PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE AND TO THE PRODUCTS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THIS WEBSITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN DO NOT USE THIS WEBSITE OR THE PRODUCTS.
Encircl LLC (“Encircl”) provides businesses and organizations with a variety of products and related tools and resources including:
In addition to the products described above, Encircl provides a variety of related offerings and services. The product offerings and any related offerings and services are referred to in these Terms and Conditions of Use as the “Products.”
Encircl’s Products may not be used for the sending of unsolicited email (sometimes referred to as “spam”) or for the hosting of illegal or prohibited content.
The following are the terms and conditions of use for access to this website and use of the Products (“Terms and Conditions”). By clicking the “I accept” button on the sign-up page, by logging into your Encircl account, by accessing this website or by accessing the Encircl services via any API interface, you accept these Terms and Conditions of Use.
1. Copyright and Trademark Information
This website, and the information which it contains, is the property of Encircl and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions, and other intellectual property laws. Other Encircl product or service names or logos appearing on this website are either trademarks or registered trademarks of Encircl and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of Encircl’s trademark or other intellectual property rights concerning that name or logo.
2. Products – Terms and Conditions
If you are accessing or using the Products through a third-party service or website (a “Third-Party Service”), you agree and acknowledge that Encircl is not responsible or liable for any actions of such third party or for any aspect or result of such Third-Party Service. You use such Third-Party Service at your own risk. You further agree and acknowledge that Encircl may terminate such Third-Party Service’s ability to interact with the Products at any time, with or without notice, and in Encircl’s sole discretion, with no liability to you or to the third party.
3. Representations and Acknowledgements
Subject in each case to the terms listed in the remainder of this Agreement, you hereby represent, acknowledge, and agree that:
4. Fees and Payment, Fee Schedule
4.1 Fees for the Products. For the Products you will be subject to monthly subscription fees in accordance with the Fee Schedule and related information as agreed upon in writing between the parties in an additional agreement or amendment (the “Fee Schedule”).
4.2 Fees for Related Offerings and Professional Services. If selected by you, you will also be billed for related offerings and service in accordance with the Fee Schedule. In addition, you may also purchase professional services to assist you with your account. Any professional services purchased by you are subject to this Agreement.
4.3 Fee Schedule, Discounts. You are responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees charged by Encircl and any applicable discounts. The Fee Schedule, including prices and any discounts, is subject to change at any time in Encircl’s sole discretion. Encircl will use good faith efforts to notify you prior to the effectiveness of any significant change to the Fee Schedule. If you receive special discounts through a marketing partner, those discounts may not be available if you cease to continue to be a customer of the marketing partner, in which case Encircl’s standard rates will apply. Encircl may rely on information provided by the applicable marketing partner, if any, with respect to the status of your account.
4.4 Payment, State and Local Sales Tax. Payment for Products may be made by Company Check, Bank Wire or by a valid Credit Card accepted by Encircl. If the monthly payment option is selected or if you have previously provided your credit card for payment, you hereby authorize Encircl to charge your credit card for such amounts on a regular monthly basis until such time as your account is terminated. If Encircl is for any reason unable to effect automatic payment via your credit card, Encircl will attempt to notify you via email and your Encircl account will be disabled until payment is received. Amounts paid for the Products, including prepayments, are not refundable. Encircl is required to collect and remit sales tax from its customers located in state and local jurisdictions where software delivered as a service is taxable and where Encircl maintains a physical presence. Encircl determines your local taxing jurisdiction based on the billing address that you list in the “My Account” section of your account.
4.5. Premium Customers. If you have entered into a separate agreement with Encircl governing your use of the Products and any terms in that separate agreement (including any statement of work associated with that separate agreement) conflict with the terms of Sections 4.1 – 4.4 of these Terms and Conditions, the terms in that separate agreement control.
5. Email, Permission Practices, Image Hosting and Prohibited Content
5.2 Permission Practices. You agree to import, access, or otherwise use only Permission-Based Lists in connection with your use of the Products. You hereby covenant that you shall not use any other lists in connection with your use of the Products. Without limiting the foregoing, you agree that you shall not utilize the Product to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting. You cannot mail to distribution lists, newsgroups, publicly available press or media addresses or spam or unsolicited email addresses. You cannot copy a Encircl template or any other features or functionality from the Products and use them for any purpose other than sending email messages from the Products. This restriction also applies to customized templates prepared by Encircl’s professional services group. Emails that you send using the Products may generate spam complaints from recipients. You are responsible for ensuring that your emails do not generate a number of spam complaints in excess of industry norms. Encircl, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding, and conclusive for all purposes under this Agreement. Encircl will terminate your use of its Products if Encircl determines that your level of spam complaints is higher than industry norms (as determined by Encircl).
5.3 Documents and Images. Documents and images hosted by Encircl on Encircl controlled servers may only be used in connection with the Products and for no other purpose whatsoever. To the extent you use images provided by Encircl, Encircl hereby grants to you a limited, non-exclusive, non-transferable right to use the images in an unaltered state solely in connection with your use of the Products.
5.4 Prohibited Content. Encircl prohibits the use of the Products or website by any person or entity that:
5.6 Right to Disable Access or Remove Content. Encircl, at its own discretion, may immediately disable your access to the Products or remove all or a portion of your content, without refund, if Encircl believes in its sole discretion that you have violated any of the policies listed above or this Agreement.
6. Restrictions and Responsibilities
6.1 No Rights in Software. This is an Agreement for services and access to this website, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Products or any software, documentation, or data related to the Products (“Software”); remove any proprietary notices or labels from the Products or any Software, modify, translate, or create derivative works based on the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products or any Software.
Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Products or the Software, or any content, including but not limited to newsletters, distributed to you by Encircl in connection with the Products. Violation of these restrictions may result in the termination of this Agreement.
6.2 Permitted Use of the Products. The Products shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Products, then you hereby covenant that, prior to engaging in such activities, you will first request that Encircl perform such work at its standard professional services rates. Encircl can then decide either: (i) to perform the work in order to achieve such interoperability and charge its then standard rates for such work to you; (ii) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability; or (iii) provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.
6.3 Compliance with Laws, Monitoring. You shall use the Products only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and regulations thereunder and all other applicable U.S., state, local, and international laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation, copyright and trademark infringement, and child protective email address registry laws). Although Encircl has no obligation to monitor the content provided by you or your use of the Products, Encircl may do so and may block any email messages, remove any such content, including surveys or event registrations, or prohibit any use of the Products that Encircl believes may be (or is alleged to be) in violation of the foregoing.
6.4 Your Information. In using the varied features of the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to Encircl. Encircl may use this information and any technical information about your use of the Products to tailor its presentations to you, facilitate your movement through the Product, or communicate separately with you. If you accessed the Products as a result of solicitation by a marketing partner of Encircl, Encircl may share your information with the marketing partner and the marketing partner may share related information with Encircl. Except as described above, Encircl will not provide your information, including your contact and account information, to third parties whom you have not authorized to receive such information, except (i) as required by law or court order, including without limitation, judicial process, and law enforcement, or in the good-faith belief that such action is necessary to comply with law or a court order; or (ii) if your Encircl account was terminated due to unsolicited commercial email being sent from your Encircl account. Encircl will never sell or rent your contact lists to anyone without your permission, and will never utilize your subscriber or contact list for internal marketing or promotional purposes or for any purpose other than providing the service.
6.5 Intellectual Property Matters. You agree that you will not upload or transmit any contact lists, communications, or content of any type to this website or in connection with the Products that infringe, misappropriate, or violate any rights of any party. By submitting ideas, concepts, inventions, or content to this website or using them in connection with the Products, you agree that such submission is non-confidential for all purposes. If you make any such submission, you agree that you will not send or transmit to Encircl or to any third party using the Products, any communication or content that infringes or violates any rights of any party. If you submit any business information, ideas, concepts, or inventions or content to Encircl by email, you agree such submission is non-confidential for all purposes. If you make any submission to this website or if you submit any business information, idea, concept, invention, or content to Encircl by email or use any business information, idea, concept, invention, or content in connection with the Products you automatically grant or warrant that the owner of such content or intellectual property has expressly granted Encircl a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license, with the right to sublicense, to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such content in any manner. The foregoing license grant shall not apply to your contact lists and the content you deliver to or through the Products (“Customer Information”) and you hereby separately grant to Encircl a revocable, non-exclusive, royalty-free, worldwide license, with the right to sublicense, to use, reproduce, publish, distribute, perform, and display the Customer Information only as required by Encircl to offer and operate the Products and related services, including available offerings from third parties.
You hereby agree to defend, indemnify, and hold harmless Encircl and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors, and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation, costs and reasonable attorneys’ fees) in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any messages you distribute or events you host using the Products, or (iii) otherwise arises from or relates to your use of the Products. In addition, you acknowledge and agree that Encircl has the right to seek damages when you use the Products for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance, and/or consequential damages. In addition, in the event that Encircl is required to respond to a third-party or law enforcement subpoena that is related to your use of the Products, Encircl may in its sole discretion require you to reimburse Encircl for its reasonable expenses associated with complying with such subpoena.
8. Warranty Disclaimer, Remedies
USE OF THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. ENCIRCL DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. THE PRODUCTS ARE PROVIDED “AS IS” AND ENCIRCL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or non performance of the Products shall be for Encircl to use commercially reasonable efforts to adjust or repair the Products.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL ENCIRCL OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS, OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “ENCIRCL”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF ENCIRCL SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, ENCIRCL IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF ENCIRCL TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCTS IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY ENCIRCL TO YOU IN THAT TWELVE (12) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
10. Restricted Persons, Export of Products, or Technical Data
You hereby warrant that you are not a Restricted Person. For purposes of this Agreement, you are a Restricted Person if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Products is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical, or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify Encircl within twenty-four (24) hours, and Encircl shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you, but without prejudice to your outstanding obligations to Encircl.
You agree that you shall not utilize the Products to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Products, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
11. Third-Party Websites and Services
12. Monitoring Communications
You understand, agree, and acknowledge that Encircl may in its discretion, but is not obligated to, monitor or record any of your telephone conversations with Encircl for quality-control purposes, for purposes of training its employees, and for its own protection. You acknowledge and understand that not all telephone lines or calls are recorded by Encircl, and Encircl does not guarantee that recordings of any particular telephone calls will be retained or capable of being retrieved.
13. No Implied Endorsements
In no event shall any reference to any third party or third-party product or service be construed as an approval or endorsement by Encircl of that third party or of any product or service provided by a third party.
14. Notice and Take Down Procedures, Copyright Agent
If you believe any materials accessible on or from this website or the Products infringe your copyright or other intellectual property, you may request removal of those materials (or access thereto) from this website or the Products by contacting Encircl’s copyright agent (identified below) and providing the following information:
The contact for copyright issues relating to this website and the products/services is as follows:
75 Broadway, Suite 202
San Francisco, CA. USA 94111
In an effort to protect the rights of copyright owners, Encircl maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of this website who are repeat infringers.
15. Username and Password
You are responsible for maintaining the security of your account, passwords, and files. Encircl will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password or provides other appropriate account identifying information as determined by Encircl in its discretion, by email or by phone, or through a Third-Party Service, if any, through which you access the Products. Encircl has no knowledge of your organizational structure, if you are registering for the Products as an entity, or your personal relationships, if you are a person. Encircl shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password or other appropriate account-identifying information.
17.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
17.2 Encircl and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
17.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Encircl in any respect whatsoever.
17.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
17.5 The Agreement shall be governed by the laws of the state of California, USA without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in San Francisco, California.
18. Logo and Name Usage
Logo and Name Usage. Encircl may use Customer name and logo within sales and marketing material and on the Encircl Website located at: http://encircl.com. Customer agrees to share pre- and post- send metrics of subscriber engagement and conversion percentages in order to measure the impact of the technology. Customer also agrees to provide a case study and testimonials if the technology delivers a net positive impact on key performance metrics.
If you have any questions about the rights and restrictions above, please contact Encircl by email at firstname.lastname@example.org.