These Terms of Service (these “Terms”) are entered into by and between engageLively, Inc., a Delaware corporation with mailing address at 50 Diablo View Road, Orinda, CA 94563 (“engageLively”) and the person or entity registering to use the Services (such entity or individual, the “Subscriber”) on the engageLively website (https://engagelively.com) and is effective as of the date that it is accepted by such Subscriber (the “Effective Date”).
IF THESE TERMS ARE BEING ENTERED INTO BY A SUBSCRIBER THAT IS AN ENTITY, THEN BY CLICKING ON “AGREE”, THE INDIVIDUAL DOING SO HEREBY REPRESENTS AND WARRANTS THAT HE/SHE IS AUTHORIZED BY THE SUBSCRIBER TO BIND THE SUBSCRIBER TO THESE TERMS. PLEASE READ THESE TERMS CAREFULLY, AS IT (AMONG OTHER THINGS) PROVIDES IN SECTION 3 THAT CERTAIN TERMS AND CONDITIONS APPLY WITH RESPECT TO RECURRING SUBSCRIPTION CHARGES FOR CERTAIN PAID ACCOUNT TYPES. ONLY CLICK ON “AGREE” IF YOU AGREE THAT THE SUBSCRIBER SHALL BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.
1.1 “Account” means the user accounts, username and password specifically associated with the Subscriber.
1.2 “Confidential Information” has the meaning ascribed to it in Section 10.
1.3 “engageLively Materials” means the Services and all Usage Data and other data generated or collected in connection with the use thereof, excluding Parts, which, for clarity, are subject to the rights and licenses set forth herein.
1.4 “Feedback” has the meaning ascribed to it in Section 5.
1.5 “Free Trial” has the meaning ascribed to it in Section 3.2.
1.6 “Galyleo Generated Code” means any software code produced by the Subscriber through the use of the Services, that are otherwise available for the Subscriber’s use on the Services, or that may be published by the Subscriber through the Services, including Galyleo Studio Parts.
1.7 “Galyleo Hub Service” means [engageLively’s web-based enterprise service which allows Subscribers to access and use multiple instances of Jupyter Notebooks.]
1.8 “Galyleo Notebook Service” means [engageLively’s web-based service which allows Subscribers to develop and run software code.]
1.9 “Galyleo Studio Interactives” means web content published by the Subscriber containing one or more Galyleo Studio Parts.
1.10 “Galyleo Studio Parts” means templates, content, interactive modules and other materials hosted on the Galyleo Studio Service that are produced by the Subscriber through the use of the Galyleo Studio Service, that are otherwise available for the Subscriber’s use on the Galyleo Studio Service, or that may be published by the Subscriber through the Galyleo Studio Service.
A “Galyleo Studio Subscriber Part” is a Galyleo Studio Part produced by the Subscriber using the Galyleo Studio Service; a “Galyleo Studio Public Part” is a Galyleo Studio Part published to the Galyleo Studio Public PartsBin by any other user of the Galyleo Studio Service; an “Galyleo Studio engageLively Part” is a Galyleo Studio Part published by engageLively and made available to Subscribers via the Galyleo Studio Service.
1.11 “Galyleo Studio Public PartsBin” means the set of Public Parts available for use by Subscribers through the Service.
1.12 “Galyleo Studio Published Part” has the meaning ascribed to it in Section 2.7(c).
1.13 “Galyleo Studio Published Part Terms” has the meaning ascribed to it in Section 2.7(c).
1.15 “Intellectual Property Rights” means all forms of proprietary rights, titles, interests and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights) and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
1.16 “Login” has the meaning ascribed to it in Section 3.3.
1.17 “Malicious Software” has the meaning ascribed to it in Section 2.3.
1.18 “Payment” has the meaning ascribed to it in Section 4.1.
1.19 “Planned Downtime” has the meaning ascribed to it in Section 2.2.
1.20 “Prohibited Jurisdiction” has the meaning ascribed to it in Section 13.
1.21 “Old Service” means the interactive online content design tool and hosting service made available by engageLively as a software-as-a-service called “Galyleo Studio.” 1.22 “Services” means the Galyleo Notebook Service, the Galyleo Hub Service, the Galyleo Studio Service and any other service offered by engageLively from time to time as a software-asa-service. References to any “Service” herein shall be deemed to refer to the specific version of such Service referenced in the Subscription Plan.
1.23 “Subscriber Data” means any and all data, information, content and materials created by the Subscriber through use of a Service or uploaded or imported into a Service by or on behalf of the Subscriber.
1.24 “Subscription Plan” means the engageLively subscription plan the Subscriber has elected to subscribe to for each applicable Service, as described on engageLively’s website.
1.25 “Subscription Term” has the meaning ascribed to it in Section 6.1.
1.26 “Taxes” has the meaning ascribed to it in Section 4.3.
1.27 “Usage Data” has the meaning ascribed to it in Section 2.9.
2.1 Provision of Service. Subject to these Terms, engageLively shall provide the Subscriber the right to access and use each applicable Service to which Subscriber is subscribed during the applicable Subscription Term consistent with each applicable Subscription Plan the Subscriber has subscribed to, solely (i) in the manner enabled by engageLively; and (ii) in accordance with all applicable documentation and any usage limitations, rules or guidelines engageLively may provide. engageLively reserves the right to modify and update the features and functionality of the Services occasionally at its sole discretion. Except as expressly set forth herein, the Subscriber is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for the Subscriber’s use of each applicable Service.
The Subscriber agrees to use the Services in compliance with all applicable laws, rules and regulations, including without limitation all data privacy laws.
2.2 Services Availability. engageLively will use commercially reasonable efforts to ensure that the Services are available twenty-four hours a day, seven days a week. However, engageLively makes no reStudio, warranty or guarantee regarding the continuous availability or performance of the Services. The Subscriber acknowledges that the Services may occasionally be unavailable for use without notice to the Subscriber. engageLively will use commercially reasonable efforts to make the Services continuously available to the Subscriber, subject to unavailability due to scheduled maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Reasonable steps will be taken by engageLively to minimize such disruption where it is within engageLively’s reasonable control. engageLively reserves the right to temporarily suspend the Subscriber’s access to and use of the Services: (i) during planned downtime for upgrades and maintenance to the Services, of which engageLively will use commercially reasonable efforts to notify the Subscriber in advance via e-mail or through the Services (“Planned Downtime”); or (ii) if engageLively suspects or detects any breach of these Terms by the Subscriber or any Malicious Software connected to the Subscriber’s Account or use of the Services by the Subscriber. engageLively will use commercially reasonable efforts to schedule Planned Downtime for nights, weekends and other off-peak hours (Pacific Standard Time Zone).
2.3 Restrictions. The Subscriber acknowledges that use of the Services is provided for the Subscriber’s own purposes only (although the Subscriber may use the Services to perform work for the Subscriber’s customers). The Subscriber agrees not to, not to attempt to, nor allow any third party to: (i) copy, distribute, lend, license, sublicense, sell, resell, time share, lease or transfer the Services or Galyleo Studio Parts or otherwise commercially exploit or make theServices or any Galyleo Studio Parts available to any third party (other than publishing Interactives on websites or online services in the manner enabled by the Galyleo Studio Service), (ii) decipher, decompile, reverse engineer or disassemble the Services or Galyleo Studio Parts or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Services or Galyleo Studio Parts (except, in the case of certain Galyleo Studio Parts, to the extent explicitly permitted by the Galyleo Studio Service with respect thereto) , (iii) adapt, modify or hack the Services or any Galyleo Studio Parts that are not Galyleo Studio Subscriber Parts or otherwise attempt to gain unauthorized access to the Services, Galyleo Studio Parts or related systems or networks; (iv) create derivative works based on the Services; (v) modify, remove or obscure any copyright, trademark, patent or other notices or legends that appear in the Services or during the use and operation thereof; (vi) falsely imply any association or sponsorship with or by engageLively; (vii) publicly disseminate performance information or analysis (including benchmarks) relating to the Services or any Galyleo Studio Parts; (viii) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the Services; (ix) use the Services or any Galyleo Studio Parts in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (x) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (xi) use the Services or any Galyleo Studio Parts to knowingly post, send, transmit, upload, link to or store any viruses, malware, Trojan horses, time bombs or any other similar harmful software (“Malicious Software”); (xii) use the Services or any Galyleo Studio Parts to knowingly post, send, transmit, upload, link to, create, or store any content that is unlawful, racist, hateful, abusive, libelous, obscene or discriminatory; or (xiii) use the Services to develop a competitive service or product offering. The Subscriber may not use any automated means, including agents, robots, scripts or spiders, to access or manage the Services, except solely to the extent as may be specifically enabled and authorized by engageLively. To the extent someone other than the Subscriber uses the Services under the Subscriber’s Account (in violation of these Terms), the Subscriber is responsible for compliance with the provisions of these Terms such person.
2.4 Suspension/Termination. Without limiting the generality of Section 6.3, engageLively may limit, suspend or terminate the Subscriber’s access to or use of the Services and/or terminate these Terms at any time if: (i) the Subscriber’s bandwidth usage significantly exceeds the average bandwidth usage (as determined solely by engageLively) of other engageLively subscribers; (ii) more than one individual attempts to access a the Subscriber’s Account except as agreed by engageLively; (iii) in the sole discretion of engageLively, such action is necessary to prevent material errors or harm to any system or network, or to limit engageLively’s liability; or (iv) the Subscriber attempts to access or use the Services in an unauthorized manner, including without limitation any attempt to gain access to data or information relating to any other users of the Services or any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation.
2.5 Third Party Services. The Services may include features or functionality, including Galyleo Generated Code, that include or interoperate with online services operated by third parties (such services, “Third Party Services”), pursuant to agreements between engageLively and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability or access made generally available by the Operators (“Third Party APIs”) which engageLively does not control. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. Accordingly, Galyleo Generated Code that includes or relies on any Third Party Service or use any Third Party API are not—and cannot be—guaranteed to function, and engageLively shall have no liability with respect to any of the foregoing. Without limiting the foregoing, the Subscriber is responsible for ensuring that the Subscriber’s use of the Services in connection with Third Party Services complies with all policies, terms and rules applicable thereto. In order to use a Third Party Service, the Subscriber may be required to separately purchase its own license or key from the applicable Operator.
2.6 Control. The Subscriber acknowledges and agrees that engageLively has no obligation to monitor or edit the Subscriber Data, and that, as between the parties, the Subscriber is solely responsible therefor. engageLively reserves the right remove any Subscriber Data which engageLively becomes aware may violate these Terms or infringe, misappropriate or violate any third party Intellectual Property Right or privacy right. The Subscriber acknowledges that other users of the Services may use the Services to create or publish Galyleo Generated Code or Interactives substantially similar to the Galyleo Generated Code or Interactives created or made available by the Subscriber, and that engageLively shall have no liability to the Subscriber in connection therewith.
2.7 Subscriber-Owned Data; Public Parts. (a) As between the parties, the Subscriber shall own all right, title and interest in and to the Subscriber Data. The Subscriber hereby grants engageLively a perpetual, irrevocable, nonexclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit the Subscriber Data in connection with engageLively’s operation of the Services and as otherwise authorized herein. Without limiting engageLively’s other rights with respect to the Subscriber Data, engageLively may use and disclose Subscriber Data as follows: (i) engageLively may make any Galyleo Studio Published Part and all of such Galyleo Studio Published Part’s content (including any code embedded therein or upon which such Galyleo Studio Published Part is based) available to other Services customers for their use in accordance with these Terms without other restrictions of any kind, or, to the extent such functionality may be available through the Services from time to time, on the terms and conditions established by Subscriber through the Services; (ii) engageLively may use Subscriber Data for engageLively’s internal business purposes (such as analyzing usage of and developing and improving engageLively’s products and services); (iii) engageLively may disclose Subscriber Data to its third-party service providers that assist it in making the Services available as is reasonably necessary for such assistance, subject to appropriate confidentiality obligations; and (iv) engageLively may disclose Subscriber Data as may be required by law or legal process. The Subscriber hereby acknowledges and agrees that once a Galyleo Studio Subscriber Part is submitted for publication to the Galyleo Studio Public PartsBin, such Galyleo Studio Subscriber Part may be freely used without restriction by any Subscriber for any purpose, subject only to the terms and conditions established by the Subscriber through the Services. (b) To the extent the Subscriber uses any Galyleo Studio Part to capture data of any kind (including data regarding such Galyleo Studio Subscriber Part’s use by end-users or performance or data uploaded or otherwise provided through such Galyleo Studio Subscriber Part by any enduser of such Galyleo Studio Subscriber Part), (i) the Subscriber hereby represents and warrants to engageLively that it has secured all necessary permissions and consents from each person or entity to whom such data applies, in each case in accordance with all applicable laws and regulations, to permit the Subscriber to collect, store and use such data in the manner in which the Subscriber collects, stores and uses such data, (ii) such Galyleo Studio Part shall clearly identify the fact that it is collecting data and the data it is collecting, (iii) engageLively shall have the right to refuse to collect or store any such data in its absolute discretion, (iv) to the extent the Subscriber uses such Galyleo Studio Part to collect email addresses, names, birthdates, or contact information, the Subscriber shall ensure that such Galyleo Studio Part, including when presented in an Interactive, clearly states that it collects such information, and clearly labels the fields through which it collects such information, and (v) the Subscriber shall not use such Galyleo Studio Part to collect any sensitive personal information of end users, such as financial information, payment information, health information, social security numbers, or similar information. (c) engageLively may permit the Subscriber to establish certain terms and conditions on which other Services customers may use a Galyleo Studio Subscriber Part that has been published to the Galyleo Studio Public PartsBin (a “Galyleo Studio Published Part”, such terms and conditions, “Galyleo Studio Published Part Terms”), To the extent the Subscriber uses a Galyleo Studio Part from the Galyleo Studio Public PartsBin that is subject to terms and conditions established by the author of such Galyleo Studio Part, the Subscriber hereby agrees to use such Galyleo Studio Part solely in conformance with such terms and conditions. (d) The Subscriber hereby agrees that engageLively is not responsible or liable in any manner in relation to any Galyleo Generated Code other than engageLively Galyleo Generated Code. The Subscriber agrees not to use any Galyleo Generated Code in, or otherwise publish any Interactive on, any website or online service for which the Subscriber does not have all rights, title and interest necessary for such publication. (e) The Subscriber agrees not to submit Subscriber Data, use Galyleo Generated Code or create or publish Interactives or any content or other output that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to the Subscriber, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that engageLively deems to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, hostile, violent, or that which provokes violence or hostility, profane, or otherwise objectionable; (vi) contains any information or content which discriminates against others based on race, religion, sex, sexual orientation, age, disability, ancestry or national origin; (vii) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (viii) contains any information or content that the Subscriber does not have a right to make available under any law or under contractual or fiduciary relationships; or (ix) contains any information or content that the Subscriber knows is not correct and current. engageLively reserves the right, but is not obligated, to reject and/or remove any Subscriber Data that engageLively believes, in its sole discretion, violates these provisions or otherwise violates these Terms.
2.8 Usage Data. As between the parties, engageLively shall own all right, title and interest in and to all data collected by engageLively in connection with the operation of the Services and the Subscriber’s use thereof (“Usage Data”). Usage Data may include, by way of example and not limitation, when and how often the Subscriber uses the Services and which Services features are used the most often. engageLively will not disclose Usage Data or Subscriber Data to any third party in a manner that identifies the Subscriber without the Subscriber’s consent other than (i) disclosure to the engageLively’s third-party service providers who use it for the benefit of engageLively and subject to reasonable confidentiality terms; or (ii) as may be required by law or legal process.
2.9 Security. The Subscriber acknowledges that: (i) the Services use the Internet for data transfer and Internet-connected servers to store Subscriber Data and Usage Data; (ii) while engageLively uses commercially reasonable security measures with respect to such servers, no security measures are 100% effective, and (iii) that Internet communications have inherent insecurities. As such, engageLively does not represent or warrant the security of Subscriber Data.
3.1 Services Account. When the Subscriber signs up and pays for a Subscription Plan, or when the Subscriber begins a Free Trial, engageLively will provide the Subscriber with an Account within the applicable Services.
3.2 Free Trial. engageLively may allow Subscribers to apply to try certain Services free of charge for a period of time determined by engageLively in its sole discretion (a “Free Trial”). If the registration is approved (which approval may be withheld in the sole discretion of engageLively), engageLively will provide the Subscriber with instructions containing all necessary information in order for the Subscriber to log into the applicable Service(s). Use of any Service during a Free Trial is provided solely for evaluation of the features of such Service.
3.3 Login. The Subscriber is responsible for the activities of any and all persons accessing and using the Services using the Subscriber’s Account. The Subscriber’s Account will be provided with a unique username and password (“Login”). The Subscriber agrees that the Subscriber will not share the Login among multiple individuals without the agreement of engageLively. Access to and use of the Services is restricted to only the Subscriber under the Subscription Plan. The Subscriber shall use all reasonable means to secure the username and password associated with the Account, and shall promptly notify engageLively if it suspects that the username and password have been compromised. The Subscriber acknowledges that the use of the Subscriber’s Account by any person or entity other than the Subscriber shall constitute a material breach of these Terms.
3.4 Communications. engageLively may communicate with the Subscriber using the email provided by the Subscriber during registration. The Subscriber agrees that all agreements, notices, disclosures and other communications provided by engageLively electronically satisfy any legal requirement that such communication be in writing.
4. SUBSCRIPTION PLAN; PAYMENT.
4.2 Cancellation; Refunds on Termination.
SUBSCRIBER MAY CANCEL SUBSCRIBER’S SUBSCRIPTION AT ANY TIME BY CONTACTING US AT [support@engageLively.com] OR BY DOWNGRADING SUBSCRIBER’S ACCOUNT IN THE SETTINGS SECTION ON THE SERVICES. IF SUBSCRIBER CANCELS ITS SUBSCRIPTION, SUBSCRIBER MAY STILL USE SUCH SUBSCRIPTION UNTIL THE END OF THE THEN-CURRENT SUBSCRIPTION TERM. TO NOT BE CHARGED FOR YOUR SUBSCRIPTION FOR THE FOLLOWING SUBSCRIPTION TERM, SUBSCRIBER MUST CANCEL ITS SUBSCRIPTION AT LEAST THIRTY (30) DAYS PRIOR TO THAT MONTH, OR SUBSCRIBER WILL OTHERWISE BE CHARGED FOR THAT SUBSCRIPTION TERM’S SUBSCRIPTION. ALL CANCELLATION REQUESTS RECEIVED LESS THAN THIRTY (30) DAYS BEFORE THE FOLLOWING SUBSCRIPTION TERM WILL APPLY TO THE FOLLOWING CYCLE.
No refunds or credits for Payment or other fees or payments will be provided to the Subscriber if the Subscriber elects to terminate the Subscriber’s subscription to the Services or cancel the Subscriber’s Account prior to the end of the Subscriber’s then effective Subscription Term. The Subscriber Data may not be recoverable once the Subscriber’s Account is cancelled.
4.3 Taxes. Unless otherwise stated, engageLively’s charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). The Subscriber is responsible for paying Taxes except those assessable against engageLively based on its net income. engageLively will invoice the Subscriber for such Taxes if engageLively believes it has a legal obligation to do so and the Subscriber agrees to pay such Taxes if so invoiced.
As between the parties, engageLively or its licensors own all right, title and interest (including all Intellectual Property Rights) in and to the Services (including without limitation all underlying source code, algorithms and models) and any software, technology, materials and information owned by engageLively or its licensors prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice by engageLively or its licensors after the Effective Date, including (as between the Subscriber and engageLively) any engageLively Galyleo Generated Code. Nothing herein shall be construed to transfer any rights, title or ownership of the Services or any engageLively software, technology, materials, information or Intellectual Property Rights to the Subscriber. The Subscriber is not required to provide any ideas, feedback or suggestions regarding any of engageLively’s products or services (“Feedback”) to engageLively. To the extent the Subscriber does provide any Feedback to engageLively, the Subscriber agrees to assign and hereby does assign all right, title and interest in and to such Feedback to engageLively and acknowledges that engageLively may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to the Subscriber.
6. TERM; TERMINATION.
6.1 Term. These Terms shall be effective as of the Effective Date and will terminate at the sooner of (i) the end of the Free Trial, if the Subscriber does not subscribe to the Services through a paid Subscription Plan or (ii) the end of the Subscription Plan period (the “Subscription Term”).
6.2 Renewal. Either the Subscriber or engageLively may elect to terminate the Subscriber’s Account and subscription to the Services as of the end of the Subscriber’s then current Subscription Term. Unless the Subscriber’s Account and subscription to the Services is so terminated, the Subscriber’s subscription to the Services will renew for a Term equivalent in length to the then expiring Term. The Payment applicable to the Subscriber’s subscription to the Services for any such subsequent Term shall be engageLively’s standard Payment for the Subscription Plan to which the Subscriber has subscribed as of the time such subsequent Term commences.
6.3 Termination. If the Subscriber terminates the Subscriber’s subscription to the Services or cancel the Subscriber’s Account prior to the end of the Subscriber’s then effective Subscription Term or engageLively effects such termination or cancellation pursuant to Section 2.4, in addition to other amounts the Subscriber may owe engageLively, the Subscriber must immediately pay any then unpaid Payment associated with the remainder of such Subscription Term. This amount will not be payable by the Subscriber in the event the Subscriber terminates the Subscriber’s Subscription Plan to the Services or cancels the Subscriber’s Account as a result of a material breach of these Terms by engageLively, provided that the Subscriber provides advance notice of such breach to engageLively and affords engageLively no less than thirty (30) days to reasonably cure such breach. engageLively reserves the right to modify, suspend or terminate the Services (or any part thereof), the Subscriber’s Account or the Subscriber’s right to access and use of the Services, and will remove, disable or discard any of the Subscriber Data if engageLively believes that the Subscriber has violated these Terms. Unless legally prohibited from doing so, engageLively will use commercially reasonable efforts to contact the Subscriber directly via email to notify the Subscriber when taking any of the foregoing actions. engageLively shall not be liable to the Subscriber or any other third party for any such modification, suspension or discontinuation of the Subscriber’s right to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by the Subscriber may be referred to law enforcement authorities at engageLively’s sole discretion.
6.4 Effect of Termination. All rights and obligations of the parties hereunder shall terminate upon expiration or termination of these Terms, provided that Sections 1, 2.3 through 2.9, 3.4, 4 (with respect to any accrued but unpaid amounts), 5, 6.3, 6.4, and 7 through 12 shall survive expiration or termination of these Terms.
7. RESTUDIOS AND WARRANTIES.
7.1 Mutual. Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into these Terms; and (ii) these Terms constitute a legal, valid and binding obligation when executed and delivered.
7.2 Subscriber. The Subscriber represents and warrants to engageLively that: (i) it has all right, title, and interest in and to the Subscriber Data necessary for its use in connection with the Service; (ii) it shall not use the Services in a manner or in connection with any activity that would violate any law, rule or regulation, including those relating to privacy or data protection, or the CAN-SPAM Act; and (iii) the Subscriber Data (including the storage, reproduction, and use of the thereof as contemplated hereunder) does not and will not (x) infringe upon, violate or misappropriate the Intellectual Property Rights or privacy rights of any third party or (y) slander, defame or libel any person, or (z) require the payment of any royalty or other payment to any third party if used by the Subscriber, engageLively or any other subscribers.
The Subscriber agrees to, at the Subscriber’s own expense, defend, indemnify and hold harmless engageLively and its directors, officers and employees from and against any liabilities, damages, losses, judgments, costs, expenses (including reasonable attorney’s fees), claims, actions, demands and suits arising out of or relating to any actual or alleged breach by the Subscriber of any covenant, reStudio or warranty of these Terms or any use or misuse by the Subscriber of the Services, except to the extent any of the foregoing arises directly from the gross negligence or willful misconduct of engageLively.
THE SERVICES AND SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS, AND ENGAGELIVELY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. ENGAGELIVELY AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE SERVICES WILL BE CORRECT, UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. ENGAGELIVELY DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICES.
The Subscriber shall keep confidential all information and materials provided or made available by engageLively that is marked as confidential or proprietary or (for orally disclosed information) is identified as confidential or proprietary at the time of disclosure and confirmed in writing (including email) as such within fifteen (15) days of the disclosure (“Confidential Information”). The features, functionality and content of the Services, any Services documentation, and any information regarding planned modifications or updates to the Services or other engageLively products and services constitutes Confidential Information. The Subscriber shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with the Subscriber’s own confidential information, but in no case less than a prudent and reasonable standard of care. The Subscriber shall not use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the engageLively. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the Subscriber, (ii) known to the Subscriber prior to the time of disclosure by engageLively, (iii) lawfully and rightfully disclosed to the Subscriber by a third party on a non-confidential basis, (iv) developed by the Subscriber without reference to Confidential Information or (v) required to be disclosed by law or legal process, provided that the Subscriber promptly provides notice to engageLively of such request or requirement so engageLively may seek appropriate protective orders. If the Subscriber, the Subscriber’s employees or employer, or any agent of Subscriber breaches or threatens to breach the obligations of this Section 10, engageLively may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
11. LIMITATION OF LIABILITY. ENGAGELIVELY SHALL NOT BE LIABLE TO THE SUBSCRIBER IN CONNECTION WITH THESE TERMS FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT ENGAGELIVELY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL ENGAGELIVELY’S AGGREGATE LIABILITY AND DAMAGES IN CONNECTION WITH THESE TERMS EXCEED THE AGGREGATE PAYMENTS MADE BY THE SUBSCRIBER TO ENGAGELIVELY HEREUNDER DURING THE TWELVE MONTHS PRECEDING THE DATE OF THE CLAIM.
THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS ARE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY UNDER THIS SECTION 11 CONSTITUTE A FUNDAMENTAL BASIS OF THEIR BARGAIN. THE SUBSCRIBER ACKNOWLEDGES THAT THE ALLOCATIONS OF RISK AND DISCLAIMERS OF WARRANTIES AND LIABILITIES HEREUNDER ARE IN PART A REFLECTION OF THE SUBSCRIBER RECEIVING THE ABILITY TO USE THE SERVICES WITHOUT ENGAGELIVELY RECEIVING ANY COMPENSATION THEREFOR. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO THE SUBSCRIBER. IN THESE JURISDICTIONS, ENGAGELIVELY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
12.1 Copyright. If you believe that your copyrighted material is being used on the Services without permission, please refer to the engageLively DMCA Policy.
12.2 Relationship of the Parties. The parties are independent contractors with respect to each other. These Terms do not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever.
12.3 Third-Party Beneficiaries. Nothing herein shall give, or is intended to give, any rights of any kind to any third parties.
12.4 Assignment. The Subscriber may not, directly or indirectly, assign any of its rights or obligations under these Terms without the prior written consent of engageLively, which consent will not be unreasonably withheld. Any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of the assets of the Subscriber or similar transaction shall be deemed to constitute an attempted assignment of these Terms. engageLively may, without the Subscriber’s consent, assign these Terms with the Subscriber to any affiliate or in connection with any merger or change of control of engageLively or the sale of all or substantially all of engageLively’s assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms inure to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
12.5 Force Majeure. Neither party will be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
12.6 Notices. All notices sent by the Subscriber to engageLively under the terms of these Terms shall be sent in writing and sent by registered or certified mail, with postage prepaid and return receipt requested, to the engageLively address noted in the preamble of these Terms. Notices shall be sent to the attention of the “Legal Department.” All such notices shall be presumed to have been given three (3) business days following deposit in the mail as set forth in the foregoing. engageLively may send notices to the Subscriber by electronic means, either through the Services or using the e-mail address associated with the Subscriber’s account, which notices shall be deemed duly delivered once sent.
12.7 Amendments. An amendment of these Terms shall be binding upon the parties so long as it is in writing and executed by both parties or is presented by engageLively electronically through the Services and accepted in “click-to-agree” form by the Subscriber. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of these Terms.
12.8 Construction. Section headings are for reference purposes only, and should not be used in the interpretation hereof.
12.9 Severability; Waiver; Counterparts. If any provision, or portion thereof, of these Terms are determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of these Terms, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of these Terms will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of these Terms, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
12.10 Governing Law; Jurisdiction. These Terms shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the state and federal courts in California will have exclusive jurisdiction and venue under these Terms, and the parties hereby agree to submit to such jurisdiction exclusively.
12.11 Entire Terms. These Terms constitute the complete, final and exclusive Terms between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written reStudios, understandings, Terms or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, reStudios, assurances or inducements not expressly set forth herein.
13. EXPORT COMPLIANCE AND USE RESTRICTIONS.
The Services, and other components or software of the Services, which engageLively may provide or make available to the Subscriber, may be subject to U.S. export control and economic sanctions laws. The Subscriber agrees to comply with all such laws and regulations as they relate to access to and use of the Services, other components and software by the Subscriber. The Subscriber shall not access or use the Services if the Subscriber is located in any jurisdiction in which the provision of the Services, other components or software is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and the Subscriber shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. The Subscriber represents, warrants and covenants that (i) the Subscriber is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (ii) the Subscriber is not a national of, or a company registered in any Prohibited Jurisdiction; (iii) the Subscriber shall not permit any of its users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (iv) the Subscriber shall comply with all applicable laws concerning the transmission of technical data exported from the United States and the country in which the Subscriber is located.