EULA

Last Updated April 20, 2019

This End-User License Agreement (the “Agreement“) is a legal agreement between “You” and CloudEngage, Inc. (“CloudEngage,” “We” or “Us”) for the App (as such term is defined below). You are not entering into an agreement with Apple, Inc. (“Apple”) or Alphabet, Inc. (“Alphabet”). We, and not, Apple or Alphabet are solely responsible for the App and its content (excluding User Content and Third-Party Content as defined with the CloudEngage Terms of Use).

The App is provided by CloudEngage for the purpose of allowing content creators and brands to reach their target markets and provide opportunities for users to connect and find the information they are seeking. Through the App, You may connect with identified companies and individuals using the Chord™ platform. The App may also provide information and links related to other CloudEngage products and services, and third party products and services.

IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLOUDENGAGE IS UNWILLING TO LICENSE THE APP TO YOU, NO LICENSE IS GRANTED AND YOU ARE NOT AUTHORIZED INSTALL OR USE THE APP.

By downloading, installing, creating a user account, or otherwise using the App, You represent to Us that you are at least 18 years old and You agree to be bound by the terms of this Agreement along with the CloudEngage Privacy Policy and the CloudEngage Terms of Use. 

This Agreement governs your use of the App only. Any other contractual agreements between You and CloudEngage remain in effect.

  1. Software Delivery and Acceptance

Subject to Your agreement to be bound by all terms and conditions of this Agreement, CloudEngage authorizes You to use and access CloudEngage’ proprietary mobile software application, which includes compiled software code, images, music, media, templates, data, a user interface, any documentation accompanying the program, and any updates or supplements of such software and documentation (collectively, the “App”).  The App is deemed accepted by You when the App is initially downloaded by You.

  1. License Terms and Conditions

Subject to all terms and conditions of this Agreement, CloudEngage hereby grants You a nonexclusive, personal, non-transferable, non-assignable, limited license to use and access the App in accordance with this Agreement and any and all agreements and documents executed by You or delivered by CloudEngage. The App is licensed to you, not sold, and CloudEngage reserves the right to revoke such license at any time and disable your ability to use the App for any reason or for no reason.

2.1 

Apple App StoreIf you obtained the App through the Apple App Store, the following terms apply:

(i) 

Your use is limited to use on Apple-branded Products that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that the App may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing;

(ii) 

The terms of this Agreement are subject to the terms of the Apple App Store Terms of Service, which you acknowledge you have had the opportunity to review;

(iii) 

Apple and Apple’s subsidiaries are intended third-party beneficiaries of this Agreement;

(iv) 

In the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price, which to the extent permitted by law will constitute Apple’s sole and exclusive obligation with respect to the App;

(v) 

CloudEngage, not Apple, is responsible for addressing Your claims relating to the App, including product liability claims, legal or regulatory noncompliance, and claims arising under consumer protection, privacy, or similar legislation; and

(vi) 

To the extent any obligation exists with respect to a third-party claim that the App infringes a third-party’s intellectual property rights, CloudEngage, not Apple, will be responsible for the investigation, defense, settlement and discharge of such claim.

2.2 

CloudEngage Privacy Policy. The CloudEngage Privacy Policy located at https://cloudengage.com/privacy-policy/ is incorporated herein by reference (“Privacy Policy”). The Privacy Policy provides information about your privacy rights and explains how CloudEngage protects your personal information.

2.3 

CloudEngage Terms of Use. The CloudEngage Terms of Use located at https://cloudengage.com/subscription-agreement/ is incorporated herein by reference (“Terms of Use”). The Terms of Use provides the general terms and conditions for use of CloudEngage services and software.

  1. Representations and Warranties

You represent and warrant the following during your download, installation, and use of the App: (i) You are not located in a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a “terrorist supporting” country; (ii) You are not listed on any U.S. government list of prohibited or restricted parties; and (iii) You possess all necessary rights to post any materials you post using the App, and your posting of such materials will not infringe or violate the rights of any third-party.

  1. Proprietary Rights

The App is protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties. All rights in the App not expressly licensed under this Agreement are reserved to CloudEngage.  You shall not reproduce, retransmit, disseminate, sell, publish, broadcast, circulate, rent, lease, sublicense, assign, or otherwise transfer any portion of the App except as expressly authorized in this Agreement. No right to use any trademark or trade name of CloudEngage is granted to You hereunder other than the right to display the CloudEngage marks that are placed on the App and any CloudEngage messages when they are rendered in the App, in which case such marks may not be altered or removed by You without written approval by CloudEngage.

  1. Internet Access

Use of the App requires an internet connection and may result in charges from your cellular service provider. CloudEngage is not responsible for any such charges. CloudEngage is also not liable for any disruption, failure or malfunction of the Internet or other service providers or for any other situation or event that is out of CloudEngage’s direct control. CLOUDENGAGE IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF YOUR CELLULAR COMMUNICATION OR INTERNET SERVICE PROVIDERS, OR UNAVAILABILITY OR ERRORS ASSOCIATED WITH THEIR SYSTEMS OR SERVICES.

  1. Restrictions on Use

Unless and to the extent specifically provided otherwise in writing by CloudEngage, you may not:

(a) separate any individual component of the App for use;
(b) incorporate any portion of the App into other software or compile any portion of it in combination with other software;
(c) use the App, or any portion of App, with any other service or over a network;
(d) sell, rent, lease, lend, loan, distribute, assign or sublicense the App or otherwise transfer any rights to it in whole or in part;
(e) modify, reverse engineer, decompile, remove any proprietary notices or disassemble the App in whole or in part, or create any derivative works from or of the App, or encourage, assist or authorize any other person to do any of these things; or
(f) make copies of or distribute the App or electronically transfer it or any portion of it from one computer to another or over a network.

We may discontinue some or all of the functionality of the App at any time. We may also terminate your right to use the App at any time, and in such event we may modify it to make it inoperable. You agree to abide by all laws and regulations in effect regarding your use of the App, including without limitation, all driving laws and laws relating to copyright-protected content. You may not authorize or assist any third party to do any of the things prohibited in this paragraph.

  1. Updates

CloudEngage may from time to time, in its sole discretion, make updates, modifications, supplements or new versions of the App or portions thereof available to You under this Agreement for the purpose of, among other things, distributing bug fixes, patches and feature improvements. We highly recommend that you enable automatic updating on your mobile device or that you promptly install all updates as they appear. CloudEngage disclaims any and all liability relating to Your failure to install any updates to the App. Notwithstanding the foregoing, CloudEngage does not have any obligation to provide any bug fixes, modifications, updates, or technical or end user support for the App. CloudEngage and You acknowledge that Apple and Alphabet have no obligation whatsoever to furnish any maintenance and support services with respect to the App.

  1. Collection and Use of Data

You acknowledge that the App automatically collects information, data and statistics relating to your use of the App, and compiles such information, data and statistics. Subject to the terms of the Privacy Policy, CloudEngage reserves the right to use such information, data and statistics in the course of CloudEngage’s business, and you hereby agree to CloudEngage’s use. Unless specifically agreed in writing by CloudEngage, CloudEngage is not responsible for, and hereby disclaims all warranties relating to, the storage of any data for use with the App.

  1. Login Credentials.

You shall not share Your user account information with others or allow third parties to use Your login credentials to the App at any time or for any reason unless otherwise allowed in writing by CloudEngage. You warrant, and CloudEngage may assume and rely on the assumption, that any and all activity and use of the App under Your user account is done by You.  You are solely responsible for maintaining the security of, for example, your username, password, and all other user account information, and You agree that CloudEngage will not be liable for any loss or damages resulting from use of your account by others.

  1. Disclaimers; Limitations of Liability

CLOUDENGAGE DOES NOT PROMISE THAT THE APP OR ANY FUNCTIONALITY THEREOF WILL BE ERROR-FREE OR UNINTERRRUPTED OR THAT YOUR USE OF THE APP WILL PROVIDE SPECIFIC RESULTS. THE APP IS PROVIDED BY CLOUDENGAGE “AS-IS” AND “AS-AVAILABLE” WITHOUT ANY OTHER WARRANTY OR REPRESENTATION OF ANY KIND.  CLOUDENGAGE CANNOT ENSURE THAT THE APP OR ANY FILES OR OTHER DATA YOU DOWNLOAD IN RELATION TO THE APP WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. YOUR USE OF THE APP, AND THE RESULTS AND PERFORMANCE ACHIEVED USING THE APP, IS AT YOUR OWN RISK.  CLOUDENGAGE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THE APP.  THE ENTIRE RISK AS TO THE QUALITY, OR ARISING OUT OF THE USE OR PERFORMANCE OF THE APP REMAINS WITH YOU.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CLOUDENGAGE BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE APP, ANY PROVISION OF OR FAILURE TO PROVIDE SUPPORT, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF CLOUDENGAGE, AND EVEN IF CLOUDENGAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, CLOUDENGAGE IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF THE APP, CLOUDENGAGE’S LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF (1) THE TOTAL OF ANY SUBSCRIPTION OR SIMILAR FEES WITH RESPECT TO THE APP PAID IN THE SIX MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST CLOUDENGAGE, OR (2) US$200.00. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU.

  1. Termination

Without limiting its rights and remedies, if You fail to comply with the terms and conditions of this Agreement, CloudEngage may, in its sole discretion, terminate this Agreement upon any such failure.  Upon termination of this Agreement, You must promptly cease all use of the App and discontinue exercising all license rights granted by this Agreement.  Sections 2.12.2, 2.3, and 3 through 16 of this Agreement will survive any termination of this Agreement.

  1. Dispute Resolution; Choice of Law

This Agreement shall be construed and controlled by the laws of the State of Washington without reference to its choice of law provisions, and You consent to exclusive jurisdiction and venue in the federal courts sitting in Spokane, Washington, unless no federal jurisdiction exists, in which case You consent to exclusive jurisdiction and venue in the applicable Washington State Court located in Spokane, Washington. You waive and covenant not to assert all defenses of lack of personal jurisdiction and forum non conveniens.

  1. Export Law Compliance

You acknowledge that the App is of U.S. origin.  You agree to comply with all applicable international and national laws that apply to the App, including all applicable U.S. export-control laws and regulations, as well as any end-user, end-use and destination restrictions issued by U.S. and other governments.

  1. Other Agreements

This Agreement constitutes an individual consent by You to be bound by the terms of this Agreement and is the entire agreement between You and CloudEngage with respect to Your use of the App, and any and all other written or oral agreements or understandings previously existing between You and CloudEngage with respect to such use are hereby cancelled. Notwithstanding the foregoing, if You have entered into a separate agreement with CloudEngage that expressly supersedes the Terms of Use and/or this Agreement (a “Superseding Agreement”), or if your use of the App is authorized under the terms of a Superseding Agreement, the Superseding Agreement will remain in full force and effect. This Agreement is not intended to supersede or replace any other agreements entered into with CloudEngage by You or Your company. To the extent there are any conflicts or inconsistencies between this Agreement and any other agreement, policy or documentation, the following order of precedence will apply for resolving such conflicts or inconsistences: first (i) a Superseding Agreement; then (ii) this Agreement; and then (iii) any other agreements, policies, or documentation.

  1. Void Where Prohibited

Although the App is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the App are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. CloudEngage reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the App is void where prohibited. If you choose to access the App from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.

  1. Miscellaneous

If any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of this Agreement, so that this Agreement shall remain in full force and effect. CloudEngage’ failure to insist on or enforce strict performance of this Agreement shall not be construed as a waiver by CloudEngage of any provision or any right it has to enforce this Agreement, nor shall any course of conduct between CloudEngage and you or any other party be deemed to modify any provision of this Agreement. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties.