Engage121, Inc. (“Engage121”, “us” or “we”) will provide you (the “Client”) and Client’s affiliates (collectively with the Client, the “End-User” or “you”) limited access to certain content, data and services through an online, password-protected, proprietary application accessible through the Engage121 website (collectively referred to herein as either the “Application” or the “Services,” as applicable) subject to the terms and conditions of this agreement (together with the Privacy Statement as herein defined, the “Agreement”).
Please read the terms and conditions of this Agreement carefully, and by either (i) your acceptance of the terms and conditions of this Agreement by selecting “Accept” where indicated when setting up your account or (ii) your initial and subsequent use of the Application, you hereby agree and accept (the “Acceptance”) that Engage121’s provision of the Services will be governed by this Agreement. Note that we reserve the right to discontinue the Services in the event that you do not comply with the terms and conditions contained herein.
- Engage121 hereby grants End-User a non-transferable, non-exclusive, non-sublicenseable, revocable limited right and license (the “License”) to access and run the Application solely for its own internal business purposes in connection with the research, review, analysis and use of content, data and services accessible through such Application.
- End-User rights in and to Application under this Agreement is limited to those expressly granted to End-User herein and Engage121 expressly reserves all rights, titles, interests and licenses in and to the Application (together with all improvements, enhancements and modifications thereto) not expressly granted to End-User, including all copyrights, trademarks, patents and other intellectual property rights. Nothing herein shall be interpreted to mean, and we do not grant, you any right or license in any of our intellectual property or proprietary material, including proprietary images, artwork, copy, information, data, knowledge, computer software or any other material or information of any kind or any other trademark, service mark or trade name.
- The terms of this Agreement will govern upgrades to the Application provided by Engage121, if any, that replace and/or supplement the original Application, unless such upgrades are accompanied by a separate license in which case the terms of that separate license shall govern. The decision to provide upgrades and whether or not to charge for such upgrades shall be made in the sole discretion of Engage121.
- ACCEPTANCE. If Client is accepting the terms and conditions of this Agreement (or any amendment or modification hereto) on behalf of any other End-User, Client represents that it has the authority to do so, and each End-User acknowledges and agrees that its initial and subsequent use of the Application shall further evidence its acceptance of the terms and conditions of this Agreement (and any amendment or modification hereto).
- TERM AND TERMINATION. The License commences upon Acceptance and shall continue for a period of twelve (12) months (the “Initial Term”). Thereafter, the Initial Term shall automatically renew on a month-to-month basis (each month-to-month period being a “Renewal Term”). The Initial Term, plus any and all Renewal Terms, are hereinafter referred to collectively as the “Term”. The Term and the License may be terminated by End-User or Engage121 as follows:
- If, prior to the conclusion of the Initial Term or any Renewal Term, End-User notifies Engage121 of its intention not to renew the License granted herein, Engage121 will terminate the License as of the expiration of the then current Term.
- Engage121 may terminate or modify the License at any time and without notice to End-User if (i) End-User fails to comply with any of the terms and conditions of this Agreement, (ii) End-User’s use of the Application violates any applicable law, regulation or generally accepted practice, (iii) an Engage121 content provider terminates its relationship with Engage121, or (iv) Engage121 determines, in its sole discretion, that continuing End-User’s License is no longer commercially viable.
Upon termination of the License granted herein, End-User’s access to the Application is terminated without any further action, and End-User agrees to immediately cease all use of the Application. For the avoidance of doubt, the termination or expiration of the Term shall automatically result in the termination of the License.
- PAYMENT FOR CONTENT AND SERVICES. Engage121 will invoice End-User for the grant of the License and the provision of Services as may be agreed between End-User and Engage121; provided, that, unless otherwise decided by Engage121 in its sole discretion, there will be no fee payable by End-User for access to Engage121 HOT!Content™, or any other Application that Engage121 may decide, in its sole discretion, to provide for no fee. Absent such agreement, Engage121 shall invoice End-User in such amounts and at such times as is customary for Engage121. Engage121 may charge End-User a separate License subscription fee for each Application and Service used by End-User.
- End-User agrees to pay all Engage121 invoices within thirty (30) days of receipt. Invoices not paid within thirty (30) days are subject to finance charges at the maximum rate permitted by law.
- During the Renewal Term, End-User agrees that the monthly License and subscription fee rate will be adjusted to amounts that reflect Engage121’s then existing fee schedule.
- End-User may be provided the opportunity to purchase content and services from Engage121. Payment for such content and services will be made by credit card, or, upon request, Engage121 may, in its sole discretion, agree to invoice End-User periodically for the content and services End-User purchases.
- SOCIAL ADVERTISING. Certain Engage121 applications and services may enable End-User, or Engage121 acting on behalf of End-User, to develop and place advertisements or promotions on various social media sites (“Promotion Services”). PROMOTION SERVICES MAY INCLUDE A FEE FOR THE DEVELOPMENT, MANAGEMENT AND ADMINISTRATION OF SUCH ADVERTISEMENTS AND PROMOTIONS.
- ACCOUNT AND PASSWORD. End-User is responsible for maintaining the confidentiality of the password provided to End-User, and End-User is fully responsible for all activities that occur with respect to End-User’s account through use of the password. Password access to the Application is specific to each End-User and may not be shared.
- RESTRICTIONS ON USE. End-User may not directly or indirectly: (i) work around or attempt to work around any technical limitations in the Application; (ii) modify, adapt, merge, translate, convert to another programming language, reverse engineer, re-engineer, decompile or disassemble the Application or create derivative works based on the whole or any part of the Application; (iii) emulate or clone the Application or make copies of the Application; (iv) publish, reproduce, distribute or deal in the Application or any part thereof, in any way, except as expressly permitted by this Agreement; (v) use the Application in any way that violates applicable law; (vi) sell or resell, rent, timeshare, lease, lend, sublicense, modify, assign, convey, disclose or transfer the Application or any rights with respect thereto to any third-party or use the Application to perform services for the benefit of third parties; (vii) use the Application for commercial hosting services or for the benefit of any other entity or person; or (viii) make the Application available over a network where it could be used by multiple computers at the same time. Any documentation relating to the Application that may be provided to or accessed by End-User is subject to the same terms and conditions of this Agreement as those applicable to the Application. All documentation is the sole and exclusive property of Engage121 and Engage121 retains all rights, titles, interests and privileges in and to any such documentation.
- MAINTENANCE, MODIFICATION OR TERMINATION OF APPLICATION.
- End-User acknowledges and agrees that Engage121’s maintenance of the Application may depend upon various social media platforms maintaining the integrity of their electronic interfaces and connection protocols. From time to time such social media platforms may implement unannounced modifications, changes or other service disruptions that interfere with Engage121’s ability to receive and deliver data. In the event of these kinds of unannounced, breaking changes, Engage121 will respond to re-establish platform connectivity as soon as commercially and reasonably practicable.
- End-User acknowledges and agrees that Engage121 may, at any time and from time to time, in its sole discretion, modify or terminate certain content, features and/or the Application without prior notice and liability to End-User.
- THIRD PARTY WEBSITES. End-User may be able to link from the Engage121 websites (the “Sites”) to third party websites and third party websites may link to the Site (“Linked Sites”). End-User acknowledges and agrees that Engage121 shall have no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through Linked Sites, even if they are owned or operated by affiliates of Engage121. Links to Linked Sites do not constitute an endorsement or sponsorship by us of such websites or the information, content, products, services, advertising, code or other materials presented on or through such websites. Any reliance on the contents of a third party website is done at End-User’s own risk and End-User assumes all responsibilities and consequences resulting from such reliance. Under no circumstances will Engage121 be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to End-User in connection with its use of, or reliance on, any content, goods or services available on any other website.
- END-USER SUBMISSIONS. Unless specifically requested, Engage121 does not solicit nor does it wish to receive any confidential, secret or proprietary information or other material from End-User. By submitting or sending any information, creative works, demos, ideas, suggestions, concepts, methods, articles, studies, surveys, systems, designs, plans, techniques or other materials (collectively, “Submitted Materials”) to Engage121, End-User: (i) represents and warrants that the Submitted Materials are original to End-User, and that no other party has any rights thereto (i.e., that the material End-User submits does not infringe the rights of a third party), and (ii) End-User grants Engage121 and its affiliates a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sublicensable right and license to use, copy, reproduce, modify, adapt, publish, translate, distribute, and display such material (in whole or part). Engage121 cannot and will not be responsible for maintaining any Submitted Material that End-User provides to us, and such Submitted Material may be deleted or destroyed without notice to End-User.
- CONFIDENTIAL INFORMATION
- In connection with this Agreement and End-User’s use of the Application, End-User may obtain access to certain of Engage121’s proprietary or confidential information, technology, know-how, processes, methods, innovations, concepts and compositions (collectively, “Confidential Information”). End-User covenants and agrees that it shall hold the Confidential Information in strict confidence and that it shall take such steps to protect and preserve the confidentiality thereof as End-User takes to preserve and protect the confidentiality of its own confidential and proprietary information. End-User covenants and agrees that it shall use the Confidential Information solely to exercise the rights expressly granted by Engage121 to End-User under the License pursuant to this Agreement. End-User agrees that the terms and conditions of this Agreement shall be deemed Confidential Information.
- End-User’s obligations with respect to the Confidential Information do not apply to information that End-User can clearly establish by written evidence: (i) is or has become publicly known through no fault of End-User; (ii) is rightfully obtained by End-User from a third-party without breaching an obligation of confidentiality; (iii) is independently developed by End-User without any access to Confidential Information; (iv) is approved in writing for release by an authorized representative of Engage121; or (v) is required to be disclosed as a matter of law or judicial action; provided that End-User provides Engage121 with prior notice of such requirement of disclosure and uses all reasonable efforts to obtain a protective order.
- DISCLAIMER OF WARRANTIES. Engage121 MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE COMPLETENESS, TIMELINESS OR ACCURACY OF ANY DATA INCLUDED IN THE APPLICATION. ALL DATA IS OBTAINED FROM SOURCES BELIEVED BY Engage121 TO BE RELIABLE AND Engage121 SHALL HAVE NO LIABILITY WHATSOEVER TO END-USER BASED ON ANY INCOMPLETENESS, UNTIMELINESS OR INACCURACIES IN THE DATA. ALL DATA, DOCUMENTATION, APPLICATION AND SERVICES FURNISHED HEREUNDER ARE FURNISHED “AS IS.” NEITHER Engage121 NOR ITS INFORMATION PROVIDERS MAKE TO YOU OR TO ANY OTHER PERSON ANY REPRESENTATION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY OR ANY SIMILAR WARRANTY WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF, NOR ARE ANY SUCH WARRANTIES TO BE IMPLIED. END-USER EXPRESSLY UNDERSTANDS AND AGREES THAT ITS USE OF THE APPLICATION IS AT ITS SOLE RISK AND THAT ALL APPLICATION, SERVICES AND DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ANY AND ALL DATA PROVIDED THROUGH THE APPLICATION MAY BE USED FOR INTERNAL REVIEW, ANALYSIS AND RESEARCH PURPOSES ONLY. ANY EDITING, REPRODUCTION, PUBLICATION, REBROADCASTING OR PUBLIC DISPLAY OR DISCLOSURE IS FORBIDDEN. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Engage121 SHALL CREATE ANY WARRANTY. SHOULD THE APPLICATION DAMAGE END-USER’S EQUIPMENT, END-USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING AND REPAIR OF SUCH EQUIPMENT AND Engage121 HAS NO RESPONSIBILITY TO PROVIDE ANY SUCH SERVICING OR REPAIR OR TO REIMBURSE END-USER FOR THE COST OF ANY SUCH SERVICING OR REPAIR. END-USER ACKNOWLEDGES AND AGREES THAT A FUNDAMENTAL ELEMENT OF THE BASIS ON WHICH Engage121 IS PREPARED TO OFFER END-USER ACCESS TO THE APPLICATION IS END-USER’S ACCEPTANCE OF THE FOREGOING LIMITATIONS AND THAT Engage121 WOULD NOT HAVE AGREED TO PROVIDE END-USER WITH ACCESS TO THE APPLICATION BUT FOR END-USER’S FULL ACCEPTANCE OF ALL TERMS AND CONDITIONS OF THIS AGREEMENT, IN PARTICULAR, AND WITHOUT LIMITATION, THE DISCLAIMERS SET OUT IN THIS CLAUSE.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL Engage121, OR Engage121’S AFFILIATES OR CONTENT PROVIDERS, BE LIABLE TO END-USER OR ANY OTHER PERSON FOR ANY PERSONAL INJURY OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF END-USER’S USE OF THE APPLICATION OR THE DATA GENERATED BY SUCH APPLICATION HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF Engage121 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Engage121’S TOTAL LIABILITY TO END-USER FOR ALL DAMAGES ARISING HEREUNDER OR RELATING HERETO EXCEED THE AMOUNT OF FIVE HUNDRED UNITED STATES DOLLARS ($500.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- PRIVACY STATEMENT. The terms and conditions of the Engage121 Privacy Statement (the “Privacy Statement”) are hereby incorporated into this Agreement by reference. By evidencing its Acceptance of this Agreement, End-User acknowledges and agrees that it is also evidencing its Acceptance of the Privacy Statement.
- INDEMNITY. End-User shall indemnify, defend and hold harmless Engage121 and its directors, officers, agents and employees harmless from and against all claims, liabilities, suits, losses, damages and expenses, including costs and reasonable attorneys’ fees (collectively, “Claims”), relating to, resulting from, or alleged to result from, End-User’s breach of any representation, warranty and/or covenant contained in this Agreement.
- COPYRIGHT AGENT. If any person or entity believes that its work has been copied by Engage121 in a way that constitutes copyright infringement, such person or entity should forward the following information to Engage121’s Copyright Agent named below, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2):
- Address, telephone number, and email address;
- A description of the copyrighted work claimed to have been infringed;
- A description of where the alleged infringing material is located;
- A statement by the person or entity that it has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
- A statement, made under penalty of perjury, that the above information is accurate and that the person or entity is either the copyright owner or is authorized to act on the copyright owner’s behalf.
Jennifer Tayntor, Comptroller
20 Glover Avenue, 2nd floor
Norwalk, CT 06850
Tel: (203) 846-2811
- FORCE MAJEURE. Engage121 shall not be responsible for failure to perform when its failure results from any cause beyond its reasonable control.
- ASSIGNMENT. Neither this Agreement, nor the rights and obligations granted hereunder, may be assigned or transferred by End-User without the prior written consent of Engage121 (and such consent shall not be unreasonably withheld) and any attempted assignment or transfer absent such written consent shall be null and void and of no force or effect. Engage121 may freely assign and transfer this Agreement and/or its rights and obligations hereunder without notice to End-User.
- EQUITABLE REMEDIES. Without prejudice to any other rights that Engage121 may have under any applicable law, End-User acknowledges and agrees that damages alone would not be an adequate remedy for any breach by End-User of this Agreement and that accordingly, Engage121 shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief, without the necessity of posting a bond or other security, for any threatened or actual breach of the License and/or the terms and conditions of this Agreement.
- GOVERNING LAW, INDEPENDENT PARTIES, ENTIRE AGREEMENT, AMENDMENTS, SEVERABILITY, NON-WAIVER, HEADINGS. This Agreement will be governed and construed in accordance with the laws of the State of Connecticut without regard to its choice of law principles. Any dispute, controversy or claim arising out of, or in connection with this Agreement will be heard solely within the courts located in the County of Fairfield, State of Connecticut and End-User hereby irrevocably submits to the jurisdiction of such courts.
Nothing contained in this Agreement shall be deemed to create or constitute a partnership, joint venture, or relationship of principal and agent between the parties.
This Agreement (together with the Privacy Statement) contains the entire agreement between the parties.
This Agreement may not be amended, modified or waived in whole, or in part, except in writing, signed by both parties, provided, however, that Engage121 may at any time amend or modify this Agreement, subject to End-User’s Acceptance of any such amendment or modification in accordance with Section 2 hereof.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Engage121’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
All headings in this Agreement are inserted only for convenience and ease of reference and are not considered in the construction or interpretation of any provision of this Agreement.
- USER CONTENT. Engage121 shall have no liability for the content of any material or other information provided by End-User (collectively, “Content”), nor shall Engage121 independently verify the facts contained in any such Content. Therefore, End-User hereby represents and warrants that (i) End-User possesses the authority to submit Content to Engage121 for distribution; (ii) any person or party accepting this Agreement on End-User’s behalf is authorized to do so; and (iii) neither the Content End-User submits, nor its distribution, will violate any copyright, trademark, service mark rights, right of privacy or any other right of any person, and such content is not obscene, libelous, slanderous or otherwise defamatory, false or misleading.
Engage121 reserves the right to reject any Content End-User submits if Engage121 reasonably determines, in its sole discretion, that such Content is unsuitable for distribution, though Engage121 shall have no obligation to exercise such discretion. Content considered unsuitable may include, but are not limited to: (i) content that includes adult material, obscenities or profanity; (ii) content that promotes violence, illegal activities, or discrimination based on race, sex, religion, age, disability, nationality or sexual orientation; or (iii) content which contains excessive grammatical or typographical errors. Moreover, Engage121 reserves the right, upon due notice to End-User, to make non-material edits to Content for the purposes of making such Content suitable for distribution.
- SOCIAL MEDIA ASSISTANT, SMARTPOST AND RELATED SERVICES. THE FOLLOWING TERMS AND CONDITIONS APPLY ONLY TO END-USERS OF ENGAGE121’S “SOCIAL MEDIA ASSISTANT,” “COMMUNITY BUILDER,” “BUSINESS BUILDER,” AND “SMARTPOST” SERVICES. THE FOLLOWING TERMS AND CONDITIONS ARE IN ADDITION TO THE PRECEDING TERMS AND CONDITIONS OF THIS AGREEMENT WHICH ALSO APPLY TO SUCH SERVICES.
- Provision of Services. You hereby retain us to perform certain tasks on your behalf which, depending upon the level of service selected, may include, but is not limited to, all or some of the following: development, set up, posting, engagement management, marketing and promotion of your business through social media websites (the “SMA Services”). We agree to spend the time necessary to provide the SMA Services and in consideration for such SMA Services, you agree to pay us the fee in an amount and according to the terms of payment as agreed between us and you from time to time.
- Services Provided. SMA Services may include:
- Content. We will publish curated content to your social media accounts at a frequency we deem appropriate, typically from 3 to 5 times per week. We will publish content that we believe is relevant and suitable to building your online social community.
- Monitoring. We will monitor conversations on your social media sites during our normal business hours and either engage in relevant conversations directly on your behalf, or escalate to you, as we believe most effective.
- Promotions. We will periodically, and typically monthly, provide you the opportunity to opt-in to social promotions that we may develop and recommend to you.
- Social Advertising. We will manage social advertising campaigns according to mutually agreeable monthly budgets that are targeted on building and maintaining your social community.
- Reporting. We will report to you weekly on the results produced by our SMA Services, including community growth, engagements and other relevant data.
- Help Desk. You will have access during our normal business hours to a dedicated social media professional that will be able to answer any questions about the Services we are providing you.
- License Granted. You hereby grant us a nontransferable, revocable license and right to access and use your social media accounts and your user IDs and passwords for such social media accounts for the sole purpose of providing the SMA Services.
- Term and Termination of SMA Services. Our provision of the SMA Services commences upon your Acceptance in accordance with Section 2 hereof, will continue for an initial period of twelve (12) months and will thereafter automatically renew for subsequent twelve (12) month periods unless and until cancelled by either of us upon thirty (30) days advance notice for any reason whatsoever. Upon termination of the SMA Services, your license to use our Application will terminate and you agree to immediately cease any use of such Application.