Terms of Service
This User Agreement, and all policies and additional terms posted on and in our sites, applications, tools and services (collectively "Services") set out the terms on which Engaging Choice offers you access to and use of our Services. The Mobile devices terms, all policies and additional terms posted on and in our sites, applications, tools, and services are incorporated into this User Agreement. You agree to comply with all terms of this User Agreement when accessing or using our Services. The entity you are contracting with is: Engaging Choice Inc., In this User Agreement, these entities are individually and collectively referred to as "Engaging Choice," "we," or "us."
Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us or our agents to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (see Legal Disputes, Section B ("Agreement to Arbitrate")). Unless you opt out: (1) you will only be permitted to pursue claims against us or our agents on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
2. About Engaging Choice
Engaging Choice is a platform that allows marketers, publishers and content providers to connect with users and present advertising and offers based on the information that users provide to Engaging Choice.
While we may provide pricing, shipping, listing, sourcing, and other guidance in our Services, such guidance is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, Engaging Choice has no control over and does not guarantee: the existence, quality, safety or legality of items advertised; the truth or accuracy of users' content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.
3. Using Engaging Choice
In connection with using or accessing the Services you will not:
- post, list or upload content or items in inappropriate categories or areas on our sites;
- breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
- use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
- fail to pay for services purchased by you, unless you have a valid reason as set out in an Engaging Choice policy, for example, the Engaging Choice has materially changed the service description without providing written information;
- fail to deliver items marketed and promoted by you and/or your agents;
- manipulate the price of any item or interfere with any other user's listings;
- post false, inaccurate, misleading, deceptive, defamatory, or libelous content;
- transfer your Engaging Choice account (including Feedback) and user ID to another party without our consent;
- distribute viruses or any other technologies that may harm Engaging Choice or the interests or property of users;
- interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
- export or re-export any Engaging Choice application or tool, except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
- infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, "Intellectual Property Rights") that belong to or are licensed to Engaging Choice. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to Engaging Choice or someone else;
- infringe any Intellectual Property Rights that belong to third parties affected by your use of the Services;
- commercialize any Engaging Choice application or any information or software associated with such application, except with the prior express permission of Engaging Choice;
- harvest or otherwise collect information about users without their consent; or
- circumvent any technical measures we use to provide the Services. Marketers must meet Engaging Choice’s standards, established at Engaging Choice’s discretion. Failure to meet these standards may result in Engaging Choice charging you additional fees, and/or limiting, restricting, suspending, or downgrading your account. If we believe you are abusing Engaging Choice and/or our Services in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
If we believe you are violating our policies, you may be subject to a range of actions, including limits on your buying and selling privileges, restrictions on listings and account features, suspension of your account, application of fees, and recovery of expenses for policy monitoring and enforcement. If you are a marketer and you offer or reference your contact information or ask a buyer for their contact information outside of Engaging Choice, you accept full liability and responsibility for all actions resulting from that request.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate all or part of our Services to anyone for any reason at our discretion.
4. Policy Enforcement
When an event arises that violates this agreement, we may consider the performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement, at our sole discretion.
The fees we charge for using our Services are listed on your marketer profile page. The fees and revenue share we pay are listed on your publisher and/or content provider profile page.
You must have a payment method on file when marketing through Engaging Choice Services and pay all fees and applicable taxes associated with our Services by the payment due date. If your payment method fails or your account is past due, we may collect amounts owed by charging other payment methods on file with us, retain collection agencies and legal counsel, and, for accounts over 60 days past due, request that PayPal deduct the amount owed from your PayPal account balance. In addition, you will be subject to late fees. Engaging Choice also retains all rights to remove your account, campaigns and offers from our platform, at any time.
Marketer fees don't purchase exclusive rights to item exposure on Engaging Choice. We, in our sole discretion and without consent from users and content providers and app publishers shall display third-party advertisements (including links and references thereto) or other content in any part of our Services at our sole determination.
6. Offer Conditions
When listing an offer, you agree to comply with Engaging Choice's policies and procedures and that:
- You are responsible for the accuracy and content of the listing and item offered
- Content that violates any of Engaging Choice's policies may be modified, obfuscated or deleted at Engaging Choice's discretion
- We strive to create a platform where users find what they are looking for. Therefore, the appearance or placement of offers will depend on a variety of factors, including, but not limited to:
- User’s location, search query, affiliate app site, and history;
- Marketer’s history, including listing practices, Engaging Choice policy compliance, Feedback, and defect rate.
- To drive a positive user experience, an offer may not appear in some search results regardless of the sort order chosen by the buyer
- Some advanced listing upgrades will only be visible on certain Services
- Engaging Choice's offer presentation policies may also affect whether your offer appears
- Metatags and URL links that are included in a listing may be removed or altered so as to not affect user experience
- We may provide you with optional recommendations to consider when creating your campaigns and offers. Such recommendations may be based on the aggregated sales and performance history of similar offers and campaigns, results will vary for individual offers.
When providing content using the Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights (as defined above) you have in that content in connection with our provision, expansion, and promotion of the Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce against Engaging Choice, our assignees, our sublicensees, and their assignees your Intellectual Property Rights in that content in connection with our, those assignees', and those sublicensees' use of that content in connection with our provision, expansion, and promotion of the Services.
You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this User Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this User Agreement, does not and will not infringe any Intellectual Property Rights of any third party. Engaging Choice takes no responsibility and assumes no liability for any content provided by you or any third party.
Engaging Choice may modify or revoke that permission at any time in our sole discretion. The content includes copyrighted, trademarked and other proprietary materials. You agree not to remove any copyright, proprietary, or identification markings in the product data and not to create any derivative works based on that data (other than by including the data in your listings).
We try to offer reliable content, but cannot promise that the content provided through the Services will always be available, accurate, complete, and up-to-date. Engaging Choice is not responsible for examining or warranting the content provided by third parties through the Services, and that you will not attempt to hold us or our data providers liable for inaccuracies. As a content provider or marketer, you agree to ensure that content directly associated with your listings is accurate.
The name "Engaging Choice" and other Engaging Choice marks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of Engaging Choice in the U.S. and other countries. They may not be used without the express written prior permission of Engaging Choice.
8. Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. Engaging Choice works to ensure that listed content and offers on our site or in our apps do not infringe upon the copyright, trademark, or certain other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify us at: firstname.lastname@example.org
9. Authorization to Contact You; Recording Calls; Analyzing Message Content
Engaging Choice may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Engaging Choice or its agents for quality control and training purposes, or for its own protection.
Engaging Choice's automated systems scan and analyze the contents of every message sent through its messages platform, including messages between users, to detect and prevent fraudulent activity, including the incorporated terms, notices, rules, and policies. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. Engaging Choice may store message contents, including to conduct this scanning and analysis.
10. Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Pricing and revenue share information update and other notification functionality in Engaging Choice's applications may not occur in real time. Such functionality is subject to delays beyond Engaging Choice's control.
You agree that you are making use of our Services at your own risk, and that they are being provided to you on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:
- the content you provide (directly or indirectly) using the Services;
- your use of or your inability to use our Services;
- pricing, shipping, format, or other guidance provided by Engaging Choice;
- delays or disruptions in our Services;
- viruses or other malicious software obtained by accessing or linking to our Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Services;
- damage to your hardware device from the use of any Engaging Choice Service;
- the content, actions, or inactions of third parties, including offer listed using our Services;
- a suspension or other action taken with respect to your account or breach of the Abusing Engaging Choice Section above;
- the duration or manner in which your offers appear results as set out in the Campaign and Offer sections of your profile and uploads; or
- your need to modify practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You agree to indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this User Agreement, your improper use of Engaging Choice's Services or your breach of any law or the rights of a third party.
13. Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND ENGAGING CHOICE HAVE AGAINST EACH OTHER ARE RESOLVED.
You and Engaging Choice agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Engaging Choice (including any claim or dispute between you and a third-party agent of Engaging Choice) that relates in any way to or arises out of this or previous versions of this User Agreement, your use of or access to the Services, the actions of Engaging Choice or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
13.A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Delaware, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and Engaging Choice, except as otherwise stated in this User Agreement.
13.B. Agreement to Arbitrate
You and Engaging Choice each agree that any and all disputes or claims that have arisen, or may arise, between you and Engaging Choice (including any disputes or claims between you and a third-party agent of Engaging Choice) that relate in any way to or arise out of this or previous versions of the User Agreement, your use of or access to the Services, the actions of Engaging Choice or its agents, or any products or services sold, offered, or purchased through the Services shall be resolved exclusively through final and binding arbitration, rather than in court. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
1. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND ENGAGING CHOICE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND ENGAGING CHOICE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Engaging Choice's right to appeal the court's decision. All other claims will be arbitrated.
2. Arbitration Procedures
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word "arbitrator" in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA's rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute ("Notice"). The Notice to Engaging Choice should be sent to Engaging Choice Inc. at info@engagingchoice, with the subject line: Attn: Litigation Department, Re: Notice of Dispute. Engaging Choice will send any Notice to you to the physical address we have on file associated with your Engaging Choice account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and Engaging Choice are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Engaging Choice may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail or email a copy of the completed form to the opposing party. You may send a copy to Engaging Choice at email@example.com. In the event Engaging Choice initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Engaging Choice account. Any settlement offer made by you or Engaging Choice shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Engaging Choice may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Engaging Choice subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Engaging Choice may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Engaging Choice user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
3. Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement to Arbitrate. Each party is responsible for its own Arbitration Costs. If the arbitration rules that the loser of such claim is liable for all costs, the responsible party shall make those payments with 15 business days of such order.
With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
5. Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Engaging Choice prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Engaging Choice.
C. Judicial Forum for Legal Disputes
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Engaging Choice must be resolved exclusively by a state or federal court located the appropriate jurisdiction. You and Engaging Choice agree to submit to the personal jurisdiction of the courts located within the selected jurisdiction for the purpose of litigating all such claims or disputes.
Except as otherwise provided in this Agreement, if any provision of this Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, and in such event, we will post notice on www.EngagingChoice.com.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on www.EngagingChoice.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and an Engaging Choice representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.
The policies and terms posted on our Services may be changed from time to time. Changes take effect when we post them on the Engaging Choice Service.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.
The User Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and Engaging Choice, and supersede all prior understandings and agreements of the parties, if any.
The following Sections survive any termination of this User Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Release, Indemnity, Legal Disputes, and General.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.