Terms of Service
Thank you for using engageSPARK!
Please read these Terms carefully. By signing up for an account, you are agreeing to these Terms. This is a legal agreement.
Here are some definitions that should help you understand this agreement. engageSPARK (“engageSPARK” or the “Service”) is a messaging service offered through the URL www.engageSPARK.com (we will refer to it as the “Website”) that allows or will allow you to create, send, receive, and manage messages through multiple communication channels, including short message service (“SMS” or “text message”), voice, email, social media, fax, and/or other communication channels (we will refer to each inbound or outbound message, regardless of communication channel, as a “Message”). As part of using the Service, you may submit, post, upload, type, enter, import, or otherwise bring into contact with the Service different types of data, including but not limited to text, graphics, photos, phone numbers, or other materials or information (we will refer to all of that data collectively as “Content” and to your bringing any Content in contact with the Service as “submitting” Content).
engageSPARK, Inc. is a Delaware, United States corporation (“engageSPARK,” “we,” or “us”). engageSPARK has one or more parents, subsidiaries, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (we will refer to engageSPARK and all of those entities and individuals collectively as the “engageSPARK Entities”). As a customer of the Service or a representative of an entity that is a customer of the Service, you are a Member according to this Agreement (we will refer to you as both a “Member” and as “you”).
PLEASE READ THE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EVERY CLAUSE. THE AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES YOU AND US TO USE ARBITRATION ONLY (RATHER THAN JURY TRIALS OR CLASS ACTIONS OR COURT CASES) TO RESOLVE ANY DISPUTES BETWEEN YOU AND US. IF YOU DO NOT AGREE TO THE TERMS, PLEASE DO NOT USE THE SERVICE.
To use engageSPARK, you must
- be of legal age to form a binding contract with us according to the laws in your country;
- have full legal authority to bind an entity to the Terms, if you are signing up for or using the Service on behalf of an entity;
- be legally permitted to use the Service under the laws of the country in which you are resident or from which you use the Service;
- complete the registration process;
- read and agree to the Terms on your behalf and, if applicable, on the behalf of an entity you represent.
By using engageSPARK, you represent and warrant (that is, you make a legally binding promise) that you meet all the requirements listed above, and that you will not use engageSPARK in a way that violates any laws or regulations. We may refuse service, close accounts of any users, and change eligibility requirements at any time.
Closing Your Account and Refunds
You may cancel your engageSPARK account and terminate this Agreement at any time and for any reason by giving us Notice. If you cancel your account, you will not receive a refund of any funds that you deposited in your account (we will refer to these funds as “Deposited Funds”).
We may cancel your engageSPARK account and terminate this Agreement at any time and for any reason by giving you Notice. We also may suspend our Service to you at any time, with or without cause. If we terminate your account without cause, we will refund a prorated portion of your monthly prepayment and reimburse you for unused Deposited Funds. We won’t refund or reimburse you your monthly prepayment or Deposited Funds if we terminate your account for cause, like a violation of these Terms, our Acceptable Use / Anti-Spam Policy, or our API Policy. If your account is canceled by you or by us, we may permanently delete your account and all the data and Content associated with it, including your Messages, from the Website.
Additionally, if you do not log in to your account for 12 or more months, we may treat your account as “inactive” and permanently delete the account, all Deposited Funds, and all the data associated with your account.
We may change any of the Terms from time to time without notice by posting revised Terms of Service on our Website and/or by sending an email to the last email address you gave us. The new Terms will be effective immediately and your continued or new use of the Service will constitute your acceptance of our new Terms. We will always post a “last updated” date at the top of the Terms to indicate when we last updated the Terms. We may change the Website, the Service, or any features of the Service at any time.
Account and Password
You are responsible for keeping your account name and password confidential. You are also responsible for any account that you have access to, whether or not you authorized the use. You are also responsible for any subaccounts, whether organizational subaccounts or user subaccounts, that you create within your account, whether or not you authorized the use. You will immediately notify us of any unauthorized use of your accounts. We are not responsible for any losses due to stolen or hacked passwords. We do not have access to your current password, and for security reasons, we may only reset your password.
We do not know the inner workings of your organization or the nature of your personal relationships, and we do not arbitrate disputes over who owns an account. You will not request access to or information about an account that is not yours. You will resolve any account-related disputes directly with the other party. We decide who owns an account based on the contact information listed for the account.
Monthly Plans and Deposited Funds
Our charges for monthly plans and for SMS messages and Voice Call minutes are posted on the Website and may be changed from time to time. Monthly plan payments are due on the first of each month and apply to the month in which the payment is made. If you cancel your account or downgrade to a lower monthly plan after the first day of a month, you will not be refunded for the unused portion of the monthly plan. However, if you sign up after the first day of a month, you will be charged a prorated monthly plan fee for that month.
In addition to paying for a monthly plan, you will need to deposit funds into your account to pay our charges for Messages that you send and receive. If the Deposited Funds reach a zero balance, we will stop sending and receiving Messages on your behalf.
We also may offer other services, such as phone numbers or short codes for receiving inbound Messages. You may be charged a recurring monthly fee for using some of those services. We will treat all monthly charges in the same way, and we will refer to them collectively as “Your Monthly Fees.” Deposited Funds roll over from month to month and don’t expire. If you do not have a credit card on file with us or we are unable to charge Your Monthly Fees to your credit card for any reason, we will deduct Your Monthly Fees each month from available Deposited Funds. If you are inactive for more than 12 months, your account may be deleted, in which case you will lose, and will not be refunded, the Deposited Funds.
We may accept a variety of payment methods, which may change from time to time.
If you are paying by credit card, you will provide us with valid credit card information and authorize us to deduct Your Monthly Fees against that credit card on the first day of each month. If we are unable to charge Your Monthly Fees to your credit card for any reason, we will deduct Your Monthly Fees from the Deposited Funds. If you do not have enough Deposited Funds to cover Your Monthly Fees, we will suspend your account until you add a working credit card to your account or add funds to your account via another payment method.
We will automatically charge your credit card on a monthly basis only for the amount of Your Monthly Fees. We will not charge your credit card to add Deposited Funds to your account unless you manually authorize us to do so by clicking on the appropriate button on the Website or if you check the “auto-recharge” box, specifying when and how much funds to auto-deposit into your account.
You will replace the information for any credit card that expires with information for a different valid credit card. Anyone using a credit card represents and warrants that he or she is authorized to use that credit card and that any and all charges may be billed to that credit card and won’t be rejected.
Other Payment Methods
We may accept other payment methods such as Western Union, wire transfers, PayPal, ACH bank transfers, or other payment methods. If you add payment details to your account for a payment method that allows us to charge you on a recurring basis, then we will treat those payment details like we treat credit cards (as we described above). If you pay via any other payment method, you will need to manually make payments to add funds to your account. If you do not have enough Deposited Funds to cover Your Monthly Fees, we will suspend your account until you add enough funds to your account.
You will pay all applicable taxes, if any, relating to any purchases or transactions you make via the Service.
Changes to Our Fees
We may change our fees and our discounts, bonuses, and referral incentives at any time by posting a new pricing structure to our Website and/or sending you a notification by email.
All right, title, and interest in and to the Service (excluding Content provided by Members) are and will remain the exclusive property of engageSPARK. The Service is protected by copyright, trademark, and other laws. Nothing in the Terms gives you a right to use the engageSPARK name or any of the engageSPARK trademarks, logos, domain names, and other distinctive brand features. Any feedback, comments, or suggestions you may provide to us or in any publicly accessible place regarding engageSPARK is entirely voluntary, and we will be free to use such feedback, comments, or suggestions as we see fit and without any obligation to you.
Your License To Use the Service
Subject to your acceptance of and compliance with this Agreement and with the payment requirements for the Service, engageSPARK hereby grants you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable right and license during the Term of this Agreement in and under our intellectual property rights, to access and use the Service, solely in accordance with the Terms. Unless explicitly stated otherwise, any new features provided by engageSPARK that augment or enhance the current Service shall also constitute the “Service” and shall be subject to the Terms. You may not, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Service for any purpose whatsoever. You may not allow any unauthorized third party to access the Service for any purpose whatsoever. All rights not expressly granted under this Agreement are retained by engageSPARK.
You retain your rights to any Content you submit to the Service. By submitting Content to the Service, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
You agree that this license includes the right for engageSPARK to provide, promote, and improve the Service and to make Content submitted to or through the Service available to other companies, organizations, or individuals who partner with engageSPARK.
Such additional uses by engageSPARK, or other companies, organizations or individuals who partner with engageSPARK, may be made with no compensation paid to you with respect to the Content that you Submit to the Service.
We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services, or media.
You are responsible for your use of the Service, for any Content you submit, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be syndicated, broadcast, distributed, or published by our partners and if you do not have the right to submit Content for such use, it may subject you to liability. engageSPARK will not be responsible or liable for any use of your Content by engageSPARK in accordance with these Terms. You represent and warrant that you have all the rights, power, and authority necessary to grant the rights granted herein to any Content that you submit.
Restrictions on Content and Use of the Services
Please review the Acceptable Use / Anti Spam Policy (which are part of the Terms) to better understand how you are permitted to use, and how you are prohibited from using, the Service. We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Service and to suspend or terminate your account. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to
- satisfy any applicable law, regulation, legal process or governmental request;
- enforce the Terms, including investigation of potential violations hereof;
- detect, prevent, or otherwise address fraud, security, or technical issues;
- respond to user support requests; or
- protect the rights, property, or safety of engageSPARK Entities, its Members, and the public.
You may not do any of the following while accessing or using the Service:
- Access, tamper with, or use non-public areas of the Service, engageSPARK’s computer systems, or the technical delivery systems of engageSPARK’s providers;
- Probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
- Access or search or attempt to access or search the Service by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by engageSPARK (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with engageSPARK (NOTE: crawling the Service is permissible if done in accordance with the provisions of the robots.txt file; however, scraping the Service without the prior consent of engageSPARK is expressly prohibited);
- Forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Service to send altered, deceptive, or false source-identifying information; or
- Interfere with, or disrupt, (or attempt to do so), the access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Service.
engageSPARK respects the intellectual property rights of others and expects Members to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your Content has been copied in a way that constitutes copyright infringement, please contact our support team and provide them with the following information:
- a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
- identification of the copyrighted work claimed to have been infringed;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- your contact information, including your address, telephone number, and an email address;
- a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
We reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, engageSPARK will also terminate a Member’s account if the Member is determined to be a repeat infringer.
RULES AND ABUSE
You promise to follow these rules:
- You won’t sign up with multiple email addresses, with the intention of getting free Messages from the initial funds that come with a new account. Those initial funds are made available to you only for testing engageSPARK, not to get free Messages.
- You won’t send Spam! By “spam”, we mean any unwanted Message.
- You won’t violate our Acceptable Use / Anti-Spam Policy, which is part of this Agreement.
- If you use our API, you’ll comply with our API Policy.
If you violate any of these rules, then we may suspend or terminate your account for cause. We also may change the Content of your Messages to indicate that they violate these terms.
If you think anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from a Member, we want to hear about it. Please report it to us by contacting our support team. If you think anyone has posted material that violates any copyrights, then you may notify us according to the Copyright Policy section of the Terms.
You may only use our bandwidth for your engageSPARK Messages. We provide hosting only for your Messages and related Content, so you may not host Content on our servers for anything other than related to your Messages. We may throttle your sending or connection through our API at our discretion.
Compliance with Laws
You represent and warrant that your use of engageSPARK will comply with all applicable laws and regulations. You are responsible for determining whether our Service is suitable for you to use in light of any regulations like HIPAA, GLB, EU Data Privacy Laws, or other laws. If you are subject to regulations (like HIPAA) and you use our Service, then we won’t be liable if our Service does not meet those requirements. If you are located in the European Economic Area (EEA) or send Messages to anyone in the EEA, you represent and warrant that in creating your Message distribution list, sending Messages via engageSPARK, and collecting information as a result of sending Messages, you:
- have complied, and will comply, with all regulations, as well as data protection, electronic communication, and privacy laws that apply to the countries where you are sending any Message through engageSPARK.
- have collected, stored, used, and transferred all data relating to any individual in ompliance with all data protection laws and regulations. You have the necessary permission to allow engageSPARK to receive and process data and send communications to that individual on your behalf; and
- agree to indemnify and hold us harmless from any losses, including attorney’s fees, that result from your breach of any part of these warranties.
Please read this section carefully since it limits the liability of the engageSPARK Entities (which we have defined at the beginning of the Terms). Each of the subsections below applies only up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties or the limitation of liability in contracts, and as a result the contents of this section may not apply to you. Nothing in this section is intended to limit any rights you may have which may not be lawfully limited.
The Service is Available “AS-IS”
Your access to and use of the Service is at your own risk. You understand and agree that the Service is provided to you on an “AS IS” and “AS AVAILABLE” basis.
WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE ENGAGESPARK ENTITIES DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
The engageSPARK Entities make no warranty and disclaim all responsibility and liability for:
- the completeness, accuracy, availability, timeliness, security or reliability of the Service or any Content;
- any harm to your computer system, loss of data, or other harm that results from your access to or use of the Service or any Content;
- the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Service; and
- whether the Service will meet your requirements or be available on an uninterrupted, secure, or error-free basis.
No advice or information, whether oral or written, obtained from the engageSPARK Entities or through the Service, will create any warranty not expressly made herein.
The Service may contain links to third-party websites or resources. You acknowledge and agree that the engageSPARK Entities are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the engageSPARK Entities of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENGAGESPARK ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM
- YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES;
- ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER MEMBERS OR THIRD PARTIES;
- ANY CONTENT OBTAINED FROM THE SERVICE; OR
- UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS, MESSAGES, OR CONTENT.
OUR TOTAL LIABILITY FOR ALL CLAIMS MADE ABOUT THE SERVICE IN ANY MONTH WILL BE NO MORE THAN WHAT YOU PAID US FOR THE SERVICE THE MONTH BEFORE.
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE ENGAGESPARK ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
You agree to indemnify and hold the engageSPARK Entitites harmless from any losses (including attorney’s fees) that result from any claims you make that are not allowed under the Terms due to a “Limitation of Liability” or other provision. You also agree to indemnify and hold us harmless from any losses (including attorney fees) that result from third-party claims that you or someone using your password did something that, if true, would violate any of the Terms. (Indemnity is an agreement to compensate someone, in this case engageSPARK, for a loss.)
If we file an action against you claiming you breached the Terms and we prevail, we are entitled to recover reasonable attorney’s fees and any damages or other relief we may be awarded.
In some cases, a breach of these Terms could cause damages, but proving the actual damages would be impossible. For example, if someone were to get our IPs blacklisted or lower our deliverability by breaking spam laws, we may seek liquidated damages since it is hard to put a number on those losses. These cases will result in the corresponding liquidated damages, which are a reasonable pre-estimate of the damages.
- If you send Messages that violate anti-Spam or other applicable laws, then the liquidated damages will be five times the amount you paid us over the past 12 months, but not less than $200 USD per Message you send that violates anti-Spam or other applicable laws.
- If you host Content for anything other than your Messages, or use our resources in any way that is not permitted by the Terms, then the liquidated damages will be four times the amount you paid us over the past 12 months, but not less than $720 USD.
- If you do not pay an amount due within thirty (30) days after we send you a late payment notice, then the liquidated damages will be three times the total amount you paid us over the past 12 months, but not less than $540 USD plus the amount owed.
If you violate the Terms, then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief.
If we have to provide information in response to a subpoena related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition.
You may not assign any of your rights under this Agreement to anyone else. Any attempted transfer or assignment by you shall be null and void. We may assign our rights to any other individual or entity at our discretion.
Mandatory Arbitration and Choice of Law
If you have any complaint about, or dispute with, engageSPARK, you agree to first contact us via the notification system in your account to try to resolve the complaint or dispute with us informally. If you do not first contact us via the notification system in your account, you automatically forfeit, as permitted by law, the right to bring any claims against us.
YOU AGREE TO BRING ANY CLAIMS IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS WE AGREE OTHERWISE, THE TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THE TERMS, YOU ARE WAIVING THE RIGHTS (1) TO A TRIAL BY JURY AND (2) TO PARTICIPATE IN A CLASS ACTION.
We will not be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, zombie apocalypse, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers.
Even if this Agreement is terminated, the following sections will continue to apply:
- RIGHTS and all of its subsections, except for the subsection entitled, Your License to Use the Service;
- Compliance with Laws;
- LIABILITY and all of its subsections; and
- GENERAL TERMS and all of its subsections.
If it turns out that a section of this Agreement is not enforceable, then that section will be removed or edited as little as necessary, and the rest of the Terms will still be valid.
The headers are provided only to make this agreement easier to read and understand. The fact that we wrote the Terms will not affect the way this Agreement is interpreted.
Amendments and Waiver
Amendments or changes to the Terms will not be effective until we post revised Terms on the Website. That aside, additional terms may apply to certain features of the Service (the “Additional Terms”). The Additional Terms will be considered incorporated into these Terms when you activate the feature. Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will control. If we do not immediately take action on a violation of the Terms, we are not giving up any rights under the Terms, and we may still take action at some point.
You will provide all documents and take any actions necessary to meet your obligations under these Terms.
Notification of Security Breach
In the event of a security breach that may affect you or anyone on your Message distribution lists (each a “List”), we will notify you of the breach and provide a description of what happened. If we determine, and notify you, that you need to forward all or part of that information to anyone on your Lists, you will promptly do it.
English Version Controls
Any non-English translations of the Terms are provided for convenience. In the event of any ambiguity or conflict between translations, the English version is authoritative.
Any notice to you will be effective when we send it to the last email or physical address you gave us or posted on our Website. Any notice to us will be effective when delivered to our support team.
Thank you for taking the time to learn about engageSPARK’s Terms of Service!