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 https://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 name, logo and hyperlink in the footer of the Services. We reserve all rights not expressly granted in this Agreement. 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 the 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 Services. 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 the Services.
4. Your Conduct. You agree to and represent to us all of the following:
a) 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.
b) 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.
c) You verify that your country of residence is the same as your billing address.
d) You will not use the Services or Materials for any unlawful purposes or to conduct any unlawful activity.
e) You may not upload, post, email, transmit or otherwise make available or initiate any Content that contains software viruses, worms, malware, malicious code, 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.
f) 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 us.
g) 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 our 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), email address, 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 the 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, your 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 the 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. You will pay us for the Services as set forth in the applicable Client Form. All fees and charges are nonrefundable. We will collect and remit sales tax where required by state laws, based on the Services and your primary office location. If you are paying by credit or debit card, you expressly authorize us to store your credit or debit card and charge you: (i) a recurring monthly fee for any applicable Services billed on a monthly basis automatically, (ii) any other fees for Services you may purchase, and (iii) any applicable taxes in connection with your use of the Services to the credit or debit card that you provide and to reimburse us for all collection costs and interest for any overdue amounts. If the credit or debit card that you provide expires and you do not provide new payment method, you authorize us to continue billing you and you will remain responsible for any uncollected fees. If we cannot collect such fees for any reason, you have thirty (30) days to provide a new valid credit or debit card for us to charge. If you do not provide new credit or debit card information within thirty (30) days, we may terminate or suspend this Agreement, in our sole discretion, and will only reinstate such terminated or suspended Agreement once you pay us what you owe. Failure to remit full payment by the payment due date may result in immediate 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). You will notify us of any billing problems or discrepancies within seven (7) days after any such discrepancies first appear on your account. If you do not bring such discrepancies to our attention within seven (7) days, you agree that you have waived your right to dispute such problems or discrepancies.
12. Compliance with Law.
a) You represent and warrant that you will comply with all applicable local, state, national, and foreign laws and regulations in connection with your use of the Site and the Services, including, but not limited to, the Telephone Consumer Protection Act and implementing regulations at 47 CFR Part 64, Subpart L, the CAN-SPAM Act of 2003, the Canadian Anti-Spam Law, the General Data Protection Regulation (EU) 2016/679, the ePrivacy Directive 2002/58/EC, the Canadian Personal Information Protection and Electronic Documents Act, and the California Consumer Privacy Act of 2018 (collectively, “Privacy Laws and Regulations”). You shall ensure that any international transfer of personal data, including any transfer to our technical infrastructure and data hosting facilities in the United States, is in compliance with Privacy Laws and Regulations.
b) If you are an attorney or a law firm, you represent and warrant that you are an attorney, or a law firm whose attorneys are, validly licensed to practice law as required by the applicable jurisdictions in which you or they practice. You are solely responsible for compliance with all laws, rules, and regulations governing attorney advertising, ethical obligations, licensure, and the practice of law, promulgated by any applicable jurisdiction, court, bar association, and any other governing body which are applicable to you, your attorneys, or other representatives and your use of the Services. You will notify us immediately if there is a change in your or any of your attorneys’ licensure status. You further represent and warrant that the Content and any other information you provide to us or through the Services will be in compliance with all applicable laws, rules, and regulations governing attorney advertising, ethics, communications with clients and potential clients, licensure, and the practice of law and other obligations governing the Services in the state and locality in which you and your firm are licensed (collectively “Advertising and Ethics Rules”).
c) If you are a covered entity under the Health Insurance Portability and Accountability Act and the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”), you hereby consent to the terms of our Health Practitioner Terms and Business Associate Agreement and you agree to comply with the applicable provisions of HIPAA and 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. We 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. You may terminate this Agreement upon thirty (30) days prior written notice to us. Any termination of this Agreement will not relieve you of any obligations hereunder due and owing prior to termination of this Agreement. Upon any termination or expiration of this Agreement: (i) you will return or destroy, at our option, the Confidential Information and upon request, certify the above in writing. We reserve 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 Service 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. We may also choose to deactivate your account if you have removed the Services from your website. If you subsequently re-add the Services, then this Agreement will continue. You will only officially terminate, if you give us notice or if 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, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR OUR 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 DO WE OR OUR 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 THE SERVICES, AND YOUR RELIANCE UPON THE SERVICES AND/OR THE MATERIALS IS AT YOUR SOLE RISK. IN ADDITION, WE ARE NOT RESPONSIBLE, AND WE MAKE 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 OR THE SERVICES 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 SERVICES. 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. THERE IS NO WARRANTY THAT THE SERVICES WILL BE FREE OF ANY VIRUSES, MALWARE, MALICIOUS CODE OR ANY HARMFUL COMPONENTS. 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. WE AND OUR 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.
15. Not a Lawyer Referral Service. You acknowledge and agree that neither we nor the Services are a lawyer referral service (except as provided in Subchapter 4-7 of the Rules Regulation of the Florida State Bar). A listing on our directory or the use of the Services is a form of advertising and does not guarantee you will receive new business as a result of the listing. We do not guarantee the conversion of any chat conversations into retained clients.
16. 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 WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY RELEASE US AND HOLD US AND OUR 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 THROUGH THE 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, WE , ANY OF OUR AFFILIATES OR LICENSORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, OR AGENTS ARE LIABLE TO YOU FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, OUR 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, we will not be liable for any loss, injury, claim, liability or damage of any kind resulting from your non-compliance or violation with any applicable federal, state, or local laws.
17. 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 WE, OUR 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.
18. Confidentiality. You agree that all code, inventions, know-how, business, technical, and financial information you obtain from us constitutes our confidential and proprietary information (“Confidential Information“), provided that such information is identified as confidential at the time of disclosure or should be reasonably known 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 our Confidential Information without any marking or further designation. Unless otherwise set forth in this Agreement or expressly authorized by us in writing, you shall not disclose to any third party any Confidential Information nor use such Confidential Information in any manner.
19. Communications. You agree that you assume all responsibility for determining which prospective clients to pursue. If you include your email address or other contact information in any profile, posting, directory listing, or other content, resulting in you receiving email or other communications from a third party, you acknowledge that you have the sole discretion whether to respond to that third party and you do so at your sole risk. You are solely responsible for assessing the integrity, authenticity, honesty, and trustworthiness of all third parties with whom you choose to communicate. You agree that we and our affiliates will have no liability or responsibility whatsoever for any communications, agreements, or transactions between you and any third party.
20. Indemnification. You agree to indemnify, hold harmless, and defend us and our 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 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 breach of your representations and warranties herein; (iv) your contravention of any applicable law, statute, ordinance, or regulation, including, but not limited to, Privacy Laws and Regulations, HIPAA, and the Advertising and Ethics Rules, or (v) any services you offer to users. 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.
21. 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 us. 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.
22. Dispute Resolution; Arbitration. We hope we never have a dispute, but if we do, you and we agree to try for sixty (60) days to resolve it informally. You may send us the details of your concern to [email protected]. However, if we are not able to informally resolve your complaint, you and we agree to individual binding arbitration under JAMS Alternative Dispute resolution (“JAMS”) and the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury. The arbitration will be conducted under the JAMS Commercial Arbitration Rules. In all disputes, the arbitrator’s decision will be final except for a limited right of review under the FAA. The following applies to any arbitration proceedings between you and us:
a) Before moving an unresolved informal dispute into arbitration, you must first send us a “Notice of Dispute” describing the nature and basis of the claim or dispute and the specific relief sought. This notice may be sent via email to [email protected] or U.S. mail to: MH Sub I, LLC dba Ngage, Attention: Legal Affairs Department, 909 N. Pacific Coast Highway, 11th Fl., El Segundo CA 90245.
b) Any arbitration must be commenced by filing a demand for arbitration with JAMS within ONE (1) YEAR from when it first could be filed. Failure to discover the dispute shall not extend this limitation period. Otherwise, it is permanently barred. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
c) Arbitration will be exclusively held in Los Angeles County, California and each party will be responsible for its own costs, including paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules.
d) The enforcement of the arbitrator’s award will be controlled by and conducted in conformity with the FAA. Judgment upon any award may be entered in any court holding jurisdiction.
23. Exceptions to Arbitration. Notwithstanding our agreement to arbitrate disputes as provided above, the following EXCEPTIONS will apply to the resolution of disputes between us:
a) Injunctive Relief. We may bring a lawsuit against you in any court of competent jurisdiction solely for injunctive relief to stop any unauthorized use or abuse of the Services or any intellectual property infringement. In these instances, we may seek injunctive relief without first engaging in the informal dispute resolution or arbitration process, as described above in this Agreement.
b) Disputes not Covered by Arbitration. In the event that arbitration is found to be inapplicable or unenforceable for any reason, or if you exercise the option to opt-out of arbitration as provided below, the claim at issue will be brought under judicial proceedings in federal or state courts in Los Angeles County, California and you consent to personal jurisdiction and exclusive venue in such courts.
24. No Class Action. You may only bring individual claims. Under no circumstances are you allowed to bring a claim as a putative or named plaintiff or a class member in a class. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceedings where someone acts in a representative capacity are not allowed. Any combining of individual proceedings must have the consent of all parties.
25. Governing Law. 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. 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.
28. 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 three (3) business days from the date sent by postal mail or private courier to 909 N. Pacific Coast Highway, 11th Floor, El Segundo, CA 90245, Attention: Legal Affairs.
Last Updated: April 22, 2020
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