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Terms of ServiceLast updated: January 1, 2022
The Terms of Service (these "Terms" also referred to as this "Agreement") govern your use of and access to the services and products sold via Ngagge.com, the Shopify App marketplace, other e-commerce marketplaces, or other Software provided by Ngagge LLC, "Ngagge", "we", "us" or "our"). By using any of the Services, you agree to be bound by these Terms, as updated from time to time.
The terms "you," "your" and "Client" and "Customer" will refer to you. To be eligible to register for a customer account in order to use the Services, you must review and accept these Terms by clicking on the "I Accept", "Get Started", or "Start free trial" button or other mechanism provided by the applicable Software. If you are registering for a customer account in order to use the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to Ngagge that you have the authority to bind that organization to these Terms (and, in which case, the terms "you" and "your" and "Client" or "Customer" will refer to that organization). You must be 18 years or older to use the Services.
BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, YOU ARE NOT PERMITTED TO USE THE SERVICES.
1.1. "Authorized Reseller" means a Ngagge-authorized agent, vendor, or reseller of the Ngagge Software and Ngagge's Services, including, but not limited to, Shopify Inc. ("Shopify").
1.2. "Confidential Information" means all confidential information disclosed by or otherwise obtained from a party to or by the other party, whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information also includes all Customer Data and End User Communications submitted to Ngagge or collected through Customer's use of the Ngagge Software or its Services.
1.3. "Customer Data" means the data created or inputted by Customer or its End Users for the purpose of using the Services of Ngagge or facilitating Customer's use of the Services.
1.4. "Ngagge Software" means the software program supplied by Ngagge to Customer, including when obtained as an application from the Shopify App Store.
1.5. "Services" means Ngagge's text messaging transaction offering and include using Ngagge software to retrieve End User information from End User Communications, viewing data available from the End User Communications, and using Ngagge's marketing Software to send messages to End Users through SMS and MMS messages.
1.6. "Submissions" means any type of communication that might be sent by Customer or any End User.
1.7. "End User" means an individual who interacts with Customer, its Affiliates, and/or its Agents through the Services.
1.8. "End User Communications" mean the End User emails, SMS and MMS messages, and information submitted through the Services.
1.9. "Subscription Fees" are the fees that Customer is required to pay to utilize the Services as set forth in a Service Order. The Subscription Fees applicable to this Agreement are the periodic fees for (i) a certain capacity of SMS & MMS, and/or WhatsApp Business API messages to be sent through the Services and (ii) those for separate customer login accounts in excess of three during each billing period.
2. General Rules for Ngagge Software & Service
2.1 Acceptable Use Policy – Ngagge Software & Services.
2.1.1 Generally. Customer may not, and may not permit any third party to, use the Ngagge Software or Services in violation of (a) the CTIA Messaging Principles and Best Practices Guidelines; (b) the CTIA Short Code Monitoring Handbook; or (c) any other applicable laws, rules, and regulations, including, but not limited to, the Telephone Consumer Protection Act and those laws, rules, and regulations applicable to data privacy and use and consumer protection.
2.1.2 Programs. Customer shall be responsible for ensuring that all programs used in conjunction with the Ngagge Software or Services (including advertising or promotional campaigns, contests, drawing, raffles, lotteries, etc.) ("Programs"), including the administration thereof, comply with all applicable laws, rules, and regulations.
2.1.3 Enforceable Terms of Service. Customer shall be solely responsible for ensuring that all End Users who are engaged by Customer through the Ngagge Software are required to agree to enforceable Terms of Service related to the sending of SMS/MMS messages that include certain provisions that are intended to protect Ngagge, as described below.
18.104.22.168 Ngagge End User Terms. At all times during the Term, at the time and place in which Customer collects approval from its end users to subscribe to text message marketing, Customer shall, at Ngagge's direction, link to Ngagge's hosted end user terms for Customer (the "End User Terms"). Customer shall display the links to the applicable End User Terms in a style and manner as requested by Ngagge from time to time.
22.214.171.124 Ngagge makes no representation or warranty regarding the End User Terms, and you expressly agree that Ngagge is not providing legal advice and no attorney-client relationship is created by the use of the End User Terms. You further agree that you accept full legal responsibility for the End User Terms and have been advised to obtain independent legal counsel before implementing the End User Terms or any variation thereof.
126.96.36.199 Customers who would like to request any updates to these End User Terms must contact Ngagge at care@Ngagge.com and provide all suggested modifications to the End User Terms to Ngagge via written notice at least thirty (30) calendar days before such modifications go into effect. Ngagge will use commercially reasonable efforts to accommodate any such requested changes, provided that Ngagge, and not Customer, will have the final say with regard to any changes on the End User Terms.
2.1.4 Telephone Consumer Protection Act ("TCPA"). Customer is solely responsible and liable for ensuring that its use of the Ngagge Software or its Services comply with the TCPA, 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations of the Federal Communications Commission, 47 C.F.R. § 64.1200 et seq., and the Federal Trade Commission, 16 C.F.R. § 310, including, without limitation, ensuring that all phone numbers and other personal information used in connection with the Ngagge Software or its Services have been collected in accordance with the TCPA, ensuring that sufficient notice and consent has been received and maintained by Customer in connection with its use of the Ngagge Software or its Services under the Agreement, and for the preparation and distribution of all messages, content, and other materials delivered to the Customer's End Users and other recipients by and through the Ngagge Software or its Services.
2.1.5 Controlling the Assault of Non-Solicited Pornography and Marketing Acts ("CAN-SPAM"). Customer is solely responsible and liable for ensuring that its use of the Ngagge Software or its Services comply with the CAN-SPAM Act, 15 U.S.C. §§ 7701-7713.
2.1.6 Prohibited Content. Customer acknowledges and agrees to not hold Ngagge liable for any prohibited content that it or its End Users send over the Ngagge Software or via Ngagge's Services, including, but not limited to, content that may be obscene, indecent, misleading, fraudulent, racist, intolerant, harmful, or otherwise objectionable. In addition to, and without limitation to, the terms listed above, Customer acknowledges that Ngagge prohibits any use of the Ngagge Software or its Services in connection with any of the following types of content:
188.8.131.52 Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
184.108.40.206 Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
220.127.116.11 Pirated computer programs, viruses, spyware, worms, Trojan horses, or other harmful code;
18.104.22.168 Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; and
22.214.171.124 Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”).
2.1.7 Age Restriction. In order to use the Ngagge Software and/or its Services, Customer must be eighteen (18) years of age or older and capable of forming a binding contract with Ngagge, and not otherwise barred from using the Services under applicable law. Customer also agrees that it will not permit an End User under the age of eighteen (18) years to use the Ngagge Software without parental consent. Customer shall be solely responsible for any such collection of parental consent and any underage End Users' use of the Services.
2.2 Communications Equipment. Customer is solely responsible for obtaining and maintaining all of the appliances, hardware, software, and services that Customer may need to access and use the Ngagge Software and its Services. Without limiting the foregoing, Customer must obtain and maintain, and pay all charges, taxes, and other costs and fees related to, Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by Customer to access and use the Ngagge Software and its Services.
2.4 Passwords. Customer is responsible for protecting and safeguarding any keys, certificates, passwords, access codes, Customer IDs, or other credentials and login information (collectively, "Passwords") that have been provided to Customer or that are generated in connection with Customer's use of the Ngagge Software and its Services. Customer will not disclose or make available any Passwords other than to Customer authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords, the Ngagge Software, or its Services. Customer is solely and fully responsible for all activities that occur in connection with Customer's Passwords and accounts. Without limiting the foregoing, Customer is responsible for all charges and liabilities applicable to data and information transmitted to and stored under Customer's account on the Ngagge Software. In the event Customer believes the Passwords have been compromised, Customer is solely responsible for notifying Ngagge immediately by emailing such notice to care@Ngagge.com.
2.5 Changes to Service. Ngagge has the right to change, modify, update, add to, discontinue, or retire any aspect or feature of the Ngagge Software or its Services including, but not limited to, hours of availability, equipment needed for access or use, certain features and functionality, and the type and size of files that can be stored or transmitted. Ngagge may provide notice of material changes to the Ngagge Software or its Services by posting them on the Ngagge Website. It is Customer's responsibility to check the Ngagge Website periodically to be informed of any changes. You understand and agree that Ngagge may change the telephone number(s) and/or the credit card payment processing system. You agree that Ngagge will not be liable for damages (including consequential or special damages) arising out of any such change and you hereby waive any claims with respect to any such change, whether based on contractual, tort, or other grounds.
2.6 Termination of Service. Ngagge shall be entitled, without liability to Customer, to immediately suspend, terminate or limit Customer's access to the Ngagge Software and/or its Services, at Ngagge's sole discretion, at any time, including without limitation in the event (a) that Ngagge determines, in its sole discretion, that the Ngagge Software or its Services are being used in violation of applicable federal, state or local law or ordinance, this Agreement, or any agreement applicable to the Ngagge Software or the Services; (b) Ngagge, in its sole discretion, determines that the Ngagge Software and/or its Services are being used in an unauthorized, inappropriate, or fraudulent manner; (c) Ngagge determines that the use of the Ngagge Software and/or its Services adversely affect Ngagge's equipment or service to others; (d) Ngagge is prohibited by an order of a court or other governmental agency from providing the Ngagge Software or its Services; (e) of a denial of service attack or any other event which Ngagge determines, in its sole discretion, may create a risk to the Ngagge Software and/or its Services or to any other customers if Customer's access to the Ngagge Software and/or its Services were not suspended; or (f) of a security incident or other disaster that impacts the Ngagge Software and/or its Services or the security of Customer Data. In addition, Ngagge shall have the right to immediately deny or suspend Customer's access to the Ngagge Software or its Services in the event (a) Ngagge, or, if applicable, an Authorized Reseller, is not paid any amount due in connection with the Services; or (b) Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors by written notice; or (c) Customer's breach or alleged breach of this Agreement. Ngagge shall have no liability for any damages, liabilities, or losses as a result of any suspension, limitation, or termination of Customer's right to use the Ngagge Software and/or its Services in accordance with this Agreement, and any suspension, limitation, or termination of Customer's right to use the Ngagge Software and/or its Services shall be in addition to and not in lieu of any equitable remedies available to Ngagge.
2.7 Refusal of Service. Ngagge reserves the right to refuse service to any person or entity for any reason which Ngagge, in its sole discretion, deems to be appropriate.
2.8 Reservation of Rights. Ngagge reserves the right to determine any violation of the General Rules listed in Section 2 at its sole discretion.
3. SUBSCRIPTION AND PAYMENT
3.1. Subscription. A subscription is the purchase of Services from Ngagge and shall be subject to the terms and conditions of this Agreement.
3.2. Subscription Term.
3.2.1. Customer acknowledges and agrees to be held responsible for all Subscription Fees for the period specified on the applicable Service Order (“Subscription Term”) and acknowledges and agrees to pay all Subscription Fees for the Subscription Term and each renewal thereof, regardless of Customer's cancellation date. At the beginning of each Subscription period and each renewal thereof, Customer shall pay all Subscription Fees and all applicable taxes and other charges (collectively, "Fees") for such period on or prior to the start date of such period, at the then-current rates.
3.2.2. Ngagge will charge Customer's selected payment method (such as a credit card, debit card, or other method) for any Fees on the applicable payment date. If Ngagge cannot charge Customer's selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Ngagge will attempt to charge the payment method again as Customer may update its payment method information. In accordance with applicable law, Ngagge may update information regarding Customer's selected payment method if provided such information by Customer's financial institution.
3.3. Payment Processing. Ngagge, Ngagge's third party payment processor, or, if applicable, the Authorized Reseller, will charge Customer the Subscription Fees and applicable taxes for the Ngagge Software and Services rendered in advance of each billing period on or after the first day of such billing period. If Customer is paying by credit card or electronic check, (a) Customer hereby irrevocably authorizes Ngagge, or, if applicable, the Authorized Reseller, to charge the credit card or other payment method provided for any such amounts when due; (b) amounts due will be automatically charged in advance; and (c) if Customer's credit card expires or is declined, Customer hereby gives Ngagge, or, if applicable, the Authorized Reseller, permission to submit the credit card charge with a later expiration date and/or suspend Customer's access to the Ngagge Software and its Services until a new method of payment is provided. Ngagge, or, if applicable, the Authorized Reseller, reserves the right to have Customer complete a credit application to determine Customer's creditworthiness as a condition of receiving further Services.
3.4 Recurring Billing. By starting its Ngagge subscription and providing or designating a Payment Method, Customer authorizes Ngagge or Ngagge's third party payment processor to charge Customer a subscription fee at the then-current rate, and any other charges Customer may incur in connection with its use of the Ngagge subscription service to Customer's Payment Method. Customer acknowledges that the amount billed each period may vary for reasons that may include differing amounts due to promotional offers, including VIP Code redemption and promotional code redemption, and/or changing or adding a plan, and Customer authorizes Ngagge to charge its Payment Method for such varying amounts.
3.5. Billing Disputes. In the event Customer would like to dispute any bill it received from Ngagge, Customer acknowledges and agrees to provide Ngagge with written notice within fourteen (14) calendar days of delivery of the billing statement. If any issues or disputes are not received within this timeframe, Customer waives its right to said dispute. Any billing dispute is further governed by Section 11 (Dispute Resolution).
3.6. Late Payments. Late payments, including those resulting from credit card declines that the Customer fails to resolve within five (5) business days of being informed of the decline, will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If Ngagge, or, if applicable, the Authorized Reseller, must initiate a collection process to recover Subscription Fees due and payable hereunder, Ngagge, or, if applicable, the Authorized Reseller, shall be entitled to recover from Customer all costs associated with such collection efforts, including, but not limited to, reasonable attorneys' fees.
3.7.1. Cancellation by Ngagge. Ngagge may immediately cancel Customer's Subscription Term without notification to Customer under the following circumstances:
126.96.36.199. Customer's credit card expires, is canceled, or is otherwise terminated, and Ngagge is not immediately provided with another valid credit card or alternative form of payment by Customer;
188.8.131.52. Customer violates and/or fails to comply with any of the terms and conditions set forth in this Agreement.
184.108.40.206. A third party vendor (including, without limitation cellular network carriers) restricts or prohibits Customer (or Ngagge on behalf of Customer) from delivering text messages through the Services.
3.7.3. Cancellation by Customer. Customer may cancel its subscription of the Services at any time through the Ngagge Software or by providing written notice to Ngagge at least five (5) business days prior to the expiration of the then-current Subscription Term, with such cancellation effective as of the end of the then-current Subscription Term. Customer will continue to have access to the Services through the end of such Subscription Term and all Fees for such period shall remain due and payable. NGAGGE DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY CANCELLATIONS EXCEPT AS PROVIDED IN SECTION 3.5. To cancel, email your account representative.
4.1 License. Subject to the terms and conditions of this Agreement, Ngagge grants to Customer a non-exclusive, non-transferable, revocable license during the Subscription Term, without the right to sublicense, to use the Ngagge Software solely for the purposes of accessing and using the Services. Except for the limited license granted hereunder, Ngagge reserves all rights not expressly granted and no such additional rights may be implied.
4.2 Ownership. Customer acknowledges that (a) all right, title, and interest in and to the Ngagge Software and its Services, and all patents, copyrights, trade secrets, trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols, and other proprietary and intellectual property rights embodied therein or associated therewith, are and shall remain with Ngagge or its third-party licensors, as applicable; (b) no right or interest in the Ngagge Software or its Services is conveyed other than the limited license granted hereunder; (c) the Ngagge Software and its Services are protected by copyright and other intellectual property laws; and (d) Ngagge asserts that the Ngagge Software and its Services embody valuable confidential and secret information of Ngagge and/or its third-party licensors, the development of which required the expenditure of considerable time and money.
4.3 Restrictions. Unless Ngagge grants Customer permission, Customer shall not, and shall not permit any third party to: (a) sell, transfer, lend, provide or otherwise make available, or disclose to third parties the Ngagge Software, its Services, or any components thereof; (b) obscure, alter, or remove any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation appearing on or contained with the Ngagge Software, its Services, or any documentation or Ngagge materials related thereto; (c) modify or alter, copy, publish, exchange, trade, broadcast, or create derivative works based on the Ngagge Software or Ngagge’s Services; (d) “frame” or “mirror” any content forming part of the Ngagge Software or Ngagge’s Services; (e) reverse engineer, decompile, disassemble, decode, or otherwise attempt to discover the source code of the Ngagge Software; (f) bypass, delete, or disable any copy protection mechanisms or any security mechanisms on the Ngagge Software; or (g) access the Ngagge Software or Ngagge’s Services in order to (i) build a competitive product or service, (ii) translate the Ngagge Software or otherwise attempt to learn the source code, structure, algorithms, or internal ideas underlying the Ngagge Software, or (iii) copy any ideas, features, functions, or graphics of the Ngagge Software or Ngagge’s Services. In addition to these restrictions, Customer shall take all reasonable precautions to prevent unauthorized or improper use of the Ngagge Software or its Services.
4.4 Non-Assertion of Intellectual Property Infringement Claims. Customer will not assert, nor will Customer authorize, assist, or encourage any third party to assert, against Ngagge or any Authorized Reseller, any patent infringement or other intellectual property infringement claim with respect to the Ngagge Software, the Services, or any documentation or Ngagge materials related thereto.
4.5 License to Customer Marketing Content and Submissions.
4.5.1 Pursuant to Customer’s use of the Ngagge Software and its Services, Customer grants Ngagge, its Authorized Resellers, and any third-party partner website(s) a non-exclusive, transferable, royalty-free license during and after the Subscription Term to use Customer’s trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols, and all other marketing or promotional content provided by Customer to Ngagge ("Customer Marketing Content") in connection with the advertising, promotion, and sale of Customer’s products, services, or business, and to sublicense such Customer Marketing Content to third parties in connection with the provision of such Services. Customer further acknowledges and agrees that Ngagge or its sublicensees may modify Customer Marketing Content in order to effectively provide the Services ordered in Ngagge’s reasonable discretion, provided that no modifications shall materially alter the terms of any Customer offer without Customer’s prior written consent.
4.5.2 Customer grants Ngagge a perpetual, non-exclusive, non-transferable, royalty-free, worldwide right and license to use Customer Marketing Content on the Ngagge Website and to identify Customer on the Ngagge Website as one of its partners. In addition, Customer grants to Ngagge the right to use Customer Marketing Content and any performance data related to Customer’s use of the Ngagge Software and its Services in case studies, slide decks, and any other marketing materials.
4.5.3 Customer grants Ngagge a perpetual, non-exclusive, non-transferable, royalty-free, worldwide right and license to use all Customer Submissions for any purpose. Customer acknowledges and agrees that in accordance with the license granted to Ngagge in this Section 4.5.3, all Submissions may be published (except personal information) by Ngagge in any manner that Ngagge deems to be appropriate, including via all forms of media and publication. Customer is solely responsible for the content of all Submissions, including any violation of copyright, privacy, fraud or other applicable laws and regulations. Customer acknowledges and agree to hold Ngagge harmless and to defend and indemnify Ngagge in accordance with Section 8 (Indemnification) from any civil actions filed or threatened to be filed by any third party or entity who alleges that Customer’s Submissions support a legal cause of action.
4.6 Publicity. Either Ngagge or Customer may publicize the availability of the Services and the parties’ relationship through press releases, media interviews, and other public statements, provided that any press release will be provided to the other party in writing and at least forty-eight (48) hours before publication for the other party’s approval, which shall not be unreasonably withheld. Either Ngagge or Customer may include the other party’s name and logo in marketing materials featuring or referencing the availability of the Ngagge Software and/or its Services, provided that each party will comply with the other party’s trademark usage guidelines in doing so.
5. CONFIDENTIAL INFORMATIONITY
5.1.1 Customer’s Confidential Information includes Customer Data and End User Communications. Ngagge’s Confidential Information includes the Ngagge Software, all documentation related to and the product of all Services, and Ngagge’s financial, security, architectural, or similar information. The Confidential Information of each party shall include the terms and conditions of this Agreement and any revised Agreement entered into, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by or on behalf of such party. Notwithstanding anything else, Confidential Information shall not include any information that the Receiving Party (as defined below) can demonstrate: (i) at the time of disclosure is publicly available or becomes publicly available through no act or omission of the Receiving Party, (ii) has been disclosed to the Receiving Party by a third party who is not under, and to whom the Receiving Party does not owe, an obligation of confidentiality with respect thereto, or (iii) has been independently acquired or developed by the Receiving Party without use of the Confidential Information of Disclosing Party (as defined below).
5.2 Protection of Confidential Information.
5.2.1 Each party agrees to maintain Confidential Information in confidence and not to disclose it or any portion of it, except to its and its Affiliates’ employees and consultants who have a need to know such Confidential Information and are bound by obligations of confidentiality similar to those herein, for a period of three (3) years after the expiration or termination of this Agreement, using the same care and discretion to avoid disclosure, publication, or dissemination of the Confidential Information as it uses with its own confidential or proprietary information, but in no event less than reasonable care. Notwithstanding the foregoing, neither party shall have liability to the other with regard to any Confidential Information that is required to be disclosed by law or court order, provided that the party that received the Confidential Information (“Receiving Party”) shall provide reasonable advance notice to enable the party that provided the Confidential Information (“Disclosing Party”) to seek a protective order or otherwise prevent such disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6. CUSTOMER DATA
6.1 Customer Data. Customer represents and warrants that Customer is the owner or legal custodian of, or otherwise has the right to provide to Ngagge, all programs, data, information and other content transmitted via the Ngagge Software and hosted through its Services, including, without limitation, End User Data (as defined below) and the Customer Marketing Content. For clarity, the programs, data, information and content referenced in the preceding sentence are Customer Data. In addition, Customer warrants that Customer has the full authority to transmit and store the Customer Data through the Ngagge Software and its Services. Customer hereby authorizes the storage of Customer Data by Ngagge through the Ngagge Software and its Services. Customer acknowledges and agrees that Ngagge may: (a) compile aggregated and/or de-identified information in connection with providing the Ngagge Software and Services provided that such information cannot reasonably be used to identify Customer or any End User to whom Customer Data relates ("Aggregated and/or De-Identified Data"); and (b) use Aggregated and/or De-Identified Data for its lawful business purposes. Ngagge owns all right, title, and interest in and to Aggregated and/or De-Identified Data. Customer acknowledges that Customer bears sole responsibility for adequate security, protection, and backup of Customer’s Data on Customer’s equipment. Customer understands that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions, and other causes, which might result in Customer restoring files that are no longer usable. Without limiting the generality of Section 6, Ngagge will have no liability to Customer for any unauthorized access to, or use, alteration, corruption, deletion, destruction, or loss of any Customer Data on Customer’s equipment.
6.2 End Customer Data. In connection with Ngagge’s performance of its Services, Ngagge may process online data from Customer through the Ngagge Software regarding Customer’s End Users (the “End User Data”). Further, Customer acknowledges that such End User Data may include personal information of Customer’s End Users, as well as data relating to End User Communications. Customer acknowledges and agrees that it is a “business”, “controller” or other similar term of End User Data under applicable privacy laws. Ngagge is a “service provider”, “processor” or other similar term of End User Data under applicable privacy laws and will not use such End User Data for any purpose other than to provide the Ngagge Software and its Services to Customer and to improve the Ngagge Software and its Services generally. If Customer cancels its account with Ngagge or becomes inactive due to past-due amounts, Customer agrees that Ngagge may delete all End User Data after a period of four (4) years. Customer agrees that it may be necessary for Ngagge to access End User Data to respond to Customer’s request for assistance with any technical problems and/or queries. Customer shall hold Ngagge, its subcontractors, suppliers, and licensors harmless from any and all privacy or data protection claims relating to such access. Ngagge may transfer End User Data to its successor or acquirer in a merger, acquisition or other consolidation, including without limitation the sale of all or substantially all of Ngagge’s stock or assets or business to which this Agreement applies.
7. WARRANTIES AND DISCLAIMERS
7.1 Mutual Warranties.
7.1.1 Each party represents and warrants that: (a) it has the legal power to enter into the Agreement; (b) the signatory hereto has the authority to bind the Customer; and (c) when executed, the Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with the terms listed hereto.
7.2 Customer Warranties.
7.3.1 EXCEPT AS SET FORTH IN SECTION 7.1 (Mutual Warranties), NGAGGE MAKES NO REPRESENTATIONS OR WARRANTIES TO CUSTOMER. WITHOUT LIMITING THE FOREGOING, THE NGAGGE SOFTWARE, SERVICES, ACCESS THERETO, AND THE DOCUMENTATION, INCLUDING, BUT NOT LIMITED TO, THE END USER TERMS, ARE PROVIDED ON AN “AS IS” BASIS, AND NGAGGE AND ITS AGENTS: (A) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) DO NOT WARRANT THAT ACCESS TO THE NGAGGE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE OR PROVIDED THROUGH THE NGAGGE SOFTWARE OR ANY SERVICES IS ACCURATE, COMPLETE, OR FREE OF VIRUSES OR OTHER HARMFUL CONTENTS OR COMPONENTS; AND (C) SHALL IN NO EVENT BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY INACCURACY, ERROR, OR OMISSION IN, OR LOSS, INJURY, OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS, OR INTERRUPTIONS OF THE NGAGGE SOFTWARE, THE SERVICES, DOCUMENTATION, OR ANY OTHER SERVICES PROVIDED BY NGAGGE TO CUSTOMER. IF ANY WARRANTY DISCLAIMER IN THIS SECTION IS INVALID, ILLEGAL, OR UNENFORCEABLE IN ANY JURISDICTION, SUCH INVALIDITY, ILLEGALITY, OR UNENFORCEABILITY SHALL NOT AFFECT ANY OTHER WARRANTY DISCLAIMER OR PROVISION OF THIS SECTION OR INVALIDATE OR RENDER UNENFORCEABLE SUCH WARRANTY DISCLAIMER IN ANY OTHER JURISDICTION.
8.1 Indemnification by Customer.
220.127.116.11 Customer shall indemnify, hold harmless, and defend Ngagge and any of its officers, directors, employees, or affiliates against any and all losses, liabilities, claims, causes of action, demands, or damages of every kind brought by a third party, including all judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including expenses of litigation or arbitration, court or arbitration costs and attorneys' fees and other professional fees that Ngagge may incur as a result of such third-party claims, demands, or causes of action (collectively, “Losses”) that relate to or arise out of (a) Customer’s use of the Ngagge Software or Services in alleged violation of this Agreement or applicable law, rule or regulation; (b) any of Customer’s acts or omissions related to this Agreement, (c) any claim that Customer’s Data infringes or misappropriates the intellectual property, proprietary, or privacy rights of a third party; or (d) the End User Terms, as may be updated from time to time.
18.104.22.168 Subject to the allocation provisions of Section 8.2, Customer’s indemnification obligations in this Section 8.1 shall apply regardless of who may be at fault or otherwise responsible under any statute, rule, or theory of law, including but not limited to theories of strict liability, including but not limited to claims relating to the Telephone Consumer Protection Act, the Children’s Online Privacy Protection Act, or similar state and federal laws, and even though the subject loss, damage, or injury may have been caused in whole or in part by the concurrent, active, or passive negligence of Ngagge, a defect in the Ngagge Software or its Services, or the content of any End User Terms.
8.1.2 Ngagge’s Notice of Third-Party Claims. Ngagge shall give Customer prompt written notice (a “Claim Notice”) of any Losses or discovery of facts on which Ngagge intends to base a request for indemnification under Section 8.1. Ngagge’s failure to provide a Claim Notice to Customer under this Section 8.1.2 does not relieve Customer of any liability that Customer may have to Ngagge, but in no event shall Customer be liable for any Losses that result directly from a delay in providing a Claim Notice, which delay materially prejudices the defense of the related third-party claim. Each Claim Notice must contain a description of the third-party claim and the nature and amount of the related Losses (to the extent that the nature and amount of the Losses are known at the time). Ngagge shall furnish promptly to Customer copies of all papers and official documents received in respect of any Losses. Customer’s duty to defend applies immediately, regardless of whether Ngagge has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any third-party claim.
8.1.3 Customer Control of Defense. Customer may assume control of the defense, appeal, or settlement of any third-party claim that is reasonably likely to give rise to an indemnification claim under Section 8.1 (an “Indemnified Claim”) by sending written notice of the assumption to Ngagge on or before seven (7) business days after receipt of a Claim Notice to acknowledge responsibility for the defense of such Indemnified Claim and undertake, conduct, and control, through reputable independent counsel of its own choosing (which Ngagge shall find reasonably satisfactory) and at Customer’s sole cost and expense, the settlement or defense thereof.
8.1.4 Ngagge’s Obligations Regarding Customer’s Control of Defense. If Customer assumes control of the defense under Section 8.1.3, Ngagge shall fully cooperate with Customer in connection therewith; and may employ, at any time, separate counsel to represent it, provided that Ngagge is solely responsible for the costs and expenses of any such separate counsel.
8.1.5 Ngagge’s Control of Defense. Notwithstanding anything to the contrary in Section 8.1, upon giving written notice to Customer, Ngagge may take control of its defense to an Indemnified Claim with counsel of its choosing if:
22.214.171.124 the Indemnified Claim is one for which Ngagge properly gave Customer a Claim Notice under Section 8.1.2, and Customer fails to timely assume the defense or refuses to defend the Indemnified Claim under Section 8.1.3;
126.96.36.199 the Indemnified Claim seeks an injunction or other equitable relief against Ngagge that has a reasonable potential of impacting, directly or indirectly, customers of Ngagge other than Customer; or
188.8.131.52 Ngagge reasonably determines that there are one or more legal or equitable defenses available to it that are different from or in addition to those available to Customer and that counsel for Customer may not fully or adequately represent the interests of Ngagge.
8.1.6 Customer’s Obligations Regarding Ngagge’s Control of Defense. If Ngagge assumes control of the defense under Section 8.1.5, Customer shall reimburse Ngagge promptly and periodically for the costs properly incurred in defending against the Indemnified Claim (including its attorneys’ fees and expenses) and remain responsible to Ngagge for any Losses indemnified under Section 8.1.
8.1.7 Settlement of Indemnified Claims by Customer. Customer shall give prompt written notice to Ngagge of any proposed settlement of an Indemnified Claim. Customer may not, without Ngagge’s prior written consent, settle or compromise any indemnification-related claim or consent to the entry of any indemnification-related judgment unless such settlement, compromise, or consent:
184.108.40.206 includes an unconditional release of Ngagge from all liability arising out of such claim
220.127.116.11 does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Ngagge; and
18.104.22.168 does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of Ngagge.
8.1.8 Settlement of Indemnified Claims by Ngagge. Ngagge may not settle or compromise any claim or consent to the entry of any judgment regarding which it is seeking indemnification hereunder without the prior written consent of Customer, which Customer shall not unreasonably withhold, condition, or delay, unless
22.214.171.124 the Indemnified Claim is one for which Ngagge properly gave Customer a Claim Notice under Section 8.1.2, and Customer failed to assume the defense or refused to defend the Indemnified Claim under Section 8.1.3; or
126.96.36.199 such settlement, compromise or consent:
188.8.131.52.1 includes an unconditional release of Customer from all liability arising out of such claim;
184.108.40.206.2 does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Customer; and
220.127.116.11.3 does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of Customer.
8.2 Allocation of Liability. In the event a final judgment or award is entered against both Customer and Ngagge and such judgment or award includes a finding that Ngagge is liable in whole or in part for any enhanced, exemplary, or punitive damages because of reckless, wanton, or willful misconduct, then the parties’ respective liability shall be as follows:
8.2.1 In the event that only Ngagge is found to have engaged in conduct that is determined to be reckless, wanton, or willful, Customer shall have no obligation to indemnify Ngagge for any such judgments or awards.
8.2.2 In the event that both Ngagge and Customer are found to have engaged in conduct that is determined to be reckless, wanton, or willful, Ngagge’s sole obligation shall be to contribute to the payment of any enhanced, exemplary, or punitive damages in an amount proportional to its fault. Customer’s duty under Section 8.1 to defend and indemnify Ngagge for all liability that would have resulted from acts deemed to be negligent shall not be affected by this Section 8.2.
9. LIMITATION OF LIABILITY
9.1 Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NGAGGE WILL NOT HAVE ANY LIABILITY TOWARDS CUSTOMER FOR ANY DAMAGES ARISING FROM CUSTOMER’S USE OF THE NGAGGE SOFTWARE AND/OR SERVICES THAT NGAGGE PROVIDES TO CUSTOMER, INCLUDING, BUT NOT LIMITED TO, PROVIDING AND/OR HOSTING THE END USER TERMS, WHETHER THE CAUSE OF ACTION BE BASED ON TORT, BREACH OF CONTRACT, OR ANY OTHER LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, PUNITIVE, ACTUAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR DUE TO ANY CAUSE OF ANY NATURE. BY ENTERING INTO THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES TO HOLD NGAGGE HARMLESS FROM ANY LOSS OR HARM OF ANY NATURE DUE TO CUSTOMER’S USAGE OF THE NGAGGE SOFTWARE AND/OR SERVICES THAT NGAGGE PROVIDES TO CUSTOMER, WHETHER DIRECTLY OR INDIRECTLY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. NGAGGE’S TOTAL LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO NGAGGE IN THE TWELVE (12) MONTH PERIOD PRECEEDING THE CLAIM OR ACTION GIVING RISE TO THE LIABILITY.
10.1 Customer shall, at its own cost and expense, procure and maintain in full force and effect during the Term of this Agreement, policies of insurance, of the types and in the minimum amounts reasonably necessary and appropriate in its industry to perform its obligations under this Agreement, with a responsible insurance carrier duly qualified in those states (locations) where the Ngagge Software and its Services are to be performed or used. Unless Ngagge otherwise agrees in writing, a complying policy will include a coverage rider expressly providing for coverage of TCPA claims and will include a “most favored jurisdiction” provision. Upon Ngagge’s request, Customer will provide its certificate of insurance.
11. DISPUTE RESOLUTION
11.1 General. In the interest of resolving disputes between Customer and Ngagge in the most expedient and cost-effective manner, Customer and Ngagge agree that any dispute arising out of or in any way related to this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. CUSTOMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND NGAGGE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
11.2 Exceptions. Notwithstanding Section 11.1, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
11.3 Arbitrator. Any arbitration between Customer and Ngagge will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Ngagge. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
11.4 Notice. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Ngagge’s address for Notice is set forth in Section 12.4. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within thirty (30) days after the Notice is received, Customer or Ngagge may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Customer or Ngagge must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in Customer’s favor with a monetary award that exceeds the last written settlement amount offered by Ngagge prior to selection of an arbitrator, Ngagge will pay Customer the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Ngagge in settlement of the dispute prior to the arbitrator’s award; or (C) $15,000.
11.5 Fees. If Customer commence arbitration in accordance with this Agreement, Ngagge will reimburse Customer for Customer’s payment of the filing fee, unless Customer’s claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $15,000 or less, Customer may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of Customer’s billing address. If the arbitrator finds that either the substance of Customer’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Customer agree to reimburse Ngagge for all monies previously disbursed by it that are otherwise Customer’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits. Notwithstanding anything in this Agreement to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under this Section 11.
11.6 No Class Actions. CUSTOMER AND NGAGGE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER’S OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Ngagge agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
11.7. Modifications. Except as otherwise provided in this Agreement, if Ngagge makes any future change to this arbitration provision, other than a change to Ngagge’s address for Notice, Customer may reject the change by sending us written notice within thirty (30) days of the change to Ngagge’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes Customer rejected, will continue to govern any disputes between Customer and Ngagge.
11.8. Enforceability. If Section 11.6 is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void.
11.9 Third Party Disputes. Any dispute Customer has with any third party in connection with its use of the Services is solely between Customer and such third party. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER HEREBY IRREVOCABLY RELEASES NGAGGE AND ITS AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
12.1 Force Majeure. Ngagge shall not be liable in damages for any delay or default that is caused by conditions beyond its control, including, but not limited to, acts of God, earthquakes, fire, flood, epidemics, labor disputes, changes in law, regulations or government policy, government restrictions (including the denial or cancellation of any export or other necessary license), riots, wars, insurrections, and/or any other cause beyond the reasonable control of the party whose performance is affected (including transportation difficulties, acts or omissions of vendors or suppliers, or mechanical, electronic, internet service provider, or communications failure). Ngagge and Authorized Resellers are not responsible for server downtimes under any circumstances. If the force majeure continues for more than thirty (30) calendar days, either party may terminate this Agreement for convenience upon written notice to the other party.
12.2 Assignment. Customer may not assign or transfer its rights or delegate any obligations pursuant to this Agreement without the express prior written consent of Ngagge. Any assignment or transfer by Customer without the prior written consent of Ngagge shall be null and void. Ngagge may assign or transfer its rights or obligations pursuant to this Agreement without providing notice to Customer and without Customer’s prior consent, provided, however, that the Services shall continue to operate as specified in this Agreement. This Agreement shall inure to the benefit of each party’s permitted successors and assigns.
12.3 Independent Contractor. Neither Customer nor Ngagge shall be deemed to be an agent of the other and the relationship of Customer and Ngagge shall be that of independent contractors. Neither Customer nor Ngagge shall have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on behalf of the other party, or to bind the other party in any matter whatsoever.
12.4 Notices. Any notice or report required or permitted to be given or made under this Agreement by either party will be in English, in writing, and be deemed to have been fully given and received (a) when delivered personally; (b) when sent by confirmed facsimile; (c) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (d) one (1) business day after deposit with a commercial overnight carrier, with written verification of such receipt; or (e) to the extent expressly permitted in this Agreement, one (1) business day after being sent via email. Notices will be sent to the parties at the addresses set forth in this Agreement or such other address as a party may specify in writing to the other. All notices to Ngagge must be made to the address listed below and all notices to Customer must be made to the mailing or email address of Customer’s primary contact with Ngagge.
Ngagge Notice Address: Ngagge ATTN: Legal Department 6231 PGA Blvd Suite 104-178 Palm Beach Gardens 33418 care@Ngagge.com
Ngagge may broadcast notices or messages through the Ngagge Software or by posting notices or messages on the Ngagge Website to inform Customer of changes to the Ngagge Software and/or its Services or other matters of importance; Ngagge may also inform Customer of such broadcast by e-mail or surface mail.
12.5 Support. For Customer support, please email care@Ngagge.com. In providing support, Ngagge or a Ngagge agent may use a variety of tools to aid in the process of resolving Customer issues and may request that Customer provide additional information in order to resolve these issues. Customer hereby grants Ngagge and such agent the right to use those tools and any information Customer provides to Ngagge in order to provide Customer with support.
12.6 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
12.9 Severability. Should any term and condition hereof be declared illegal or otherwise unenforceable, it shall be severed from the remainder of this Agreement without affecting the legality or enforceability of the remaining portions.
12.10 Survival. Section 1 (Definitions), Section 3 (Subscription, Subscription Term, Subscription Fees, and Payment), Section 4 (Proprietary Rights), Section 5 (Confidentiality), Section 8 (Indemnification), Section 9 (Limitation of Liability), Section 11 (Dispute Resolution), and Section 12 (General) shall survive the termination or expiration of this Agreement.
1. PURPOSE AND SCOPE
1.2 When we refer to NGAGGE, we mean NGAGGE LLC, a Florida Limited Liability Company and affiliates NGAGGEVIDEO,NGAGGELIVE,NGAGGEMETRICS with a registered address at 6231 PGA Blvd, Suite 104-178, Palm Beach Gardens, FL 33418 ("NGAGGE", "we", "us", "our").
interact with any of NGAGGE's websites (including www.ngagge.com, NGAGGEVIDEO.com, NGAGGELIVE.com, and NGAGGEMETRICS.com) or our social media pages (collectively, the "Sites") ("website users");
attend an NGAGGE event or an event which NGAGGE sponsors ("event attendees");
use NGAGGE's communication and messaging products, customer workspaces, mobile applications, and our other applications and services (collectively, the "NGAGGE Services") ("customers");
are a marketing prospect, who is anyone whose data NGAGGE processes for the purposes of assessing customer eligibility ("marketing prospect"); or
receive marketing communications from NGAGGE.
1.4 For the purposes of the General Data Protection Regulation (or any successor or equivalent legislation in the UK) ("GDPR"), either NGAGGE LLC, I NGAGGEVIDEO,NGAGGELIVE,NGAGGEMETRICS any other NGAGGE company from time to time, is the controller of your personal data. Our Data Protection Officer can be contacted in writing at firstname.lastname@example.org.
2. PERSONAL DATA COLLECTED BY NGAGGE
2.1 PERSONAL DATA WE COLLECT AND RECEIVE
The personal data that we collect about you broadly falls into the categories set out in the following table. Some of this information you provide voluntarily when you interact with NGAGGE, or when you attend an event. Other types of information may be collected automatically from your device, such as device data and service data. From time to time, we may also receive personal data about you from third party sources (as further described in the table).
We may collect the following personal data about:
our website users;
recipients of marketing communications; and
Registration, contact, and company information:
first and last names;
your role in your company.
operating system type and version number, manufacturer and model;
unique device identifiers.
the website you visited before browsing to NGAGGE.com or affiliated websites;
how long you spent on a page or screen;
how you interact with our emails;
navigation paths between pages or screens;
date and time;
⦁ links clicked.
Third party source data:
profile information gathered from social networking sites;
information that you have viewed or interacted with our content;
The sources of this third party personal data may include:
Contact enrichment and lead generation providers; and
Targeted online advertising providers
We may collect the following personal data about event attendees:
Registration, contact and personal information:
first and last names;
your role in your company.
time and date of arrival;
Third party source data:
first and last names;
your role in your company.
The sources of this third party personal data may include:
The event organizer
We may collect the following personal data about our customers and end-users (to the extent applicable):
Registration and contact information:
first and last names;
your role in your company.
operating system type and version number, manufacturer and model;
browser type and language;
unique device identifiers.
the website you visited before browsing to the services;
how long you spent on a page or screen;
navigation paths between pages or screens;
session date and time; activity status (including first seen, last seen, last heard from - and last contacted);
tags applied within customer accounts
NGAGGE assigned user identifier.
Third party source data
profile information gathered from social networking sites;
information that you have viewed or interacted with our content;
approximate geolocation data.
2.2 COOKIES AND OTHER TRACKING TECHNOLOGIES
3. HOW AND WHY WE USE YOUR PERSONAL DATA
3.1 We collect and process your personal data for the following purposes and, if you are from the European Economic Area (EEA), the UK or Switzerland, on the following legal bases:
Providing and facilitating delivery of NGAGGE:We process your personal data to perform our contract with you for use of our services and to fulfill our obligations under applicable terms of service. Where we have not entered into a contract with you, we process your personal data in reliance on our legitimate interests to operate and administer NGAGGE. For example, to create, administer and manage your account.
Communicating with you about NGAGGE and providing customer support:We may send you service, technical and other administrative messages in reliance on our legitimate interests in administering NGAGGE. For example, we may send you messages about the availability or security of NGAGGE. We also process your personal data to respond to your comments and questions and to provide customer care and support.
Improving NGAGGE: We process your personal data to improve and optimize NGAGGE and to understand how you use NGAGGE, including to monitor usage or traffic patterns and to analyze trends and develop new products, services, features and functionality in reliance on our legitimate interests.
Sending marketing communications: We process your personal data to send you marketing communications via email, post or SMS about our products, services and upcoming events that might interest you in reliance on our legitimate interests or where we seek your consent. Please see the "Your Privacy Rights and Choices" section below to learn how you can control your marketing preferences.
Registering office visitors: We process your personal data for security reasons and for the purpose of hosting your visit to the extent such processing is necessary for our legitimate interests in protecting our premises and confidential information against unauthorized access and the safety of our staff and office visitors.
Managing event registrations and attendance: We process your personal data to plan and host events for which you have registered or that you attend, including sending related communications to you.
Maintaining security of NGAGGE: We process your personal data to control unauthorized use or abuse of NGAGGE, or otherwise detect, investigate or prevent activities that may violate NGAGGE policies or applicable laws, in reliance on our legitimate interests to maintain and promote the safety and security of NGAGGE.
Displaying personalized advertisements: We process your personal data to advertise to you and to provide personalized information, including by serving and managing advertisements on our Sites and on third party sites, in reliance on our legitimate interests to support our marketing activities and advertise our products and services or, where necessary, to the extent you have provided your consent.
Carrying out other legitimate business purposes: including invoicing, audits, fraud monitoring and prevention.
Complying with legal obligations: We process your personal data when cooperating or complying with public and government authorities, courts or regulators in accordance with our obligations under applicable laws and to protect against imminent harm to our rights, property or safety, or that of our users or the public, as required or permitted by law.
3.2 In certain circumstances, we may collect your personal data on a different legal basis. If we do, or if we use your personal data for purposes that are not compatible with, or are materially different than, the purposes described in this notice or the point of collection, we will explain how and why we use your personal data in a supplementary notice at or before the point of collection. Where we refer to legal bases in this section we mean the legal grounds on which organizations can rely when processing personal data.
3.3 Please note these legal bases only apply to you if you are resident in the EEA, the UK or Switzerland.
3.4 If you have any questions about our legal bases for processing your personal data, please contact us at email@example.com.
5. RETENTION OF YOUR PERSONAL DATA
5.2 Note that content you post may remain on the Sites even if you cease using the Sites or we terminate access to the Sites.
6. TRANSFERS OF YOUR PERSONAL DATA
6.2 Certain recipients (our service providers and other companies) who process your personal data on our behalf may also transfer personal data outside the country in which you are resident. Where such transfers occur, we will make sure that an appropriate transfer agreement is put in place to protect your personal data.
6.3 If you are a resident of the EEA, the UK or Switzerland, we will protect your personal data when it is transferred outside of the EEA, the UK or Switzerland by processing it in a territory which the European Commission has determined provides an adequate level of protection for personal data; or otherwise ensuring appropriate safeguards are in place to protect your personal data. For transfers of your personal data to:
NGAGGE based in the US, following the invalidation of the Privacy Shield, we will rely on the Standard Contractual Clauses approved by the European Commission;
NGAGGE service providers based outside of the US, we will rely on Standard Contractual Clauses approved by the European Commission; and
Recipients who are located outside of the EEA, the UK or Switzerland, following the invalidation of the Privacy Shield we will rely on Standard Contractual Clauses.
In addition, while no longer relying on it to transfer personal information protected under European data protection laws to the US, NGAGGE has certified under the EU-US Privacy Shield and the Swiss-US Privacy Shield and continues to adhere to the relevant Privacy Shield Principles for all the personal information we receive from Europe.
6.4 If you would like to find out more about international transfers, please contact our Data Protection Officer at firstname.lastname@example.org.
6.5 Notwithstanding the above, NGAGGE shall remain liable in cases of onward transfers to third parties.
7. PRIVACY SHIELD
For purposes of enforcing compliance with the Privacy Shield, we are subject to the investigatory and enforcement authority of the US Federal Trade Commission. Under certain circumstances, we may be required to disclose your personal data in response to valid requests by public authorities, including to meet national security or law enforcement requirements.
For more information about the Privacy Shield, see the US Department of Commerce's Privacy Shield website located at: ⦁ https://www.privacyshield.gov. To review our certification on the Privacy Shield list, see the US Department of Commerce's Privacy Shield self-certification list located at: https://www.privacyshield.gov/list and search for "NGAGGE".
In compliance with the Privacy Shield Principles, NGAGGE. commits to resolve complaints about our collection or use of your personal information. EU and Swiss individuals with inquiries or complaints regarding our Privacy Shield policy should first contact NGAGGE at email@example.com.
NGAGGE has further committed to cooperate with the panel established by the EU data protection authorities (DPAs) and the Swiss Federal Data Protection and Information Commissioner (FDPIC) with regard to unresolved Privacy Shield complaints concerning human resources data transferred from the EU and Switzerland in the context of the employment relationship.
If you have an unresolved privacy or data use concern that we have not addressed satisfactorily, please contact the Data Protection Commission. You can register a complaint at www.dataprotection.ie.
You may have the option to select binding arbitration for the resolution of your complaint under certain circumstances, provided you have taken the following steps: (1) raised your complaint directly with us and provided us the opportunity to resolve the issue; (2) made use of the independent dispute resolution mechanism identified above; and (3) raised the issue through the relevant data protection authority and allowed the US Department of Commerce an opportunity to resolve the complaint at no cost to you. To find out more about the Privacy Shield's binding arbitration scheme please see www.privacyshield.gov/article?id=My-Rights-under-Privacy-Shield.
8. HOW WE STORE AND SAFEGUARD PERSONAL DATA
We care about protecting personal data. That is why we put in place appropriate measures that are designed to secure your personal data. You can find out more about our technical and organizational safeguards on our Security page: https://www.ngagge.com/terms.
9. YOUR PRIVACY RIGHTS AND CHOICES
9.1 Depending on your location and subject to applicable laws, you may have certain data protection rights. If you are a resident of the EEA or the UK you have the following data protection rights:
If you wish to access, correct, update or request deletion of your personal data, you can do so at any time.
You can object to processing of your personal data, ask us to restrict processing of your personal data or request portability of your personal data.
You have the right to opt-out of marketing communications we send you at any time. If you no longer wish to receive our newsletter and promotional communications, you may opt-out of receiving them by clicking on the "unsubscribe" or "opt-out" link in the communications we send you. Please note, however, that it may not be possible to opt-out of certain service-related communications. You can let us know at any time if you do not wish to receive marketing messages by contacting us on NGAGGE chat or by contacting us using the contact details below.
Similarly, if we have collected and process your personal data with your consent, then you can withdraw your consent at any time. Withdrawing your consent will not affect the lawfulness of any processing we conducted prior to your withdrawal, nor will it affect processing of your personal information conducted in reliance on lawful processing grounds other than consent.
You have the right to complain to a data protection authority about our collection and use of your personal information. For more information, please contact your local data protection authority. Contact details for data protection authorities in the EEA and the UK are available ⦁ here.
9.2 You can exercise any of these rights by submitting a request to our Data Protection Officer at firstname.lastname@example.org.
9.3 If you are a California resident, you can find information about how we use your personal data and about your privacy rights in Section 12 of this notice. 9.4 You can also exercise control over the following uses of your information:
Opt-Outs. We will provide you with an opportunity to opt-out of having personal data used for certain purposes when we ask for this information. If you decide to opt-out, we may not be able to provide certain features of our offerings. You can revoke your consent at any point by contacting us on NGAGGE chat or by contacting us in writing on email@example.com.
10. CHILDREN'S PRIVACY
11. CHANGES TO THIS NOTICE AND QUESTIONS
12. COLLECTION AND USE OF PERSONAL DATA OF CALIFORNIA RESIDENTS
This Section 12 describes how NGAGGE collects, uses and shares Personal Information of California residents in our capacity as a "business" under the California Consumer Privacy Act of 2018 ("CCPA"), and their rights under the CCPA.
This Section 12 applies only if you are a California resident. For purposes of this section, "Personal Information" has the meaning given in the California Consumer Privacy Act ("CCPA").
information exempted from the scope of the CCPA;
information collected in a business-to-business context, namely, where the information reflects our communications or transactions with you in the context of performing due diligence on, providing services to, or receiving services from, a company, partnership, sole proprietorship, non-profit or government agency where you are an employee, controlling owner, director, officer or contractor of that organization;
activities governed by a different privacy notice, such as notices we give to California personnel or job candidates; or
Personal Information we collect, use, and share on behalf of our customers as a "service provider" under the CCPA.
12.2 YOUR CALIFORNIA PRIVACY RIGHTS
You have the following rights:
Right to Know Information You can request the following information about how we have collected and used your Personal Information during the past 12 months:
The categories of Personal Information we have collected.
The categories of sources from which we collected the Personal Information.
The business or commercial purpose for collecting and/or selling Personal Information.
The categories of third parties with whom we share the Personal Information.
The categories of Personal Information that we sold or disclosed for a business purpose.
The categories of third parties to whom the Personal Information was sold or disclosed for a business purpose.
Right to Know - Access. You can request a copy of the Personal Information that we have collected about you during the past 12 months.
Right to Deletion. You can ask us to delete the Personal Information that we have collected from you.
Right to Opt-Out. You have the right to opt-out of any "sale" of your Personal Information as defined in the CCPA.
Right to Nondiscrimination. You are entitled to exercise the rights described above free from discrimination prohibited by the CCPA.
12.3 HOW TO EXERCISE YOUR RIGHTS
We will need to verify your identity to process your information, access, and deletion requests and reserve the right to confirm your California residency. To verify your identity, we may require you to log into an NGAGGE online account (if applicable), provide government identification, give a declaration as to your identity under penalty of perjury, and/or provide additional information. These rights are not absolute, and in some instances, we may decline your request as permitted by law.
Your authorized agent may make a request on your behalf upon our verification of the agent's identity and our receipt of a copy of the valid power of attorney given to your authorized agent pursuant to California Probate Code Sections 4000-4465. If you have not provided your agent with such a power of attorney, you must provide your agent with written and signed permission to exercise your CCPA rights on your behalf, provide the information we request to verify your identity and provide us with written confirmation that you have given the authorized agent permission to submit the request.
12.4 PERSONAL INFORMATION THAT WE COLLECT, USE AND DISCLOSE
The categories of Personal Information we collect are described below by reference to the statutory categories of Personal Information specified in the CCPA (California Civil Code section 1798.140):
Identifiers (excluding online identifiers), such as first and last names, email addresses, phone numbers, avatars, company name, your role in your company, social media profile information; photo ID that you provide if we ask you to verify your identity; and document signatures.
Commercial information, such as records of your transactions with us and services considered.
Financial information, such as your credit card information, billing and mailing address and other payment-related information.
Online identifiers, such as operating system type and version number, manufacturer and model; browser type; screen resolution; IP address; unique device identifiers; and NGAGGE-assigned user identifiers.
Geolocation data, the approximate location associated with your IP address.
Professional or employment information, such as your job title and organizational affiliation.
California Customer Records (listed in California Civil Code section 1798.80), such as the Professional or employment information, Financial information, Commercial information and Identifiers listed above.
Sensory information, such as photos you choose to submit in our services and security camera footage captured in our offices.
Inferences drawn from any of the above information to create a profile reflecting your preferences, characteristics, and behavior.
The sources from which we collect these categories of Personal Information are described in Section 2 entitled Personal Data Collected by NGAGGE. The business/commercial purposes for which we use these categories of Personal Information are described in Section 3 entitled How and Why We Use Your Personal Data. The categories of third parties with which we share these categories of Personal Information, including for business purposes, are described in Section 4 entitled Sharing Your Personal Data.
The above summary of how we collect, use and share Personal Information describes our practices currently and for the 12 months preceding the effective date of this Notice.
Security PolicyEffective January 1, 2022
This ngagge Security Policy describes the organizational and technical measures ngagge implements to prevent unauthorized access, use, alteration or disclosure of subscriber data.
ngagge will promptly notify you in writing upon verification of a security breach that affects your data. Notification will describe the breach and the status of ngagge's investigation.
SSL / TLS encryption. All data transmitted between your ngagge's Chat App and our server are protected with SSL and TLS encryption. SSL and TLS are the security technologies used to establish an encrypted link between a web server and a browser. This encrypted link ensures that all data passed between a web server and browser remains private. SSL and TLS are industry standards used by millions of websites to protect the privacy of online transactions.
Encryption test and rating. SSL Labs assesses the security strength of websites and online applications (domains). Our website and service scores an "A" rating on SSL Labs' tests.
Firewall. As another layer of security, your ngagge's Chat App employs a firewall which receives SSL and TLS encrypted data, filters that data according to preset security standards then sends the filtered data to our server
International data transfers. All service data is stored in the United States. However both personal and non-personal data may be transferred from sources within the EU including Switzerland to our servers in the United States. For more information to how this information is protected see our International Date Transfer Policy.
This Policy sets out the privacy principles we follow with respect to transfers of personal data from the European Economic Area ("EEA") and Switzerland to the United States, including personal data we receive from individuals residing in the EEA or Switzerland who visit our web and mobile sites or apps and who use our service.
ngagge has certified adherence to and commits to apply the EU-US Privacy Shield Framework and the Swiss-U.S. Privacy Shield Framework as set forth by the US Department of Commerce regarding the collection, use and retention of this data.
For more information about the Privacy Shield, see the US Department of Commerce's Privacy Shield website located at: https://www.privacyshield.gov .
Data Storage and backup
Hosting. Our service is hosted in AWS facilities in the USA and protected by AWS security, as described at http://aws.amazon.com/security/sharing-the-security-responsibility and http://aws.amazon.com/security.
Additional security through use of VPC. All of our servers are within our own virtual private cloud (VPC) with network access control lists (ACL's) that prevent unauthorized requests getting to our network.
Data backup. We use AWS S3/Glacier for data backup and storage of service data.
Server audits. We audit server security through AWS, our hosting provider. Information about AWS security certifications and obtaining copies of security reports from AWS are available at http://aws.amazon.com/compliance/pci-data-privacy-protection-hipaa-soc-fedramp-faqs/
Separate accounts.Our service code is designed to ensure data privacy and to prevent one subscriber from accessing another subscriber's data. Through separate accounts with unique IDs and login credentials.
Password security. You have the ability to enhance your live chat account security by designating password, length, complexity, change frequency and the number of login attempts before "Captcha" verification is required.
2 factor login verification. You also have the ability to select 2 factor login verification to prevent login identity theft.
When We Are Involved In A Corporate Business Transaction. We may share your personal information if we become involved in a merger, acquisition, or sale of some or all of our assets.
Permissions. You can limit personnel access to customer data and other security sensitive features and information through permissions.
Credit card processing. All payment processing is done through Stripe, a third party payment processor. Payment data is collect by a Stripe form and sent directly to Stripe's servers. We do not receive or store any payment processing data on our server. For more information on Stripe's security practices, please see https://stripe.com/docs/security/stripe
Patient healthcare information. AWS servers are HIPAA compliant. Therefore you are able to accept this type information through our service.
Access logs. With respect to our service, we produce audit logs for all activity.
Confidentiality Agreements. Confidentiality Agreements.
Database access limitations Access to our database is granted only to a limited number of IT employees who need to work with subscriber data or our hosted server.
Account Management. You are responsible for managing your own user accounts and roles from within the ngagge service.
Password Security. You are responsible for protecting your own account and user credentials by using two-factor authentication and strong passwords for all those accessing your ngagge account.
Compliance.You are responsible for compliance with the Terms of Service and all applicable laws.
Notification of Security Issues123412.You are responsible for promptly notifying ngagge if your, or a user of yours, personal information has been compromised or if you suspect possible suspicious activities that could negatively impact security of the ngagge service or your account.
Testing Permission. You may not perform any security penetration tests or security assessment activities without the express advance written consent of ngagge.
Third PartiesEffective January 1, 2022
ngaggeprocesses personal data and also engages certain sub-processors that may process personal data submitted to ngagge's service.
- Amazon Web Services, Inc. Hosting and storage (USA)
- Mailchimp, Inc, Bulk mail processing (USA)
- Jitsi Meet, Video conference provider (USA)
- Microsoft Azure, Translation services (USA)
- Stripe, Inc. Payment processor (USA
This list may be updated by ngagge from time to time