Terms and Conditions for HexagonEngage Services
The following terms and conditions ("Terms of Service") apply to the provision of Garofalo Enterprises, Inc. ("HexagonEngage"), HexagonEngage membership subscriptions ("Services") and to the Customer who subscribes to Services through HexagonEngage ("Customer").
Effective Date: 22-December-2020
TABLE OF CONTENTS
1. Ordering Services and Membership Subscriptions
1. ORDERING SERVICES AND MEMBERSHIP SUBSCRIPTIONS
- 1.1 For purposes of these Terms of Service an order means (i) the online order that you submit or accept for the Services, (ii) any other written order (either in electronic or paper form) provided to you by HexagonEngage for acceptance that describes the Services you are purchasing and the price of such Services, signed by Customer, either manually or electronically, and/or, (iii) your use of the Services, ("Order").
- 1.2 Customer's use of the Services is governed by these Terms of Service, which are incorporated by reference in the terms of your Order.
- 1.3 Customer's use of the Services includes a representation that the individual placing the Order for Customer has the legal authority to enter into contractual commitments and make purchases for the Customer.
- 1.4 HexagonEngage's obligation to begin providing Services is contingent on Customer's satisfying HexagonEngage's credit approval criteria. Further, HexagonEngage may, in its sole discretion, accept or reject any Order Customer submits.
- 1.5 Customer warrants and represents that the Order is placed on behalf of an organization or business, and not a consumer.
- 1.6 The provision of the Services described in an Order constitutes HexagonEngage's acceptance of the Order.
- 1.7 HexagonEngage reserves the right to anonymously aggregate Customer Data for research, analysis and trends, of which these findings may be sold or leased to third parties. Customer grants HexagonEngage and our successors a nonexclusive, worldwide, transferable, fully-paid and royalty-free license to use, reproduce, display, modify, adapt, distribute, and perform any findings from research, analysis and trends produced from Customer Data in connection with providing the Service.
2. HexagonEngage Obligations
2. HexagonEngage OBLIGATIONS
- 2.1 HexagonEngage will provide Services to Customer subject to these Terms of Service.
- 2.2 HexagonEngage reserves the right to change these Terms of Service without notice, other than by posting the changes to the HexagonEngage site: http://www.hexagonengage.com/policies/
- 2.3 HexagonEngage will use its commercially reasonable best efforts to provide security measures to protect the loss, misuse and alteration of the information under our control.
- 2.4 HexagonEngage will use its commercially reasonable best efforts to encrypt at the application level all data, considered sensitive data, which must be treated as confidential under state or federal law or under Customer's contractual obligations to others. Sensitive data includes, but is not limited to, Social Security Numbers, financial account numbers, driver's license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated there under) and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated there under).
3. Customer Obligations
3. CUSTOMER OBLIGATIONS
- 3.1 Customer agrees: (i) comply with applicable law and these Terms of Service, (ii) pay the fees for the Services when due, (iii) cooperate with HexagonEngage's investigation of service outages and any suspected breach of these Terms of Service, (iv) ensure your customer account information as it appears in the online control panel is true, accurate, and complete, (v) all of Customer end-users' compliance with this Terms of Service.
- 3.2 Customer may not resell the Services, in compliance with the terms of these Terms of Service. Customer remains responsible for use of the Services by any third party to the same extent as if Customer were using the Services.
- 3.3 Customer is solely responsible for the security and content of all Customer data stored in HexagonEngage's hosted environment and all such data is and at all times shall, remain Customer's exclusive property ("Customer Data"). "Content" refers to content featured or displayed through the Service, including without limitation text, data, articles, images, photographs, graphics, software, applications, designs, features, and other materials that are available on the Service or otherwise available through the Service. "Content" also includes Services. "User-Generated Content" is Content, written or otherwise, created or uploaded by Customer's end-users.
- 3.4 Customer is solely responsible for: (i) determining the suitability of the Services in light of the type of Customer Data and/or User-Generated Content stored by you or your end-user(s); (ii) the use of HexagonEngage's hosted environment tool and/or the Services by any of your employees or other user(s) who, either with or without Customer's authorization, gain access to the hosted environment; and (iii) taking all commercially reasonable steps to mitigate the risks inherent in transmitting Customer Data and / or User-Generated Content to and from and while stored on the hosted environment using the Services, including any Customer Data and / or User-Generated Content loss or corruption.
- 3.5 Customer is responsible for selecting and securing the appropriate authentication procedures to allow access to Customer's account. Customer is not authorized to provide account access, passwords, or passphrases for HexagonEngage to any third party.
- 3.6 Customer shall only use or allow the use of the Services in compliance with the terms of paragraph 4, (Acceptable Use) of these Terms of Service.
- 3.7 Customer shall promptly notify HexagonEngage of any data breach or unauthorized access to HexagonEngage's network or servers and accounts. Customer will take all commercially reasonable steps to cooperate with HexagonEngage's investigation and resolution of the reported breach or unauthorized access.
4. Acceptable Use
4. ACCEPTABLE USE
- 4.1 Customer shall use the Services in compliance with all applicable state, federal, or international laws, statutes or codes, specifically including data protection and privacy laws, as well as laws relating to unsolicited commercial electronic messages.
- 4.2 Customer is responsible for all acts and omissions of its end-user(s) in connection with receipt or use of the Services. Customer agrees, and will ensure its end-user(s) agree, to act responsibly and not use the Services for any illegal or unauthorized purpose including, but not limited to:
- Hacking, phishing, spamming, identity theft, financial fraud, e-mail spoofing, virus distribution, network attacks, pirating software, harassment, using malware, spyware, copyrighted infringement under the Digital Millennium Copyright Act ("DMCA"), trademark infringement, sharing illegal software, and any unauthorized use of images, internet accounts or computers or any activity that would violate the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003.
- For the purposes of Acceptable Use, the term Spamming includes, but is not limited to: (i) sending unsolicited outbound bulk email regardless of the content; (ii) Junk mail; (iii) unsolicited commercial email; (iv) unsolicited instant messaging; (v) unsolicited mobile phone messaging advertising; (vi) email address cultivating, or any unauthorized collecting of email addresses without prior notification of the email address owner and (vii) mailing lists without closed-loop ("Confirmed Opt-in"), subscription confirmation without retained messages and/or unsubscribe links.
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
- Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network.
- Intentionally or recklessly introducing any virus or other contaminating code into the HexagonEngage hosted environment.
- Collecting or using information, including email addresses, screen names or other identifiers, by deceit, (such as, phishing, Internet scamming, password robbery, spidering, and harvesting).
- Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting.
- Distributing software that covertly gathers or transmits information about an end-user.
- Any activity intended to withhold or cloak identity or contact information, including the omission, deletion, and forgery or misreporting of any transmission or identification information, such as return mailing and IP addresses.
- Interference with service to any user of the HexagonEngage hosted environment including, without limitation, mail bombing, flooding, or deliberate attempts to overload a system and broadcast attacks.
- Any action that directly or indirectly results in any of HexagonEngage's IP space being listed on any abuse database (i.e. Spamhaus).
- Conducting any gambling activity in breach of the terms paragraph 4.1.
- Distribution or any other use of copyrighted material not owned by Customer or Customer's end-user.
- Any action that is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to HexagonEngage.
- Content that incites violence, threatens violence, is excessively violent, contains harassing content, hate speech, racism, or discriminates against race, religious creed, color, national origin, ancestry, physical ability/disability, mental ability/disability, medical condition, marital status, age, sex, sexual identity, or sexual orientation.
- Any action that results in Customer's official listing on the Register of Known Spam Operations (ROKSO) database maintained at https://www.spamhaus.org/rokso/
- Use of public proxies, Internet Relay Chat (IRC), or any application layer protocol when utilized to mask activities defined as malicious within these terms.
- Providing instructions or discussions about performing illegal activities
- or any other content HexagonEngage deem to be inappropriate
- 4.3 Customer may not use any shared system provided by HexagonEngage in a way that unnecessarily interferes with the normal operation of the shared system, or that consumes a disproportionate share of the resources of the system. Upon HexagonEngage's awareness of such a situation, Customer account may result in a warning, and if no action is taken to reduce the excessive use, your Customer account may be suspended.
- 4.4 Customer agrees that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers' data that is stored on the same system.
5. Termination for Violation of Acceptable Use
5. TERMINATION FOR VIOLATION OF ACCEPTABLE USE
- 5.1 HexagonEngage has the right to investigate potential violations of paragraph 4. If HexagonEngage determines that a breach has occurred, then HexagonEngage may, in its sole discretion:
- Restrict Customer's and its end-users' access to the Services;
- Remove or require removal of any offending Content;
- Terminate the Services and/or Order for cause;
- Exercise any other rights and remedies it may have, at law or in equity.
- 5.2 Except in an emergency or as may otherwise be required by law, before undertaking the actions in paragraph 5.1, HexagonEngage will attempt to notify Customer by any reasonably practical means under the circumstances, such as, without limitation, by telephone or e-mail. Customer will promptly notify HexagonEngage of any event or circumstance related to the Services and/or Order, Customer's or any user's use of the Services, or content of which Customer becomes aware, that could lead to a claim or demand against HexagonEngage, and Customer will provide all relevant information relating to such event or circumstance to HexagonEngage at HexagonEngage's request.
6. Term and Renewal
6. TERM AND RENEWAL
- 6.1 Term. The initial term for each Order begins on the effective date stated in an Order or, if no effective date is stated, the initial term shall be begin on the date HexagonEngage makes the Services available for Customer's use ("Effective Date") and continues for the period stated in the Order ("Expiration Date"). If no period is stated in the Order, then the initial term shall be one (1) month. Upon expiration of the initial term, the Order will not automatically renew for successive renewal terms, unless and until either party gives the other a written notice of renewal prior to the expiration of the initial term (or then-current renewal term, as applicable, following the process in 6.3 below.
- 6.2 Renewal. Customer may chose to renew services which would constitute a new Order. Within sixty (60) days of an Expiration Date, Customer may chose a new term duration for services: one (1) year subscription plan, multi-year subscription plan, or month-to-month subscription plan.
- 6.3 Cancellation/Non-Renewal. Customer may give notice of non-renewal or cancellation by logging in to their account and submitting a cancellation technical support ticket. No other form of cancellation will be effective.
7. Billing and Account Set-Up
7. BILLING AND ACCOUNT SET-UP
- 7.1 HexagonEngage will charge Customer and Customer agrees to pay when due the fees for the Services in accordance with its Order. Customer shall pay all applicable taxes arising from Customer's use of Services or Customer's payment of amounts due to HexagonEngage under the Order.
- Monthly Fees. For Services provided on a month-to-month term, HexagonEngage will charge Customer's credit card monthly, without invoice, beginning on the Effective Date and continuing on the same date each successive month until the end of the term.
- Yearly or Multi-Year Fees. For Services provided over a term greater than one month, HexagonEngage will provide Customer with an invoice.
- Taxes. The Customer acknowledge and agrees that the Services may be subject to certain Taxes and Fees. Accordingly, HexagonEngage shall invoice the Customer for Taxes and Fees associated with the Services.
- 7.2 HexagonEngage may increase fees for the Services provided under an Order upon thirty days advance written notice as follows:
- For Services provided on a month-to-month term, HexagonEngage may, increase fees effective the first day of the next month following the notice period.
- For Services provided over a term greater than one month, HexagonEngage may, increase fees for the services provided under an Order as of the first day of the next renewal term beginning more than thirty (30) days from the date following the notice period.
- 7.3 HexagonEngage may suspend all Services (including services provided under multiple Orders or other contracts with Customer) if charges to Customer's credit card or other payment facility are rejected, or Customer fails to make payment by an agreed upon alternative payment method. HexagonEngage may charge interest on overdue amounts at five percent (5%) per month (or the maximum legal rate if it is less than 5%).
- 7.4 In the event HexagonEngage brings a legal action or engages a collection agency to collect Customer's unpaid balances, Customer will be liable for payment of all reasonable costs of collection, including legal fees and court costs. Any "credit" that HexagonEngage may owe Customer, such as a credit for failure to meet a Service Level Agreement, will be applied to fees due from you for Services, and will not be paid to you as a refund.
- 7.5 Refunds and Guarantees:
- Refunds for prepaid Services will be given for full months only in accordance with the terms of the applicable Service Level Agreement ("SLA").
- To be eligible for a refund or claim a SLA guarantee, Notice of cancellation must be given before the month in question begins. Setup fees are not refundable. The cost of domain will be deducted from the money refunded if the user's domain was registered via HexagonEngage's domain.
- 7.6 If there is a dispute with respect to any portion of an invoice, Customer shall pay the undisputed portion of the fees when due and provide written details specifying the basis of any disputed portion of the invoice.
- 7.7 Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate.
- 7.8 Customer authorizes HexagonEngage to obtain a credit report on Customer at any time during the term of an Order.
8. Suspension of Services
8. SUSPENSION OF SERVICES
- 8.1 HexagonEngage may suspend some or all of the Services without liability to Customer if Customer (i) fails to pay the applicable fees for the Services when due (ii) the Services are being used, have been used, or will, with commercially reasonable certainty, be used in breach of these Terms of Service; (iii) Customer fails to cooperate with an investigation of any suspected breach of the Acceptable Use provisions of these Terms of Service; (iv) HexagonEngage reasonably believes that the Services have been accessed or utilized in any way by a third party without Customer's consent, or (v) suspension of services is reasonably necessary to protect HexagonEngage's hosting environment and/or its customers.
- 8.2 HexagonEngage will provide Customer reasonable advance notice of a suspension based on a violation of these Terms of Service and a chance to cure the violation on which the suspension is based, unless HexagonEngage determines, in its reasonable commercial judgment, that an immediate suspension is necessary to protect HexagonEngage's network and its customers' data from an imminent, significant operational, network integrity or security risk.
- 8.3 Suspensions based on Customer's breach of these Terms of Service will not relieve Customer's obligation to pay for the suspended Services during the period of suspension. Any suspension imposed under this paragraph will be terminated upon Customer's cure of the breach causing the suspension. In the event the Customer is unable to cure the breach within fifteen (15) days from the date on which the breach occurred, the suspension may be treated as a termination for Cause. If Customer's Services are compromised, then Customer must resolve the cause of the compromise before HexagonEngage will reinstate service.
- 8.4 In the case that Service is suspended for Customer's breach of these Terms of Service HexagonEngage shall have the right to deny access to, and/or, destroy data stored on the compromised server or account. HexagonEngage may at its own discretion allow access to a suspended account.
9. Termination for Cause
9. TERMINATION FOR CAUSE
- 9.1 Customer may, upon written notice, terminate an Order for breach of these Terms of Service if HexagonEngage (i) materially fails to provide the Services as agreed and does not remedy that failure within fifteen (15) days of your written notice describing the failure; (ii) materially fails to meet any other obligation stated in the Order and does not remedy that failure within thirty (30) days of Customer's written notice describing the failure.
- 9.2 HexagonEngage may, upon written notice, terminate an Order if Customer (i) provided materially inaccurate or incomplete information of the purpose of obtaining the Services; (ii) Customer did not have the legal right or authority to enter the Order; (iii) Customer fails to make payment of any invoiced overdue amount within five (5) Business Days of our written notice of delinquency; (iv) Customer made payment arrangements via credit card or other third party, and the third party refuses to honor or reverses HexagonEngage's charges; (v) Customer is in breach of the Acceptable Use provisions of these Terms of Service and (v) Customer fails to comply with any other obligation stated in the applicable Order and does not remedy the failure within fifteen (15) days of HexagonEngage's written notice to Customer describing the failure.
- 9.3 Either party may terminate an Order with immediate effect on written notice if the other party (or we reasonably believe that the other party) (i) is unable to pay its debts; (ii) enters into compulsory or voluntary liquidation; (iii) convenes a meeting of its creditors; (iv) has a receiver or manager or an administrator appointed (or an application is made to the court for the same); or (v) ceases for any reason to carry on business or takes or suffers any similar action which means that it may be unable to pay its debts (each an "Insolvency Event"). Notwithstanding anything to the contrary in the Order, the fees for the Services shall become due immediately upon the occurrence of an Insolvency Event.
10. Hosted Services/Technical Support/Limited Warranty
10. HOSTED SERVICES/TECHNICAL SUPPORT/LIMITED WARRANTY
- 10.1 HexagonEngage will provide all Services in compliance with our Service Level Agreement found at: http://www.hexagonengage.com/policies/sla/
- 10.2 HexagonEngage technical support services are provided via email and phone. HexagonEngage has two categories of technical support (i) Extended Support and (ii) Standard Support the features of each category of support are described at: http://www.hexagonengage.com/support/.
- 10.3 HexagonEngage technical support is available only to its Customers.
- 10.4 HexagonEngage has no support obligation to any other party.
- 10.5 HexagonEngage provides basic technical support and maintenance of Services at the rate specified in Customer's Order, as a courtesy ("Courtesy Support") to Customer. Additional technical support will be provided, as agreed upon between the parties from time to time. HexagonEngage has no liability for any lost or corrupted Customer Data and / or User-Generated Content resulting from the provision of Courtesy Support.
- 10.6 Any services that HexagonEngage are not contractually obligated to provide but that we may perform for Customer at Customer's request and without any additional charge are provided on an AS IS and AS AVAILABLE basis.
- 10.7 HexagonEngage has no obligation to provide security other than as expressly stated in the agreement or order.
- 10.8 Some of the Services are designed to help Customer comply with various regulatory requirements that may be applicable to Customer. However, Customer is responsible for understanding the legal and regulatory requirements applicable to Customer and Customer's use of the Services, and for selecting and using those Services in a manner that complies with Customer's obligations under the Services and the applicable legal and regulatory requirements.
- 10.9 HexagonEngage personnel may from time to time recommend third party software or other products and services for your consideration and may also make available to your third-party products or services, including third-party applications through deployment or implementation tools. HexagonEngage makes no representation or warranty whatsoever regarding products and services that are not purchased from HexagonEngage or produced/manufactured by HexagonEngage. Your use of any such products and services is governed by the terms of your agreement with the provider of those products and services.
- 10.10 HexagonEngage may periodically run security scans. A specific user account called 'sysadmin' will be present on all subscriptions related to Services for the purpose of security scans and other management functions.
11. User-Generated Content
11. USER-GENERATED CONTENT
- 11.1 Responsibility for User-Generated Content: Customer may create User-Generated Content while using the Service. Customer is solely responsible for the content of, and any harm resulting from, any User-Generated Content that you post, upload, link to or otherwise make available via the Service, regardless of the form of that Content. HexagonEngage is not responsible for any public display or misuse of Customer's User-Generated Content.
- 11.2 Ownership of Content and Right to Post: Customer retain ownership of and responsibility for User-Generated Content you create. If you're posting anything you did not create yourself, you agree that you will only submit User-Generated Content that you have the right to post, and you will fully comply with any third party licenses relating to User-Generated Content you post.
- 11.3. HexagonEngage May Remove Content: HexagonEngage does not pre-screen User-Generated Content, but we have the right (though not the obligation) to refuse or remove any User-Generated Content that, in our sole discretion, violates any HexagonEngage terms or policies.
- 11.4. License Grant to HexagonEngage: Customer's User-Generated Content belongs to you, and you are responsible for Content you post even if it does not belong to you. However, we need the legal right to do things like host it, publish it, and share it. Solely to allow us to provide the Service and to host the User-Generated Content you upload to the Service without violating any rights you have in it, Customer grants HexagonEngage and our successors a nonexclusive, worldwide, transferable, fully-paid and royalty-free license to use, reproduce, display, modify, adapt, distribute, and perform the User-Generated Content in connection with providing the Service. This license does not grant HexagonEngage the right to sell your User-Generated Content or otherwise distribute it outside of our Service.
- 11.5 License Grant to Other Users: Any User-Generated Content Customer posts publicly, including calendar events, and comments, may be viewed by others. By setting your User-Generated Content to be viewed publicly, Customer agrees to allow others to view and access that User-Generated Content.
- 11.6 Moral Rights: Customer retains all moral rights to User-Generated Content you upload, publish, or submit to any part of the Service, including the rights of integrity and attribution. However, you waive these rights and agree not to assert them against us, to enable us to reasonably exercise the rights granted in Section 11, but not otherwise. You understand that you will not receive any payment for any of the rights granted in this Section.
To the extent such an agreement is not enforceable by applicable law, you grant HexagonEngage a nonexclusive, revocable, worldwide, royalty-free right to (1) use the Content without attribution; and (2) make reasonable adaptations of the Content as provided in this Section.
12. Subscription Limits, Data Storage, and Bandwidth Consumption
12. SUBSCRIPTION LIMITS, DATA STORAGE, AND BANDWIDTH CONSUMPTION
- 12.1 Customer's selected subscription plan as specified in your Order, may include subscription limits for the Services provided by HexagonEngage, including but not limited to, (i) a limitation on the number of residents which may be added as data records; (ii) a limitation on the data storage capacity allocated for the Customer's data, files, and content; and/or (iii) a limitation on the number of user accounts which may access the Services.
- 12.2 If Customer's usage of Services exceeds the subscription limits as specified in your Order, Customer will be charged an overage fee in addition to your Order.
- 12.3 Excessive Bandwidth Use: If HexagonEngage determines Customer's bandwidth usage to be significantly excessive in relation to other customers, HexagonEngage reserves the right to suspend Customer's account or throttle Customer's hosting until Customer can reduce your bandwidth consumption.
13. Warranty Disclaimers
13. WARRANTY DISCLAIMERS
- 13.1 HexagonEngage DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES, INCLUDING IMPLIED TERMS CONDITIONS OR WARRANTIES RELATING TO SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- 13.2 ALL SERVICES PROVIDED BY HexagonEngage ARE ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS AND HexagonEngage MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PROVISION OF SUCH SERVICES. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH THE CUSTOMER. HexagonEngage EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, ACCURACY OF DATA, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THIS MEANS THAT HexagonEngage DOES NOT PROMISE THE CUSTOMER THAT THE SERVICES ARE FREE OF PROBLEMS. Without limiting the generality of the foregoing, HexagonEngage makes no warranty that the Services will meet the Customer's requirements or will be uninterrupted, timely, secure, or error free, or that defects will be corrected. HexagonEngage makes no warranty as to the results that may be obtained or as to the accuracy or reliability of any information obtained through the Services. No advice or information, whether oral or written, obtained by the Customer through the Services or from HexagonEngage or our subsidiaries/other affiliated companies will create any warranty. HexagonEngage disclaims all equitable indemnities.
14. External / Third-Party Websites
14. EXTERNAL / THIRD-PARTY WEBSITES
- 14.1 HexagonEngage provides external links to other websites as a service to our website's visitors. The dynamic nature of the Internet prevents HexagonEngage from guaranteeing that these sites will be free of objectionable content. HexagonEngage is NOT responsible for content on any externally-linked sites. These links are provided solely as a convenience to the Customer. By linking to these websites, HexagonEngage does not create or have an affiliation with, or sponsor such third party websites. The inclusion of links within our Services does not constitute any endorsement, guarantee, warranty, or recommendation of such third party websites. HexagonEngage has no control over the legal documents and privacy practices of third party websites, and by using them, the Customer may be giving those third parties permission to use or control Customer information in ways HexagonEngage would not. As such, Customer access any third party websites at your own risk. This includes any advertisements displayed on a HexagonEngage website, product, system, or service.
15. Scheduled Maintenance and Downtime
15. SCHEDULED MAINTENANCE AND DOWNTIME
- 15.1 HexagonEngage will use its commercially reasonable efforts to provide services 24 hours a day, seven days a week.
- 15.2 Customer acknowledges that from time to time the services may be inaccessible or inoperable for various reasons, including:
- Periodic maintenance procedures or upgrades ("Scheduled Downtime")
- Service malfunctions, and causes beyond HexagonEngage's control or which are not reasonably foreseeable by HexagonEngage, including the interruption or failure of telecommunications or digital transmission links.
- Hostile network attacks, or network congestion or other failures.
- 15.3 HexagonEngage is not responsible for any downtime caused by conditions specified in 15.2 or due to Customer's actions that breach any term of this Order.
- 15.4 HexagonEngage will provide a minimum of 48 hours advance notice to the Customer for non-emergency maintenance or Scheduled Downtime, and will use commercially reasonable efforts to minimize any other disruption, inaccessibility and/or inoperability of its web servers.
- 16.1 Customer agrees to indemnify and hold HexagonEngage, and each of its directors, officers, employees, shareholders and agents (each an "Indemnified Party") harmless from any and all damages, liabilities, fines, penalties, losses and/or claims of whatsoever kind or nature, arising from the Customer's use of HexagonEngage's hosted environment or the Services
- 16.2 HexagonEngage may from time to time, at the request of the Customer, be enlisted to perform administration tasks on Customer data. Customer agrees and holds HexagonEngage harmless against any damage caused to Customer in the performance of such administration tasks.
- 17.1 Customer represents and warrants:
- That Customer is not located in or a national of any country that is embargoed or restricted under export regulations or are otherwise a person or entity to which HexagonEngage is legally prohibited from providing the Services.
- Customer will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the Services or any Information or technical data provided by HexagonEngage under these Terms of Service or any Order or agreement in which they are incorporated in any manner which would cause HexagonEngage to breach any applicable export control laws, rules, or regulations.
- Customer represents, and warrants without limitation, that it will not provide or facilitate administrative access to or permit use of the Services by any persons (including any natural person, government or private entity or other form of body organization) that is located in or is a national of any country that is embargoed or highly restricted under applicable export laws, rules or regulations.
- 17.2 HexagonEngage controls and operates the Services from within the United States of America and the entirety of the Services may not be appropriate or available for use in other locations. If the Customer uses the Services outside the United States of America, the Customer is solely responsible for:
- complying with all export laws and restrictions and regulations of any United States agency or authority, including but not limited to the United States Export Control Laws
- following applicable laws, export laws and restrictions and regulations of any agency or authority local to the Customer
- obtaining licenses to export or re-export as may be required, and
- monitoring the aforementioned for any modifications.
- 17.3 HexagonEngage and the Customer shall comply with all relevant United States export control laws and regulations. Without limiting the foregoing: (a) the Customer acknowledges that the Services may be subject to the United States Export Administration Regulations; (b) the Customer affirms that the Customer is not, and the Customer will not (i) permit Customer's end-users to access or use the Services in a United States embargoed country; (ii) or permit Customer's end-users on the U.S. Commerce Department's Denied Persons, Entity, or Unverified Lists or (iii) permit Customer's end-users on the U.S. Treasury Department's list of Specially Designated Nationals and Consolidated Sanctions list; and (c) the Customer is responsible for complying with any local laws and regulations which may impact your right to import, export, access, or use the Services.
18. Promotional Use
18. PROMOTIONAL USE
- 18.1 Customer expressly grants authorization to HexagonEngage a non-transferable, non-exclusive license to utilize Customer branding information, including but not limited to, Customer's name, Customer's likeness, and Customer's image, for HexagonEngage commercial, advertising, and promotional materials purposes.
19. Ownership of Services / Intellectual Property
19. OWNERSHIP OF SERVICES/INTELLECTUAL PROPERTY
- 19.1 No work or professional services performed and/or provided by HexagonEngage under this Order shall be deemed to be "Work For Hire" and shall remain at all times the sole property of HexagonEngage. For so long as Customer is not in default on any obligation under these Terms and Conditions, HexagonEngage grants Customer a non-exclusive, non-transferable license to use the work product of such services. Such license terminates upon the termination of the applicable Order or agreement pursuant to which they were performed.
- 19.2 All software that is provided to Customer is subject to these Terms of Service and any Order or agreement in which they are incorporated including software that we may authorize you to install on devices located outside of our data center. Customer shall not use any software provided by HexagonEngage after the expiration or termination of these Terms of Service or any Order or agreement in which they are incorporated.
- 19.3 Customer shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide you.
- 19.4 Unless permitted by the terms of an open source software license, Customer may not reverse engineer, decompile or disassemble any software we provide for Customer's use except and to the extent that Customer is expressly permitted by applicable law to do so and then following at a minimum of ten (10) days' advance written notice to HexagonEngage. Any additional restrictions, which may apply to software we utilize in the performance of the Services, will be specified in the applicable Order.
- 19.5 Where specifically prohibited, Customer shall not mix software license ownership when utilizing HexagonEngage services. In such cases, where the Customer provides all licensed products, including the OS, all licenses must be provided by the Customer and may not be mixed with HexagonEngage licensed products. Requirements vary by software vendor.
20. Limitation of Damages and Liability
20. LIMITATION OF DAMAGES AND LIABILITY
- 20.1 EXCEPT AS OTHERWISE PROVIDED IN AN APPLICABLE SERVICE LEVEL AGREEMENT, HexagonEngage'S LIABILITY TO CUSTOMER SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT OR SERVICE THAT IS THE BASIS FOR THE CLAIM. HexagonEngage WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR SERVICE, OR IN ANY WAY CONNECTED TO THESE TERMS OF SALE, EVEN IF HexagonEngage HAS BEEN ADVISED OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, INFRINGEMENT OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, CONTRIBUTION, OR OTHERWISE.
21. No Waiver
21. NO WAIVER
- 21.1 The failure of either party to insist upon strict performance of any of the provisions of these Terms of Service will not be deemed a waiver of any breach or default. The remedies provided to HexagonEngage hereunder are not a waiver of the remedies of HexagonEngage under applicable law.
22. Limitation of Action
22. LIMITATION OF ACTION
- 22.1 The Customer may bring no action, regardless of form, arising out of or relating to an Order, more than three (3) months from the date on which the cause of action accrues. The parties expressly agree that this part, as to the Customer only, supplants and replaces any and all periods of limitation otherwise provided for by law and applicable hereto. All periods of limitation otherwise applicable to actions by HexagonEngage remain as provided by law.
23. Dispute Resolution
23. DISPUTE RESOLUTION
- 23.1 Both HexagonEngage and Customer will first attempt in good faith to negotiate a resolution to any and all disputes between the parties arising out of or related to these Terms of Service. Any dispute that is not resolved in this manner within twenty (20) business days from the receipt of notice of such dispute will be escalated to a Director at HexagonEngage, and a principal, partner, or senior officer at the Customer, for a final attempt to resolve the dispute through good faith negotiations. If after escalating the dispute to the foregoing levels of management, the dispute is not resolved within ten (10) business days, the dispute will be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules by an arbitrator familiar with software contracts and the software industry. The final selection of an arbitrator will be agreed upon in writing by the parties. In the event the parties cannot agree upon the choice of an arbitrator, each party will appoint one (1) individual representative and the two (2) party representatives will, between themselves, choose an arbitrator. The arbitration is to be conducted in the County of San Diego, California. The arbitrators are to apply California law without regard to choice of laws principles. Each party will submit to any court of competent jurisdiction for purposes of the enforcement of any award, order, or judgment. Any award, order, or judgment pursuant to such arbitration shall be deemed final and shall be entered and enforced in any court of competent jurisdiction.
- 23.2 Class Action Waiver. YOU AND HexagonEngage AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties' dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution Section 23.2 ("Class Action Waiver") shall be null and void.
- 23.3 Effect of Changes on Arbitration. Notwithstanding the provisions of Section 2.2 above about changes to these Terms of Service, if HexagonEngage changes any of the terms of this Section 23 "Dispute Resolution" after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the "Effective Date" above or in the date of HexagonEngage's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and HexagonEngage in accordance with the terms of this Section 23 "Dispute Resolution" as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
24. Confidential Information
24. CONFIDENTIAL INFORMATION
- 24.1 Information designated as confidential by either HexagonEngage or Customer, whether before or after the effective date of these Terms of Service shall be held in strict confidence and used only for purposes of these Terms of Service. Except as required by law, no Confidential Information shall be disclosed without the prior written consent of the party designating the information as confidential. If either party is legally required to disclose any confidential information of the other party, the party so required shall notify the other party immediately and shall cooperate in seeking a reasonable protective order. This Section shall not apply to information, which is (i) in the public domain, (ii) already known to the recipient, (iii) developed independently or (iv) received from a third party without similar restriction and without breach of this or a similar agreement.
- 25.1 If any provision of these Terms of Service is unenforceable as a matter of law, all other provisions will remain in effect.
26. Excusable Delay
26. EXCUSABLE DELAY
- 26.1 HexagonEngage will not be liable for any delay or failure of performance whatsoever due to acts of God, flooding, tornadoes, hurricanes, earthquakes, shortage of supplies, transportation difficulties, labor disputes, riots, war, terrorism, fire, epidemics, or other circumstances beyond HexagonEngage's control.
27. Binding Terms and Conditions
27. BINDING TERMS AND CONDITIONS
- 27.1 These Terms and Conditions are incorporated in Customer's Order by reference to HexagonEngage's website for HexagonEngage http://www.hexagonengage.com/policies/. In the event HexagonEngage revises the Terms of Service on its website, those revisions will not be effective as to an Order that we accepted prior to the date HexagonEngage posted the revision and your Order will continued to be governed by the Terms of Service posted on the effective day of the Order.
- 27.2 By opening an account, or by the use of any HexagonEngage service, the Customer agrees to be bound by these Terms and Conditions.
- 27.3 Throughout this these Terms and Conditions, each section includes titles and brief summaries of the following terms and conditions. These section titles are not legally binding.
28. No Partnership
28. NO PARTNERSHIP
- 28.1 The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other; neither party has the right to bind the other to any agreement with a third party.
29. Assignment and SubContracting
29. ASSIGNMENT AND SUBCONTRACTING
- 29.1 Neither party may assign the Order in whole or in part without the prior written consent of the other party, provided however, HexagonEngage may assign an Order in whole or in part to an affiliate with sufficient financial standing in order to meet its obligations under the Order or as part of a bona fide corporate reorganization or a sale of its business, and we may transfer your Confidential Information as part of any such transaction. HexagonEngage may use affiliates and third party service providers to perform all or any part of the Services, but HexagonEngage remains responsible to you under the Order for Services performed by its Affiliates and third party service providers to the same extent as if HexagonEngage performed the Services.
- 30.1 You acknowledge and agree that all feedback, comments, questions, and suggestions concerning HexagonEngage or our Services (collectively, "Feedback") you provide to HexagonEngage are the sole and exclusive property of HexagonEngage. You hereby irrevocably assign to HexagonEngage and agree to irrevocably assign to HexagonEngage all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have. At our request and expense, you will undertake any tasks we may reasonably request to assist us in acquiring, perfecting and maintaining intellectual property rights and other legal protections for the Feedback. HexagonEngage shall have no obligation concerning the Feedback, including (but not limited to) having no obligation to return any materials or acknowledge receipt of any Feedback. By sending or otherwise transmitting Feedback to HexagonEngage, you represent and warrant that you have the right to disclose the Feedback and the Feedback does not violate the rights of any other person or entity. This Feedback section shall survive any termination of your Customer Account, the Order for Services, or the Services.
- 31.1 The parties declare that they have required that these Terms and Conditions and all documents related hereto, either present or future, be drawn up in the English language only. Les parties déclarent par les présentes qu'elles exigent que cette entente et tous les documents y afferents, soit pour le present ou le future, soient rédigés en langue anglaise seulement.