TERMS AND CONDITIONS

These Ngage Terms and Conditions (“Terms and Conditions”) are an agreement between Client (also referred to as “you”) and MH Sub I, LLC dba Ngage (“Ngage”or “our” or “we”). By signing a Client Form, or by otherwise signing up for an account, or by accessing  our Services, Client will be bound by these Terms and Conditions, our Privacy Policy, and any other legal notices, conditions, or guidelines we provide related to the Services (collectively, the “Agreement”, which may be posted or updated from time to time. Capitalized terms not defined herein have the meanings set forth in the Client Form. In the event of an inconsistency between a term or condition contained in any component document(s) comprising this Agreement (but only to the extent of the inconsistency) the order of precedence, from the most to the least controlling will be (1) any mutually agreed upon addendum, (2) Client Form,  (3) these Terms and Conditions, (4) other conditions or guidelines.

We provide you with access to certain Materials (as defined below) to help you create and manage your business. We may provide communication and chat services and other tools and services (each a “Service,” and collectively, the “Services”) directly and through the website and associated domains and applications of http://www.ngagelive.com (collectively, the “Site”).

  1. What We Own.

    All material and products available on the Site and through the Services, including, but not limited to, software, software documentation, all informational text, design of and “look and feel,” layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the “Materials”), are owned by us or other parties that have licensed their material or provided services to us, and are protected by copyright, trademark, trade secret and other intellectual property laws.  All Ngage trademarks and service marks, logos, slogans and taglines are the property of Ngage.  All other trademarks, service marks, logos, slogans and taglines are the property of their respective owners.  Except as otherwise specifically provided herein, nothing should be construed as granting any license or right to use any trademarks, service marks, logos, slogans or taglines displayed of Ngage without our express written permission, or the express written permission of such third-party that may own the trademark, service mark, logo, slogan or tagline.

  2. Your Rights to Use What We Own.

    We will provide you one User ID (defined below) for each account held by you, thereby permitting you access to the Materials, unless additional User IDs are requested and approved.  You agree to fully and accurately provide the information requested by us when setting up your accounts and to regularly update such information.  Your failure to do so may result in the cancellation of your account and loss of Services.  You further agree (a) not to provide User IDs to anyone who is not your employee, and (b) to ensure all individuals permitted to use the User IDs are aware of and have agreed in writing to comply with the terms of this Agreement.

    Subject to this Agreement, we grant you a limited, revocable, non-transferable and non-exclusive license to use the Materials through a user identification reference (“User ID”) to the extent, and only to the extent, necessary to access and use the Services in accordance with the terms of this Agreement. This license does not permit you, and you agree not to store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with the Materials, or otherwise distribute in any way the Materials other than as specifically permitted in this Agreement.  You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Materials, create derivative works based on, or in any manner commercially exploit the Materials, in whole or in part, other than as expressly permitted in this Agreement.  You will not reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Any use of the Materials for any purpose other than as specifically permitted herein or without our prior written consent or the prior written consent of our licensors, as applicable, is expressly prohibited. You further grant us the right to place disclaimers, our Company name, logo and hyperlink in the footer of our Services. We reserve all rights not expressly granted in this Agreement.

    The Services may include certain third-party software and services, which may require that you enter into separate subscription or licensing agreements with third-party vendors. You will comply with and, upon request, execute, any agreements that may be required for the use of such software or services, and to comply with the terms of any license or other agreement relating to third-party products included in the Services or made accessible to you through the Services. Your use of the Services or of such third-party products or services will constitute your agreement to be bound by the terms of all licensing, subscription and similar agreements relating to such use.

    You agree that the Materials available through the Services are for communication purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute your professional judgment. We are not responsible for the accuracy or completeness of Materials available from or through the Services. You assume full risk and responsibility for the use of materials you obtain from or through our Services.

  3. What You Provide to Us.

    You are legally responsible for all information, data, text, software, music, sound, photographs, graphics, video, survey responses, messages or other materials uploaded, posted or stored in connection with your use of the Services (collectively, “Content”). You are entirely responsible for all Content that you, or others to whom you provide access, send, post, or otherwise make available via the Service. You hereby grant us a worldwide, royalty-free, non-exclusive license to host and use the Content in order to provide you with the Services, and you hereby represent and warrant that you have all the rights necessary and are in compliance with all laws to grant us such license. You acknowledge that potential customers may rely upon the Content and you agree that the Content you submit will be accurate, complete and not misleading in any respect.  You are responsible for any Content that may be lost or unrecoverable through your use of the Services.  You are encouraged to archive your Content regularly and frequently.  We may, but have no obligation to, monitor Content created using our Services.

  4. Your Conduct. 

    You agree to and represent to us all of the following:

    • You are responsible for all activity occurring under your account. You will not share your password or let anyone else access your account except for your designated staff, or do anything that might jeopardize the security of your account. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security; and exit from your account at the end of each session.
    • You are the practitioner, firm or business identified in the account or are expressly authorized to act on behalf of the entity identified in the account. You are using your actual identity and you have only provided true, accurate, complete information about yourself and will update any information as needed in a timely manner.
    • You verify that your country of residence is the same as your billing address.
    • You will not use the Services or Materials for any unlawful purposes or to conduct any unlawful activity.
    • You may not upload, post, email, transmit or otherwise make available or initiate any Content that contains software viruses, worms, Trojan horses or any other computer code, files or programs that interrupt, destroy or limit the functionality of the Services or the Materials or that may impact the ability of any user to access the Services.
    • You will not access the Services through automated methods.  The Services may only be used or accessed through an electronic device via manual control at all times. You will not attempt to or actually access the Services or Materials by any means other than through the interfaces provided by the Company.
    • You will not attempt to or actually override any security component included in or underlying the Materials or Services. You will not attempt to or actually engage in any action that directly or indirectly interferes with the proper working of the Company’s infrastructure, including placing an unreasonable load on the infrastructure.

    We may determine, in our sole discretion, whether or not an account is in violation of any of these policies.   Offending users may be permanently restricted from holding an account or using the Services.  If we determine that your account is being used for illegal or fraudulent activity then your account may be immediately terminated and your data erased.  We may also report you to law enforcement officials in the appropriate jurisdictions. We, and our suppliers, cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 4.

  5. Directory Services.

    We may include your Directory Information (defined below) in our (and our affiliates) directories. Directories may be made available in various electronic formats, including searchable databases, landing pages, interactive reference tools, and integrated look-up features, among others. They may also incorporate information designed to help users, such as integrated maps, and licensure confirmation tools, among others. Directories may include a “contact” feature that allows users to contact other users directly through the Services. Our directories may be made available to public search engines to aid discovery. Listing in the directories is subject to eligibility criteria. If you meet the applicable criteria, some or all of your Directory Information will be automatically included in the applicable Directory(ies), unless you inform us in writing that you wish to be excluded. “Directory Information” includes the firm, practice or business name, name(s) of professionals associated, associated specialties, business telephone number(s) and physical address(es). The Directory Information may include additional information you input or upload into profile tools we make available in the Services (such as a profile photograph, available office hours, a front desk email address, and the like), as and when such tools are available. Upon termination of this Agreement by either party, the Directory Information and any consumer reviews may remain in any data feeds provided to third parties but is subject to removal at any time as determined by us or our affiliates.

  6. Data Consent for Services.

    In connection with our provision of technical support, training and other Services, you agree that we may remotely log-in to your computers, devices and systems for purposes of providing the support, training or other Services, including, without limitation, technical trouble shooting, answering questions, benchmarking and providing training to you or your personnel. Remote login may be conducted through the use of third party entities. You further agree that we may also remotely log-in at any time as necessary or appropriate to maintain our Services. We reserve the right to log off accounts that inactive for an extended period of time. You agree that we may automatically check the version of a Service that you are utilizing and may provide updates or upgrades remotely via the Internet. You consent to the receipt of updates or upgrades by means of download to your computers and systems. You must add us or our third party affiliate to the “allowed” list of programs and ensure that your firewall and anti-virus software programs do not block us or our software. It is your responsibility to contact us if you are upgrading or changing you website code.

  7. Call Recording.

    We may record calls between you and our agents regarding the Services (“Service Calls”) and in connection with Services, incoming calls, on your behalf as a Service (if applicable or available), from, among others, you prospective clients for quality assurance and troubleshooting purposes (the “Inbound Calls” and, collectively with Service Calls, “Call Recording”). You consent to Call Recording and acknowledge you are responsible for notifying Call Recording to your employees and agents who may be recorded in a Service Call or Inbound Call (the “Recorded Persons”). It is your sole responsibility to provide and/or obtain, and you covenant that you will provide and/or obtain, all notices and permissions relating to Recorded Persons as may be required by applicable laws and regulations. You acknowledge and agree that if you collect information from Recorded Persons that may be subject to a privilege (including, but not limited to, attorney-client or doctor-patient privilege), you assume the full risk of using a third party provider for Call Recording, including any preclusion of the application of such privilege with respect to information exchanged during the Call Recording with the Records Persons.

  8. Comments and Feedback. 

    Any questions, comments, suggestions, ideas, feedback, or other information provided by you to us (“Comments”) are not confidential and you hereby grant us a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Comments as we deem appropriate, for any and all commercial and/or non-commercial purposes, in our sole discretion.

  9. Pre-Release or Trial Services.

    If the Service is a pre-commercial release or beta version (“Pre-release Service”), then this section applies. The Pre-release Service is a pre-release version, does not represent a final product from us, and may contain bugs, errors, and other problems that could cause system or other failures and data loss and may only be used for testing purposes. We may never commercially release the Pre-release Service. We may alter features, licensing terms, or other characteristics of any version of the Pre-release Service that it releases. You may not disclose, publish or disseminate any information regarding the Pre-release Service to anyone, including but not limited to any new features or faults to any Internet forums. YOUR USE OF PRE-RELEASE SOFTWARE IS AT YOUR OWN RISK. SEE SECTIONS 14 AND 15 FOR WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS THAT APPLY TO THE PRE-RELEASE SERVICE.

    If you registered for a trial use of the Services (“Trial Period”), you must decide to purchase the Services within the Trial Period in order to retain any Content that you have posted or uploaded during the Trial Period. If you do not purchase the Services by the end of the Trial Period, your Content will no longer be available to you.

  10. Third Party Services.

    The Site or Services may contain links to other web sites owned by third parties (“Third Party Sites”). Please note that when you click on any of these links, you are entering another website for which we may have no responsibility or control. You may also have the ability through the Site to login to accounts that you have for services provided by third parties or want to use other services that can be integrated with our Services (“Third Party Services”). We are not responsible for any activity occurring within Third Party Services, even if logged in through or linked to an Ngage account.

    You agree that we will not be responsible for any loss or damage of any sort incurred as a result of your use of any Third Party Sites and/or Third Party Services, whether or not you were linked to or directed to a Third Party Site or Third Party Service through the Site or Service.  You acknowledge that Third Party Sites and Third Party Services may be subject to the applicable third party provider’s terms of service, and you are solely responsible for reviewing and complying with any such terms of service.  In no event will any reference on the Site to any third party, third party website or third party product or service be construed as an approval or endorsement by us of that third party, third party website or of any product or service provided by a third party.

  11. Fees.

    Client will pay Ngage for the Services as set forth in the applicable Client Form. All fees and charges are nonrefundable. If Client is paying by credit or debit card, Client expressly authorizes Ngage to charge Client (i) a recurring monthly fee for any applicable Services billed on a monthly basis automatically, (ii) any other fees for Services Client may purchase, and (iii) any applicable taxes in connection with Client’s use of the Services to the payment card Client provides and to reimburse Ngage for all collection costs and interest for any overdue amounts.  If the payment card Client provides expires and Client does not provide new payment card information or cancel Client’s account, Client authorizes Ngage to continue billing Client and Client will remain responsible for any uncollected fees. If Client’s card expires or Ngage cannot collect the fees for any reason, Client has thirty (30) days to provide a new valid credit or debit card for Ngage to charge. If Client does not provide new card information within thirty (30) days, Ngage may terminate or suspend this Agreement, in its discretion, and will only reinstate a suspended Agreement once Client pays Ngage what Client owes. Failure to remit full payment by the payment due date may result in termination of this Agreement. Ngage may change the fees at any time by providing at least two (2) weeks written notice (email sufficient) prior to the fee change taking effect. Client’s continued use of the Services after a fee change will be deemed acceptance of the new fee(s).

    Client will notify Ngage of any billing problems or discrepancies within seven (7) days after any such discrepancies first appear on Client’s account. If Client does not bring such discrepancies to Ngage’s attention within seven (7) days, Client agrees that it has waived its right to dispute such problems or discrepancies.

  12. Health Insurance Portability and Accountability Act (HIPAA).

    If Client is a covered entity under the Health Insurance Portability and Accountability Act, Client hereby consents to the terms of Ngage’s Health Practitioner Terms and Business Associate Agreement and Client will protect any information received through such communication services in accordance with the terms of such Business Associate Agreement.

  13. Term and Termination.

    The term of this Agreement is as set forth in the applicable Client Form. After the expiration of the initial term, this Agreement will continue on a month to month basis until terminated by either party as set forth herein. Ngage may terminate this Agreement at any time, for any reason. Notice of termination of Services by us may be sent to the contact e-mail associated with your account. Upon termination, we have the right to delete all data, files, or other information that is stored in your account.

    Client may terminate this Agreement upon thirty (30) days prior written notice to Ngage. Any termination of this Agreement will not relieve Client of any obligations hereunder due and owing prior to termination of this Agreement. Upon any termination or expiration of this Agreement: (i) Client will return or destroy, at Ngage’s option, the Confidential Information and upon request, certify the above in writing to Ngage.  Ngage reserves the right, at any time and for any reason, without notice to you: (a) to deny you access to the Services; (b) to change, remove or discontinue the Services; or (c) to terminate this Agreement. Upon termination of this Agreement, you may no longer access, browse or use the Services. If a Service is withdrawn, then you will only pay us the pro rata fees for such Services through the date such Service ceased to be provided. You agree that we will not be liable to you or any third party for any termination or suspension of your access to the Services.

    Ngage may also choose to deactivate your account if you have removed the Services from your website. If you subsequently re-add the Services (i.e., add the code back to your website), this Agreement will continue. You will only officially terminate, if you give us notice or we terminate you.

  14. Disclaimer of Warranties. 

    THE SITE, SERVICES AND MATERIALS ARE PROVIDED “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  WITHOUT LIMITING THE FOREGOING, NEITHER NGAGE NOR ITS LICENSORS WARRANT THAT ACCESS TO THE SITE, THE MATERIALS AND/OR THE SERVICES AVAILABLE ON OR THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DOES NGAGE OR ITS LICENSORS MAKE ANY REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE SERVICES, THE MATERIALS OR THE SITE.  YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND YOUR RELIANCE UPON THE SERVICES AND/OR THE MATERIALS IS AT YOUR SOLE RISK. IN ADDITION, COMPANY IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, POSTING OF ANSWERS OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH THE SITE TO ANYONE. WE HAVE NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OR FAILURE TO STORE ANY MESSAGES AND OTHER COMMUNICATIONS OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SERVICE.

    YOU ACKNOWLEDGE THAT ACCESS TO THE SERVICES WILL BE PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS LINES, AND INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, “CARRIER LINES“) OWNED, MAINTAINED, AND SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, AND INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND OUR CONTROL. WE ASSUME NO LIABILITY FOR OR RELATING TO THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS TRANSMITTED ON THE CARRIER LINES, OR ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS. YOU ACKNOWLEDGE THAT: A) SOME OF OUR SERVICES MAY CONTAIN AN ANTI VIRUS COMPONENT, AND THIS COMPONENT IS INTENDED TO DETECT ONLY SPECIFIC KNOWN VIRUSES AND SUME UNKNOWN BEHAVIOR PATTERNS. THERE IS NO WARRANTY THAT THE SERVICE WILL DETECT ALL VIRSUES PRESENT ON OR SENT TO YOUR COMPUTER SYSTEM, NETWORK OR EMAIL SERVER; YOUR RESPONSIBILITIES INCLUDE TO ENSURE YOU HAVE SUFFICIENT BACK-UP SYSTEMS IN PLACE. WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION OR DISCONTINUANCE OF THE SERVICES WHICH MAY OCCUR FOR ROUTINE MAINTENANCE, ROUTINE OR EXTRAORDINARY REPAIRS, OR THE NEED TO RESPOND TO A VIRUS OR OTHER ATTACK ON THE SYSTEM OR USING THE SYSTEM.

    FURTHER, WE EXPRESSLY DISCLAIM ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS YOU MAY MAKE WITH CLIENTS, PATIENTS, CONSUMERS OR SITE USERS, AND YOU WILL LOOK SOLELY TO SUCH PERSONS AND/OR ENTITIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS. YOU WILL BE SOLELY RESPONSIBLE FOR THE PROFESSIONAL AND TECHNICAL SERVICES YOU PROVIDE. WE HAVE NO LIABILITY FOR THE CONSEQUENCES TO YOU OR YOUR PATIENTS OF YOUR USE OF THE SERVICES.

    WE OFFER NO ASSURANCE THAT YOUR USE OF THE SERVICES UNDER THE TERMS OF THIS AGREEMENT WILL NOT VIOLATE ANY LAW OR REGULATION APPLICABLE TO YOU. COMPANY AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTIES THAT THE SERVICES OR THE MATERIALS OR THE SITE ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SITE, THE SERVICES OR THE MATERIALS OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES.

    IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT, TAX, LEGAL OR OTHER PROFESSIONALS. THE SERVICES DO NOT PROVIDE TAX OR LEGAL ADVICE. YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.

    Client acknowledges and agrees Ngage is a provider of online Client development services (not a referral service), and under no circumstances can Ngage guarantee the conversion of Client chat conversations into retained clients.

  15. LIMITATION OF LIABILITY.

    NEITHER WE, NOR OUR LICENSORS OR AFFILIATES ARE LIABLE TO YOU OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE OR SERVICES, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MALPRACTICE OR OTHERWISE, EVEN IF NGAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY RELEASE NGAGE AND HOLD NGAGE AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, TRUSTEES, AFFILIATES, SUBCONTRACTORS, AGENTS AND EMPLOYEES, HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE (INCLUDING, WITHOUT LIMITATION, ACTUAL, SPECIAL, INCIDENTAL AND CONSEQUENTIAL), KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, MATERIALS, SITE, YOUR CONTENT, OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGHTHE SITE OR SERVICES.  YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE OR LOCAL LAW LIMITING OR PROHIBITING A GENERAL RELEASE. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING EXCLUSIONS OF LIABILITY, COMPANY, ANY OF ITS AFFILIATES OR LICENSORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, OR AGENTS IS LIABLE TO YOU FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, COMPANY’S TOTAL LIABILITY, IN RESPECT OF SUCH AMOUNTS, WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU FOR THE SERVICES UNDER THIS AGREEMENT FOR THREE (3) MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM. In addition to the foregoing, Ngage will not be liable for any loss, injury, claim, liability or damage of any kind resulting from Client’s non-compliance with all applicable federal, state and local laws or from Client’s violation of such laws.

  16. EXCLUSIVE REMEDY.

    IN THE EVENT OF ANY PROBLEM WITH THE SITE, THE SERVICES, OR THE MATERIALS, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SITE, THE SERVICES AND THE MATERIALS.  UNDER NO CIRCUMSTANCE WILL COMPANY, ITS AFFILIATES, OR LICENSORS BE LIABLE IN ANY WAY FOR YOUR USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, OR THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS, ANY INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF, OR RELATED TO, THE USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you. In such event, our liability under this Agreement will be limited to the greatest extent permitted by applicable law in such jurisdiction.

  17. Confidentiality.

    Except as otherwise set forth in this Agreement, Client agrees that all code, inventions, know-how, business, technical and financial information Client obtains from Ngage constitutes the confidential property of the Ngage (“Confidential Information“), provided that such information is identified as confidential at the time of disclosure or should be reasonably known by Client to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Ngage technology and any performance information relating to the Services shall be deemed Confidential Information of Ngage without any marking or further designation. Except as expressly authorized herein, Client will hold in confidence and not use or disclose any Confidential Information.

  18. Communications.

    Client agrees that it assumes all responsibility for determining which prospective clients to pursue. Client is solely responsible for assessing the integrity, authenticity, honesty and trustworthiness of all persons with whom Client chooses to communicate. Client agrees that Ngage and its affiliates will have no liability or responsibility whatsoever for any communications, agreements or transactions between Client and any third party.

  19. Indemnification.

    You agree to indemnify, hold harmless, and defend Company and its shareholders, licensors, suppliers, officers, directors, employees, agents, affiliates, subsidiaries, partners, co-branders, successors and assigns (collectively “Indemnified Parties”) from and against any and all liability, loss, claim, damages, expense, or costs (including but not limited to attorneys’ fees), incurred by or made against the Indemnified Parties in connection with any claim arising from or related to (i) your use (or anyone using your account’s) use of the Services, the Site or  the Materials, (ii) your Content, (iii) your breach of this Agreement, including any of your representations and warranties; (iv) your contravention of any applicable law, statute, ordinance or regulation, including, but not limited to, the CAN-SPAM Act of 2003, privacy laws and HIPAA, or (v) any services you offer to end users.  This includes, but is not limited to, any breach or violation of this Agreement by you or anyone utilizing your account.  You agree to fully cooperate at your expense as reasonably required by an Indemnified Party.  Each Indemnified Party may, at its election, assume the defense and control of any matter for which it is indemnified hereunder.  You shall not settle any matter involving an Indemnified Party without the consent of the applicable Indemnified Party.

  20. Modification.

    We may update or change the Services or the terms set forth in this Agreement from time to time and recommend that you review the Agreement on a regular basis. You understand and agree that your continued use of the Services after the Agreement has been updated or changed constitutes your acceptance of the revised Agreement. Without limiting the foregoing, if we make a change to the Agreement that materially affects your use of the Services, we may (but are not obligated to) post notice or notify you via email or our website(s) of any such change. No modifications of this Agreement will be effective unless agreed in writing by Ngage. We may also, in the future, offer new services and/or features through Site (including the release of new tools and resources). For the avoidance of doubt, such new features and/or services will be subject to the terms and conditions of this Agreement.

  21. Disputes.

    The formation, interpretation and performance of this Agreement and any disputes arising out of it will be governed by the substantive and procedural laws of the state of California without regard to its rules on conflicts or choice of law and, to the extent applicable, the laws of the United States of America.  The exclusive jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in Los Angeles County, California and the Central District Court of California, respectively, and you hereby submit to the personal jurisdiction of such courts. This choice of venue is designed to be mandatory, and not permissive, in nature. You hereby waive any right to a jury trial in any proceeding arising out of or related to this Agreement.  You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

  22. Privacy.

    Your use of our Services is subject to our Privacy Policy, as updated from time to time. By using the Services, you are consenting to the terms of the Privacy Policy and acknowledged that you have reviewed our Privacy Policy.

  23. Terms You Must Post to Your Site.

    You are responsible for having a terms of use and privacy policy for any website that uses our Services (your “Hosted Site”).  The terms of use for your Hosted Site must designate us as third party beneficiary and must contain intellectual property, limitations of liability, limitations of remedy, disclaimers of warranty and indemnification provisions each for the benefit of Ngage which are at least as favorable to Ngage as contained in this Agreement.   Your Hosted Site’s privacy policy at a minimum, must disclose any and all uses of personal information that you collect from users; (b) include a paragraph provided or approved by us that describes our collection and use of your user’s information; (c) provide a hypertext link to your privacy policy on the home page of your Hosted Site and on all pages where you collect personal information from users; and (d) use personal information only as expressly permitted by your privacy policy. You agree to indemnify, defend and hold us harmless from and against any and all claims stemming from your failure to comply with this provision and/or your failure or refusal to abide by the terms and provisions of any applicable privacy policies or terms of use, or lack thereof.

  24. Miscellaneous.

    This Agreement supersedes any written, electronic, or oral communication you may have had with us or any agent or representative thereof, and constitutes the complete and total agreement between the parties.  If any portion of this Agreement is found to be unenforceable, the remaining portion will remain in full force and effect. If we fail to enforce any of this Agreement, it will not be considered a waiver. You will not transfer any of your rights or obligations under this Agreement to anyone else without our prior written consent. All of our rights and obligations under this Agreement are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law, corporate restructure, to any affiliate or otherwise. This Agreement does not confer any third party beneficiary rights. Each party is an independent contractor and not a partner or agent of the other. This Agreement does not create an agency, partnership or joint venture and does not impose partnership or agency obligations or liability upon either party.  The section titles in these terms and conditions are for convenience only and have no legal or contractual effect. All notices and other communications required or permitted to be given by us to you under this Agreement will be deemed to be properly given on the date when sent to your email address or postal address recorded for your account. All notices and other communications required or permitted to be given by you to us under this Agreement will be deemed to be properly given on the date when sent by postal mail or private courier to 909 N. Sepulveda Blvd., 11th Floor, El Segundo, CA 90245, Attention: Legal Department.

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