This Terms of Use Agreement (the “Agreement”) is a legal agreement between “you” and CloudEngage, Inc. (“CloudEngage,” “we” or “us”) for the Service (as defined below).

The Service is provided by CloudEngage for the purpose of enabling personalized online experiences. The Service may also provide information and links related to other CloudEngage products and services, and third-party products and services.

Your use of the Service is subject to this Agreement as well as any other terms or rules that we may post on the Site and/or present as part of the Service. Any and all such additional terms and rules are incorporated into this Agreement by this reference. Please read this Agreement carefully as it affects your legal rights and obligations.

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

1. Definitions

“API” means CloudEngage’s proprietary application programming interface, including compiled software code, data, any documentation accompanying the software, and any updates or supplements of such software and documentation.

“API Key” means a unique identifier assigned to users to allow them to access the features of the API.

“Authorized Platform” means a website or mobile application that (i) is not operated or controlled by CloudEngage; and (ii) has installed or otherwise implemented Embeddable Code provided by CloudEngage for the purpose of implementing one or more features of the Service.

“Embeddable Code” means code provided by CloudEngage and intended to be embedded in the underlying code of a user’s website or mobile application for the purpose of enabling such website or mobile application to implement one or more features of the Service.

“Service” and “Services” means the Site and API, as well as the services, software and content that CloudEngage provides to you via the Site and API.

“Site” means www.cloudengage.com, all related subdomains, and other web sites and online properties CloudEngage operates on behalf of itself and/or in conjunction with third parties. The term “Site” does not include Authorized Platforms.

“Subscription User” means a user with a paid subscription that is authorized to access and use subscription-only Services in accordance with the applicable subscription terms and features described on the Site and selected by such user.

2. Privacy Policy

CloudEngage may process your personal information in connection with your use of the Services. Processing of personal information will be subject to the terms of the CloudEngage Privacy Policy (the “Privacy Policy”), which can be accessed at https://cloudengage.com/privacy-policy/, and is incorporated herein by reference.

3. Service Delivery and Acceptance

Subject to your agreement to be bound by all terms and conditions of this Agreement, including any terms and conditions for payment or otherwise relating to any subscription-only Service as specified on the Site from time to time, CloudEngage authorizes you to use and access the Service.

4. 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 (i) the free features of the Service and (ii) any subscription-only features of the Service you have selected, subject to the applicable terms and conditions specified on the Site for such Service, including timely payment of any applicable subscription fees. The Service 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 Service for any reason or for no reason.

5. Proprietary Rights

The Service is protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties. All rights in the Service 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 Service except as expressly authorized in this Agreement.

6. General Service Usage

1. Overview.

Joining the Service and maintaining a basic user account is free. CloudEngage may charge a fee for certain Services, change the Services it offers, or update its pricing at any time.

2. Description of Service; Disclaimer.

CloudEngage’s Services provide features for identifying customer segments, personalizing customer experiences, and driving engagement. The Services include customer analysis tools, an embeddable interactive online chat interface, advanced geolocation features, context-specific communications, and customer-specific frontend personalization. Authorized Platforms that integrate these features access and use the API. You are responsible for ensuring your use of the Services is in accordance with all applicable laws, regulations and other government requirements.

CloudEngage makes no representations or warranties regarding (a) the accuracy, processing, handling or authenticity of any data processed or output by the Service; (b) non-infringement of any third-party copyright or other intellectual property rights relating to any portion of the Service; (c) the advisability or safety of accessing any Authorized Platform; or (d) the Services. CloudEngage does not endorse any users of the Services and assumes no liability for any user’s conduct.

You hereby acknowledge that you and any users with whom you communicate using the Services are responsible for your respective uses of the Services, and that CloudEngage will not be liable for such communications or actions.

Using the Services does not create an employer-employee, principal-agent, joint-venture, franchise, partnership or independent contractor relationship of any type between you and CloudEngage.

3. Subscription Fees; Taxes.

If you are a Subscription User, you are responsible for timely paying CloudEngage the subscription fees for the features of the Service you have chosen to license at the then-applicable rates. CloudEngage may modify the subscription fees in its sole discretion upon thirty (30) days prior written notice. You shall pay CloudEngage the subscription fees in U.S. funds on or before the first calendar day of each month (the “Due Date”) via credit card or other mutually agreed process. If you fail to pay the subscription fees within 30 days of the Due Date, your credit card is rejected or if CloudEngage otherwise does not receive payment, CloudEngage may, in its sole discretion, impose a late fee, suspend the Services or both. All subscription fees payable to CloudEngage do not include any applicable sales, use, transfer, privilege, excise or any other taxes or duties, whether international, national, state or local. You can cancel your service at any time – a monthly subscription can be canceled upon 30-days notice and an annual subscription can be canceled before your annual renewal rate.

4. Service Implementation.

CloudEngage shall have the right, but not the duty, to review the implementation of the Services within any Authorized Platform, including the functionality of Embeddable Code installed on any site or within any mobile application. CloudEngage may suspend the Services with respect to any Authorized Platform in the event CloudEngage discovers any implementation issues with the Authorized Platform, as determined by CloudEngage in its sole discretion. Such suspension shall remain in effect until you correct any issues specified by CloudEngage. Such suspension will not relieve you of any payment obligations under the Agreement.

5. User Content

CloudEngage may allow you to upload or post audio, video, images, text or other content through the Services (“User Content”). All feedback and other User Content you provide to CloudEngage or post through the Services shall be deemed to be non-confidential. Subject to the Privacy Policy and applicable law, CloudEngage shall be free to use such information on an unrestricted basis.

User Content Removal. CloudEngage does not have the obligation to, and does not, pre-screen any User Content. However, CloudEngage reserves the right to remove or edit any User Content at any time and without notice to you.

Prohibited User Content. You expressly agree to indemnify CloudEngage for any claims or damages arising out of your use, creation or posting of any User Content. When you use the Services, you agree not to upload, post, modify, distribute, email, transmit or otherwise make available any user-submitted content that:

1. 1. is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise injurious to third parties;
   2. is protected by any patent, trademark, trade secret, copyright or other intellectual or proprietary right, unless you own such rights or have received all necessary consent;
   3. impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity or interfere with someone else’s use of the Services;
   4. falsely provides a review for a product or service that you have not purchased or used, or misrepresents your experiences relating to any products or services;
   5. constitutes an offering or dissemination of fraudulent goods, services, schemes or promotions;
   6. is harmful, including without limitation, viruses, Trojan horses, worms, time bombs, zombies, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information; and/or
   7. violates any applicable local, state, national or international law.

(collectively, “Prohibited User Content”).

If you are a copyright owner and believe that any User Content posted to the Site infringes upon your copyrights, you may submit a notification to CloudEngage’s Designated Agent at: 518 W. Riverside Ave., Spokane, WA 99203, info@cloudengage.com, and (855) 459-1044. ^[a]Pursuant to the Digital Millennium Copyright Act 17 U.S.C. Sec. 512(c)(2), such notification must include:

A description of the copyrighted work that you claim has been infringed; a description of where the alleged infringing material is located; a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; your contact information (email and telephone number); and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.

7. Third Party Content

The Services may display, include, make available or link to content, data, information, applications, websites or materials from third parties (“Third-Party Content”). CloudEngage is not responsible for the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, efficiency, advertising, terms of use, privacy policy, practices, software code or any other aspect of the Third-Party Content. You are encouraged to read the terms of use and privacy policy of any third-party websites to which you connect when using the Service. CloudEngage disclaims all liability arising from or relating to the Third-Party Content.

Third-Party Content may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright and trademark laws. You may not use such proprietary content, information or materials in any way whatsoever except to use the Service for their intended purposes.

8. User Representations & Warranties

By downloading, installing, creating a user account, or otherwise using any portion of the Service, you represent and warrant to CloudEngage the following:

1. You possess all necessary authority to enter into this Agreement and upon execution this Agreement will be binding and enforceable in accordance with its terms;
2. You are at least 18 years old;
3. You are not named on any U.S. government list of persons or entities prohibited from receiving exports;
4. You will not authorize any person to access or use the Service in violation of any U.S. export embargo, prohibition or restriction;
5. You will comply with all applicable laws regarding the transmission of technical data exported from the United States; and
6. Your use of the Services will be in accordance with all other applicable local, state and federal laws and regulations as well as any applicable foreign laws, treaties, regulations, and conventions in connection with your use of the Services, including without limitation those related to privacy, electronic communications and anti-spam legislation.

9. Internet Access

Use of the Services requires an internet connection and may result in charges from your internet or 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.

10. Restrictions on Use

Except for your implementation or installation of Embeddable Code in accordance with all documentation and instructions of CloudEngage, unless and to the extent specifically provided otherwise in writing by CloudEngage, you may not:

1. separate any individual component of the Services for use;
2. incorporate any portion of the Services into other software or compile any portion of it in combination with other software;
3. sell, rent, lease, lend, loan, distribute, assign or sublicense the Services or otherwise transfer any rights to it in whole or in part;
4. modify, reverse engineer, decompile, remove any proprietary notices or disassemble the Services in whole or in part, or create any derivative works from or of the Services, or encourage, assist or authorize any other person to do any of these things; or
5. make copies of or distribute the Services 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 Services at any time. We may also terminate your right to use the Services 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 Services, 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.

11. Trademark Use

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 Services and messages rendered via the Services, in which case such marks may not be altered or removed by you without written approval by CloudEngage.

12. Updates

CloudEngage may from time to time, in its sole discretion, make updates, modifications, supplements or new versions of the Services or portions thereof available to you under this Agreement for the purpose of, among other things, distributing bug fixes, patches and feature improvements. Notwithstanding the foregoing, CloudEngage does not have any obligation to provide any bug fixes, modifications, updates or technical or end user support for the Services.

13. Collection and Use of Data

You acknowledge that the Services automatically collect information, data and statistics relating to your use of the Services, and compiles such information, data and statistics. CloudEngage reserves the right to use such information, data and statistics in the course of CloudEngage’s business, and you hereby agree to such 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 Services.

CloudEngage has no duty to resist any effort by law enforcement officials to obtain information relating to you and your use of the Services. CloudEngage reserves the right to disclose any information necessary to satisfy any such law enforcement requests, warrants, subpoenas or court orders.

14. Login Credentials; API Key.

You shall not share your user account information with others or allow third parties to use your login credentials to the Services 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 Services under your user account or API Key(s) is done by you. You are solely responsible for maintaining the security of, for example, your username, password, API Key(s), 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.

15. Disclaimers; Limitation of Liability

CLOUDENGAGE DOES NOT PROMISE THAT THE SERVICES OR ANY FUNCTIONALITY THEREOF WILL BE ERROR-FREE OR UNINTERRRUPTED OR THAT YOUR USE OF THE SERVICES WILL PROVIDE SPECIFIC RESULTS. THE SERVICES ARE PROVIDED BY CLOUDENGAGE “AS-IS” AND “AS-AVAILABLE” WITHOUT ANY OTHER WARRANTY OR REPRESENTATION OF ANY KIND, INCLUDING THAT THE SERVICES OR ANY FILES OR OTHER DATA YOU DOWNLOAD IN RELATION TO THE SERVICES WILL BE FREE OF VIRUSES, CONTAMINATION OR DESTRUCTIVE FEATURES. YOUR USE OF THE SERVICES, AND THE RESULTS AND PERFORMANCE ACHIEVED USING THE SERVICES, 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 SERVICES. THE ENTIRE RISK AS TO THE QUALITY OR ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CLOUDENGAGE BE LIABLE FOR ANY 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 SERVICES, 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 SERVICES, CLOUDENGAGE’S LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF (1) THE TOTAL OF ANY SUBSCRIPTION OR SIMILAR FEES WITH RESPECT TO THE SERVICES 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.

16. Indemnification and Release

You hereby release, and shall defend, indemnify and hold harmless, CloudEngage and its owners, officers, members, managers, directors, shareholders, subsidiaries, joint-ventures, partners, employees, agents, licensors and licensees from and against any and all claims, actions, suits, proceedings, demands, losses, liabilities, damages, judgments, settlements, penalties, costs, and expenses (including without limitation all reasonable attorneys’ fees), known and unknown, arising out of (i) your use of the Services; (ii) any dispute between you and any other user or users; (iii) your breach of any representation or warranty; (iv) your breach of this Agreement, or (v) the infringement by you, or any other user of your username or account, of any intellectual property or right of any person or entity.

If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

17. 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 Services and discontinue exercising all license rights granted by this Agreement. Sections 1, 2, and 5 through 23 of this Agreement will survive any termination of this Agreement.

18. 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, U.S.A. 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, U.S.A. You waive and covenant not to assert all defenses of lack of personal jurisdiction and forum non conveniens.

19. Export Law Compliance

You acknowledge that the Services are of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Services, 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.

20. 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 regard to the subject matter hereof, and any and all other written or oral agreements or understandings previously existing between you and CloudEngage with respect to such subject matter are hereby cancelled.

21. Void Where Prohibited

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

22. 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’s 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.