EngagedAi Terms of Service

Last Revised: December 17, 2024

ACCEPTANCE OF TERMS

IMPORTANT — READ CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILIZING THE ENGAGEDAI WEBSITE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.

These Terms of Service are between SocialMiningAi, Inc. d/b/a EngagedAi and its subsidiaries and affiliates (collectively, “EngagedAi” “we” “us,” or “our”) and govern your access and/or use of our website (https://engagedai.io), including its related applications, dashboards, platforms, and mobile app (the “Website”). By accessing or using the Website or Services (as defined below), or by signing or clicking to accept these terms or any document referencing these terms, you agree to be bound by the following terms and conditions (together, these “Terms”, or this “Agreement”).

 “You” “your” and “Customer” refers to any individual who creates an account on or accesses the Service, or, if the Service is being used on behalf of an entity by an individual authorized to agree to such terms on behalf of such entity, then “you” includes such entity. If you are accessing the Service on behalf of an entity, you represent and warrant that (i) you are an authorized representative of the entity with the authority to bind the entity to these Terms of Service, and (ii) you agree to these Terms of Service on that entity’s behalf.

This Agreement includes and hereby incorporates by reference any Subscription Documents executed between you and EngagedAi, as well as any policies or exhibits linked to or referenced therein. If you have entered into a separate Master Service Agreement or other Subscription Document with EngagedAi concerning specific services, the terms of such agreement control if there is any conflict between the terms of such agreement and these Terms.

Our Privacy Policy describes how we handle the information you provide to us when you use the Service. For an explanation of our privacy practices, please visit our Privacy Policy located at https://engagedai.io/privacy.

1. DEFINITIONS

• “Confidential Information” means code, inventions, know-how, product plans, technical and financial, business, operational, or other information exchanged under this Agreement or learned during the performance of this Agreement, or that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.

• “Law(s)” means all applicable local, state, federal, and international laws, rules, and regulations, or amendments thereto, including but not limited to the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991 (“TCPA”), the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, the CAN-SPAM Act, Do Not Call rules and prohibitions, Canada’s Anti-Spam Legislation (“CASL”), the Australian Consumer Law, the AU Privacy Act 1998 (Cth), and the AU Spam Act 2023 (Cth).

• “Territory” means the United States, Canada, and Australia, unless otherwise set forth in the Customer’s Subscription Documents.

2. SERVICES

• Scope. EngagedAi provides a proprietary multi-product platform that includes without limitation appointment processing and CRM integration, reputation management tools (“Reviews” and “Feedback”), messaging and communication tools (“Inbox,” “Webchat,” “Automations,” “Phones” and “Campaigns”), SocialMining, and any other services EngagedAi may offer from time to time (together with the Website, the “Service(s)”). Customer will, from time to time, enter into a proposal, quote, master service agreement agreement, order form, statement of work, or otherwise click to accept or agree to an online registration form (“Subscription Document(s)”), which references this Agreement and details the Services ordered from EngagedAi and, if applicable, the usage limits or other scope of use descriptions for the Services (“Scope of Use”).
• Alteration of Subscription Documents. Any amendments or modifications to any existing Subscription Documents must be agreed to in writing by the parties.

• Availability of Services. We shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by EngagedAi or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

• Modification of the Services. EngagedAi reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice at any time. You agree that EngagedAi shall not be liable to you or to any third-party for any modification, suspension, termination or discontinuance of the Service.

• Additional Terms. Customer’s subscription to or use of certain Services or features of the Services may be subject to additional terms, policies, rules, or guidelines that we may post on or link to from these Terms or the Services (the “Additional Terms”). To the extent applicable, all Additional Terms are incorporated by this reference into, and made a part of, these Terms. If Customer purchases or otherwise uses any of the following Services, Customer’s use is subject to and Customer accepts the applicable Additional Terms, as set forth below.

3. USER RIGHTS AND RESTRICTIONS

• Use of Services. Subject to Customer’s compliance with this Agreement, including the payment of all fees, Company hereby grants Customer a non-exclusive, non-sublicensable, non­transferable (except as provided herein) right, during the Term (defined below), to access and use the Service solely for Customer’s internal business purposes and in accordance with any Service documentation (including but not limited to, the Subscription Documents, and this Agreement) or product feature descriptions made available to Customer by Company in tangible or electronic format.

• General Restrictions. You may not : (a) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, or otherwise permit any third-party to access or use the Service; (b) decipher, decompile, disassemble, reverse assemble, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Service; (c) modify, translate, or develop any derivative works based upon the Service; (d) access the Service in order to build a competitive product or service; (e) use the Service to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis; (f) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs through the Service; (g) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (h) attempt to gain unauthorized access to the Service or its related systems or networks; (i) disclose or publish performance or capacity statistics or the results of any benchmark test performed on the Service; (j) obscure, alter or remove any copyright, patent, trademark, service mark or proprietary rights notices on the Service or (k) otherwise use the Service except as expressly permitted herein.

• Services Exclusive to the Territory. EngagedAi makes no representation that the Services are appropriate or available for use in locations outside the Territory. Furthermore, accessing the Services from territories where their content or use is illegal, is prohibited under this Agreement. If Customer attempts to access or use the Services outside of the Territory, Customer does so at its own initiative and is responsible for compliance with all Laws and any costs associated with access or use outside the Territory. You will not export, re-export, divert, transfer or disclose any portion of the Service or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.

• Authorized Users. By agreeing to these Terms, Customer warrants that it and its employees, agents, contractors, and any other users whom Customer has authorized to access the Services on its behalf (“Authorized Users”): (a) are over 18 years old; (b) have not previously been suspended or removed from the Services; and (c) will comply with all Laws when using the Services. Customer may permit its Authorized Users to use the Services provided their use is for Customer’s benefit only and remains in compliance with this Agreement. Authorized Users are and will be subject to the applicable terms and conditions of this Agreement, which may be communicated by posting to the Website or on a click-through basis to Authorized Users upon access to the Services and/or Website.

• Responsibility for Authorized Users. Customer will be responsible and liable for all Authorized Users’ use and access and their compliance with this Agreement, including all applicable Laws. Customer is solely responsible for determining its Authorized Users and restricting and/or terminating the rights of such users during the Subscription Term, as Customer deems appropriate. Customer will be solely responsible for any and all actions taken using its and its Authorized Users’ accounts, passwords, or access credentials and must ensure that each Authorized User has a separate and distinct user account (with separate and distinct access credentials) that is not shared with any other user(s). Customer must notify EngagedAi within twenty-four (24) hours of any breach of security or unauthorized use of its account.

• Use by Others. If your access to the Service results from an invitation to the Service from Customer, including via Customer’s account or website, you are subject to these Terms of Use and any additional terms and conditions imposed by Customer.

• AI Services. EngagedAi offers Services that use artificial intelligence, machine learning, or similar technologies (“AI Features”). Your use of the AI Features may result in outputs (for example, automated Webchat responses) that are not accurate or complete. It is your responsibility to evaluate whether outputs from the AI Features are appropriate for your use case, including where human review is appropriate. Customer is solely responsible for the inputs, disclosing the use of AI Features to your clients, and ensuring use of AI Features complies with applicable Laws.

4. PROPRIETARY/INTELLECTUAL PROPERTY RIGHTS

EngagedAi and/or its licensors, as applicable, retain ownership of all rights (including all intellectual property rights) in the Service and in all trade names, trademarks and service marks associated or displayed with the Service. We welcome feedback, comments and suggestions for improvements to the Service (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Service or in any such Feedback. All Feedback becomes the sole and exclusive property of EngagedAi, and EngagedAi may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to EngagedAi any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.

5. CUSTOMER DATA

• Rights in Customer Data. As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to any text, images, or other content and data that Customer selects or submits for use or incorporation with the Services (including without limitation, chat and message logs, Customer Data, PHI, or any Third-Party Content) (“Customer Data” or “User Content”). “Third-Party Content” means content, data, or other materials that Customer provides to EngagedAi from its third-party data providers, including through Third-Party Products (as defined below) used by Customer. EngagedAi is an “authorized integrator” (or words of similar import) under applicable law. Customer grants EngagedAi a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, sub-license, index, modify, and create derivative works of Customer Data as necessary to provide the Services (including, but not limited to, developing, modifying, improving, supporting, customizing, and operating the Services). Additional permissions regarding the use and disclosure of Customer Data are found in the Privacy Policy.

• Aggregate/Anonymous Data. Company may generate usage data and aggregate (including with other customers’ data) Customer Data for the purpose of (1) developing, improving or customizing the Services, and (2) publishing, displaying, and distributing anonymous information (i.e., information where Customer or its customers are not capable of being identified) derived from Customer Data. Such aggregated data is EngagedAi technology and may be used for any business purpose during or after the term of this Agreement. EngagedAi will not distribute aggregated data in a manner that personally identifies Customer.

• Monitoring. Customer understands and agrees that EngagedAi may monitor and analyze User Content (including but not limited to reviews, surveys, messages, chats, etc.) to improve the Website or Services; to improve Customer’s experience using the Website or Services; to customize and communicate informational or product offerings and promotions to Customer; and/or to make the Website or Services more helpful or useful to Customer and other users. This may include use of technologies (such as session replay services, transcription services, cookie, pixel, or other tracking technologies) that maintain records of browsing sessions and other activities on the Website and Services. Customer also understands that any third-party platform(s) or Third-Party Provider(s) Customer elects to use or access in conjunction with the Services may also monitor and analyze the Customer Data you use or accesses in connection with such third-party platforms, to customize and communicate information or product offerings and promotions to Customer; to ensure compliance with applicable terms of use; and to make such third-party platform(s) more helpful or useful to Customer and other users.

• Privacy and Data Processing. The Privacy Policy describes how we handle the information you provide to us, or we otherwise collect when you use the Services. You understand that through your use of the Services you consent to the collection and use as set forth in the Privacy Policy) of this information, including, as applicable, the transfer of this information to the United States and other countries for storage, processing, and use by EngagedAi and its affiliates.

6. CUSTOMER OBLIGATIONS

• Warranty. Customer also warrants and represents that: (a) you have sole ownership of any Customer Data you provides to us, or otherwise has legal rights to provide such data, and Customer Data will not violate third-party rights, including intellectual property, privacy, and publicity rights; and (b) EngagedAi’s possession and/or use of the Customer Data in connection with the Services, as contemplated hereunder, will not violate any contract, statute, regulation, or other third-party rights. If Customer receives any take-down requests or infringement notices related to User Content or its use of Third-Party Products, it will promptly stop using these items with the Services and notify EngagedAi immediately. Additionally, if an integration is included in the Services, you grant EngagedAi the right to access your CRM or other applicable system directly or through a third-party service for the purposes of fulfilling EngagedAi’s obligations under this Agreement, and Customer warrants that you are not restricted by law or applicable agreement from granting EngagedAi such right.

• User Consent, Intended Use. Customer understands and agrees that the Services are intended to allow you to communicate electronically only with your own customers who have consented to the receipt of such communications and are provided with all necessary notices in accordance with applicable Laws. Accordingly, Customer will for the duration of the Subscription Term: (a) provide all required disclosures to users and obtain all required consents and/or authorizations from users, based on applicable Laws, prior to utilizing the Services; (b) obtain all necessary rights, releases, and consents to allow Customer Data to be collected, used, and disclosed in the manner contemplated by this Agreement and to grant EngagedAi the rights herein; and (c) use the Services to make or send communication (including but not limited to phone calls, emails, and text messages) only in compliance with all Laws, the terms of this Agreement and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions. Customer also understands and agrees that the Services are intended primarily to be used for transactional and/or informational communications. If Customer uses the Services to make or send any written electronic communication (including but not limited text messages) that includes advertisements, marketing, telemarketing, or promotional messaging, as such are defined in applicable Laws (hereinafter, collectively “Marketing”), Customer must, in each instance, clearly designate such message(s) as “Marketing” within the Service prior to sending.

• Compliance with Laws. Customer understands and accepts that you are solely responsible for ensuring compliance with the Laws, and EngagedAi expressly disclaims any liability for Customer’s non-compliance. Failure to comply with the Laws may result in legal consequences, including but not limited to indemnification of EngagedAi for any related claims, damages, or penalties.

7. FEES AND PAYMENT

• Set-up Fees. Upon signing a Subscription Document, Customer will be required to pay any implementation fees, professional services fees and the last month of the subscription fees for the Services listed. EngagedAi will not have any obligation to commence set-up for any Services for which Customer owes and has not paid such fees.

• Payment of Fees. EngagedAi bills in advance for Services and all fees are due upon receipt of the applicable Company invoice. Customer shall pay the invoice no later than the net payment terms indicated on the Subscription Document. Subscription fees are due monthly. EngagedAi’s billing cycle follows the calendar month. In our discretion, we may pro-rate the first month’s fee. Recurring payments are due on the first day of a calendar month. After 30 days, interest will accrue on past due balances at the lesser of 1.5% per month or the highest rate allowed by law. After payment becomes overdue, EngagedAi will have the right to suspend Customer’s access to the Services and/or seek to enforce Customer’s payment obligation, including through the use of third-party services. If EngagedAi sends Customer’s account to collection and/or initiates legal action, EngagedAi may seek to recover all costs and expenses of such action, including reasonable attorney’s fees and court costs.

• Fee Increase. Unless otherwise agreed on in a Subscription Document, once per year and upon 30 days’ prior written notice, EngagedAi may increase the monthly listed in any agreement that licenses the Services. Upon Customer’s written request, Company will provide documentation related to any increase. EngagedAi may increase integration fees or any other third-party component fees included in Company’s servicers in any Subscription Document at any time upon 30 days’ written notice.

• Taxes. Customer is responsible for payment of all taxes (excluding those on Company’s net income) relating to the provision of the Services, except to the extent a valid tax exemption certificate or other written documentation acceptable to EngagedAi to evidence Customer’s tax exemption status is provided by Customer to us prior to the delivery of Services.

8. TERM AND TERMINATION

• Term. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Subscription Document and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least sixty (60) days prior to the end of the then-current Term. In addition to any other remedies available, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided.

• Suspension of Services. We may suspend Customer’s (or any Authorized User’s, as applicable) access to the Services if: (a) your account is overdue, or (b) you have exceeded your Scope of Use limits. EngagedAi may also suspend Customer’s (or any Authorized User’s, as applicable) access to the Services, remove Customer Data, or disable Third-Party Products if it determines that: (i) Customer has breached Sections 3 (Use Rights; Restrictions) or 6 (Customer Obligations); or (ii) suspension is necessary to prevent harm or liability to other clients of EngagedAi or third parties or to preserve the security, stability, availability, or integrity of the Services. EngagedAi will have no liability for taking action as permitted above. For avoidance of doubt, Customer will remain responsible for payment of Fees during any suspension period other than for any suspension that: (a) is not due to the fault of Customer, and (b) lasts longer than five (5) days. Unless this Agreement has been terminated, EngagedAi will cooperate with Customer to restore access to the Services once it verifies that the condition(s) requiring suspension have been resolved.

• Termination for Cause. If you breach any provision of the Terms of Service, EngagedAi may suspend, disable, or delete your account and/or the Service (or any part of the foregoing) with or without notice and all licenses granted by us will terminate automatically. If EngagedAi deletes your account for any suspected breach of the Terms of Service by you, you are prohibited from re-registering for the Service under a different name. Also, if our agreement with Customer who invited you to access the Service terminates, then your access to the Service will terminate immediately.

• Customer Data Following Termination. Upon any termination, EngagedAi will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter we may delete (but are not obligated to) stored Customer Data. Requests for Customer Data downloads at any other time will be subject to EngagedAi’s reasonable discretion and additional fees. EngagedAi will have no obligation to provide Customer with access to Customer Data if Customer is in breach of any of its obligations under the Subscription Documents, including its payment obligations.

• Survival. All sections which by their nature should survive the termination of the Terms of Service shall continue in full force and effect subsequent to and notwithstanding any termination of the Terms of Service by EngagedAi or you. Termination will not limit any of EngagedAi’s other rights or remedies at law or in equity.

9. CONFIDENTAL INFORMATION

• Obligation of Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of EngagedAi includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to EngagedAi to enable the provision of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.

• Exclusions. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof (excepting trade secrets) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third-party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

10. THIRD-PARTY MATERIALS

The Service may display, include or make available content, data, information, applications or materials from third parties (“Third-Party Materials”) or provide links to certain third-party websites. You agree that EngagedAi is not responsible for the accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Materials or websites.  We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third-Party Materials or third-party websites, or for any other materials, products or services of third parties.  Third-Party Materials and links to other websites are provided solely as a convenience to you.  If you have any complaints in connection with any Third-Party Materials or third-party website, please contact such third-party directly, or contact your state Attorney General or the Federal Trade Commission at www.ftc.gov.

11. MOBILE APP

You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the App.  We do not guarantee that the App can be accessed and used on any particular device or with any particular service plan.  We do not guarantee that the App will be available in any particular geographic location. As part of the Service and to update you regarding the status of deliveries, you may receive push notifications, local Customer notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you in connection with the App (“Push Messages”). You acknowledge that, when you use the App, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings and can opt in or out of these Push Messages through the Service or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the App, including your receipt of Push Messages from Engaged Ai. You are solely responsible for any fee, cost or expense that you incur to download, install and/or use the App on Your mobile device, including for your receipt of push messages from EngagedAi.

12. APPLE DEVICE

If You are accessing the Service via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store (each an “Application”), the following shall apply:

• Both you and EngagedAi acknowledge that these Terms of Service are concluded between you and EngagedAi only, and not with Apple, and that Apple is not responsible for the Application or the Application’s content;
• The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Service for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms of Service as they are applicable to the Service;
• You will only use the Application in connection with an Apple device that You own or control;
• You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
• In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
• You acknowledge and agree that EngagedAi, and not Apple, is responsible for addressing any claims you or any third-party may have in relation to the Application;
• You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third-party’s intellectual property rights, EngagedAi, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim; and
• Both you and EngagedAi acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms of Service, and that upon your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as the third-party beneficiary hereof.

13. INDEMNIFICATION
    • Indemnification by Customer. You agree to indemnify, defend and hold harmless EngagedAi, its affiliates, and their respective officers, directors, employees, consultants, and agents (the “EngagedAi Indemnified Parties”) from and against any third-party claims (“Claims”) and related costs, damages, liabilities, and expenses, including reasonable attorney’s fees (“Losses”) arising or pertaining to: (a) any breach of any of the representations, warranties, obligations, terms, or conditions of this Agreement by Customer, its affiliates, and their respective owners, directors, officers, representatives, agents, contractors, or personnel (collectively, “Representatives”); (b) the conduct of Customer or its Representatives, in performing actions or business pursuant to this Agreement; (c) the failure of Customer or its Representatives to comply with all applicable laws, regulations, guidelines or policies; (d) any act or omission of Customer or any of its Representatives arising, either directly or indirectly, under or pursuant to this Agreement; or (e) Customer, or its Representatives: (i) did not collect or maintain personal information in accordance with all applicable privacy and data protection laws (“Privacy Laws”); (ii) transferred personal data to Company in violation of Privacy Laws; and/or (iii) failed to provide notices to, and/or receive consents from the individual subjects of such personal information necessary in the treatment or the transfer of such personal information to or from Company or any third-party, and the use and processing described herein, and in Company’s Privacy Policy, as updated from time to time. Customer may not settle any claim without EngagedAi’s prior written consent if the settlement does not fully release Company from liability or would require EngagedAi to admit fault, pay any amounts, or take or refrain from taking any action.

• Indemnification by EngagedAi. Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

14. NO WARRANTIES OR REPRESENTATIONS

THE SERVICE IS PROVIDED “AS IS,” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, SECURITY OR CONTENT OF THE SERVICE, OR ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHERMORE, ENGAGEDAI DOES NOT WARRANT THAT THE SERVICE WILL BE FREE OF ERROR, VIRUSES OR OTHER MALICIOUS CODE, WILL BE UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED OR THAT THE SERVICE WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY ENGAGEDAI. 

15. LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL ENGAGEDAI BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES (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 YOUR USE OF OR INABILITY TO USE THE SERVICE, OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ENGAGEDAI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. IN ANY CASE, ENGAGEDAI’S MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE WILL BE LIMITED TO ONE HUNDRED DOLLARS ($100).

16. GENERAL
    • Waiver and Severability. In the event any provision hereof is deemed invalid or unenforceable by any court or governmental agency of competent jurisdiction, such provision will be deemed severed from the Terms of Service and all remaining provisions will be afforded full force and effect as if such severed provision had never been a provision hereof. No consent or waiver, express or implied, by any party to or of any breach by the other in the performance by the other of its obligations hereunder will be deemed or construed to be a consent or waiver to or of any other breach in the performance by such other party of the same or any other obligation of such party hereunder.

• California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

• Assignment. Neither party may assign or otherwise transfer this Agreement or any rights or obligations hereunder without the written consent of the other party, except that either party may, without such consent, assign or transfer this Agreement to a purchaser of all or substantially all of its assets or to a successor organization by merger, consolidation, change of control, conversion or otherwise; provided, and notwithstanding the foregoing, Customer shall obtain written consent of Company if such transfer is to a competitor of Company. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.

• Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising of or related to use of the Service or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.

• Choice of Law. These Terms of Service shall be governed by and construed under the laws of the State of Utah.

• Dispute Resolution. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, the parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by confidential negotiations between persons who have authority to settle the controversy. All such negotiations shall be treated as compromise and settlement negotiations for purposes of the relevant rules of evidence. If the parties cannot reach an amicable resolution through this process within 20 business days, the parties may, if mutually agreeable, attempt to settle the dispute by mediation to take place in Salt Lake City, Utah. Any costs associated with mediation other than a monetary settlement shall be shared equally by the parties.

• Force Majeure. Neither party will incur any liability to the other party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of the Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes a) beyond the reasonable control of a party, b) not reasonably foreseeable by a party,  and c) not a result of any negligence of a party seeking protection under this provision

• Injunctive Relief. You acknowledge that any use of the Service contrary to these Terms of Service, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Service, will cause irreparable injury to EngagedAi and under such circumstances EngagedAi will be entitled to seek equitable relief without posting bond or other security in addition to any remedies it may have hereunder or at law.

• No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between you and EngagedAi is intended or created by these Terms of Service.

• Amendments. EngagedAi may change the terms of these Terms of Service at any time by posting modified terms on its website, in which case we will update the “Last Revised” date at the top of the Terms of Service. It is your responsibility to review the Terms of Service from time to time to view any such changes. The updated Terms of Service will be effective as of the time of posting, or such later date as may be specified in the updated Terms of Service. Your continued access or use of the Service after the modifications have become effective will be deemed acceptance of the modified Terms of Service.

• Notices. You may contact us regarding the Service or the Terms of Service at legal@engagedai.io (include “Attn: Legal Department” in the subject line), or by email at legal@engagedai.io. EngagedAi may send notices to the e-mail addresses on Customer’s account or Customer’s last-known postal address. EngagedAi may also provide operational notices regarding the Services or other business-related notices through conspicuous posting of such notice on the Website or the Services. Each party hereby consents to receipt of electronic notices and agrees that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. EngagedAi is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.

• Publicity. Unless otherwise specified in the applicable Subscription Documentation, EngagedAi may use your name, logo, and marks to identify you as a Customer on the Website and other marketing materials.

• Communication with Customer. You agree that EngagedAi may send you emails and text messages, including transactional, operational, and marketing messages, possibly using automated technology, to the email or phone number you provide to EngagedAi. Message and/or data rates may apply to such messages, and you may opt out at any time. You will keep your contact information up to date and will notify EngagedAi immediately in the event that your contact information changes.

• Survival. All sections of these Terms of Service which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

• Headings. The headings used in this Agreement are for ease of reference only. They are not intended as a complete restatement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.