CloudEngage Subscription Agreement

CLOUDENGAGE SUBSCRIPTION AGREEMENT

THIS CLOUDENGAGE SUBSCRIPTION AGREEMENT (the “Agreement”) is a legal agreement by and between CloudEngage, Inc., an Oregon corporation with its principal offices at 123 NW 2nd Avenue, Ste. 206, Portland OR 97209 (“CloudEngage”), and the party entering into this Agreement for the use of the Service (“Client”).  By registering for, accessing, copying, or otherwise using the Service, Client acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions.  If Client does not agree to the terms and conditions of this Agreement, please do not register, access or use the Service.  CloudEngage will not and does not license and make the Service available unless Client agrees to the terms of this Agreement.  In consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:

Scope of agreement.  CloudEngage offers an Internet-based locator and geo-engagement software service (including a plug-in, overlay, or widget that is installed on Client’s website) and also offers certain additional ancillary applications, analytics, documentation, and services to Client, all as more particularly described at www.cloudengage.com  (the “Service”), and CloudEngage desires to make such Service available to Client.

2. Description of Services.

2.1 Service. Subject to the terms and conditions contained in this Agreement, CloudEngage agrees to use commercially reasonable efforts to furnish the Service and associated support services to Client, if any, described on the Pricing and Features pages at www.cloudengage.com and on the sign-up and order forms agreed to by the parties and incorporated herein. 

2.2 Availability of Service.  CloudEngage will provide the Service on CloudEngage’s servers, and will use commercially reasonable efforts to make the Service available to Client twenty four hours a day, seven days per week, three hundred sixty five days per year, except for certain scheduled service and maintenance or in the event of emergency or events of force majeure. Notwithstanding the foregoing, CloudEngage will not be responsible for any downtime or failure to meet such Service availability goals.  CloudEngage will make good faith efforts to perform service and maintenance to the Service outside peak usage hours.  Client acknowledges that availability of the Service may be affected by: (i) telecommunication network activity or capacity; (ii) hardware failures; and/or (iii) compatibility with third party communication equipment, Internet access software and/or browsers not in accordance with the Service requirements.  CloudEngage disclaims any and all responsibility for any service interruption in connection with such activity, capacity, failure and/or compatibility.  Client is responsible for providing all equipment and telecommunication services necessary to access the Service. 

2.3 Modifications to Service.   CloudEngage reserves the right to change the Service (including the content, appearance, design, functionality and all other aspects thereof), access procedures, tools, documentation, format requirements, communications protocols and services offered at any time for any reason. 

2.4 Customer Service, Training, and Technical Support. CloudEngage will provide Client with reasonable online customer support and maintenance for the Service through our community forums and support portal.  CloudEngage does not guarantee that the support will be available or that CloudEngage will make the Service work on Client’s system or resolve all problems in connection therewith. 

2.5 Implementation of Service on Client Site.  Client may use the Service only through Client’s website or software application (the “Client Site”). CloudEngage shall have the right to approve the implementation and use of the Service on the Client Site, including both the display and linking of the plug in or widget.  CloudEngage may suspend the Service in the event CloudEngage discovers any implementation issues with the Client Site, as determined by CloudEngage in its sole discretion. Such suspension shall remain in effect until Client corrects any issues specified by CloudEngage. Such suspension will not relieve Client of its payment obligations under the Agreement.

2.6 Right to Remove.  CloudEngage has the right in its sole discretion to remove or block any text, images, artwork, technology and other content, data, information, materials and other items provided or made available to CloudEngage or on the Service by Client or its users (“Client Materials”) at any time where (a) such Client Materials violate applicable laws, regulations, orders, or is in violation of CloudEngage’s applicable policies and procedures, including without limitation any acceptable use policies; (b) removal or blocking is necessary because of exigent circumstances or to protect the safety, security, reputation, or integrity of the Service, CloudEngage, or any third party; or (c) in order to respond to law enforcement or any other governmental authority. 

3. Client Responsibilities

3.1 Passwords.  Client acknowledges that use of the Service requires that it register with CloudEngage.  Client shall cause all employees or subcontractors of Client authorized to access the Service (“Users”) to create an account to have access to the Service (“Registered Users”).  Client shall cause each Registered User to (a) provide true, accurate, current and complete information about the User prompted by the registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. CloudEngage has the right to suspend or terminate any Registered User account and refuse any and all current or future use of the Service (or any portion thereof) to anyone that provides false or inaccurate data.  Each Registered User is entirely responsible for the security and confidentiality of such User’s password and account.  Client and each Registered User are entirely responsible for any and all activities that occur under that Registered User’s account. Client shall immediately notify CloudEngage of any unauthorized use of a Registered User’s account or any other breach of security of which Client becomes aware.

3.2 Accuracy and Review of Client Material.  Client assumes sole responsibility for: (a) the Client Materials; and (b) ensuring that the Client Materials do not infringe or violate any right of any third party.

3.3 Client Privacy Policy Obligations.  Client represents and warrants that Client will implement a privacy policy, which privacy policy shall comply with all applicable laws, fully and accurately disclose the data collection, use and disclosure practices in connection with Client’s use of the Service, be clearly and conspicuously available to all users, and Client will at all times comply with its privacy policy.  Client further represents and warrants that Client will be solely responsible for providing necessary notices and obtaining necessary consents for CloudEngage to provide the Service to Client and Client’s customers.

4. Data Backup.  CloudEngage disclaims any and all responsibility for any loss of data, mockups, or interfaces from the Service.  CloudEngage is not responsible for the back up of any Client Materials or data.  Client acknowledges that data conversion, processing and manipulation are subject to the likelihood of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media that may give rise to loss or damage.  Client is solely responsible for independent backup of data generated or stored through the use of the Service.  To the extent within its control, Client is responsible for adopting reasonable measures to limit the impact of such problems, including backing up data, and adopting procedures to ensure the accuracy of input data; examining and confirming results prior to use; and adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data. Client is also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data.  In the event of termination or expiration of this Agreement or disconnection of the Service, CloudEngage may delete or store, in its discretion, any files, programs, data or messages associated with Client’s account.

5. License Grants

5.1 CloudEngage’s Grant of License.  So long as Client complies with CloudEngage’s acceptable use policy, if any, and subject to the limits in the permissions structure of the administrative interface CloudEngage grants users of Client a limited, royalty-free, non-exclusive, non-transferable license to use, access, input data into, process data through and publicly display the Service for Client’s internal use at Client’s Locations for up to the Maximum Locations provided for under the level of service selected and paid for by the Client. “Maximum Locations” is the maximum number of Locations a Client may include at the subscription level subscribed to by Client.  At any time, Client may request in writing that CloudEngage increase the Maximum Locations.  Access for such additional Locations will commence on Client’s receipt of CloudEngage’s agreement to increase the Maximum Locations and Client’s agreement to pay the increased price.  Client (or a Registered User) may not use, copy, modify, rent, loan, lease, sublicense, create derivative works or distribute the Service for any other purposes or make the Service available to non-Registered Users.  CloudEngage grants no rights other than explicitly granted herein, and Client shall not exceed the scope of its license. All techniques, know-how, software, algorithms and methods or rights thereto owned by CloudEngage at the time this Agreement is executed, developed during the course of the design, development, and provision of the Service, or which are employed by CloudEngage in connection with the Service, shall be and remain the property of CloudEngage.  Client shall not decompile, disassemble, or reverse engineer the Service or any elements of the Service, or otherwise derive source or object code from the Service or any elements thereof.  Client agrees not to access the Service by any means other than through the interfaces that are provided by CloudEngage. Client shall not do any “mirroring” or “framing” of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. Client will not in any way express or imply that any opinions contained in Client’s electronic communications are endorsed by CloudEngage. Client shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Registered Users that are contractors and agents. Any action or breach by any of such contractors, agents or Affiliates shall be deemed an action or breach by Client.

5.2 Client’s Grant of License.  Client hereby grants to CloudEngage a worldwide, non-exclusive, royalty-free, license to use, distribute, reproduce, publicly perform, publicly display, digitally perform, make, have made, store, maintain and import all Client Materials for the purposes of providing and operating the Service.  The license may also be exercised on behalf of CloudEngage by third parties acting on CloudEngage’s behalf (e.g., technology partners, service providers and independent contractors).  Client Materials do not include any nonpublic personal information as defined in Gramm-Leach-Bliley Act (GLBA) or any protected health information as defined by the Health Information Portability and Accountability Act (HIPAA).

5.3 Feedback.  CloudEngage shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client relating to the operation of the Service.

6. Ownership.  As between CloudEngage and Client, CloudEngage (or its licensors) is the sole and exclusive owner, and will retain all right, title and interest in and to the Service, including without limitation all of the software comprising any portion thereof and all related services, specifications, documentation, technical information, corrections, modifications, additions, improvements and enhancements to and all intellectual property rights in the foregoing.  As between CloudEngage and Client, the Client Materials and any projects completed by Client using CloudEngage shall be and remain the sole and exclusive property of Client.  As between CloudEngage and Client, all data analytics and aggregated data generated from Client’s use of the Service shall be the sole and exclusive property of CloudEngage.  CloudEngage shall have the right to use, create derivative works of, distribute and otherwise exploit all such data analytics and anonymous, aggregate usage data derived from Client Materials (“Usage Data”) such as the aggregate number of transactions that occur within a particular Service.

7. Payments.

7.1 Fees.  During the term of this Agreement, Client will pay CloudEngage the subscription fees at the rates set forth by Service type on the pricing page of the CloudEngage website (the “Fees”).  CloudEngage may modify the Fees upon 30 days prior written notice. Client shall pay CloudEngage the Fees in U.S. funds monthly in advance via credit card or other mutually agreed process commencing 30 days after installation of the Widget code on Client’s web site (the Effective Date and/or Due Date).  If Client fails to pay the Fees within 30 days of the Due Date, Client’s credit card is rejected, or CloudEngage otherwise does not receive payment, CloudEngage may impose a late fee, suspend the Service, or both, in its discretion.  CloudEngage may increase the Fees at any time.

7.2 Taxes.  Client shall pay or reimburse CloudEngage for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed specifically by reason of the performance by CloudEngage under this Agreement; excluding, however, taxes measured by CloudEngage’s profits, its overall sales, employment and similar taxes incurred in connection with persons performing services for CloudEngage, and property or other taxes measured in whole or in part by the value of CloudEngage’s assets.

8. Term And Termination. 

8.1 Term.  The term of this Agreement shall be for the period of (1) month following the Effective Date. Thereafter, this Agreement shall automatically renew for consecutive one (1) month periods unless terminated by written notice by a party at least 30 days before the expiration of the then current term. 

8.2 Suspension for Cause.  CloudEngage may suspend Client’s access to the Service upon written notice in the event that Client exceeds the license described in Section 5.1, Client fails to pay any amount when due, Client breaches Section 9, or where Client reasonably believes such action is necessary to protect the security or integrity of the Service or any data thereon.

8.3 Termination for Cause.  Except as otherwise provided for herein, either party may terminate this Agreement (a) upon the material breach of the other party, provided that the breaching party shall have thirty (30) days to cure such breach following written notice unless the breach by its nature takes longer than thirty (30) days to cure in which case the breaching party shall not be in breach so long as the party begins to cure the breach within thirty (30) days and diligently completes such cure; (b) upon the cessation of business by either party or the filing of a petition in bankruptcy (voluntary or involuntary) with respect to a party, which in the case of an involuntary petition the party shall have sixty (60) days in which to vacate such petition; or (c) upon the failure by Client to pay any amount due hereunder, provided that Client shall have ten (10) days to cure such monetary breach following written notice.

8.4 Effect of Termination.  Upon any termination of this Agreement, all rights and obligations of the parties under this Agreement will be extinguished, except that (a) the rights and obligations under Sections 5.3, 6, 7.2, 8.4, 11, 12, 13, and 16 will survive the termination of the Agreement, and (b) Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of the Agreement.

9. Lawful Conduct.  The Service allows Client to send electronic communications directly to CloudEngage and to third parties. Client shall comply with all applicable local, state, and federal laws and regulations, and, to the extent that Client establishes offices outside the United States, applicable foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation.  The Service is not designed for the transfer or processing of credit card or other sensitive financial information and is not PCI compliant.  Client shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Client represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Client shall not authorize Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Client shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located.  Client will not knowingly send any electronic communication from the Service that is unlawful, harassing, libelous, defamatory or threatening; provided that Client has taken commercially reasonable measures to prevent all such occurrences.

10. Warranties. Each party represents and warrants to the other party that (i) such party has the full corporate right, power and authority to enter into this Agreement and to perform that acts required of it hereunder; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which such party is otherwise bound; and (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

11. Indemnification. 

11.1 Client agrees to indemnify and hold harmless CloudEngage (its affiliates, subsidiaries, shareholders, officers, directors, employees, contractors, agents and representatives) (together, the “CloudEngage Indemnified Parties”) against any cost, claim, liability or expense any of the CloudEngage Indemnified Parties incur as a result of or arising out of or related to: (i) Client’s breach of this Agreement or of Client’s warranties, covenants and representations made hereunder; (ii) Client’s willful, negligent, tortuous or criminal acts or omissions; (iii) any improper use of Client’s Registration Data; and (iv) Client’s violation of any third party rights.  The applicable CloudEngage Indemnified Party shall provide Client written notice of any claim for which it seeks indemnification under this Section.

11.2 All products and services provided by CloudEngage under this Agreement should not be deemed or understood as a recommendation, endorsement, guarantee or warranty of the professional services of any providers who provide financial services, health care services, or other regulated services. Client will indemnify CloudEngage against and hold it harmless from any and all claims, liabilities, damages, costs and expenses arising from the transfer or processing of credit card or other financial, health care, or other sensitive information through the Service, including, without limitation, attorneys’ fees, relating to or arising out of any claim by any third party that the Service or its use has resulted in personal injury, economic loss or any other damages to any person or property.

12. Confidential Information. 

12.1 Each party acknowledges and agrees that it (and its subcontractor(s), if any), in performing its obligations under this Agreement, shall have access to or be directly or indirectly exposed to each other’s Confidential Information. Each party shall hold confidential all Confidential Information and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as necessary to perform under this Agreement.  Each party shall use reasonable measures and reasonable efforts to provide protection for each other’s Confidential Information, including measures at least as strict as those each party uses to protect its own Confidential Information.  Such measures shall include, without limitation, requiring employees and independent contractors to sign a non-disclosure agreement before obtaining access to the other party’s Confidential Information and such other measures as the party takes to protect its Confidential Information or trade secrets in the course of its business.  “Confidential Information” means information in the possession or under the control of a party relating to the technical, marketing, product and/or business affairs or proprietary and trade secret information of that party in oral, graphic, written, electronic or machine readable form, Client Materials, source code and information pertaining to usage and design of the Service, and the terms and conditions of this Agreement.

12.2 The foregoing restrictions on disclosure shall not apply to Confidential Information which is (a) already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by recipient from a third party without a restriction on disclosure or use, or (d) independently developed by recipient without reference to the other party’s Confidential Information.

12.3 Because of the unique nature of each party’s proprietary materials, each party understands and agrees that the other party will suffer irreparable injury in the event that a party fails to comply with any of the terms of this Section 12, and that monetary damages may be inadequate to compensate for such breach.  Accordingly, each party agrees that the other party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief, without posting a bond, to enforce the terms of this Agreement against any actual or threatened breach of this Section 12.

13. Disclaimers of Warranty; Limitation of Liability.

13.1 The Service is made available by CloudEngage to Client “AS IS” and “WITH ALL FAULTS, ERRORS, BUGS AND DEFECTS.” CloudEngage makes no representation or warranty of any kind, express or implied, as to the condition, character, nature, capability, performance, security, availability, suitability, title, source or any other characteristic of the Service or any portion thereof. CLOUDENGAGE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR THIS AGREEMENT, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; OR (C) ANY WARRANTY THAT THE SERVICE WILL BE SECURE OR ERROR-FREE, WILL MEET CLIENT’S REQUIREMENTS, WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY OR SECURE, OR OPERATE WITHOUT ERROR.

13.2 EXCEPT WITH RESPECT TO DAMAGES OR LIABILITY ARISING FROM (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (B) A PARTY’S BREACH OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION, OR (C) GROSS NEGLIGENCE OR INTENTIONALLY WRONGFUL ACTS OR OMISSIONS, IN NO EVENT SHALL (I) EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, INCLUDING ANY LOSS OF REVENUE, PROFITS, OR DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ALL CLAIMS ACCRUING DURING THE TERM OF THIS AGREEMENT EXCEED THE GREATER OF THE AMOUNTS PAID OR PAYABLE BY CLIENT UNDER THE AGREEMENT. 

14. Data Protection.  Client has and retains exclusive ownership and all other rights to all data and personally identifiable information input into, processed through, or produced from the Client Materials through use of the Service. Notwithstanding the foregoing, CloudEngage shall have the right to use data collected in connection with the Service as described in CloudEngage’s then current posted privacy policy.  Each Party represents and warrants that:  (i) it is knowledgeable of, and familiar with, all applicable federal, state, and local laws, rules, regulations, codes, directives, and industry standards relating to privacy applicable to its business (“Privacy Laws”); (ii) it will comply with its respective obligations under any and all applicable Privacy Laws; and (iii) the other Party will have no responsibility for the first Party’s compliance with Privacy Laws. 

15. Notices.  Unless otherwise specifically provided in this Agreement, every notice or other communications required or permitted under this Agreement shall be valid only if in writing and shall be delivered by e-mail, fax, personal delivery; by nationally recognized overnight courier service; or by certified or registered mail, return receipt requested, addressed to the names and addresses of each party set forth on the corresponding Order Form or Statement of Work.

16. General Provisions.  This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of Oregon without regard to its conflict of laws provisions. The titles of the sections of this Agreement are for convenience only and shall not affect the interpretation or construction of any section. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. The words “include” and “including” and variations thereof are not terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” This Agreement, including the corresponding Order Form or Statement of Work and any other policies referenced herein, represents the entire agreement between the parties with respect to the subject matter hereof and all other negotiations, understandings and agreements relating thereto, whether written or oral, including but not limited to all requests for proposal, proposals, payments or other forms, are nullified and superseded hereby. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. A waiver of any of the terms of this Agreement, or any breach or default hereunder, shall not be deemed or construed as a waiver of such terms for the future or any subsequent breach or default, whether or not of the same or similar nature. This Agreement may only be modified, amended or supplemented in a written document signed by authorized signatories of both parties subsequent to the date of execution of this Agreement.  If any litigation is brought to enforce, or arises out of, the Agreement or any term, clause, or provision hereof, the prevailing party shall be awarded its reasonable attorneys’ fees together with expenses and costs incurred with such litigation, including necessary fees, costs, and expenses for services rendered, as well as subsequent to judgment in obtaining execution thereof.  Either party may use the name of and identify the other party as a client or provider in advertising, publicity, or similar materials distributed or displayed to prospective clients.