1. Account Terms
To access and use the Services, you must register for a Engage account (“Account”). To complete your Account registration, you must provide us with your full legal name, business address, phone number, a valid email address, and any other information indicated as required. Engage may reject your application for an Account, or cancel an existing Account, for any reason, at our sole discretion.
You must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from which you use the Services to open an Account.
You confirm that you are receiving any Services provided by Engage for the purposes of carrying on a business activity and not for any personal, household or family purpose.
You acknowledge that Engage will use the email address you provide on opening an Account or as updated by you from time to time as the primary method for communication with you (“Primary Email Address”). You must monitor the Primary Email Address you provide to Engage and your Primary Email Address must be capable of both sending and receiving messages. Your email communications with Engage can only be authenticated if they come from your Primary Email Address.
You are responsible for keeping your password secure. Engage cannot and will not be liable for any loss or damage from your failure to maintain the security of your Account and password.
Technical support in respect of the Services is only provided to Engage Users. Questions about the Terms of Service should be sent to Engage Support.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Services, or access to the Services without the express written permission by Engage.
You agree not to work around, bypass, or circumvent any of the technical limitations of the Services, including to process orders outside Engage’s Checkout, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services.
You agree not to access the Services or monitor any material or information from the Services using any robot, spider, scraper, or other automated means.
You understand that your Materials may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. “Materials” means Your Trademarks, copyright content, any products or services you sell through the Services (including description and price), and any photos, images, videos, graphics, written content, audio files, code, information, or other data provided or made available by you or your affiliates to Engage or its affiliates.
2. Account Activation
2.1 Account Holder
- Subject to Section 2.1.2, the person signing up for the Service by opening an Account will be the contracting party (“Account Holder ”) for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding Account we may provide to the Account Holder in connection with the Service. You are responsible for ensuring that the name of the Account Holder (including the legal name of the company that owns the Store, if applicable) is clearly visible on the Store’s website.
- If you are signing up for the Services on behalf of your employer, your employer will be the Account Holder. If you are signing up for the Services on behalf of your employer, then you must use your employer-issued email address and you represent and warrant that you have the authority to bind your employer to our Terms of Service.
- Your Engage Account can only be associated with one Account Holder. A Account Holder may have multiple Engage Accounts. You agree to use Engage Checkout for your company. “Store” means the online company (whether hosted by Engage or on a third party website), or any companyfront built on top of the Storefront API) or physical retail location(s) associated with the Account.
2.2 Staff Accounts
- Based on your Engage pricing plan, you can create one or more staff accounts (“Staff Accounts”) allowing other people to access the Account. Each Staff Account must include a full legal name and a valid email account. With Staff Accounts, the Account Holder can set permissions and let other people work in their Account while determining the level of access by Staff Accounts to specific business information (for example, you can limit Staff Account access to sales information on the Reports page or prevent Staff Accounts from changing general company settings).
- The Account Holder is responsible for: (a) ensuring it’s employees, agents and subcontractors, including via Staff Accounts, comply with these Terms of Service; and (b) any breach of these Terms of Service by the Account Holder’s employees, agents or subcontractors. The Account Holder acknowledges and agrees that Account Holder will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Account Holder.
- The Account Holder and the users under Staff Accounts are each referred to as a “Engage User”.
3. Engage Rights
- The Services have a range of features and functionalities. Not all Services or features will be available to all Merchants at all times and we are under no obligation to make any Services or features available in any jurisdiction. Except where prohibited in these Terms of Service or by applicable law, we reserve the right to modify the Services or any part thereof for any reason, without notice and at any time.
- Engage does not pre-screen Materials and it is in our sole discretion to refuse or remove any Materials from any part of the Services, including if we determine in our sole discretion that the goods or services that you offer through the Services, or the Materials uploaded or posted to the Services, violate our AUP or these Terms of Service.
- Verbal or written abuse of any kind (including threats of abuse or retribution) of any Engage employee, member, or officer will result in immediate Account termination.
- We reserve the right to provide our Services to your competitors and make no promise of exclusivity. You further acknowledge and agree that Engage employees and contractors may also be Engage customers or merchants and that they may compete with you, although they may not use your Confidential Information (as defined in Section 6) in doing so.
- In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, or confirmation of your status as an employee of an entity.
- Engage reserves the right to determine, in our sole discretion, rightful Account ownership and transfer an Account to the rightful Account Holder. If we are unable to reasonably determine the rightful Account Holder, without prejudice to our other rights and remedies, Engage reserves the right to temporarily suspend or disable an Account until resolution has been determined between the disputing parties.
4. Your Responsibilities
- You acknowledge and agree to provide public-facing contact information, a refund policy and order fulfilment timelines on your Engage Account.
- You acknowledge and agree that the Services are not a marketplace, and any contract of sale made through the Services is directly between you and the customer. You are the seller of record for all items you sell through the Services. You are responsible for the creation and operation of your Engage Account, your Materials, the goods and services that you may sell through the Services, and all aspects of the transactions between you and your customer(s). This includes, but is not limited to, authorizing the charge to the customer in respect of the customer’s purchase, refunds, returns, fulfilling any sales or customer service, fraudulent transactions, required legal disclosures, regulatory compliance, alleged or actual violation of applicable laws (including but not limited to consumer protection laws in any jurisdiction where you offer products or services for sale), or your breach of these Terms of Service. You represent and warrant that your Store, your Materials and the goods and services you sell through the Services will be true, accurate, and complete, and will not violate any applicable laws, regulations or rights of third parties. For the avoidance of doubt, Engage will not be the seller or merchant or record and will have no responsibility for your Store or items sold to customers through the Services.
- You are solely responsible for the goods or services that you may sell through the Services (including description, price, fees, tax that you calculate, defects, required legal disclosures, regulatory compliance, offers or promotional content), including compliance with any applicable laws or regulations.
- You may not use the Engage Services for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to you in your customer’s jurisdiction, or the laws of Canada and the Province of Ontario. You will comply with all applicable laws, rules and regulations (including but not limited to obtaining and complying with the requirements of any license or permit that may be necessary to operate your company or that may be held by you) in your use of the Service and your performance of obligations under the Terms of Service.
- The API Terms govern your access to and use of the Engage API (as defined therein). You are solely responsible for the activity that occurs using your API Credentials (as defined in the API Terms) and for keeping your API Credentials secure.
- You agree to use Engage Checkout for any sales associated with your online company. “Engage Checkout” means Engage’s checkout experience that allows Customers to enter their shipping information and payment details after adding item(s) to their cart and before placing an order, including checkouts that occur through the Engage Checkout API.
5. Payment of Fees and Taxes
- You will pay the Fees applicable to your subscription to Online Service and/or POS Services (“Subscription Fees”) and any other applicable fees, including but not limited to applicable fees relating to the value of sales made through your Store when using all payment providers other than Engage Payments (“Transaction Fees”), and any fees relating to your purchase or use of any products or services such as Engage Payments, POS Equipment, shipping, apps, Themes, domain names, Experts Marketplace, or Third Party Services (“Additional Fees”). Together, the Subscription Fees, Transaction Fees and the Additional Fees are referred to as the “Fees”.
- You must keep a valid payment method on file with us to pay for all incurred and recurring Fees. Engage will charge applicable Fees to any valid payment method that you authorize (“Authorized Payment Method”), and Engage will continue to charge the Authorized Payment Method for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments will be in U.S. currency.
- Subscription Fees are paid in advance and will be billed in 30 day intervals (each such date, a “Billing Date”). Transaction Fees and Additional Fees will be charged from time to time at Engage’s discretion. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Account Holder via the Primary Email Address provided. As well, an invoice will appear on the Account page of your Store’s administrative console. Users have approximately two weeks to bring up and settle any issues with the billing of Subscription Fees.
- If we are not able to process payment of Fees using an Authorized Payment Method, we may make subsequent attempts to process payment using any Authorized Payment Method. If we are unable to successfully process payment of Fees using an Authorized Payment Method within 28 days of our initial attempt, we may suspend and revoke access to your Account and the Services. Your Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next billing cycle. You may not be able to access your Account or your companyfront during any period of suspension. If the outstanding Fees remain unpaid for 60 days following the date of suspension, Engage reserves the right to terminate your Account in accordance with Section 14.
- All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services (including Goods and Sales Tax under the Goods and Services Tax Act, Chapter 117A of Singapore), harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”).
- You are responsible for all applicable Taxes that arise from or as a result of your subscription to or purchase of Engage’s products and services. To the extent that Engage charges these Taxes, they are calculated using the tax rates that apply based on the billing address you provide to us. Such amounts are in addition to the Fees for such products and services and will be billed to your Authorized Payment Method. If you are exempt from payment of such Taxes, you must provide us with evidence of your exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive evidence satisfactory to Engage of your exemption. If you are not charged Taxes by Engage, you are responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in your jurisdiction.
- For the avoidance of doubt, all sums payable by you to Engage under these Terms of Service will be paid free and clear of any deductions or withholdings whatsoever. Other than Taxes charged by Engage to you and remitted to the appropriate tax authorities on your behalf, any deductions or withholdings that are required by law will be borne by you and paid separately to the relevant taxation authority. Engage will be entitled to charge the full amount of Fees stipulated under these Terms of Service to your Authorized Payment Method ignoring any such deduction or withholding that may be required.
- You are solely responsible for determining, collecting, withholding, reporting, and remitting applicable taxes, duties, fees, surcharges and additional charges that arise from or as a result of any sale on your Engage Account or your use of the Services. The Services are not a marketplace. Any contract of sale made through the Services is directly between you and the customer.
- You must maintain an accurate location in the administrative console of your Engage Account. If you change jurisdictions you must promptly update your location in the administrative console.
- Engage does not provide refunds.
- “Confidential Information” will include, but will not be limited to, any and all information associated with a party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. Engage’s Confidential Information includes all information that you receive relating to us, or to the Services, that is not known to the general public including information related to our security program and practices.
- Each party agrees to use the other party’s Confidential Information solely as necessary for performing its obligations under these Terms of Service and in accordance with any other obligations in these Terms of Service including this Section 6. Each party agrees that it will take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such party’s obligations hereunder, who each will treat such Confidential Information as provided herein, and who are each subject to obligations of confidentiality to such party that are at least as stringent as those contained herein; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the parties and the subject matter contained in these Terms of Service, provided that, if legally permitted, the receiving party will give the disclosing party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information will not include any information that the receiving party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving party, at the time of disclosure of such information; (B) is independently developed by the receiving party without use of or reference to the other party’s Confidential Information, and without breaching any provisions of these Terms of Service; or (C) is thereafter rightly obtained by the receiving party from a source other than the disclosing party without breaching any provision of these Terms of Service.
7. Limitation of Liability and Indemnification
- You expressly understand and agree that, to the extent permitted by applicable laws, Engage and its suppliers will not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses arising out of or relating to the use of or inability to use the Service or these Terms of Service (however arising, including negligence).
- You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Engage partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of (a) your breach of these Terms of Service or the documents it incorporates by reference (including the AUP); (b) or your violation of any law or the rights of a third party; or (c) any aspect of the transaction between you and your Customer, including but not limited to refunds, fraudulent transactions, alleged or actual violation of applicable laws (including but not limited to Federal and State consumer protection laws), or your breach of the Terms of Service.
- You will be responsible for any breach of the Terms of Service by your affiliates, agents or subcontractors and will be liable as if it were your own breach.
- Your use of the Services is at your sole risk. The Services are provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.
- Engage does not warrant that the Services will be uninterrupted, timely, secure, or error-free.
- Engage does not warrant that the results that may be obtained from the use of the Services will be accurate or reliable.
- Engage is not responsible for any of your tax obligations or liabilities related to the use of Engage’s Services.
- Engage does not warrant that the quality of any products, services, information, or other materials purchased or obtained by you through the Services will meet your expectations, or that any errors in the Services will be corrected.
8. Intellectual Property and Your Materials
8.1 Your Materials
- We do not claim ownership of the Materials you provide to Engage; however, we do require a license to those Materials. You grant Engage a non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and license to host, use, distribute, expose, modify, run, copy, company, publicly perform, communicate to the public (including by telecommunication), broadcast, reproduce, make available, display, and translate, and create derivative works of any Materials provided by you in connection with the Services. We may use our rights under this license to operate, provide, and promote the Services and to perform our obligations and exercise our rights under the Terms of Service. You represent, warrant, and agree that you have all necessary rights in the Materials to grant this license. You irrevocably waive any and all moral rights you may have in the Materials in favour of Engage and agree that this waiver may be invoked by anyone who obtains rights in the materials through Engage, including anyone to whom Engage may transfer or grant (including by way of license or sublicense) any rights in the Materials.
- If you owned the Materials before providing them to Engage then, despite uploading them to your Engage Account they remain yours, subject to any rights or licenses granted in the Terms of Service or elsewhere. You can remove your Engage Account at any time by deleting your Account. Removing your Engage Account does not terminate any rights or licenses granted to the Materials that Engage requires to exercise any rights or perform any obligations that arose during the Term.
- You agree that Engage can, at any time, review and delete any or all of the Materials submitted to the Services, although Engage is not obligated to do so.
- You grant Engage a non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and license to use the names, trademarks, service marks and logos associated with your Store (“Your Trademarks”) to operate, provide, and promote the Services and to perform our obligations and exercise our rights under the Terms of Service. This license will survive any termination of the Terms of Service solely to the extent that Engage requires the license to exercise any rights or perform any obligations that arose during the Term.
8.2 Engage Intellectual Property
- You agree that you may not use any trademarks, logos, or service marks of Engage, whether registered or unregistered, including but not limited to the word mark SHOPIFY, the word mark SHOP, the word mark SHOP PAY, and the “S” and shopping bag design mark (“Engage Trademarks”) unless you are authorized to do so by Engage in writing. You agree not to use or adopt any marks that may be considered confusing with the Engage Trademarks. You agree that any variations or misspellings of the Engage Trademarks would be considered confusing with the Engage Trademarks.
- You agree not to purchase, register, or use search engine or other pay-per-click keywords (such as Google Ads), trademarks, email addresses, social media names, or domain names (including without limitation top-level domains, sub-domains, and page URLs) that use or include Engage or Engage Trademarks or that use or include any terms that may be confusing with the Engage Trademarks.
- You acknowledge and agree that the Terms of Service do not give you any right to implement Engage patents.
9. Additional Services
9.1 POS Services
- In addition to the terms applicable to Services generally, the following terms apply to your access and use of the POS Services. The POS Services include the Engage POS software (“POS Software”), the Engage POS website, located at https://www.engageplatform.co.za/pos, programs, documentation, apps, tools, internet-based services and components, Engage’s POS hardware (“POS Equipment”) and any updates thereto provided to you by Engage.
- Access to and use of the POS Services requires that you have an active and valid Account.
- If your POS Services are enabled with Engage Payments, you cannot concurrently use any other payment processing service. The payment gateway used for your POS Services must be the same as that used for your Online Services, if applicable.
- You can terminate your POS Services without terminating your Account or any other Services you subscribe to, and in such case, you will continue to be billed, and will pay for, the Services (other than the terminated POS Services).
- You agree to use the POS Services in accordance with all procedures that may be provided by Engage from time to time.
- While the POS Services use encryption technology, and the law generally prohibits third parties from monitoring transmission, we cannot guarantee security with respect to the connection to the POS Services, and we will not be liable for any unauthorized access to or use of data transmitted via the POS Services.
- POS Equipment is purchased, and not leased. Purchase of the POS Equipment is subject to the POS Equipment Agreement, POS Equipment Agreement and Return Policy, applicable to your country. Upon payment by you for the POS Equipment, and confirmation to you of shipment of the POS equipment, you will acquire ownership of and title to the hardware components of the POS Equipment, and you will be licensed to access and use all POS Software installed in the POS Equipment (and any updates thereto), on a limited, non-exclusive, revocable, non-sublicensable, non-transferable basis, solely for the purposes of using the POS Services. Returns and refunds are not available for the Chip & Swipe Reader, Swipe (Audio Jack) and physical gift cards purchased from the Engage Hardware Store.
- The Fees for POS Services will be determined based on the number of locations at which you are using the POS Services. Locations are defined by business address and are used for associating orders with a specific business address. Locations are added through the Engage web administrative console associated with your Account. The number of locations using POS Services will also be detected by us and billed accordingly as part of your regular billing cycle. In the event of any discrepancy between the number of locations added by you through the Engage web administrative console and the number of locations detected by Engage, the number of locations detected by Engage will be deemed to be correct.
9.2 Engage Shipping
- You can purchase shipping labels from within your Engage administrative console (“Engage Shipping”) for delivery of goods purchased from you from your Engage Account. In addition to these Terms of Service, your access to and use of Engage Shipping is subject to the Engage Shipping Terms of Service, located at (a) https://www.engageplatform.co.za/legal/terms-shipping-us if you are shipping from the United States; (b) https://www.engageplatform.co.za/legal/terms-shipping-ca, if you are shipping from Canada; and (c) https://www.engageplatform.co.za/legal/terms-shipping-global, if you are shipping from a location outside of Canada and the United States.
9.3 SMS Messaging
- The Services allow you to send certain communications to your customers by short message service (SMS) messaging (for example, sending order confirmation notifications via SMS) (the “SMS Services”). You will only use the SMS Services in compliance with these Terms of Service, any other applicable terms (including Nexmo Inc.’s Acceptable Use Policy and Twilio’s Acceptable Use Policy, as may be amended from time to time), and the laws of the jurisdiction from which you send messages, and in which your messages are received.
9.4 Theme Store
- You may establish the appearance of your Engage Account with a design template from Engage’s Theme Store (a “Theme”). If you download a Theme, you are licensed to use it for a single Store only. You are free to transfer a Theme to a second one of your own Stores if you close your first Store. To initiate a transfer of a Theme to a second one of your Stores, please contact Engage Support. You are not permitted to transfer or sell a Theme to any other person’s Store on Engage or elsewhere. Multiple Stores require multiple downloads and each download is subject to the applicable fee. Engage gives no assurance that a particular Theme will remain available for additional downloads.
- You may modify the Theme to suit your Store. Engage may add or modify the footer in a Theme that refers to Engage at its discretion. Engage may modify the Theme where it contains, in our sole discretion, an element that violates the Engage AUP or other provisions of the Terms of Service, even if you received the Theme in that condition. Engage may modify the Theme to reflect technical changes and updates as required.
- The intellectual property rights of the Theme remain the property of the designer. If you exceed the rights granted by your purchase of a Theme, the designer may take legal action against you, and, without prejudice to our other rights or remedies, Engage may take administrative action such as modifying your Store or closing your Store.
- Technical support for a Theme is the responsibility of the designer, and Engage accepts no responsibility to provide such support. Engage may be able to help you contact the designer.
- It is the responsibility of the user, and not Engage, to ensure that the installation of a new theme does not overwrite or damage the current or preexisting theme, or UI, of the user.
9.5 Engage Email
- Engage employs certain controls to scan the content of emails you deliver using the Email Services prior to delivery (“Content Scanning”). Such Content Scanning is intended to limit spam, phishing, or other malicious content that contravenes these Terms of Service, or Engage’s Acceptable Use Policy (collectively, “Threats”). By using the Email Services, you explicitly grant Engage the right to employ such Content Scanning. Engage does not warrant that the Email Services will be free from Threats, and each Engage merchant is responsible for all content generated by their respective Stores.
- using non-permission based email lists (i.e., lists in which each recipient has not explicitly granted permission to receive emails from you by affirmatively opting-in to receive those emails);
- using purchased or rented email lists;
- using third party email addresses, domain names, or mail servers without proper permission;
- sending emails to non-specific addresses (e.g., [email protected] or [email protected]);
- sending emails that result in an unacceptable number of spam or UCE complaints (even if the emails themselves are not actually spam or UCE);
- failing to include a working “unsubscribe” link in each email that allows the recipient to remove themselves from your mailing list;
- failing to comply with any request from a recipient to be removed from your mailing list within 10 days of receipt of the request;
- disguising the origin or subject matter of any email or falsifying or manipulating the originating email address, subject line, headers, or transmission path information for any email;
- failing to include in each email your valid physical mailing address or a link to that information; or
- including “junk mail,” “chain letters,” “pyramid schemes,” incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any email that encourages a recipient to forward the Email to another recipient.
- If you or a customer knows of or suspects any violations of the Email Services Requirements, please notify Engage at [email protected]. Engage will determine compliance with the Email Services Requirements in its discretion.
- Engage’s Email Services utilize Third Party Providers, including SendGrid (a Twilio Company). Your use of the Email Services is subject to SendGrid’s Acceptable Use Policy as it may be amended by SendGrid from time to time.
9.6 Shop App
- The Shop app is a Engage application that is available to Eligible Merchants (defined below) (the “Shop App”, more details here) to engage with customers that use the Shop App (each, a “Shop App User”).
- The Shop App is deemed to be a part of the Services, and all terms applicable to the Services apply. Without limiting the generality of the preceding sentence, and subject to these Terms of Service and all applicable guidelines and policies, Engage reserves the right to refuse a Merchant access to or use of all or part of the Shop App for any reason and at any time without prior notice. Only those Merchants who meet all merchant requirements and do not sell any prohibited products, as outlined in the Shop Merchant Guidelines (as may be amended from time to time), are eligible to access and use the Shop App Services (“Eligible Merchants”).
- We may display your Materials, including product or service listings, Your Trademarks and any other content, data, or information from your Engage Account on the Shop App. While the Shop App enables Shop App Users to shop natively in the Shop App, the transaction is completed on your Engage Account. For clarity and avoidance of doubt, Section 7 (Limitation of Liability) and Section 8 (Intellectual Property) apply to the use of your Materials on the Shop App and your responsibility for your Materials and purchases made through your Engage Account.
- Your Materials and your use of the Shop App must comply at all times with our Shop App Merchant Guidelines, these Terms of Service, the Additional Terms, all other applicable policies and guidelines, and applicable law.
- As in other areas of the Service, Engage is not obligated to intervene in any dispute arising between you and your customers (including Shop App Users).
- On the Shop App, content is ranked by factors including relevance to a search query or a user’s interests, image quality, domain quality and how frequently other users have engaged with the content. For more information about how we display content on the Shop App, see our Shop App help documentation.
- If you do not wish for your Materials to be available in the Shop App, it is your responsibility to manage or deactivate this Service. If you have the Shop App merchant channel installed, please see instructions here. If you do not yet have the Shop App merchant channel installed on your Engage Account, install it here. If the Shop App merchant channel is not currently supported in your country, please contact support to remove your Materials from the Shop App. Note that if you remove your Materials from the Shop App, Shop App Users who purchase from your Engage Account will continue to be able to view, manage and track orders from your Engage Account in the Shop App. If you delete your Engage Account, your Materials will be removed from the Shop App.
9.7 Third Party Services, Experts, and Experts Marketplace
- Engage may from time to time recommend, provide you with access to, or enable third party software, applications (“Apps”), products, services or website links (collectively, “Third Party Services”) for your consideration or use, including via the Engage App Store, or Experts Marketplace. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the applicable third party services provider (“Third Party Provider”). In addition to these Terms of Service, you also agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by, Third Party Providers.
- Engage Experts is an online directory of independent third parties (“Experts”) that can help you build and operate your Engage Account.
- You can engage and work with an Expert directly or through Experts Marketplace. Experts Marketplace provides you with recommendations on Experts that can assist you with different aspects of your Store. Using Experts Marketplace, you can find, hire, and communicate with Experts directly from your Account admin.
- Any use by you of Third Party Services offered through the Services, Engage Experts, Experts Marketplace or Engage’s website is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. In some instances, Engage may receive a revenue share from Third Party Providers that Engage recommends to you or that you otherwise engage through your use of the Services, Engage Experts, Experts Marketplace or Engage’s website.
- We do not provide any warranties or make representations to you with respect to Third Party Services. You acknowledge that Engage has no control over Third Party Services and will not be responsible or liable to you or anyone else for such Third Party Services. The availability of Third Party Services on Engage’s websites, including the Engage App Store or Experts Marketplace, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Engage. Engage does not guarantee the availability of Third Party Services and you acknowledge that Engage may disable access to any Third Party Services at any time in its sole discretion and without notice to you. Engage is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. Engage strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice, when assessing the correct tax rates you should charge to your customers.
- You acknowledge and agree that: (i) by submitting a request for assistance or other information through Experts Marketplace, you consent to being contacted by one or more Experts at the Primary Email Address (or such other email address provided by you) as well as the applicable user email address; and (ii) Engage will receive all email communications exchanged via Experts Marketplace or in any reply emails (each a “Reply”) that originate from Experts Marketplace (directly or indirectly) between yourself and Experts. You further agree that Engage may share your contact details and the background information that you submit via the Experts Marketplace with Experts. Experts may require access to certain admin pages on your Engage Account. You choose the pages that the Experts can access.
- The relationship between you and any Third Party Provider is strictly between you and such Third Party Provider, and Engage is not obligated to intervene in any dispute arising between you and a Third Party Provider.
- Under no circumstances will Engage be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider, including any Expert. These limitations will apply even if Engage has been advised of the possibility of such damages. The foregoing limitations will apply to the fullest extent permitted by applicable law.
- You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Engage partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.
9.8 Beta Services
- From time to time, Engage may, in its sole discretion, invite you to use, on a trial basis, pre-release or beta features that are in development and not yet available to all merchants (“Beta Services”). Beta Services are not part of the Services, and Beta Services may be subject to additional terms and conditions, which Engage will provide to you prior to your use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Engage Confidential Information and subject to the confidentiality provisions in this agreement. Without limiting the generality of the foregoing, you agree that you will not make any public statements or otherwise disclose your participation in the Beta Services without Engage’s prior written consent. Engage makes no representations or warranties that the Beta Services will function. Engage may discontinue the Beta Services at any time in its sole discretion. Engage will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. Engage may change or not release a final or commercial version of a Beta Service in our sole discretion.
9.9 Engage Pixel Manager
Engage allows you to add pixels to your Engage Account to enable you or a third party to track customer events (the “Engage Pixel Manager”). You may manage your pixels from within the user interface in the administrative console of your Engage Account.
Engage may collect information associated with the Engage Pixel Manager, such as how pixels are used, and how and what scripts are added. Engage may use this data to improve, maintain, protect and develop the Engage Pixel Manager.
10. Feedback and Reviews
Engage welcomes any ideas and/or suggestions regarding improvements or additions to the Services. Under no circumstances will any disclosure of any idea, suggestion or related material or any review of the Services, Third Party Services or any Third Party Provider (collectively, “Feedback”) to Engage be subject to any obligation of confidentiality or expectation of compensation. By submitting Feedback to Engage (whether submitted directly to Engage or posted on any Engage hosted forum or page), you waive any and all rights in the Feedback and that Engage is free to implement and use the Feedback if desired, as provided by you or as modified by Engage, without obtaining permission or license from you or from any third party. Any reviews of a Third Party Service or Third Party Provider that you submit to Engage must be accurate to the best of your knowledge, and must not be illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable. Engage reserves the right (but not the obligation) to remove or edit Feedback of Third Party Services or Third Party Providers, but does not regularly inspect posted Feedback.
11. DMCA Notice and Takedown Procedure
Engage supports the protection of intellectual property and asks Engage merchants to do the same. It’s our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our merchants is infringing their intellectual property rights, they can send a DMCA Notice to Engage’s designated agent using our form. Upon receiving a DMCA Notice, we may remove or disable access to the Materials claimed to be a copyright infringement. Once provided with a notice of takedown, the merchant can reply with a counter notification using our form if they object to the complaint. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise we recompany the material. Learn more at Reporting Intellectual Property Infringement.
12. Privacy and Data Protection
To the extent that Engage processes personal information of your customers as a “data processor” or “service provider” under certain data privacy or protection laws, including the EU or UK General Data Protection Regulation and the California Consumer Privacy Act, Engage’s collection and use of personal information is also subject to our Data Processing Addendum.
13. Engage Contracting Party
If the billing address of your Store is located in the United States or Canada, this Section 13(1) applies to you:
“Engage Contracting Party” means Engage Inc., a Canadian corporation, with offices located at 151 O’Connor Street, Ground floor, Ottawa, Ontario, K2P 2L8.
The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with the Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.
If the billing address of your Store is located in the Asia Pacific region (including Australia, New Zealand, China, Japan, Singapore), this Section 13(2) applies to you:
“Engage Contracting Party” means Engage Commerce Singapore Pte. Ltd, a corporation formed under the laws of Singapore, with offices located at 77 Robinson Road, #13-00 Robinson 77, Singapore 068896.
The parties irrevocably agree that the courts of Singapore are to have exclusive jurisdiction to settle any dispute which may arise out of or in connection with the Terms of Service and that accordingly any proceedings arising out of or in connection with the Terms of Service will be brought in such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.
If the billing address of your Store is located in EMEA region or other jurisdictions not listed in Section 13(1) or 13(2), including Europe and Russia, the Middle East, Africa, South America, Caribbean, or Mexico this Section 13(3) applies to you:
“Engage Contracting Party” means Engage International Limited, a private company limited by shares, incorporated in Ireland under registration number 560279, with its registered offices located at 2nd Floor Victoria Buildings, 1-2 Haddington Road, Dublin 4, D04 XN32, Ireland, VAT number IE 3347697KH and its website is at https://www.engageplatform.co.za/.
You irrevocably and unconditionally agree to submit to the jurisdiction of Irish courts, which have jurisdiction to settle any disputes which may arise out of or in connection with the validity, effect, interpretation or performance of these Terms of Service and you similarly irrevocably and unconditionally waive any objection to any claim that any suit, action or proceeding has been brought by Engage in any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.
14. Term and Termination
The term of these Terms of Service will begin on the date of your completed registration for use of a Service and continue until terminated by us or by you, as provided below (the “Term”).
You may cancel your Account and terminate the Terms of Service at any time by contacting Engage Support and then following the specific instructions indicated to you in Engage’s response.
Without limiting any other remedies, we may suspend or terminate your Account or the Terms of Service for any reason, without notice and at any time (unless otherwise required by law), including if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the use of the Services. Termination of the Terms of Service will be without prejudice to any rights or obligations which arose prior to the date of termination.
Upon termination of the Services by either party for any reason:
Engage will cease providing you with the Services and you will no longer be able to access your Account;
unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any Fees, pro rata or otherwise;
any outstanding balance owed to Engage for your use of the Services through the effective date of such termination will immediately become due and payable in full; and
your Engage Account will be taken offline.
If you purchased a domain name through Engage, upon cancellation your domain will no longer be automatically renewed. Following termination, it will be your sole responsibility to handle all matters related to your domain with the domain provider.
If there are any outstanding Fees owed by you at the date of termination of the Service, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again.
We reserve the right, in our sole and absolute discretion, to update or change any portion of the Terms of Service at any time. We will provide you with reasonable advance notice of changes to the Terms of Service that materially adversely affect your use of the Services or your rights under the Terms of Service by sending an email to the Primary Email Address, providing notice through the Engage administrative console, or by similar means. However, Engage may make changes that materially adversely affect your use of the Services or your rights under the Terms of Service at any time and with immediate effect (i) for legal, regulatory, fraud and abuse prevention, or security reasons; or (ii) to restrict products or activities that we deem unsafe, inappropriate, or offensive. Unless we indicate otherwise in our notice (if applicable), any changes to the Terms of Service will be effective immediately upon posting of such updated terms at this location. Your continued access to or use of the Services after we provide such notice, if applicable, or after we post such updated terms, constitutes your acceptance of the changes and consent to be bound by the Terms of Service as amended. If you do not agree to the amended Terms of Service, you must stop accessing and using the Services.
Engage may change the Fees for the Services from time-to-time. We will provide you with 30 days advanced notice prior to any changes in Fees by sending an email to the Primary Email Account, providing notice through the Engage administrative console, or by similar means. Engage will not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Services (or any part thereof).
16. General Conditions
The Terms of Service, including the documents it incorporates by reference, constitute the entire agreement between you and Engage and govern your use of the Services and your Account, superseding any prior agreements between you and Engage (including, but not limited to, any prior versions of the Terms of Service).
The failure of Engage to exercise or enforce any right or provision of the Terms of Service will not constitute a waiver of such right or provision. If any provision of the Terms of Service, including all terms and conditions and other documents it incorporates by reference, is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provision of the Terms of Service will remain in full force and effect.
Save for Engage and its affiliates, you or anyone accessing Engage Services pursuant to these Terms of Service, unless otherwise provided in these Terms of Service, no person or entity who is not a party to these Terms of Service will have any right to enforce any term of these Terms of Service, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description. For the avoidance of doubt, this will not affect the rights of any permitted assignee or transferee of these Terms.
The Terms of Service will be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws.
The Terms of Service may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English Terms of Service and Engage’s Terms of Service available in another language, the most current English version of the Terms of Service at https://www.engageplatform.co.za/legal/terms will prevail. Any disputes arising out of these Terms of Service will be resolved in English unless otherwise determined by Engage (acting in its sole discretion) or as required by applicable law.
All the terms and provisions of the Terms of Service will be binding upon and inure to the benefit of the parties to the Terms of Service and to their respective heirs, successors, permitted assigns and legal representatives. Engage will be permitted to assign these Terms of Service without notice to you or consent from you. You will have no right to assign or otherwise transfer the Terms of Service, or any of your rights or obligations hereunder, to any third party without Engage’s prior written consent, to be given or withheld in Engage’s sole discretion.
If any provision, or portion of the provision, in these Terms of Service is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision (or the unaffected portion of the provision) of the Terms of Service, and the Terms of Service will be construed as if such invalid, illegal or unenforceable provision, or portion of the provision, had never been contained within the Terms of Service.
On termination, all related rights and obligations under the Terms of Service immediately terminate, except that (a) you will remain responsible for performing all of your obligations in connection with transactions entered into before termination and for any liabilities that accrued before or as a result of termination; and Sections 1 (Account Terms), 5 (Payment of Fees), 6 (Confidentiality), 7 (Limitation of Liability and Indemnification), 8.1 (Intellectual Property and Your Materials), 9.7(8)-(10) (Third Party Services, Experts, and Experts Marketplace), 10 (Feedback and Reviews), 12 (Privacy and Data Protection), 13 (Engage Contracting Party), 14 (Cancellation and Termination), 15(1) (Modifications), and 16 (General Conditions) will survive the termination or expiration of these Terms of Service.
151 O’Connor Street, Ground floor
Ottawa, ON K2P 2L8