Apps Marketplace Terms of Service Agreement
This Apps Marketplace Terms of Service Agreement (“Agreement”) sets forth the terms and conditions of the use of the CIrcle ITC marketplace platform (“Apps Marketplace”), which provides third-party applications and services to CIrcle ITC customers (“App” or “Apps”). In this Agreement “You” and “Your” refer to You as the user of the Apps Marketplace, or any agent, employee, servant or person authorized to act on Your behalf. “We”, “Us” and “Our” refer to CIrcle ITC, Inc., as well as its subsidiaries and sister companies (“CIrcle ITC”). “Provider” refers to a third-party which offers its product and/or service on the Apps Marketplace in the form of an Apps Marketplace application. This Agreement explains Our obligations to You, and explains Your obligations to Us for using the Apps Marketplace. These obligations are in addition to (not in lieu of) any terms and conditions that apply to Your use of the Services under any other CIrcle ITC policies and/or agreements.
1. Term of Agreement; Modification.
You agree that CIrcle ITC may, in its sole and absolute discretion, modify or change this Agreement, the Apps Marketplace and/or the Apps offered on the Apps Marketplace from time to time and that such modifications or changes are effective immediately upon posting to this site. Your use of the site, the Apps Marketplace or any App(s) after such changes or modifications have been made constitutes Your agreement to be bound by this Agreement as last revised. If You have purchased any App(s) on the Apps Marketplace, the terms and conditions of this Agreement shall continue in full force and effect, including any changes made to this Agreement, as long as You take advantage of and use the App(s).
2. Provider Terms & Conditions
You acknowledge and agree that access to the Apps Marketplace and the purchase and/or use of any App(s) on the Apps Marketplace is subject to this Agreement, the Universal Terms of Service Agreement as well as any specific terms and conditions imposed by the Provider relating to the particular App(s) (“Provider T&Cs”). The obligations under this Agreement are in addition to (not in lieu of) any and all Provider T&Cs. Provider T&Cs cannot subtract from, modify, change and/or alter any term or condition arising under this Agreement. In the event of conflict or inconsistency between this Agreement and any Provider T&Cs, the terms and conditions under this Agreement (including any applicable CIrcle ITC policy or agreement incorporated by reference herein) govern and the conflicting or inconsistent provision(s) in the Provider T&Cs are void and of no effect to the extent of that conflict or inconsistency. We reserve the right in Our sole and absolute discretion to defer the operation of any provision(s) under this Agreement to any provision(s) under Provider T&Cs.
3. Customer Support.
CIrcle ITC provides customer support to You at no additional fee for service issues related to the use of the Apps Marketplace and/or the use of Your Account in connection to the Apps Marketplace, including any CIrcle ITC billing and payments systems service issues related to the Apps Marketplace. CIrcle ITC reserves the right, in Our sole and absolute discretion, to decide what is a service issue related to the Apps Marketplace and/or Your Account in connection to the Apps Marketplace. The Provider is solely responsible for providing customer support to You in relation to the use, operation or functionality of the relevant App.
4. Billing & Payment.
Apps purchased on the Apps Marketplace will be billed according to CIrcle ITC’s standard billing and payment procedures. However, CIrcle ITC reserves the right to establish direct billing by a Provider. You will be notified of direct billing arrangements by exception during the billing process for the purchase and/or renewal of the relevant App and/or by notice via this Agreement.
At the sole and absolute discretion of CIrcle ITC, Apps purchased or renewed through the Apps Marketplace may be refundable if You request cancellation and refund within 24 hours after purchase or renewal, as applicable. No refunds are available for Apps which provide an immediate, one-time service and/or incur fees directly related to the product provided such as, but not limited to, the CIrcle ITC Legal App. If You purchase an App that provides for a trial period, You must cancel within the trial period to be eligible for any available refunds. That is, if You participate in a free trial period and thereafter continue to use or access the App after the trial period has passed, no refund is available.
6. Disclaimer of Representations & Warranties.
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THIS SITE, THE APPS MARKETPLACE AND ANY APP(S) SHALL BE AT YOUR OWN RISK AND THAT THE APPS MARKETPLACE IS PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. CIRCLE ITC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT AND NON-INFRINGEMENT. CIRCLE ITC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE APPS MARKETPLACE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE APPS MARKETPLACE, AND/OR (III) THE APPS OFFERED ON THE APPS MARKETPLACE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE APPS MARKETPLACE, AND CIRCLE ITC ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE APPS MARKETPLACE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY CIRCLE ITC, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS SUPPORT CENTER OR CUSTOMER SERVICE REPRESENTATIVES), THIRD PARTY SERVICE PROVIDERS AND PROVIDERS OF THE APPS WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THE APPS MARKETPLACE OR THE APPS OFFERED ON THE APPS MARKETPLACE, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE, THE APPS MARKETPLACE OR ANY APP(S).
7. Limitation of Liability; Waiver & Release.
IN NO EVENT SHALL CIRCLE ITC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE APPS MARKETPLACE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE APPS MARKETPLACE, (III) THE APPS OFFERED BY THE PROVIDERS ON THE APPS MARKETPLACE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE APPS MARKETPLACE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THE APPS MARKETPLACE, THE APPS OFFERED ON THE APPS MARKETPLACE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE MARKETPLACE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THE APPS MARKETPLACE, THE APPS OFFERED ON THE APPS MARKETPLACE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE APPS MARKETPLACE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THE APPS MARKETPLACE OR THE APPS OFFERED ON THE APPS MARKETPLACE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT CIRCLE ITC IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT CIRCLE ITC WILL NOT BE LIABLE FOR ANY (I) SUSPENSION OR LOSS OF SERVICES RELATING TO THE APPS MARKETPLACE OR THE APPS OFFERED ON THE APPS MARKETPLACE; (II) INTERUPTION OF BUSINESS; (III) ACCESS DELAYS OR ACCESS INTERUPTIONS TO THE APPS MARKETPLACE OR THE APPS OFFERED ON THE APPS MARKETPLACE; (IV) LOSS OR LIABILITY RESULTING FROM ACTS OF GOD; (V) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (VI) EVENTS BEYOND THE CONTROL OF CIRCLE ITC; (VII) THE PROCESSING OF YOUR APPLICATION TO PURCHASE OR ACQUIRE APPS OFFERED ON THE APPS MARKETPLACE; (VIII) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD; (IX) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF ANY APPS PURCHASED OR ACQUIRED ON THE APPS MARKETPLACE.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS SITE, THE APPS MARKETPLACE OR ANY APPS OFFERED ON THE APPS MARKETPLACE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL CIRCLE ITC’S TOTAL AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE PARTICULAR SERVICES THAT ARE THE SUBJECT OF THE CAUSE OF ACTION. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE, THE APPS MARKETPLACE OR ANY APPS PURCHASED OR ACQUIRED ON THE APPS MARKETPLACE.
NO WAIVER OF ANY PROVISION OF THIS AGREEMENT SHALL BE EFFECTIVE UNLESS IT IS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF CIRCLE ITC.
Accordingly, You for Yourself and all of Your heirs, personal representatives, predecessors, successors and assigns, hereby fully release, remise, and forever discharge CIrcle ITC and all affiliates of CIrcle ITC, and all officers, agents, employees, and representatives of CIrcle ITC, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising thereunder, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the Apps Marketplace and Your access to and use thereof, including, but not limited to, the purchase and/or use of any App(s) offered by the Providers through the Apps Marketplace.
Further, You agree to defend, indemnify and hold harmless CIrcle ITC and any of its contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of (i) any breach of any representation or warranty provided in this Agreement, or as provided by CIrcle ITC’s AUP or any other agreement that has been incorporated by reference herein; (ii) the Apps Marketplace or Your use of the Apps Marketplace, including without limitation infringement or dilution by You or by another using the Apps Marketplace from Your computer; (iii) any intellectual property or other proprietary right of any person or entity; (iv) any information or data You supplied to CIrcle ITC, including, without limitation, any misrepresentation in Your application, if applicable; (v) the inclusion of metatags or other elements in any website created for You or by You via the Apps Marketplace or Your Account; (vi) any information, material, or services available on Your licensed CIrcle ITC website; or (vii), any negligence or willful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets.
This indemnification is in addition to any indemnification required of You elsewhere. Should CIrcle ITC be notified of a pending lawsuit, or receive notice of the filing of a lawsuit, CIrcle ITC may seek a written confirmation from You concerning Your obligation to defend, indemnify and hold harmless CIrcle ITC. Such written confirmation may include the posting of performance bonds or other guarantees. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that CIrcle ITC shall have the right to participate in the defense of any such claim through counsel of its Own choosing. You agree to notify CIrcle ITC of any such claim promptly in writing and to allow CIrcle ITC to control the proceedings. You agree to cooperate fully with CIrcle ITC during such proceedings. The terms of this section will survive any termination or cancellation of this Agreement.
9. Final Agreement.
This Agreement, together with all modifications, constitutes the complete and exclusive agreement between You and Us, and supersedes and governs all prior proposals, agreements, or other communications. This Agreement may not be amended or modified by You except by means of a written document signed by both You and an authorized representative of Us. By accessing or using the Apps Marketplace, or purchasing or acquiring any App(s) on the Apps Marketplace, you acknowledge that You have read and understood and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
10. No Agency Relationship.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, Our original objectives and intent as reflected in the original provision.
12. Assignment & Resale.
Except as otherwise set forth herein, Your rights under this Agreement are not assignable or transferable. Any attempt by Your creditors to obtain an interest in Your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any CIrcle ITC services (or portion thereof) without CIrcle ITC’s prior express written consent.
13. Force Majeure.
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over CIrcle ITC, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this section extends for a period in excess of thirty (30) days in the aggregate, CIrcle ITC may immediately terminate this Agreement.
14. Governing Law; Jurisdiction; Waiver of Trial By Jury.
Your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of California. You agree that any action to enforce this agreement or any matter relating to Your use of the Apps Marketplace must be brought exclusively in the United States District Court for the Central District of California, or if there is no jurisdiction in such court, then in a state court in Los Angeles County, State of California. You agree to waive the right to a trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement.
You agree that any notices required to be given under this Agreement by Us to You will be deemed to have been given if delivered in accordance with the account and/or, if domain related, the domain name Whois information You have provided. You acknowledge that it is Your responsibility to maintain current contact information for the account and/or domain name Whois information You have provided.
If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
18. Contact Information.
If you have questions about this Agreement, please contact us by email or regular mail at the following address:
CIrcle ITC Legal Department
19 Franklin Bardi Street