1.2 Agreements entered into between D·engage and its Developers, partners and vendors may provide for additional terms related to the treatment of certain information of end users and data generally by D·engage.
IF YOU DO NOT AGREE TO BE BOUND BY ALL CONDITIONS/CLAUSES CAPTURED IN THESE TOU, PLEASE DO NOT USE THE PLATFORM OR SERVICES.
1.3 Subject to your remaining in full compliance with the TOU, D·engage hereby grants to you a limited, non-exclusive, non-transferable, worldwide license, without the right to sublicense, solely for the purpose of enabling you to use and enjoy the benefit of Services as provided by D·engage, in the manner permitted by the TOU. You may not copy, modify, distribute, sell, or lease any part of the Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless prohibit those restrictions, or you have D·engage’s written permission.
1.4 You shall not, and shall not permit any third party to:
(i) use the Services except to the extent permitted above;
(ii) modify or create any derivative work of any part of the Services;
(iii) permit any third parties to use the Services other than contractors with your specific business need; or
(iv) market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan the Services.
1.5 Use of the Services by children under the age of 13 is prohibited. By using the Services, you warrant that you are 13 years of age or older.
1.6 Using the Services does not give you ownership of any intellectual property rights in the Services or the content you access. You may not use content from the Services unless you obtain permission from its owner or are otherwise permitted by law. The TOU does not grant you the right to use any branding or logos used in the Services. Do not remove, obscure, or alter any legal notices displayed in or along with the Services.
2. TERMS & DEFINITIONS
2.1 “Platform” shall mean the website, dashboard, the D·engage mobile SDK, and any other platform which may allow you to access and/or use the D·engage Services via any other device/medium;
2.2 "Company," "we," "us," or "our" includes any other companies that are the Company’s subsidiaries and affiliates.
2.3 “D·engage Content” means and includes all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets, Documentation, Report Templates, D·engage Code, and other technologies and information acquired, created, developed or licensed independently by us, prior to or outside the scope of this TOU and any improvement, modification, extension or other derivative works thereof and all intellectual property rights thereto. D·engage Content excludes all Customer Data;
2.4 “Customer Data” means all electronic data, information, or other content (including information pertaining to End-Users and the content of any Messages), submitted or provided by or on behalf of a Customer to be stored, collected or processed by us in connection with a Customer’s authorised use of the D·engage Services;
2.5 “Data Point” or “Event” means a session start, session end, custom event, purchase recorded, or any other custom recording (a billable event) on the D·engage Service. For the sake of clarity, data and events automatically collected by the D·engage Services including, for example, push tokens, device information, location data and all campaign engagement tracking events, such as email opens and push notification clicks, are not counted as Data Points
2.6 “Documentation” means the implementation guides, help information and other user documentation regarding the D·engage Service that is provided or made available by us to a Customer in electronic or other form;
2.7 “End User” means any user of the Customer’s platforms, goods, services, or applications;
2.8 “Message” means any communication made by a Customer with an End-User via the D·engage Services, whether by email, SMS, push notification, web push notification, on-site notification, or in-app notifications;
2.9 “Active Users” shall mean the number of End-Users who have recorded any Data Point or Event on a Customer application/website, during the relevant billing period
2.10 “Report Template” means the content, formatting, look and feel of the templates used for the reports, charts, graphs and other presentation in which the Customer Data (whether in the form of raw data or in an analysed format) are provided to the Customer (whether on a Platform or as exported data). It is hereby clarified that any and all data contained in any Report Templates provided by us shall fall within the purview of Customer Data, and D·engage shall have no title, rights, ownership or obligations with respect to the same;
2.11 “D·engage Libraries” or “D·engage Code” shall mean the code developed, owned, maintained and provided by us, and to be installed on our Customers’ websites and mobile applications for the purposes of accessing and using the D·engage Services;
2.12 “You” or “Customer” shall mean any customer of D·engage, or his/her representatives or affiliates who are permitted to use the D·engage Services;
3. UPDATION OF TERMS
These TOU may be updated, amended, modified or revised by us from time to time. Each such updation or modification to the TOU will be communicated to You via email, and You will be required to give your separate consent to each such revised version to be able to continue to use the D·engage Services. As a best practice, we encourage You to refer to these TOU from time to time to ensure that You are aware of any additions, revisions, amendments or modifications that we may have made.
4. THIRD PARTY SERVICES
We use multiple third-party service providers in order to power and provide you with the D·engage Services. In this process, we share the Customer Data with some of the third-party service providers, as is necessary to enable them to provide the requisite services. We will attempt to ensure that all our third-party service providers are bound by and adhere to the same obligations of confidentiality and data privacy as we guarantee to You.
Further, in the course of using the D·engage Services you may integrate and use certain third-party services along with the D·engage Services, such as sending Messages via SMS and/or email service providers to your End-Users. You understand and agree that you have an independent engagement and legal relationship with such third-party service providers, and any action, inaction, breach, fault, delay, omission or other incident involving such third-parties shall be your sole liability and responsibility, and you shall not engage or involve the Company in such situation in any way.
5. TECHNICAL SUPPORT
The Company offers email-based/online support and query-resolution tools. You may access support resources or contact our support by emailing at email@example.com. The Company shall use commercially reasonable best efforts to respond to Your request for support, or to fix any problems You may be having, as is applicable. Any suggestions by the Company to You regarding use of D·engage/the Platform shall not be construed as a warranty.
6. USE OF DATA
All Customer Data that you create, transmit, transfer to us, submit, display or otherwise make available while using the D·engage Services, should only be information that You own or have the right to use or share (as may be applicable). If you transfer any End-User information or data to us, we will assume that you have informed the End-User and procured the necessary consent for such transfering, sharing, processing and/or using the information in the way envisaged under the D·engage Services (including for the purposes of sending Messages). Such End-User information may include:
- Location data;
- Device details and status (used by the End-User to access your application and/or website);
- Session information;
- Acquisition details;
- End-User activity like email opens, clicks, items viewed, items purchased etc. and any other activity that you track as per your business use cases;
- End-User details like name, email ID, phone number, gender, etc. and any other attributes specific to the business like Total Purchases, Order status etc.
While we make commercially reasonable efforts to ensure that the data stored on our servers is persistent and always available to our Customers, we will not be responsible in the event of failure of the third-party servers or any other factors outside our reasonable control, that may cause the Customer Data to be permanently deleted, irretrievable, or temporarily inaccessible.
7. SERVICES PROVIDED
The Company provides an array of features and functionalities to the Customer, which then enable its Customers’ engagement with their End-users. These features include:
- End-User behaviour tracking and analytics;
- Customised engagement with End-Users via multiple Messaging channels;
- Personalization of Messaging and content delivered to the End-Users;
- End-User segmentation and classification depending on accumulated activity, behaviour etc.
8. RULES AND CONDUCT
As a condition of use, You promise not to use the service for any purpose that is prohibited by the TOU, by law, or other rules or policies implemented by us from time to time. The D·engage Service and D·engage Data is provided only for Your own personal, non-commercial use.
By way of example, and not as a limitation, You shall not (and shall not permit any third party to) take any action that: (i) would constitute a violation of any applicable law, rule or regulation; (ii) infringes on any intellectual property or other right of any other person or entity; (iii) is threatening, abusive, harassing, defamatory, libellous, deceptive, fraudulent, invasive of another’s privacy, tortuous, obscene, offensive, or profane; or (iv) impersonates any person or entity
Furthermore, You shall not (directly or indirectly): (i) take any action that imposes or may impose an unreasonable or disproportionately large load on Company’s (or its third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the services; (iii) bypass any measures we may use to prevent or restrict access to the D·engage Service (or parts thereof); (iv) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Platform, except to the limited extent applicable laws specifically prohibit such restriction; (v) modify, translate, or otherwise create derivative works of any part of the D·engage Services or the Platform; or (vi) copy, rent, lease, distribute, or otherwise transfer any or all of the rights that You receive hereunder.
The Company reserves the right to suspend or terminate Your access to the Platform and the services with or without notice and to exercise any other remedy available under law, in cases where,
- You are in breach of any terms and conditions of this TOU;
- The Company is unable to verify or authenticate any information provided to Company by You;
- The Company has reasonable grounds for suspecting any illegal, fraudulent or abusive activity on your part; or
Once temporarily suspended, indefinitely suspended or terminated, You may not continue to use the Platform under the same account, a different account or re-register under a new account. The Company shall destroy and/or delete all the data and other information related to your account within 14 days of the date of termination. All provisions of the TOU, which by their nature should survive termination, shall survive termination, including without limitation, warranty disclaimers, indemnity and limitations of liability.
10. DISCLAIMER OF WARRANTIES
Other than as expressly set forth in the TOU, the Services are provided “AS IS” and “AS AVAILABLE” and without warranty of any kind. You agree that your use of the Services is at your risk
D·ENGAGE MAKES NO WARRANTIES OF ANY KIND TO YOU OR ANY THIRD PARTY WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OPERABILITY OR NONINFRINGEMENT, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED BY D·ENGAGE AND WAIVED BY YOU. FOR EXAMPLE, WE DO NOT MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE OPERATION OF THE SERVICES, THE OUTPUT OF THE SERVICES, OR THE RESULTS FROM THE SERVICES.
11. LIMITATION OF LIABILITY
IN NO EVENT SHALL D·ENGAGE, ITS AGENTS OR EMPLOYEES, HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR THE COST OF SUBSTITUTE GOODS OR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITY OR CLAIMS OF THIRD PARTIES) RELATING TO THE SERVICES, HOWEVER CAUSED, WHETHER BY NEGLIGENCE OR OTHERWISE, REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF WHETHER D·ENGAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You and any business or third party subject to the TOU through your use shall fully indemnify, hold harmless and defend (collectively “indemnify” and “indemnification”) D·engage and its directors, officers, employees, agents, stockholders and affiliates (collectively, “indemnified parties”) from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), whether or not involving a third party claim, which arise out of or relate to
- any violation of the TOU or Privacy
- your use of the Services, including the use of any other application, software or hardware in conjunction with the Service
- the unauthorized use of the Services.
Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”, constitute the confidential property of the Disclosing Party, ("Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any D·engage technology, performance information relating to the Services, and the terms and conditions herein shall be deemed Confidential Information of D·engage without any marking or further designation. Except as expressly authorized herein, the Receiving Party shall
(1)Hold in confidence and not disclose any Confidential Information to third parties and
(2)not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document:
- was rightfully in its possession or known to it prior to receipt of the Confidential Information;
- is or has become public knowledge through no fault of the Receiving Party;
- is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or
- is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
The TOU controls the relationship between D·engage and you. They do not create any third party beneficiary rights
If there is a conflict between the TOU and additional terms, the additional terms will control for that conflict
If you do not comply with the TOU and D·engage does not take action right away, D·engage is not giving up any rights that D·engage may have (such as taking action in the future).
If it turns out that a particular term of the TOU is not enforceable, this will not affect any other terms of the TOU.
The the laws of the U.K will apply to any disputes arising out of or relating to the TOU. All claims arising out of or relating to the TOU of the Services shall be litigated exclusively in courts of London, U.K, and you and D·engage consent to personal jurisdiction in those courts.
In case if you have queries, write to firstname.lastname@example.org