SUBSCRIPTION TERM, YOUR ORDER WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL, EQUIVALENT SUBSCRIPTION TERM, SUBJECT TO OUR THEN-CURRENT AGREEMENT AND FEE SCHEDULE. BY PLACING AN ORDER THAT AUTOMATICALLY RENEWS OR PROVIDES FOR AUTOMATIC PAYMENTS FOR EACH BILLING PERIOD, WHETHER FOR A TRIAL OR PAID ACCOUNT, YOU AUTHORIZE US TO CHARGE THE APPLICABLE FEES AT THE TIME OF RENEWAL OR THE BEGINNING OF EACH BILLING PERIOD, AS APPLICABLE, TO THE PAYMENT METHOD YOU PROVIDED WHEN SUBMITTING YOUR ORDER, UNTIL YOU CANCEL OR DISABLE AUTO-RENEWAL OR CLOSE YOUR ACCOUNT. YOU MUST CANCEL OR DISABLE AUTO-RENEWAL OR CLOSE YOUR ACCOUNT BEFORE THE END OF YOUR CURRENT SUBSCRIPTION TERM OR TRIAL PERIOD IF YOU DO NOT WANT TO BE AUTOMATICALLY CHARGED FOR THE SUBSEQUENT RENWAL SUBSCRIPTION TERM. YOU MAY CANCEL THE AUTO-RENEW FEATURE THROUGH YOUR ACCOUNT MANAGMENT CONSUL / BY CONTACTING US AT [EMAIL OR PHONE AND MAY CLOSE YOUR ACCOUNT AS DESCRIBED IN THE “TERMINATION” SECTION OF THIS AGREEMENT. YOU WILL NOT RECEIVE A REFUND OR CREDIT FOR PARTIALLY USED SUBSCRIPTION TERMS.WE RESERVE THE RIGHT TO MODIFY OR TERMINATE TRIAL ACCOUNTS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
- Purchase Orders. If you require the use of a purchase order or purchase order number, you: (a) must provide the purchase order number at the time you submit your Order; and (b) agree that any terms and conditions on your purchase order will not apply to this Agreement and are null and void.
- Additional Purchases. You may submit an Order for additional features, functions or number of Users or request to alter the features, functions or number of Users of your current Order from time to time during your Subscription Term by contacting us at info@eatNgage.com. Changes to the levels or volume of Services provided under an Order and Orders for additional use of or access to our Services are subject to our acceptance and approval. You will be charged the applicable Fees upon submitting an Order for additional use of or access to our Services and such Fees will continue to apply to any subsequent Billing Period, or as otherwise stated in your Order.
- Meal Charge and Budget. You will set a predetermined dollar amount that you will pay with respect to the meals that may be ordered by your Prospects through our Services (“Meal Charge”). The Meal Charge that you establish will appear on the Platform as a “Budget” that your Prospect may not exceed; however, you will be responsible for payment of the entire Meal Charge to us regardless if your Prospect orders less food. Upon your Prospect placing an order for food with one of the Third-Party Services made available through our Platform, you agree to pay the predetermined dollar amount, to be billed at the end of each Billing Period/you will be charged for the predetermined dollar amount using your selected payment method.
- You authorize us to charge you for all applicable Fees using your selected payment method. We do not store, process or transmit any of your credit card data but rely entirely on Third-Party Services to handle these functions. You must comply with the terms and policies of such third parties (e.g. Quickbooks Terms of Service). Unless otherwise stated in an Order, any Fees relating to your Order are due in advance of the applicable Billing Period stated in your Order, and Meal Charges will be billed in arrears. We will bill you after the end of each month for: (a) Fees based upon your incremental usage of our Services during the preceding month (e.g. additional conference minutes or participants that exceed the amount allowed under your Order); (b) your aggregate Meal Charges from the preceding month; and (c) monthly in advance for your use of our Services. We will use the then-current Fee Schedule to calculate the amounts owed, on a prorated basis, for your incremental usage during that month. Any Fees not paid in advance or any costs previously incurred are due within thirty (30) days of our invoice therefor.
- Delinquent Payment. Delinquent payments may bear interest at the rate of one half percent (0.05%) per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including attorneys’ fees) incurred by us in collecting such delinquent amounts, except where such delinquent amounts are due to our billing inaccuracies.
- You are responsible for paying any applicable taxes, duties or tariffs relating to your Order or Meal Charges, except taxes on our income. If we are obligated to collect or remit taxes imposed on you, the taxes will be invoiced to you, unless you provide us with a timely and valid tax exemption certificate (or other documentation as required for the exemption) authorized by the appropriate taxing authority. In some jurisdictions, the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale.
- Your Content
- You Own Your Content. You are solely responsible for and retain any ownership rights you may have in and to the information, documents, images, photographs, videos, sound recordings, links, data, files and any other materials or content that you post, upload, submit, link, store, share, e-mail, transmit, import, publish, display or otherwise make available through our Services (collectively, “Your Content”). You choose to whom to distribute Your Content through our Services, and we are not responsible for and assume no liability for your Users’ or Prospects’ use of Your Content. You expressly agree that we are simply acting as a passive conduit for you to manage and distribute Your Content through an online platform.
- Rights to Use Your Content. You grant us a non-exclusive, royalty-free, transferable, sublicensable (through multiple tiers of sublicenses including but not limited to our subcontractors), worldwide, perpetual, irrevocable license under all intellectual property rights throughout the world (including but not limited to copyrights, trademarks, trade secret, moral, publicity and privacy rights) to use, store, reproduce, save, modify and create derivative works (solely as reasonably necessary for technological purposes such as to reformat for communication purposes but not to change the content thereof), perform, display, and distribute Your Content solely for the purposes of (a) operating, developing, providing and using our Services including but not limited to performed analytics on usage of our Services, (b) addressing service, security, support or technical issues, or (c) as required by law.
- Removing Your Content. We reserve the right to remove or modify Your Content for any reason, including Your Content that we believe violates this Agreement. If you remove Your Content from your Account or close your Account, Your Content may remain in our archives for the purposes stated above, and although your Prospects will no longer have access through our Platform to Your Content upon closure of your Account or your removal of Your Content from your Account, Your Content may continue to reside on your Prospects’ servers to the extent you previously otherwise distributed Your Content such as through an e-mail invitation. Upon termination or expiration of this Agreement, we may, but are not required to, retain Your Content for our archival purposes and to facilitate possible reactivation of your Account at a later time.
- Your Marks. You hereby grant and will grant to us a non-exclusive, royalty-free (unless otherwise agreed in writing in advance), non-sublicensable, non-transferable, worldwide, personal license during the term of this Agreement (or thereafter upon your consent), to use your trademarks, trade names, logos or service marks (collectively, “Marks”) solely in connection with our promotion of our products and services, including but not limited to using your name and/or Marks in press releases, marketing brochures, banners, business plans and the like, indicating that you are an eatNgage customer and providing a link to your website on our Sites. We agree that all goodwill associated with our use of your Marks shall inure to you, and we will adhere to any reasonable guidelines or other instructions provided by you with respect to such Marks.
- If you chose to submit comments, ideas or suggestions to us about our Services (collectively, “Feedback”), you agree such Feedback is non-confidential to you or a third-party and by doing so you thereby irrevocably assign to us any and all right, title and interest in and to such Feedback. Any Feedback is in consideration of your access to our Services, and you shall not be entitled to any monetary compensation or to be credited for such Feedback.
- Our Content
- We Own Our Content. Other than Your Content, our Services and all related proprietary technology, including any software, tools, designs, platforms, algorithms, user interfaces, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets, any updates and upgrades thereto and any and all related intellectual property rights embodied therein throughout the world and also including any derivatives, improvements, enhancements or extensions thereof, are the exclusive property of us and/or our licensors, and you hereby irrevocably assign and will assign to us any and all rights, title or interests you may have in and to the same, except to the extent of any license expressly granted to you herein. Except as expressly provided in this Agreement, we and our licensors do not grant any other express or implied rights to use our Services, and we reserve all rights not expressly granted.
- Our Marks. To the extent our Services include one or more of our Marks, and subject to the terms of this Agreement, we hereby grant and will grant to you a non-exclusive, royalty-free (unless otherwise agreed in writing in advance), non-sublicensable, non-transferable, worldwide, personal license during the term of this Agreement to use such Marks solely as provided by us and as integrated into our Services for the purposes of (i) utilizing or promoting your use of our products or services and (ii) providing a link from your website to our website, subject to any applicable Additional Policies. You may not (a) display our Marks in a way that implies a relationship, affiliation, or endorsement by us of your product, service or business, (b) use our Marks as part of your own product, business, or service’s name, or (c) alter our Marks in any way or combine them with any other graphics without our advance written consent. We may revoke your right to use our Marks pursuant to this Agreement at any time upon our written notice to you. You agree that all goodwill associated with our use of our Marks shall inure to us.
- Concerns About Content. We do not regularly review, and assume no liability for, our customers’ content. However, anyone may report a concern to us about any content available through our Services by contacting us at email@example.com. We reserve the right in our sole and absolute discretion to temporarily or permanently remove, block or otherwise disable access to any content from our Services for any reason or no reason either in response to a concern or otherwise; however, our determination not to remove Your Content after a reported concern should not be construed as a determination of your rights to and authority to use such content and does not diminish or otherwise affect your indemnification obligations. We also abide by the “Notice and Take Down” procedures as provided for by the U.S. Copyright Act. You can read more about that in our Copyright Policy.
- Term, Termination, and Suspension
- This Agreement shall be effective from the date you submit an Order (or with respect to a Statement of Work, the date signed by both parties) until the date you or we close your Account or the date your Subscription Term and any renewal thereof expires according to the terms of the applicable Order, whichever occurs first.
- We reserve the right, without liability, to suspend your access to your Account or your Prospects’ access to our Services if, in our sole discretion, you violate any terms of this Agreement. If we become aware of a User’s violation of this Agreement, then we may specifically request that you suspend the applicable User’s access to our Services or we may suspend your Account or your User’s access to your Account until such breach has been cured. Suspension of your Account due to the investigation of, or actual violation of the terms of this Agreement, shall not relieve you of any payment obligation. If we suspend one of your User’s access to our Services, you may not generate new login credentials for that User without our permission.
- Suspension for Non-Payment. If you do not pay us any non-contested delinquent amounts owed within thirty (30) days from the date such amounts are due, we may, at our discretion, automatically suspend your Account and your use of our Services until you pay us all outstanding amounts in arrears. Suspension of your Account due to non-payment will not relieve you of any payment obligation.
- Suspension to Comply with Laws. We may at our sole discretion suspend the provision of any of our Services at any time if required to comply with any applicable law.
- Closing Your Account. Unless otherwise stated in your Order, you may close your Account at any time upon notice to us, subject to payment of Fees for the remainder of the then-current Subscription Term specified on your Order (e.g., monthly or annual), any costs you previously incurred (e.g. Meal Charges) and any amounts in arrears. For paid Accounts, unless otherwise stated in your Order, we may close your Account: (a) upon thirty (30) days’ notice or the remainder of your then-current Subscription Term, whichever is longer, (b) upon notice for your breach of any provision of this Agreement, (c) upon notice for repeated complaints received by us that your use of our Services infringes the rights of any third party, (d) upon notice should you become subject to a bankruptcy or other insolvency proceeding or transaction, or for (e) any other reason specified in your Order and according to the procedure set forth therein. This Agreement shall terminate upon the date your Account is closed.
- Disclaimers; Limitations of Liability.
- Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, OUR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE EXTENT PERMITTED BY LAW, NEITHER WE NOR OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS OR SUBCONTRACTORS MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING OUR SERVICES PROVIDED HEREUNDER INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, EACH OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS OR SUBCONTRACTORS MAKE NO REPRESTENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH OUR SERVICES OR THAT OUR SERVICES WILL NOT BE INTERRUPTED OR WILL BE “ERROR-FREE” OR FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, SUITABLE, REALIABLE, SECURE, ACCURATE, LEGAL OR SAFE. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES, HARM, DAMAGE, OR LOSS TO YOU OR ANY THIRD PARTY, WHETHER WITHIN OR WITHOUT THE SCOPE OF OUR SERVICES’ INTENDED OR CONVENTIONAL PURPOSE, THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING, WITHOUT LIMITATION, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS, OR IN CONNECTION WITH ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS. YOUR USE OF OUR SERVICES IS ENTIRELY AT YOUR SOLE DISCRETION AND RISK. APPLICATION PROGRAMMING INTERFACES MAY NOT BE AVILALBLE AT ALL TIMES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SUCH LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. YOU RELEASE US, OUR SUBSIDIARIES, AFFILIATES, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, AND AGENTS FROM ANY CLAIM, COMPLAINT, CAUSE OF ACTION, CONTROVERSY, OR DISPUTE (TOGETHER, “CLAIM”) AND DAMAGES, KNOWN AND UNKNOWN, RELATING TO, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH ANY SUCH CLAIM YOU HAVE AGAINST ANY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO ANY FOOD SERVICE PROVIDER OR DELIVERY SERVICE. YOU WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE §1542, OR ANY OTHER SIMILAR APPLICABLE STATUTE OR LAW OF ANY OTHER JURISDICTION, WHICH SAYS THAT: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Notwithstanding the foregoing, eatNgage represents and warrants that our Services do not infringe upon or violate any patent, copyright, trade secret, or other proprietary or intellectual property right of any third party. This warranty is given upon the condition that Customer promptly notify eatNgage of any claim or suit involving Customer in which such infringement is alleged and cooperate fully with eatNgage and permit eatNgage to control completely the defense, settlement or compromise of any such allegation of infringement. In the event (i) such Services and/or Platform are held to infringe such a U.S. patent or copyright in such suit, and the use of such Services and/or Platform is enjoined, or (ii) a compromise or settlement is made by eatNgage, eatNgage shall have the right, at its option and expense, to procure for Customer the right to continue using such Services and/or Platform, or replace them with non-infringing Services and/or Platform, or modify same to become non-infringing, or grant Customer a credit for the depreciated value of such Services and/or Platform and accept return of them. In the event of the foregoing, eatNgage may also, at its option, cancel the agreement as to future deliveries of such Services and/or Platform, without liability. Except as otherwise provided herein, eatNgage or applicable third party licensor to eatNgage maintains all right, title and interest in and to the intellectual property in the Services, and/or Platform.
- No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT EATNGAGE PARTIES ARE NOT LIABLE FOR THE CONDUCT OF OTHER PARTIES, INCLUDING YOUR PROSPECTS AND OPERATORS OF THIRD PARTY WEBSITES AND THIRD-PARTY SERVICES, INCLUDING BUT NOT LIMITED TO FOOD SERVICE PROVIDERS AND DELIVERY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH PARTIES RESTS ENTIRELY WITH YOU.
- Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE, OR OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS OR SUBCONTRACTORS BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, REVENUE, SAVINGS, BUSINESS, DATA OR GOODWILL, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE ON ANY THEORY OF LIABILITY, WHETHER OR NOT WE OR A LICENSOR OR SUBCONTRACTOR OF OURS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, WE AND OUR LICENSORS AND SUBCONTRACTORS’ TOTAL LIABILITY TO YOU AND YOUR EXCLUSIVE REMEDY ARISING FROM OR IN RELATION TO THIS AGREEMENT OR US OR OUR SUBCONTRACTORS’ PERFORMANCE OF OUR SERVICES SHALL BE LIMITED TO THE TOTAL PAYMENTS ACTUALLY PAID BY YOU TO US FOR THE RELEVANT SERVICES IN THE SUBSCRIPTION TERM IN WHICH YOU FIRST ASSERT A CLAIM, OR IN THE EVENT YOUR ACCOUNT IS A FREE ACCOUNT OR NO SUCH PAYMENTS WERE MADE, THEN TOTAL LIAIBLITY AND YOUR EXCLUSIVE REMEDY WILL BE ONE HUNDRED DOLLARS (US$100.00). IN NO EVENT WILL WE OR OUR LICENSORS OR SUBCONTRACTORS BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL YOU, OR YOUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS OR SUBCONTRACTORS BE LIABLE TO US FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, REVENUE, SAVINGS, BUSINESS, DATA OR GOODWILL, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE ON ANY THEORY OF LIABILITY, WHETHER OR NOT YOU OR A LICENSOR OR SUBCONTRACTOR OF YOURS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO DAMAGES ARISING FROM DEATH OR PERSONAL INJURY TO PERSONS OR TANGIBLE PROPERTY IN ANY JURISDICTION WHERE SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH EXCLUSIONS MAY NOT APPLY TO YOU OR US.
- Agreement to Liability Limit. You acknowledge and agree that absent your agreement to this limitation of liability, we would not provide our Services to you. You agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
- Modifications to this Agreement. We may amend this Agreement from time to time, except that that any changes to the Fees or charges shall apply to you only upon renewal of your Order or Orders placed for additional products or features, and not to your current Subscription Term unless otherwise agreed. We will notify you of these changes by publishing the most current version of this Agreement on at least eatngage.com and/or by sending you an email to the address associated with your Administrator or message via our Services. If we make material changes to this Agreement, such changes will become effective within fifteen (15) calendar days from the earlier of our notification to you or our posting the amended Agreement on our Sites. The changes will become effective immediately for new Orders and Users accessing our Services pursuant to a new Order. Your continued access or use of any of our Services after our notice, will constitute your acceptance of such revisions. If you do not agree to the changes, you must notify us of your termination of your Account within thirty (30) days of our notice, in which case the unchanged terms shall apply to you for the remainder of your use of our Services.
- Governing Law. You agree that this Agreement and any Claim you have with us whether or not subject to the Arbitration provisions of this Agreement, relating to, arising out of, or in any way in connection with this Agreement, and any and all related actions under any theory including negligence or other torts (each, a “Dispute,” and together, “Disputes”), whether in court or arbitration, shall be governed by and construed in accordance with the laws of the State of Texas, without respect to its conflict of laws principles. We each agree to submit to the personal jurisdiction of the competent courts located in Harris County, Texas. The Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
- Notice for California Users. Under California Civil Code Section 1789.3, users of our Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at firstname.lastname@example.org or at:
4848 Loop Central Dr. Suite 1010
Houston, TX, 77081, USA
- International Use. We provide and operate our Services from our facilities in the United States. If you access our Services from outside of the United States, you do so at your own risk, thereby expressly consent to the transfer of your data, your Prospect Data and Your Content to the United States and are solely responsible for compliance with applicable laws including intellectual property laws, unsolicited communications laws, competition laws, advertising laws, obscenity, privacy and publicity laws, and laws governing export and import.
- Export Control. Any software available in connection with our Services and the transmission of applicable data, if any, may be subject to United States export controls. No software may be exported or re-exported in violation of U.S. export laws.
- Notices must be sent in writing. Any notice to you will be effective when we send it to the email address associated with your initial Administrator. Notices to us will be effective when delivered to us at email@example.com, with a copy to eatNgage Corporation, 4848 Loop Central Dr., Suite 1010, Houston, TX 77081, attn.: Legal Department or any address as we may later post on our Site.
- No Waiver; Severability. No waiver will be implied from conduct or failure to enforce rights. If any part or sub-part of this Agreement is found invalid or unenforceable, that part or sub-part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force.
- This Agreement applies only to you (e.g., yourself as an individual, or your employees or contractors) and may not be assigned or transferred by you, and any attempted assignment or transfer by you shall be null and void. This Agreement shall be fully assignable, in part or in whole, by us and shall binding upon, and inure to the benefit of, our successors and assigns.
- US Government Agencies. Our Platform and Sites are “Commercial Items,” as that term is defined 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.” The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government Users (1) only as Commercial Items, (2) with the same rights as all other users, and (3) according to this Agreement.
- No Agency. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
- Force Majeure. We shall not be liable for any alleged loss or damages resulting from failure to perform or interruption of our Services due to acts of God, natural disasters, strike, shortages of labor, governmental priorities, energy crises, war, riots or for reasons beyond our reasonable control.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, your Users are not third-party beneficiaries to your rights under this Agreement.
- Construction. This Agreement is written in English and the governing language shall be English. The use of the singular includes the plural and vice versa, as the context may require. The headings used in this Agreement are for convenience of reference only and shall not in any way affect the interpretation of the provisions of this Agreement.
- PLEASE READ THIS SECTION CAREFULLY BECAUSE IT CONTAINS ADDITIONAL PROVISIONS THAT REQUIRE YOU TO SUBMIT TO BINDING INDIVIDUAL ARBITRATION OF ALL DISPUTES, EXCEPT FOR THOSE THAT INVOLVE INTELLECTUAL PROPERTY DISPUTES AND EXCEPT THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. THIS MEANS YOU ARE WAIVING YOUR RIGHT TO HAVE SUCH DISPUTES RESOLVED IN COURT BY A JUDGE OR JURY. THIS SECTION ALSO LIMITS THE TIME YOU HAVE TO START AN ARBITRATION OR, IF PERMISSIBLE, A COURT ACTION. FINALLY, THIS SECTION WAIVES YOUR RIGHT TO HAVE YOUR DISPUTE HEARD AND RESOLVED AS A CLASS ACTION, CLASS ARBITRATION, OR A REPRESENTATIVE ACTION.
- “Excluded Dispute” means any Dispute relating to the enforcement or infringement of your or our intellectual property rights (such as copyrights, trademarks, domains, logos, trade dress, trade secrets, and patents). For clarity and notwithstanding the foregoing, those Disputes relating to, arising out of, or in any way in connection with your rights of privacy and publicity are not Excluded Disputes.
- Federal Arbitration Act. The United States Federal Arbitration Act governs the interpretation and enforcement of this Section (Arbitration), including any question whether a Dispute between us and you is subject to arbitration.
- Agreement to Arbitrate. We and you both agree to waive the right to a trial by judge or jury for all Disputes, except for the Excluded Disputes. We and you agree that all Disputes (except for the Excluded Disputes), including those relating to, arising out of, or in any way in connection with your rights of privacy and publicity, will be resolved through final and binding arbitration. We and you agree not to combine a Dispute that is subject to arbitration under this Agreement with a Dispute that is not eligible for arbitration under this Agreement.
- Administration. The arbitration will be administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules in effect at the time the arbitration is started, including the Optional Rules for Emergency Measures of Protection and the Supplementary Procedures for Consumer-Related Disputes (together, the “AAA Rules”). The arbitration will be presided over by a single arbitrator selected in accordance with the AAA Rules. The AAA Rules, information regarding initiating a Dispute, and a description of the arbitration process are available at www.adr.org. The arbitrator will decide whether a Dispute can be arbitrated. The location of the arbitration and the allocation of fees and costs for such arbitration shall be determined in accordance with the AAA Rules. Notwithstanding the AAA Rules, we will reimburse you for all the AAA administrative fees in Disputes that are subject to the Supplementary Procedures for Consumer-Related Disputes, unless the arbitrator determines that a Dispute was filed for purposes of harassment or is patently frivolous.
- Opt-Out Procedure. You may opt out of this agreement to arbitrate. If you do so, neither party can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing postmarked within thirty (30) days of the later of: (i) the date that you first accepted this Agreement; and (ii) the date you became subject to this arbitration provision. You must use this address to opt-out:
4848 Loop Central Dr., Suite 1010
Houston, TX, 77081, USA
You must include: (1) your name and residence address; (2) the mobile phone number associated with your account; and (3) a clear statement that you want to opt out of this Agreement’s agreement to arbitrate.
- Small Claims Court. As an alternative to arbitration, if permitted by your local “small claims” court’s rules, you may bring your Dispute in your local “small claims” court, as long as the matter advances on an individual (non-class) basis.
- Time Limit to Start Arbitration. We and you agree that for any Dispute (except for the Excluded Disputes) we and you must commence an arbitration proceeding within one (1) year after the Dispute first arose; otherwise, such Dispute is permanently barred. This means that if we or you do not commence an arbitration within one (1) year after the Dispute first arose, then the arbitration will be dismissed because it was started too late.
- No Class Actions, Class Arbitrations, or Representative Actions for Users. We and you each agree that if you are a user of our Services, each of we and you may bring Disputes against the other only on our or your own behalf, and not on behalf of any other person or entity, or any class of people. We and you each agree not to participate in a class action, a class-wide arbitration, Disputes brought in a private attorney general or representative capacity, or consolidated Disputes involving any other person or entity in connection with any Dispute.
- Severability. If the prohibition against class actions and other Disputes brought on behalf of third parties is found to be unenforceable for a Dispute, then all of the provisions above under the caption “Arbitration” will be null and void as to that Dispute.
- Place to File Permitted Court Actions. If you opt out of the agreement to arbitrate, if your Dispute is an Excluded Dispute, or if the arbitration agreement is found to be unenforceable, you are still subject to the provisions in the “Governing Law” section set forth above.
- Defined Terms. In addition to terms defined elsewhere in this Agreement, the following words, when capitalized, have the meaning stated below:
- “Account” means an account and correlating account credentials (including the login credentials established for each of your Users), established through our Services for your (including your, Administrator(s)’ and Users’) access and use of our Services under this Agreement.
- “Additional Policies” means all policies posted on the Platform or provided to you.
- “Additional Terms” means additional terms relating to specific products or features of our Services posted on the Platform or provided to you by us.
- “Administrator” means any User designated by you and authorized to administer our Services to your Users on your behalf, or if none is designated, then the User who placed the Order on your behalf.
- “Billing Period” means each periodic interval (e.g., monthly, yearly) for which you agree to pay fees and costs under, and as stated in your Order, which will be the same as or shorter than the Subscription Term. For example, your Subscription Term may be one (1) year with twelve (12) monthly Billing Periods.
- “Customer” means the individual or organization agreeing to this Agreement for the use of our Services, on behalf of whom the Order is placed.
- “Order” means (a) an order form, invoice, trial account registration form, or statement of work provided by us, (b) service specific forms provided and approved by us, (c) another order form approved by us or (d) our online subscription registration or online payment process by which, in each case, you agree to subscribe to our Services under this Agreement.
- “Other Agreements” means other written agreements executed by us and you.
- “Platform” our proprietary software-as-a-service and ancillary products, tools, support, documentation and other services provided through the Sites.
- “Prospect” means an individual, natural person (who is not a User), within and outside of your organization who has been invited to use the client-facing features of our Services by a User or by a Prospect who has been authorized by a User to invite affiliates of that Prospect.
- “Services” our Platform and offline components and services.
- “Sites” means eatngage.com, app.eatngage.com, mobile and/or desktop applications and other websites owned or operated by or for us that are not expressly subject to other terms of service.
- “Subscription Term” means the term, beginning on the date you are granted access to our Services under an Order, such other date as stated in your Order or any date you renew your Order or your Order is automatically renewed (if applicable), and continuing for the duration as set forth in your Order, during which we agree to provide you with access to and use of our Services subject to the terms and conditions of this Agreement.
- “Third-Party Services” means third-party websites, products, services (for example, email services, local food delivery services, teleconference services and CRM solutions), social networking services, and advertisements for third-parties.
- “User” means each individual natural persons (e.g., yourself as an individual, or your employees or contractors) whom you authorize to access and use your Account, which includes your Administrator(s).