Terms and Conditions
Last updated: March 14, 2022
1. Agreement to Terms
These Terms and Conditions constitute a legally binding agreement made between you, on behalf of yourself or an entity (“Customer”, “User” “you”, “your”) and ENGAUGE LLC (“ENGAUGE”, “Company”, “we”, “us”). These Terms and Conditions govern your use of the website at www.epiqar.com, and any other associated web or mobile websites, or media channel (hereinafter the “Website” or “Websites”), and you use of any services that you use and that are provided by ENGAUGE (collectively “Service” and “Services”).
You agree that by accessing our Websites and using the Services, you have read, understood and agree to be bound by these Terms and Conditions. If you do not agree with the Terms and Conditions, you should stop using the Websites and Services.
Supplemental terms and conditions and other documents may be posted on our Websites and are expressly incorporated by reference. We reserve to the right, in our sole discretion, to make changes and updates to these Terms and Conditions, and at any time and for any reason. We encourage you to periodically review these Terms and Conditions and stay informed of any updates. We will inform you of any material changes to these Terms and Conditions using the contact information and methods you have provided to us. You will be subject to, and will deem to have been made aware of any changes to these Terms and Conditions by your continued use of the Websites and Services.
You affirm that you are more than 18 years of age, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms and Conditions, and to abide by and comply with these Terms and Conditions. The Services are exclusively for the use of adults 18 years of age or older, and if you are below the age of 18 you are prohibited from using the Services.
As used in these Terms and Conditions, the following defined terms shall apply:
- 1. Customer Sites means website, webpages, applications, landing pages, or any other media provided to or integrated with the Services, for the purposes of enabling the Company to provide the Services.
- 2. Effective Date means the earlier of the date (i) Customer submits the initial Order, or (ii) as stated on the signature block of the Order.
- 3. Order or Services Order means any initial or subsequent ordering document and/or online request for access to the Services submitted to Company, an authorized reseller of Company and/or through Company’s product websites.
- 4. Service Descriptions means the overview and other terms applicable to the Services, as amended from time to time.
- 5. Updates means any corrections, bug fixes, new features or functions added to the Services, but shall not include any new versions that Company markets and sells separately.
- 6. Use Level means the model by which Company measures, prices and offers the Service to Customer as set forth on the applicable price list, websites, Order, and/or Service Description.
- 7. Mark of Company or Company Marks shall mean and names, logos, icons, images, branding, or any other associated content or media used to identify the Company.
3. Rights and License
- 2. Technical Support. Technical support for the Services is provided as set forth in the applicable Service Description. Customer agrees to use the Services for professional or business use. Company reserves the right to Update the Services at its discretion. Updates to the Services are included in the Fees, and Customer agrees to use the most current version of the Service.
4. Intellectual Property Rights
- 1. Proprietary Rights. Except for the limited subscription rights granted herein, Customer has no right, title or interest in or to the Company Marks or Services or any components provided by Company in connection with the Services or any intellectual property rights related thereto. Customer acknowledges that Company or its licensors retain all proprietary right, title and interest in and to, or practiced in connection with, the Company Marks and the Services and any components, including, without limitation, all modifications, enhancements, derivative works, configuration, translations, upgrades, and interfaces thereto.
- 2. Company’s Marks. Unless expressly authorized under the terms of this Agreement, Customer agrees that it shall not use, register or apply for registration of any trademark, service mark, business name, company/trade name, domain name or social media account name or handle which is comprised of or incorporates in whole or in part any Mark of Company, or is otherwise confusingly similar to a Mark of Company. In the event of any breach of this provision, Customer agrees that it will do all things necessary to effect the transfer of any such same or similar trademark, service mark, business name, company/trade name, domain name or social media account name or handle to Company, including but not limited to executing assignment documentation. Except as expressly granted herein, no license regarding the use of Company’s copyrights, patents, trademarks, service marks or company/trade names is granted or will be implied. For any authorized use of the Company’s Marks, Customer represents that it has reviewed and will adhere to Company’s Trademark & Copyright Guidelines, and incorporated herein by reference and as may be periodically updated by Company. As noted above, reproduction, copying, or redistribution for commercial purposes of any materials or design elements on the Website or Services is strictly prohibited without the express written permission of Company. For information on requesting such permission, please contact us using the contact information listed in the section entitled “About Us”.
- 3. You agree that any ideas, suggestions, or improvements that you provide to Company about Company’s products or services shall be owned by Company and that Company is free to include such ideas in future products without compensation to you.
5. Orders, Fees, and Payment
- 1. Orders. Customer may order Services using the Company’s then-current ordering processes. All Orders are subject to acceptance by Company in its discretion. All Customer information provided by or on behalf of Customer must be current, complete and accurate and Customer is responsible for keeping such information updated. Order information is subject to automatic processing by Company for the purposes of managing Customer’s account.
- 2. Fees and Payment. Customer is responsible for all fees applicable to the Services, including any one-time implementation fees (“Fees”). All Fees are due and payable as set forth on the invoice and, unless otherwise agreed in writing, payments are due thirty (30) days from the invoice date. Customer agrees to notify Company of any fee dispute within fifteen (15) days of the invoice date and Customer agrees to work in good faith to promptly resolve any dispute and pay fees within fifteen (15) days following resolution of the dispute. When applicable, Customer authorizes Company (i) to take steps to determine whether a debit/credit card number provided is valid, and (ii) charge such card in accordance with the billing frequency specified in the Order. Company reserves the right to terminate its agreement with Customer immediately in the event any payment information is found at any time to be inaccurate, incomplete and/or not current. Company shall not be responsible for any overdraft charges or other fees that may be incurred due to Company use of Customer’s card for payment hereunder. Company reserves the right to update the price for Services at any time after the Initial Term. Company will notify Customer of any price changes by publishing on its website, emailing, quoting or invoicing Customer. Price changes will be effective as of the next billing cycle.
- 3. Additional Services. Customer may order additional Services at any time. Unless otherwise agreed in the applicable Order, any additional Services ordered by Customer following the Effective Date are subject to these Terms and Conditions, and shall be coterminous with the Terms and Conditions for existing Services.
- 4. Late Payments. Company reserves the right, in its discretion, to (i) suspend or terminate the Services or any portion thereof for non-payment of undisputed Fees, and (ii) impose a charge to restore archived data from delinquent accounts. Customer agrees to reimburse Company for all reasonable costs and expenses incurred in collecting delinquent amounts.
- 5. Taxes and Withholding. Customer shall be responsible for all applicable taxes (including but not limited to withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), tariffs, Universal Services Fund (USF) fees (collectively, “Taxes”) imposed by any government entity or collecting agency based on the Services, except those Taxes based on Company net income, and/or those Taxes for which Customer has provided a certificate confirming Customer is otherwise exempt. If Customer fails to satisfy its Tax obligations herein, Customer agrees to reimburse Company for any Taxes paid on Customer’s behalf and indemnify and hold Company harmless against any claim, liability and/or penalties resulting therefrom.
6. Customer Accounts and Usage
- 1. Customer is solely responsible for (i) the configuration of Customer’s Services account, (ii) the operation, performance, and security of Customer’s equipment, networks and other computing resources used to connect to the Services, (iii) ensuring all users exit or log off from the Services at the end of each session, (iv) maintaining the confidentiality of Customer’s accounts, user id’s, and passwords used in conjunction with the Services, and (v) all uses of the Services by Customer and its users. Company reserves the right to suspend the Services or terminate its agreement with Customer if Customer misuses or otherwise shares login information among users. Customer will notify Company immediately of any unauthorized use of its account or any other breach of security. Company will not be liable for any loss that Customer may incur as a result of a third party using its password or account, and Customer may be held liable for any such losses incurred by Company and/or another party. Company reserves the right to review Customer’s account to confirm compliance with applicable Use Levels, and to terminate or suspend Customer’s access for overuse and/or misuse. Customer agrees to pay for any overage in excess of permitted Use Levels.
- 2. You understand and agree not to provide false information about yourself, to impersonate another individual or provide misleading or false user information through your use of the Website or Services.
7. Prohibited Activities and Restrictions
- 1. You affirm, represent, and warrant that, through your use on the Services, Any Customer Sites do not relate to the following:
- Pornography or sexually explicit content
- The occult
- Hate speech
- Purchase and use of illegal narcotics
- Medicinal and recreational cannabis products
- Illegal activities of any kind
You also represent and warrant the content contained or distributed by Customer Sites does not violate the intellectual property rights of third parties. Company reserves the right to make the final decision regarding what is appropriate.
- 2. The Services are for professional/business use only, and may not be used for any other purpose.
- 3. You understand and agree to not place an unreasonable burden on the server hosting the Website or the Services, and to not interfere with the running of the Website or Services, and to not attempt unauthorized access to any portion of the Website.
- 4. You agree not to use bots, click-farms, fake click-throughs, or any other automated or manual techniques to fake, simulate or otherwise generate user activity on the Websites, the Service or Customer Sites with the intention of creating exaggerated or misleading user activity.
- 5. Except to the extent permitted by applicable law, Customer agrees, on behalf of itself and its users, not to (i) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Websites, Services, and/or Company’s technology; (ii) knowingly or negligently access or use the Websites or Services in a manner that abuses or disrupts the Company’s networks, security systems, user accounts, or Services of Company or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means, (iii) market, offer to sell, and/or resell the Services to any unauthorized third party; (iv) use the Services in violation of Company policies, applicable laws, ordinances or regulations; (v) use the Websites or Services directly or indirectly for competitive benchmarking or other competitive analysis if Customer is a direct competitor of the applicable Service; or (vi) make any representations with respect to Company or these Terms and Conditions (including, without limitation, that Company is a warrantor or co-seller of any of Customer’s products and/or services). Company shall have sole and exclusive discretion to determine the applicability of the restrictions set forth above and any violations thereof.
- 6. Company further reserves the right to suspend or terminate your use of the Websites and Services without prior notice for a violation of any of the provisions in this section.
9. Third-Party Sites
The Website and Services may link you to other sites on the Internet. These sites may contain information or material that some people may find inappropriate or offensive. These other sites are not under the control of Company, and you acknowledge that Company is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites. The inclusion of such a link does not imply endorsement of the site by or any association with its operators.
10. Compliance with Laws
In connection with the performance, access, and use of the Services under these Terms and Conditions, Company and Customer agrees to comply with all applicable laws, rules and regulations including, but not limited to, export and import, data protection, and privacy laws and regulations. Specifically, Customer shall provide the relevant persons and/or participants with all information or notices Customer is required by applicable privacy and data protection laws to provide and, if necessary, obtain the consent of or provide choices to such persons and/or participants as required. Notwithstanding any other provision in these Terms and Conditions, Company shall have the right to immediately terminate its agreement with Customer for noncompliance with applicable laws.
11. Disclaimer of Warranties
ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE WEBSITE AND SERVICES (THE “CONTENT”) ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE. THE CONTENT IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT. COMPANY AND ITS AGENTS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE WEBSITE OR SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE WEBSITE AND SERVICES IS SOLELY AT YOUR RISK. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU.
12. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL COMPANY OR ITS AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE WEBSITE AND SERVICES. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, COMPANY’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Any provision herein to the contrary notwithstanding, the maximum liability of Company to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of any Services delivered to You hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid to Company by You for the Services whose license, use, or other employment gives rise to the liability. The essential purpose of this provision is to limit the potential liability of Company arising out of this Agreement. The parties acknowledge that the limitations set forth in this section are integral to the amount of consideration levied in connection with the Website, the Services, and any services rendered hereunder and that, were Company to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
Upon a request by Company, you agree to defend, indemnify, and hold Company and its other affiliated companies harmless, and their employees, contractors, officers, and directors from all liabilities, claims, and expenses, including attorney’s fees, that arise from your misuse of the Website or Services.
14. Additional Terms
- Services Trial. Company may make the Services available to Customer on a trial basis or offer promotional versions of the Services for a limited period of time (“Trial Period”), as specified on the applicable Order. The Trial Period shall terminate (i) at the end of the stated Trial Period, or (ii) if no such date is specified, thirty (30) days from the date of Customer’s initial access to the Services. Following expiration of the Trial Period, the Services may automatically continue unless canceled by Customer, and Customer is responsible for payment of the applicable Fees set forth in the Order. During the Trial Period, Company provides the Services “AS IS” and without warranty or indemnity, to the extent permitted by law, and all other terms of these Terms and Conditions otherwise apply. Company reserves the right to modify or discontinue any trials or promotions at any time without notice.
- In the event Customer believes that the Services have been used in a manner that constitutes copyright infringement, Customer shall notify Company at firstname.lastname@example.org, and provide all of the following information, as required by the Digital Millennium Copyright Act (“DMCA”): (i) a statement that Customer has identified content in the Services that infringes a copyright of a third party for whom Customer is authorized to act; (ii) a description of the copyrighted work Customer claims has been infringed; (iii) a specific description of where the allegedly infringing material is located in the Services, including a URL or exact description of the content’s location; (iv) Customer’s name, address, telephone number, and e-mail address; (v) a statement that Customer has a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use); (vi) a statement that, under penalty of perjury, the information in Customer’s notice is accurate and that Customer is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; and (vii) Customer’s electronic or scanned physical signature. Company reserves the right to delete or disable allegedly infringing content, to terminate the accounts of users who are repeat infringers, and to forward the information in the copyright-infringement notice to the user who allegedly provided the infringing content.
- Suspension of Service. Company may temporarily suspend the Services if Company determines, in its sole discretion, that continued provision would compromise the security of the Services due to, without limitation, hacking attempts, denial of service attacks, mail bombs or other malicious activities, and Company will take action to promptly resolve any such security issues. Company agrees to notify Customer of any such suspension and subsequent reactivation of the Services.
- Neither party may assign its rights or delegate its duties under these Terms and Conditions either in whole or in part without the other party’s prior written consent, which shall not be unreasonably withheld, except that either party may assign these Terms and Conditions as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Any attempted assignment without such consent shall be void. These Terms and Conditions will bind and inure to the benefit of each party’s successors or assigns.
- All legal notices required under these Terms and Conditions shall be in writing and delivered in person or by certified or registered express mail to the address last designated on the account for Customer, and the Company contracting entity as specified below, or such other address as either party may specify by notice to the other party as provided herein. Notice shall be deemed given (i) upon personal delivery; (ii) if delivered by air courier or email, upon confirmation of receipt; or (iii)five (5) days after deposit in the mail. Non-legal notices may be provided to the email address specified on the applicable Order and shall be deemed effective on the next business day following the date and time stamp on the sender’s email. Company may also provide Customer with notice postings on the Company Website.
- Entire Agreement; Order of Precedence. These Terms and Conditions set forth the entire agreement and understanding of the parties relating to the Services and supersedes all prior and contemporaneous oral and written agreements. For any conflict between an executed Order, these Terms and Conditions and the Service Descriptions, the conflict shall be resolved in that order, but only for the specific Services described in the applicable Order. Nothing contained in any document submitted by Customer shall in any way add to or otherwise modify these Terms and Conditions or Company’s program terms.
- General Terms. Captions and headings are used herein for convenience only, are not a part of these Terms and Conditions, and shall not be used in interpreting or construing these Terms and Conditions. The parties are independent contractors and nothing in these Terms and Conditions creates a partnership, franchise, joint venture, agency, fiduciary or employment relationship between or among the parties. No person or entity not a party to these Terms and Conditions will be deemed to be a third-party beneficiary of these Terms and Conditions or any provision hereof. Company authorized resellers and distributors do not have the right to make modifications to these Terms and Conditions or to make any additional representations, commitments, or warranties binding on Company. No waiver or amendment of any term or condition of these Terms and Conditions shall be valid or binding on any party unless agreed to in writing by Company or Customer. Company failure to enforce any term of these Terms and Conditions will not be construed as a waiver of the right to enforce any such terms in the future. Unless otherwise specified, remedies are cumulative. These Terms and Conditions may be agreed to online, or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay, interruption or other failure to perform under these Terms and Conditions due to force majeure events and acts beyond a party’s reasonable control, but only for so long as such conditions persist. Force majeure events may include: natural disasters; wars; terrorist activities, activities of local exchange carriers, telephone carriers, wireless carriers, and Internet service providers, labor disputes; and acts of government.
15. Severability and Integration
Unless otherwise specified herein, this Agreement constitutes the entire agreement between you and Company with respect to the Website and Services and supersedes all prior or contemporaneous communications between you and Company with respect to the Website and Services. If any part of these Terms and Conditions is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
16. Governing Law and Jurisdiction
These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Texas. You hereby consent to binding arbitration in the State of Texas to resolve any disputes arising under these Terms and Conditions.
17. Arbitration of Disputes
The parties agree that any dispute or claim in law or equity arising between them regarding the use of the Website, the Services, or these Terms and Conditions, including any dispute regarding the enforceability or applicability of this arbitration provision, shall be decided by neutral, binding arbitration conducted in Dallas County, Texas. The arbitrator shall be a retired judge, justice, or an attorney with at least ten (10) years of legal experience relating to the subject matter of this Agreement, unless the parties mutually agree otherwise, who shall render an award in accordance with the substantive laws of Dallas County, Texas. In all other respects, the arbitration shall be conducted in accordance with the rules and procedures of the American Arbitration Association, subject to the parties being allowed limited discovery. Judgment upon the award of the arbitrator(s) may be entered in any court having jurisdiction.
NOTICE: BY USING THE WEBSITE AND SERVICES YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS “ARBITRATION OF DISPUTES” PROVISION DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION YOU MAY BE COMPELLED TO ARBITRATE ANYHOW PURSUANT TO A COURT ORDER. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. IF YOU DO NOT WISH TO AGREE TO ARBITRATION, THEN YOU MAY NOT USE THE WEBSITES OR SERVICES.
18. Class Action Waiver
ANY LEGAL ACTION OR ARBITRATION ARISING IN CONNECTION WITH THE USE OF THE WEBSITE, THE SERVICES, OR THESE TERMS AND CONDITIONS MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
19. Attorneys’ Fees
In any dispute, action, proceeding, or arbitration regarding the use of the Website, the Services, or these Terms and Conditions, including the enforcement of any arbitration provision herein, the party prevailing in such action or proceeding shall be entitled to recover, in addition to any other award of damages or other remedies, its reasonable attorneys’ and experts’ fees, costs and expenses (including, without limitation, expenses for expert witnesses and all reasonable attorneys’ fees, costs and expenses upon appeal).
20. About Us
Our Websites and Services are provided by:
4845 Pearl East Circle
Boulder, CO 80303
If you wish to contact ENGAUGE for any reason, who may do so using the contact information listed in this section.