[Engage Blink Sdn Bhd] (“us”,”our”, “we”) offers a marketing tool which allows retailers to automatically engage customers providing them with in-store promotion and highlights or loyalty rewards, rewarding customers through a smartphone application (“EngageApp”), and provides retailers with a cloud based software to customize engagement contents thereof (the “EngagePanel”). These Retailers Terms and Conditions (“Terms”) govern your access and use of the Application and Control Panel. ‘Retailer’ means any retailers entity and its agents that makes use of the EngagePanel or provides EngageApp to its customers.
Please read these Terms carefully. These Terms govern you use of the EngagePanel and you provision of the EngageApp to your customers. You must accept these Terms prior to signing up you business on Engage using our website (e.g. www.engageblink.com) a third party website who is affiliated with us or using Engage Android and iOS application for businesses or providing EngageApp to your customers. By clicking “ACCEPT” or in any other way logged into EngagePanel or making EngagePanel available to your customers, you signify your assents to these Terms. Changes may be made to these Terms from time to time. If you do not accept these Terms, do not click “ACCEPT” and do not download EngagePanel or make EngageApp available to your customers. We will make resonable commercial efforts to notify you of any updates to these Terms. Notwithstanding the foregoing, your continued use of EngagePanel or provision of EngageApp to your customers will be deemed acceptance to amended or updated Terms. As such, you should check frequently to see if we have updated these Terms. If you do not agree to any of these Terms, please do not use EngagePanel or make the EngageApp available.
Definitions. In these Terms, the following terms when capitalized have the meanings set forth in this Section.
“Customer” means an end user that has been granted a license by Engage to use EngageApp, and who has accepted Engage’s User Terms and Conditions.
“Engage User Terms and Conditions” means Engages standard end user license agreement, which may be amended by Engage in its sole discretion, a current version of which is available here.
“Promotional Content” means any advertising, promotional or marketing content provided by Retail for provision to any Customer (including, without limitation, any loyalty plans, store highlights or rewards) and including any logos, trade names, trademarks or other content of Retail included in such content.
License. Subject to the terms and conditions thereof, during the period these Terms are in effect Engage hereby grants Retailer a limited, revocable, non-exclusive, non-transferable, non-sublicensable, license solely to use EngagePanel and to provide EngageApp to its Customers.
Restrictions. Retailer shall maintain all copyright and other proprietary notices contained in EngagePanel and in EngageApp. Except as set forth expressly herein, Retailer shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, EngagePanel or EngageApp; (b) modify EngagePanel or EngageApp, or insert any code or product, or in any other way manipulate EngagePanel or EngageApp; or (c) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use EngagePanel or EngageApp except as expressly permitted by these Terms. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Retailer shall inform Engage in writing in each instance prior to engaging in the activities set forth above. Engage reserves the right to make modifications to EngagePanel and EngageApp at any time without prior notice.
Promotional Content. Retailer may provide Promotional Content to Customers through the EngageApp as permitted by Engage. Retailer shall remain at all times solely responsible for the full functionality, accuracy, reliability, integrity, quality or validity of all Promotional Content. Retailer represents and warrants that no Promotional Content infringes the intellectual property rights or moral rights or any third party. Engage reserves the right, at its sole discretion, to remove any Promotional Content that violates these Terms at any time, without prior notice, or require Retailer to do so. Retailer shall remain solely liable for any loyalty plans or rewards offered to Customers, and shall fully indemnify Engage for its failure to satisfy any of its obligations pursuant to such plans or rewards. Engage does not claim ownership of Promotional Content. However, Retailer grants Engage a non-exclusive, royalty-free, worldwide license of all rights to use, edit, modify, include, incorporate, adapt, record and reproduce Promotional Content for the purposes of these Terms, including the right to exercise this license through independent contractors.
Engage Property. Title to and ownership of and all proprietary rights in or related to (a) EngagePanel, EngageApp and related documentation and all enhancements, derivatives, bug fixes or improvements to the foregoing; (b) all trade names, trademarks, and logos of Engage; and (c) all data collected by Engage’ server side software with regard to the foregoing] (collectively, “Engage Property”) shall at all times remain solely with Engage or its licensors.
Retailer Property. Title to and ownership of and all proprietary rights in or related to Promotional Content and all the trade names, trademarks, and logos of Retailer shall at all times remain with Retailer and its licensors (collectively, “Retailer Property”).
No Sale. Any references in these Terms to sale, resale or purchase of the Engage Property or Retail Property and related documentation or references of like effect, will be deemed to mean the license thereof pursuant to the terms and conditions of these Terms.
Support. Customers may contact Engage with regard to the support for the EngageApp using email at firstname.lastname@example.org or using other forms of communication as described on our website.
Confidentiality. Retailer acknowledges that Engage may disclose to Retailer certain confidential information belonging to and relating to Engage, EngagePanel or EngageApp. Retailer may disclose to Engage certain information regarding its business and operations. Either party (the “Receiving Party”) receiving information from the other party (the “Disclosing Party”) which the Disclosing Party has marked or identified as confidential or proprietary, or which should clearly be considered confidential proprietary (collectively, “Confidential Information”), agrees to keep such Confidential Information confidential during and after the Term and not disclose or use except in performance of the Receiving Party’s obligations hereunder. Confidential Information shall not include information (i) already lawfully known to or independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party, (ii) received by the Receiving Party from any third party without restrictions, (iii) publicly and generally available, free of confidentiality restrictions; or (iv) required to be disclosed by law, provided that the Receiving Party provides prompt notice of such requirement. The Receiving Party shall restrict disclosure of Confidential Information to those of the Receiving Party’s employees and officers with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. Vendor will not disclose any information regarding the results of any testing or evaluation of EngagePanel or EngageApp to any third party without Engage’ prior written consent.
Warranties; Indemnification; Disclaimer.
Retailer Warranties. Retailer represents and warrants that the Promotional Content: (a) does not contain material that is obscene, defamatory, libelous, racially or ethnically insensitive, harassing, threatening or otherwise offensive; (b) does not contain pornography or material that may be harmful to a minor; (c) does not contain material that violates or infringes the intellectual property, moral or contractual rights of any third party; (d) does not contain any virus, worm, Trojan horse, or other harmful or disruptive component; and (e) complies with all applicable law, regulations and rules, including all applicable law regarding advertising, marketing and promotional content and services.
DISCLAIMER. THE ENGAGEPANEL, ENGAGEAPP AND RELATED DOCUMENTATION ARE PROVIDED “AS-IS”. ENGAGE EXPRESSLY DISCLAIMS ANY WARRANTIES (INCLUDING WITH REGARD TO THE PERFORMANCE OF THE APPLICATION OR SERVICES AND WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ANY RELIANCE ON THE APPLICATION OR THE SERVICES IS AT RETAILER’S OWN RISK, AND ENGAGE DOES NOT AND SHALL NOT ACCEPT ANY LIABILITY FOR THE APPLICATION OR THE SERVICES, INCLUDING WITHOUT LIMITATION ANY MISTAKES OR INACCURACIES IN ANY CONTENTS, LOYALTY PLANS OR REWARDS CREATED OR MADE AVAILABLE THROUGH THE ENGAGEPANEL OR ENGAGEAPP.
LIMITATION OF LIABILITY. IN NO EVENT SHALL ENGAGE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SHAREHOLDERS, BE LIABLE TO RETAILER, ANY CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO GENERAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE APPLICATION OR SERVICES. IN ANY CASE, ENGAGE’ ENTIRE LIABILITY UNDER ANY PROVISION OF THESE TERMS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT RECEIVED FROM RETAILER HEREUNDER, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE GROSS NEGLIGENCE OF ENGAGE TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES.
Promotion; Publicity. All promotion, advertising and distribution of EngagePanel and EngageApp shall be consistent with Engage’ standard policies and reputation. Both parties may agree in writing to include a reference to the other party and its logo on its website, marketing and promotional materials (in any medium) subject to the compliance by each party with the applicable trademark guidelines of the other party. The Parties may agree to issue a joint press release in a form mutually agreeable to the Parties announcing the formation of the relationship between the Parties. The text of such press release and announcements, and any future announcement or publication concerning the existence or terms of this agreement, shall be mutually agreed to by the Parties prior to publication, except that either Party may re-publish information contained in a previously approved press release, including on a Party’s website and in marketing materials.
The term of this agreement (“Term”) shall commence on the date Retailer accepts these Terms and shall continue for a period of the agreed registered package, and shall thereafter automatically renewed after the expiry of the package, unless otherwise terminated in accordance with these Terms.
Termination. Either party may terminate this agreement with advance notice of 30 days., provided, however, that Engage may terminate these Terms and all rights granted hereunder without notice if Retailer shall use or market EngagePanel or EngageApp in violation of any applicable law, rule or regulation.
Effect of Termination. Upon expiration or termination of these Terms for any reason, (a) Retailer shall immediately cease the use of the rights licensed hereunder, and shall immediately cease all provision of the EngageApp to its customers; (b) each party shall make payment to the other of all amounts due hereunder as of the date of termination; and (c) Retailer shall cease the use of all Engage Property and shall promptly return to Engage all copies of Engage Confidential Information or destroy same, at Engage’ discretion.
Survival. Sections 3 (Restrictions), 7 (Intellectual Property), 8 (Customer Data), 10 (Confidentiality), 11 (Warranties; Indemnification; Disclaimer), 12 (Limitation of Liability) any accrued and unpaid payments shall survive the termination or expiration of these Terms for any reason.
Retailer agreement (“You” refers to a customer as defined in clause 1 of this document). In order to manage your circle, you will be provided with: a) Access to the online dashboard, from where you can track and modify the various features of your circle. b) A separately purchased unit of Beacon. These devices will serve as your on-site radar and activate the automatic interaction with your circle members as they walk in. By signing below, you agree to run your engagement program in a fair and non-abusive manner. You understand that while Engage grants you access to its platform, the responsibility for managing your engagement campaigns lies with you. Pricing: You agree to the Engage pricing plans as presented and selected online, or as presented to you by a sales representative or any authorized representative of Engage.
Miscellaneous. Engage and Retailer are and intend to remain independent parties. Nothing contained in these Terms shall be deemed or construed to create the relationship of principal and agent or of partnership or joint venture, and except as otherwise specifically agreed upon in writing by the parties, neither party shall hold itself out as an agent, legal representative, partner, subsidiary, joint venturer, servant or employee of the other. Neither party nor any officer or employee thereof shall, in any event, have any right collectively or individually, to bind the other party, to make any representations or warranties, to accept service of process, to receive notice or to perform any act or thing on behalf of the other party, except as authorized in writing by such other party in its sole discretion. These Terms represent the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties, whether written or oral, regarding the subject matter hereof. These Terms may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A waiver of any default hereunder or of any of the terms and conditions of these Terms shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Engage may assign its rights or obligations pursuant to these Terms. Vendor agrees not to assign any rights under these Terms; any attempted assignment shall be null and void and shall result in the termination of these Terms. If any part of these Terms shall be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of these Terms which shall remain in full force and effect.
Some of the Services offered on the Website require payment of fees (“Charged Services”). If you elect to sign up for Charged Services, you shall pay all applicable fees, as described on the Website in connection with such Charged Services selected by you. Engage reserves the right to change its prices at any time. You authorize Engage directly or through third parties, to make any inquiries it considers necessary to validate your account and financial information that you provided while signing up for such Services. Please note that according to internal agreements, Engage is entitled to collect fees from Users on behalf of the Charged Services, to process any payments and/or refunds and/or take any billing actions as required in connection with the collection of the fees on behalf of the Charged Services. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. You agree to pay any such taxes that might be applicable to your use of EngagePanel and payments made by you to Engage. All fees related to using Charged Services are charged automatically using the payment method as determined in the Website. If Engage does not receive a request by the user, through email or phone for Charged Services termination you acknowledge and understand that Engage will continue to charge you for the Charged Services as long as your account remains active regardless if the Charged Services are used or not. If, at any time, you contact your bank or credit card company and decline or otherwise reject the charge of any payable fees, this act will be considered a breach of your obligation hereunder and your use of the Charged Services will be automatically terminated. Your use of the Charged Services will not resume until you re-subscribe for any such Charged Services. Users purchasing Charged Services shall pay any and all prices and fees due for such Services. All prices and fees are non-refundable unless otherwise expressly noted, even if such Charged Services are suspended, terminated, or transferred prior to the end of the Services term. Engage expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at the Website and effective immediately without need for further notice to any user. Any changes or modifications in prices and fees shall be effective when the Services in question come up for renewal as further described below. IN ORDER TO ENSURE THAT YOU DO NOT EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, MOST SERVICES OFFER AN AUTOMATIC RENEWAL OPTION. THE AUTOMATIC RENEWAL OPTION AUTOMATICALLY RENEWS THE APPLICABLE SERVICE FOR A RENEWAL PERIOD EQUAL IN TIME TO THE ORIGINAL SERVICE PERIOD. FOR EXAMPLE, IF YOUR ORIGINAL SERVICE PERIOD IS FOR ONE YEAR, YOUR RENEWAL PERIOD WILL BE FOR ONE YEAR. WHILE THE DETAILS OF THE AUTOMATIC RENEWAL OPTION VARY FROM SERVICE TO SERVICE, THE SERVICES THAT OFFER AN AUTOMATIC RENEWAL OPTION TREAT IT AS THE DEFAULT SETTING. THEREFORE, UNLESS YOU CANCEL YOUR SUBSCRIPTION ENGAGE WILL AUTOMATICALLY RENEW THE APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL, AND WILL TAKE PAYMENT FROM THE PAYMENT METHOD YOU HAVE ON FILE WITH ENGAGE THEN CURRENT RATES, WHICH YOU ACKNOWLEDGE AND AGREE MAY BE HIGHER OR LOWER THAN THE RATES FOR THE ORIGINAL SERVICE PERIOD. YOU MAY CANCEL YOUR SUBSCRIPTION FROM SUCH SERVICES PRIOR TO THE AUTOMATIC RENEWAL AT ANY TIME. IN SUCH EVENT THE SERVICES SHALL BE DISCONTINUED UPON THE EXPIRATION OF THE RESPECTIVE PERIOD YOU HAVE PAID FOR AND YOU SHALL NOT HAVE ANY CLAIMS TOWARDS ENGAGE IN RELATION TO THE DISCONTINUATION OF THE SERVICES.