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Creating Your AccountEncircle will provide you with certain information to allow you to create an account and use the Services, such as one or more user IDs and passwords, and to add users who have the ability to create user IDs and/or passwords (the “Access Information”). You may not permit anyone other than you or your authorized representatives (including “Users” — meaning someone creating an account or using your account in relation to the Services that has been invited to do so by you, whether as your customer or on your behalf) to obtain access to the Services using the Access Information. Be aware that you are solely responsible for imposing any desired limitations to account permissions respecting your Users, enforcing User compliance with this Agreement, removing access to the Services from Users where desired (such as in the case of employee or contractor termination), and instructing Users respecting the usage of the Services, and you shall be vicariously liable for any breach by Users of these Terms.
Provision of the Services to you is conditional upon your payment to Encircle of all relevant fees, and your continued compliance with these Terms. Of course, some Services, such as the Encircle’s free mobile application, do not have a fee attached to it – but where Encircle’s standard price list sets out a fee, you must pay it to use the Services. Pricing for the various Services types is as described in Encircle’s standard price list – for example, the Services you are using may be billed on a monthly, annual or per-use basis – and billing is based on the accounts created by you.
If you are paying by credit card, you authorize Encircle or its third party payment processor to automatically charge your credit card for any and all fees incurred by you for Services. If your credit card is rejected for any reason, you will be responsible for any fees and charges associated with such rejection. The foregoing shall not limit Encircle’s ability to exercise any rights available to it in law or equity respecting the collection of any amounts payable hereunder, and you shall also be responsible for paying for all reasonable fees and costs incurred by Encircle, including legal fees, in collecting any overdue amounts or enforcing any provision of these Terms. You are also responsible for paying all taxes applicable to your purchase of the Services.
Your Stuff and Your Privacy
By using our Services you provide us with information, files and attachments that you submit to Encircle (together, “your stuff”). You retain full ownership to your stuff. We don’t claim any ownership to any of it. These Terms do not grant us any rights to your stuff or intellectual property except for the limited rights that are needed to run the Services, as explained below. By the same token, you’re also responsible for your stuff – you need to ensure that you have the right to provide us with it and to allow us to use your stuff to provide you with the Services and in accordance with these Terms.
By using our Services, you agree to take all liability for any claims relating to your stuff, and indemnify, defend and hold us harmless against those claims.We may need your permission to do things you ask us to do with your stuff, for example, hosting your information and attachments, or sharing them at your direction. This includes product features visible to you, for example, image thumbnails or document previews. You agree that, by requesting those services, you’re giving us permission to use your stuff to the extent needed to do the things that you request. We may also need to make design choices to technically administer our Services, for example, how we redundantly backup data to keep it safe, and some of those design choices may require us to move, share or technically manipulate your stuff; however, the integrity and the privacy of your stuff will continue to be respected. You give us the permissions we need to do those technical things solely to provide the Services.
The Services provide features that allow you to share your stuff with others or to make it public. There are many things that users may do with that stuff (for example, copy it, modify it, re-share it). Please consider carefully what you choose to share or make public. Encircle has no responsibility for your activity, or the activities of any other user of Encircle services.
Files and other content in the Services may be protected by intellectual property rights of others. Please do not copy, upload, download, or share files unless you have the right to do so. You, not Encircle, will be fully responsible and liable for what you copy, share, upload, download or otherwise use while using the Services.
You, and not Encircle, are responsible for maintaining and protecting all of your stuff. Encircle will not be liable for any loss or corruption of your stuff, or for any costs or expenses associated with backing up or restoring any of your stuff.
You are responsible for using the Services in accordance with this Agreement and all applicable law – this includes not transmitting harassing, abusive, libellous, illegal or deceptive messages or information; committing, attempting to commit or helping to commit a crime or other illegal or tortious acts, including any infringement of intellectual property rights; or any activities that violate any third party’s privacy rights. This also includes not engaging in any activity that could interfere with, degrade, or adversely affect any software, system, network or data used by Encircle and/or other users of the Services (including by ensuring that you do not upload any viruses or other harmful code in using the Services).
If your contact information or other information related to your account, changes, you must notify us promptly and keep your information current. The Services are not intended for use by you if you are under 13 years of age. By agreeing to these Terms, you are representing to us that you are over 13.
Your account is intended to be personal to you, and you are not allowed to use the Services for any commercial purposes or for the benefit of any third party. Therefore, you are responsible for safeguarding the password that you use to access the Services and you agree not to disclose your password to any third party. As a corollary to this, you are responsible for any activity using your account, whether or not you authorized that activity. You should immediately notify Encircle of any unauthorized use of your account. You acknowledge that if you wish to protect your transmission of data or files to Encircle, it is your responsibility to use a secure encrypted connection to communicate with the Services.
Software and Updates
Some use of our Service requires you to download a client software package (“Software”). Encircle hereby grants you a limited, personal, nonexclusive, non-transferable, revocable license to use the Software, solely to access the Services. Your license to use the Software is automatically revoked if you violate these Terms. We hereby reserve all rights not expressly granted in these Terms. You must not reverse engineer or decompile the Software, nor attempt to do so, nor assist anyone else to do so. As the Software is solely to be used to access the Services, all parameters for use of the Services also apply to the Software; the Software is also to be used only by you, and you are not permitted to distribute, assign, license, sublicense, lease, rent, transfer, sell or otherwise provide access to the Software, in whole or in part, to any third party on a temporary or permanent basis. Our Services may update the Software on your device automatically when a new version is available; by continuing to use the Services, you are agreeing that Encircle has the right to require you to use those updates, and that those updates are covered under these Terms.
As we are providing the Software under Canadian law, we need you to comply with certain basic statutory parameters about your rights to use the Software. Accordingly, you hereby represent and warrant that (i) you are not located in a country that is subject to a Canadian or U.S. Government embargo, or that has been designated by the Canadian or U.S. Governments as a “terrorist supporting” country; and (ii) you are not listed on any Canadian or U.S. Government list of prohibited or restricted parties.
You acknowledge that Encircle utilizes Microsoft Azure to provide hosting for its servers that are used by you in using the Services (“Host”), and that the servers are subject to the hosting agreements of the Host. The Host may impose additional restrictions, or may have additional rights, in relation to your use of the servers; it is solely your responsibility to ensure that you are aware of the terms and conditions imposed by the Host, and to comply with such terms and conditions. As of the date that these Terms were written, such Host’s agreements could be found at https://azure.microsoft.com/en-us/support/legal/.
To the limited extent that these Terms are less restrictive than the Host’s agreement, or is in direct conflict with, the Host’s agreement as they relate to your obligations respecting use of the servers, the usage rules of the Host’s agreement shall apply. The Host is a third party beneficiary of these Terms, and, upon your acceptance of the terms and conditions of these Terms, such Host will have the right (and you will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof. Notwithstanding the foregoing, these Terms are concluded solely between you and Encircle, and not with the Host, and the Host shall have no responsibility whatsoever respecting the Services or Software.
Encircle Property and Feedback
These terms do not grant you any right, title, or interest in the Services, Software, or the content in the Services. While we appreciate it when users send us feedback, please be aware that we may use any feedback, comments, or suggestions you send us or post in our forums without any obligation to you, and that by sending us the feedback, you are giving us the right to use it however we wish. The Software and other technology we use to provide the Services are owned or licensed by Encircle, and are protected by copyright, trademark, and other laws of the United States, Canada and foreign countries. It is therefore your responsibility to fully comply with such laws in using and handling the Services and Software. Nothing herein shall be construed as constituting a sale of the Software or any portion thereof to you. These Terms do not grant you any rights to use the Encircle trademarks, logos, domain names, or other brand features. Any rights not expressly granted to you in these Terms are reserved.
Acceptable Use Policy
You will not, and will not attempt to, misuse the Services, and will use the Services only in a manner consistent with the Encircle Acceptable Use Policy.
Encircle respects others’ intellectual property and asks that you do too. We will respond to notices of alleged copyright infringement if they comply with the law and are properly provided to us. Such notices should be reported to firstname.lastname@example.org. We reserve the right to delete or disable content alleged to be infringing and to terminate the provision of Services if the infringement warrants it. Our designated agent for notice of alleged copyright infringement on the Services is:
121 Charles Street W, Suite 330
Kitchener, ON Canada
The Services may contain links to third-party websites or resources. Encircle does not endorse and is not responsible or liable for their availability, accuracy, the related content, products, or services. You are solely responsible for your use of any such websites or resources.
These Terms will apply to your use of the Services from the date that you sign up for the Services until the date that your Services are terminated as described below.
Though we’d much rather you stay, you can stop using our Services any time – just notify us that you want to terminate your use of the Services. We reserve the right to suspend or end the Services at any time, with or without cause, and with or without notice. For example, we may suspend or terminate your use if you are not complying with these Terms, or use the Services in any way that would cause us legal liability or disrupt others’ use of the Services. If we suspend or terminate your use, we will try to let you know in advance and help you retrieve data, though there may be some cases (for example, repeatedly or flagrantly violating these Terms, a court order, or danger to other users) where we may suspend immediately. You still need to pay us for all your use of the Services up to the date of termination.
Encircle is Available “as-is”
Though we want to provide a great service, there are certain things about the service we can’t promise. THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS”, AT YOUR OWN RISK, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY, OR NON-INFRINGEMENT. Encircle makes no representations or warranties whatsoever concerning any information obtained through the Services, and Encircle will not be responsible or liable for the accuracy, copyright compliance, or legality of any material contained in or accessed through the Services,.
You therefore acknowledge that Encircle has no special relationship with or fiduciary duty to you, and has no duty to take any action regarding any acts or omissions taken by you or any other user of the Services, including without limitation: (a) which users use the Services, (b) what material you or other users access on or through the Services, (c) how you or any other user may interpret or use materials accessed through the Services, or (d) what actions you may take as a result of having been exposed to information obtained through the Services. Encircle will have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of the Services or Software. Some jurisdictions do not allow the types of disclaimers in this paragraph, so they may not apply to you; however, in such cases, these disclaimers shall be deemed to apply to the maximum extent allowable by such jurisdictions.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ENCIRCLE, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANYTHING OTHER THAN YOUR DIRECT DAMAGES, IF ANY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ENCIRCLE EXCEED THE AMOUNT PAID BY YOU FOR THE PORTION OF THE SERVICES THAT GAVE RISE TO THE CLAIM. ENCIRCLE SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE SERVICES, AND YOUR ONLY RIGHT WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SOFTWARE IS TO UNINSTALL AND CEASE USE OF SUCH SOFTWARE.
EXCEPT FOR THE FOREGOING DIRECT DAMAGES, IN NO EVENT WILL ENCIRCLE BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT ENCIRCLE HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Some states do not allow the types of limitations in this paragraph, so they may not apply to you; however, in such cases, these limitations shall be deemed to apply to the maximum extent allowable by such jurisdictions.
As we have no control over your actions and the way that you use the Services other than by requiring you to agree to these Terms, we feel it is your responsibility to make good on any claims brought against Encircle as a result of your acts or omissions. Accordingly, you agree to indemnify, defend and hold harmless Encircle from any claim or demand (including costs and attorneys' fees that are incurred as a result of the claim or demand) made by any third party due to or arising out of: (a) your access to the Services, the Software, and any content obtained by you through the Services or Software, (b) your use or misuse of the Services and/or Software, (c) any breach of this Agreement by you, (d) your infringement of any intellectual property or other right of any person or entity, or (e) your violation of any third-party rights or any applicable laws. This indemnity would also apply where the claim or demand arose from the acts or omissions of a third party gaining access to the Services or Software through you.
We may revise these Terms from time to time and the most current version will always be posted on our website. If a revision, in our sole discretion, is material we will notify you (for example via email to the email address associated with your account). Other changes may be posted to our blog or terms page, so please check those pages regularly. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new terms, please stop using the Services.
Miscellaneous Legal Terms
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