Term of Use
Encomm provides its customers with a suite of apps built for conversion rate optimization as a service (the “Services”) to enable eCommerce brands grow their revenue.
These Terms of Service (“Terms” or “Agreement”) are a contract between you (the Customer) and us (“Encomm” or “we” or “us”). They describe the services provided when you sign up for an account with us, define aspects of our business relationship, and set forth the terms and conditions that apply to your access to and use of the websites, products, and services owned and operated by us. Using our Subscription Services or signing up for a Free Account/Free Plan indicates agreement with, and acceptance of, these Terms.
This is a legal contract, so if you are entering into this agreement on behalf of a company, government agency, organization, or other legal entity, you represent that you have the authority to bind such entity to these Terms. (In this case, “you” and “your” would then refer to the entity.)
We will not knowingly accept this Agreement from anyone under the age of sixteen (16) years, or who lacks the capacity to understand these Terms. Neither will we knowingly collect their Personal Data or Information, as defined below.
An Account is created when an individual, company, or other entity, or any representative of such, signs up to the Encomm platform with a username and password. Accounts can either be free (called “Free Plans” or “Free Accounts”) or paid Subscriptions.
The person company, corporation, organization, or other entity whose name appears on the credit card that pays for the service.
Client sub-accounts, users, domains, and other features we may develop in the future that you have the option of adding to your Account based on Subscription level, which may or may not include an additional fee.
Data that does not contain Personal Data and which has been manipulated or combined to provide generalized, anonymous information.
These Terms of Service and any materials, contracts, conditions, or other documents referenced or linked to herein, without limitation.
May include, but is not limited to, alterations to the Services, modifications to how the Services are offered or provided, and changes to the software; usually designed to test for bugs, usability issues, or to evaluate user experience.
Cancellation/Downgrade to Free:
Removing subscription fees and paid features from an Account.
An assertion of entitlement to monetary, proprietary, or other judicially-enforceable redress.
Commercial Electronic Messages:
Emails containing newsletters, blogs, and other marketing materials.
A company with which Encomm has established a professional relationship, via a partnership contract or other legally binding agreement.
Any information marked confidential, identified as confidential at the time of disclosure, or that ought reasonably to be considered confidential, whether received in writing, visually, electronically, or orally. Confidential information includes, but is not limited to: technical information, marketing and business plans, databases, specifications, formulations, tooling, prototypes, sketches, models, drawings, procurement requirements, engineering information, samples, computer software (source and object codes), forecasts, identity of or details about actual or potential Customers or projects, techniques, inventions, discoveries, know-how and trade secrets.”Confidential Information” also includes all such business or technical information of any Third Party that is in Encomm’s possession.
Any person, organization, or other entity that has signed up for an Account, at any level.
Comments received orally, in writing, or electronically, from current, past, or potential Customers. Feedback may include (but is not limited to) ideas, suggestions, concepts, processes, techniques, questions, answers, codes/scripts, and other comments related to our Services, the Site, features, customers, Customer Support, documentation, our business, affiliates, partners, licensors, or employees.
An Encomm Account owner, on a Free Plan/Free Account, who has not logged in for twelve (12) months.
Enqos, its subsidiaries, affiliates, co-branders, licensors, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees, and representatives.
Any company, individual, or other entity from which Encomm has licensed the use of its hardware, software, services, or other products and intellectual property.
Anything provided by or through Encomm, its affiliates, subsidiaries, employees, agents, licensors, or other commercial partners including, but not limited to, software, informational text, documentation, design of and “look and feel,” layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof.
Oversight into Customer behavior (including but not limited to how the Site and Services are being used and the Content added to Accounts), examination of traffic to specific pages, the functioning of the Site and Services, and other investigatory processes as needed, whether conducted via software/electronically or by Encomm’s employees.
Personal Information/Personal Data:
Information about an identifiable individual, as defined in The Privacy Act of 1974 (Pub.L. 93–579, 88 Stat. 1896, enacted 31 December 1974, 5 U.S.C. § 552a) and General Data Protection Regulation (GDPR) Article 4.
All information in the “Your Profile” section of the application, including, but not limited to, full name, email address, password, profile picture, newsletter features, and subscription level.
Access to and support for the encomm platform, including the subscription service along with the suite of apps and other features available within each Subscription/Account level.
Credit or debit card numbers; personal financial information; Social Security/Social Insurance Numbers; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; religious affiliation; sexual orientation; physical or mental health condition or information; biometric information; political affiliation; membership in a union; or other employment, financial or health information, including any information subject to regulations, laws, or industry standards designed to protect data privacy and security.
The Encomm platform/application, and all features therein, including but not limited to: Encomm’s application program interface (API), CRO tools, and Subscription app along with any new app/campaigns that get added to the portfolio.
The Encomm website (www.Encomm.com), and all subdomains and sub-directories therein.
A Subscription to Encomm encompasses access to paid features, and begins with a free trial.
The thirty day or annual period between billings.
Any organization or person, other than you or Encomm. This includes, but is not limited to: CRM/CMS systems, email marketing software, billing and shopping cart/check-out platforms, PPC conversion tracking codes, analytics and other tracking software, non-Encomm forms, file hosting/sharing platforms, and any organization or person with which you or Encomm conducts business or integrates.
The period of a new Subscription, prior to billing, wherein you have access to paid features for free for a limited time. You agree that you will not create additional Accounts for the purpose of obtaining additional Trial Periods.
A temporary, free release of a new feature that may later be added to a Subscription for an additional fee.
Your Encomm username and password, which may include the email address under which your Account was created.
The visitors who access your online stores or website and may or may not purchase your products or services or complete your conversion goal. This agreement does not apply to, or bind, any Third Party.
Your Profile Information and Account
Your User ID is the only way to log in and access your Account. You understand and agree that you are responsible for maintaining the confidentiality of your User ID. You agree to provide true, accurate, current, and complete information about yourself, or the entity you represent, and you agree not to misrepresent your Profile Information. Encomm is not responsible for any Profile Information that may be lost or irrecoverable through the use of the Site or Services.
For as long as you remain the Account Owner and in compliance with this Agreement, you have the right to access and use the Services. This right is non-transferable, and you agree not to disclose your User ID to any Third Party. You are solely responsible for all activities that occur within your Account. If you become aware of any unauthorized use of your Account or Profile Information, you are responsible for notifying Encomm immediately. It is your responsibility to update or change any Account or Profile Information, as needed or desired.
Billing information can be updated from within your Account, and may only be changed by the Account Owner. Encomm disclaims all liability where Account ownership is disputed, and will not participate or play any role in such disputes. Encomm will automatically charge the credit card on file; should the billing information be changed, the new credit card will be charged. If an updated credit card is under a different name, the owner of the updated card becomes the Account Owner. Encomm will not change your billing information for you, under any circumstances, and will not be held responsible if an unauthorized party accesses your Account or changes your billing details. Encomm does not see or store full credit card numbers at any time.
Fees and Renewals
You agree to pay all Subscription fees, in your Account and all sub-accounts. Unless otherwise specified in a Subscription, such fees will be billed in advance for each month and are non-refundable. You agree that you may not be refunded or credited for partial months of service, or for periods in which your Account remains open but you do not use the Services. If you exceed any usage or fee thresholds set forth in your Subscription, we may charge you for such overages on your next invoice.
We reserve the right to modify our billing rates at any time upon thirty (30) days written notice by posting these fee changes to the Site or by notifying you via email. Should you continue to use the Services after these changes go into effect, you will be responsible for paying the new Subscription/billing rate.
By entering a credit card number, you agree that Encomm, and our Third Party service providers, may store your payment card information. You expressly authorize us to charge you, where applicable: (i) Subscription Fees, to be billed during a Subscription Period (ii) other fees for Services purchased, including, but not limited to, Add-Ons (iii) charges for use of the Services in excess of visitor, page, or other limitations, and (iv) taxes connected with your use of the Services.
You agree to reimburse us, where applicable, for all collection costs and interest for any overdue amounts. If the payment card you provide expires and you do not update your payment card information or cancel your Subscription, you authorize us to suspend your Account until your billing details have been updated. After an Account suspension, you agree that we may re-attempt payment processing upon receiving updated billing details.
Term and Renewal
Your paid Subscription is valid for either a monthly or an annual Subscription Period. Your Free Account is valid until such time as you upgrade or request Account deletion (by contacting firstname.lastname@example.org from the email address on file and requesting that we delete your Account).
If you upgrade to a higher-level Subscription during the Subscription Period, you will have immediate access to those higher level features. You agree to pay Encomm the difference between your original Subscription fee and the cost of the upgrade.
If you downgrade to a lower-level Subscription during the Subscription Period, you will receive a credit to your Account representing the difference between your original and your downgraded Subscription costs.
Changes to Subscriptions will be reflected in your next invoice. No credits or refunds will be issued for downgrading from a paid subscription to a Free Account (cancelling).
Your Subscription will automatically renew for an additional Subscription Period unless you cancel (see “Cancellation and Termination” below).
Cancellation and Termination
You may cancel your monthly Subscription at any time, either from within your Account or by sending an email to email@example.com, from the email address affiliated with your Account. Should you contact Customer Support to request assistance with Subscription Cancellation or account deletion, Encomm reserves the right to verify your identity by asking for the last four (4) digits of the credit card on file, the type of card, the billing address, and additional security questions.
To cancel over the phone, you must verify the last four (4) digits of the credit card on file, the type of card, and the billing address, as well as answer a series of security questions.
Changes to annual Subscriptions, including Cancellations, go into effect at the end of the annual Subscription Period. No refunds or credits shall be issued for annual Subscription Cancellations or downgrades, or from switching from an annual to a monthly Subscription before the end of the annual Subscription Period.
Cancellations must be completed at least one (1) day prior to the end of your then-current Subscription Period, whether monthly or annual; otherwise, billing for the next month or year will be processed automatically. Cancellations performed after billing are not entitled to refunds, in whole or in part.
You are responsible for all charges accrued on your Account up to the time of Cancellation, including all fees within the Subscription Period in which you cancel. Upon Subscription Cancellation, you are placed on a Free Account, which Encomm shall delete within twelve (12) months of the date of Cancellation, unless you re-Subscribe before the end of the 12 month period, or make other arrangements with us to retain your Account and its affiliated Personal Data. Account deletion permanently removes all subscription to our services, as well as your email address and other Personal Data. Encomm is not responsible for any Content lost as a result of Account deletion. We reserve the right to change our data storage and processing capabilities and procedures at any time, without notice or liability, subject to applicable laws.
Encomm reserves the right to terminate this Agreement at any time, for any reason, and at our sole discretion, without liability. A reason for such termination may be, but is not limited to, failure to comply with these Terms. Encomm reserves the right to modify, suspend, or discontinue the Site and/or Services, or any portion thereof, at any time and for any reason, with or without notice.
The sections “Submission of Content”, “Intellectual Property Rights”, “Confidential Information”, “Third Party Sites and Content”, “Disclaimer, Exclusion, and Limitation of Liability”, “Indemnification”, “Waiver of Jury Trial and Class Action Rights”, and “Dispute Resolution” will survive any actual or purported termination or expiry of this Agreement and continue in full force and effect.
Acceptable Use and Conduct
Encomm, and our hosting and data storage provider, place certain limitations on what can be advertised, promoted, and depicted on apps, pages built in, uploaded to, or hosted by Encomm. These limitations are detailed in our Acceptable Use Policy (AUP). When you agree to these Terms, you are also agreeing to our AUP, found HERE.
Intellectual Property Rights
When you interact with an email sent from ENCOMM (such as opening an email or clicking on a particular link in an email), we may receive information about that interaction. We won’t email you to ask for your password or other account information. If you receive such an email, please send it to us so we can investigate.
We value Customer, user, and potential Customer/user Feedback and take it very seriously, and we may, from time to time, solicit Feedback. All Feedback is Encomm’s exclusive property, and no provider of Feedback has a claim to any form of compensation, monetary or otherwise, in exchange for providing it.
We may, in our sole discretion, use, share, or incorporate Feedback in whatever form or derivative we may decide into the Site, our software, Services, documentation, business or other products, without limitation. We retain all rights to such Feedback on a worldwide basis in perpetuity.
All Encomm Material, as defined in the General Terms, is owned by us or our licensors or service providers, and is protected by copyright, trademark, trade secret, and other intellectual property laws.
For as long as you adhere to this Agreement and maintain a valid Account, Encomm grants you a non-transferable, non-sublicensable, non-exclusive, revocable, limited purpose right to access and use the Materials.
Submission of Content
You are able to add and upload Content in order to create campaigns from the apps using the Services. You agree that you are solely responsible for all Content you submit, provide, or upload, including any legal or other consequences for submitting, providing, or uploading it.
You grant Encomm a non-exclusive license to use the Content you upload in order to provide the Services to you, including, but not limited to, troubleshooting and publishing to your pages. This use may include, without limitation, the right to host, index, cache, store, or otherwise format your Content.
You further agree that Encomm may modify, add, and delete any Content added to the Services without liability, and at our sole discretion. Reasons for Content modification or deletion shall include, but are not limited to: malicious or damaging software or corrupted code within the Content, violations of intellectual property law, failure to adhere to our AUP, and for troubleshooting purposes.
You represent to Encomm that you own any Content you upload, submit, or otherwise add to your Account, or that you have obtained any necessary licenses, rights, consents, and permissions to such Content and activity. As such, you agree that none of the aforementioned Content will in any way violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person, business, organization, or entity.
You agree that Encomm is not responsible for any violations of Third Party intellectual property rights in any Content that you submit, upload, or otherwise add to Encomm. You further agree to pay all royalties, fees, and any other monies owed relating to the use of such Content.
Encomm may request access to your Content to use for marketing purposes. You are under no obligation to grant this request, and we will not use your Content in any marketing materials without your prior written permission.
You agree that we may Monitor the Site and Services, including without limitation, any campaigns created using our Services. We may, where reasonable or necessary, disclose information to satisfy our legal obligations, protect Encomm or its Customers, or operate or improve the Site or Services.
You agree that Encomm may gather and publish anonymous, Aggregate Data, based on your, your visitors’, and Your Customers’ use of the Site or Services. This data will not incorporate any Personal Information.
Where you choose to use or connect Third Party services with your Account, you agree that Encomm may share your lead data with these designated Third Parties, without liability. You are fully responsible for the Personal Data you choose to collect, store, and share, and you agree to abide by all applicable laws within your jurisdiction.
Encomm does not sell the lead data you collect with Encomm to Third Parties.
From time to time and at our sole discretion, we may initiate Beta Tests. We may implement, run, suspend, or terminate a Beta Test at any time without notice or liability, and do not guarantee that a tested product, service, modification, upgrade, or other adjustment to the Site, Services, or means of providing the Services, will become part of the Services. We may deliver (and subsequently cease delivering) a Beta Test to all or any subset of Encomm Account holders at our discretion without prior permission at any time. If we decide to incorporate a tested product or service into the Encomm platform, we may adjust our prices accordingly. Encomm accepts no liability for any consequences resulting from, or related to, your participation in a Beta Test.
From time to time and at our sole discretion, we may offer you the opportunity to try a new product or service for free for a limited time. Before the end of the Trial Program, you must decide whether you would like to continue using the new feature, should we choose to offer it. Whether we introduce a Trial Program feature into the Services generally, and if so, whether we charge an additional fee to access the feature, is at our sole discretion. If we charge a fee for its use and you purchase the trialed product or service, we may add it to your monthly invoice to be billed automatically until you choose to remove the Add-On or Cancel your Subscription. If you do not purchase the product or service by the end of the Trial Program, you will not be billed for it (normal Subscription rates will apply), and that feature will no longer be available to you.
You agree to comply with any additional terms, restrictions, or limitations connected to any Trial Program. You may not sign up for multiple Accounts in order to receive additional Trial Program benefits. We may terminate or suspend a Trial Program at any time without notice or liability, and in our sole discretion, and we reserve the right to adjust pricing relative to any service or product offered through a Trial Program. We are not responsible or liable for any adverse impact caused by or connected with a Trial Program.
When using Encomm apps or services, you agree to comply with the following:
(a) You may not offer or sell illegal or potentially illegal Customer Goods, including, but not limited to, those that are counterfeited, stolen, or fraudulent. Customer Goods offered or sold using the Site and/or Services must comply with all applicable laws, including, without limitation, export control laws.
(b) You may not offer or sell any Customer Goods that violate our AUP. This includes, but is not limited to, products that depict or promote child pornography, are obscene or defamatory, or that violate privacy rights or intellectual property law.
(c) You may not use the images or names of any Third Party (including notable personalities or celebrities) when offering or selling Customer Goods without first obtaining that Third Party’s permission.
Encomm may remove, or request that you remove, any Content that violate this section or the AUP.
Collection of Personal Information
If you use the Services to collect, store, use, or disclose Sensitive or Personal Information about identifiable individuals, you agree only to do so in accordance with applicable law. You agree to take all measures to protect the privacy and legal rights of individuals whose information you collect, and to provide them with a legally sufficient privacy notice or policy. If you are provided with Sensitive or Personal Information, you must disclose that this Information is being collected and clearly explain the reason for its collection and how the Information will be used. If you store Personal or Sensitive Information, you must do so securely, and in accordance with applicable law.
YOU AGREE TO INDEMNIFY ENCOMM AND HOLD US HARMLESS FOR ANY FAILURE TO COMPLY WITH THE FOREGOING, OR FOR ANY CLAIM MADE AGAINST ENCOMM BY ANY THIRD PARTY RELATED TO YOUR USE OF THE SERVICES TO COLLECT, STORE, OR USE PERSONAL OR SENSITIVE INFORMATION.
You agree not to disclose verbally, electronically, in writing, or in any other manner any Confidential Information that you have acquired or learned during the term of this Agreement or following the expiration or termination of this Agreement.
Third Party Sites and Content
You are responsible for knowing and adhering to your jurisdictional anti-spam laws. In jurisdictions where consent is required before sending email or electronic transactions to email accounts, you are responsible for obtaining that consent.
Certain features of the Services, when activated, may require that Encomm send an email to you, Your Customers, or any other Third Party on your behalf. (These may be modified at any time, with or without notice or notification, and we reserve the right to add features that include email notification functionality.) Because you must enable or engage these features in order to use them, you are responsible for any communications that follow. You agree that Encomm remains a disinterested third party to any such electronic communication completed using the Site and/or Services. You hereby agree to indemnify us and hold us harmless for any failure to have or obtain all necessary consents regarding the receipt of electronic communications, email, or commercial electronic messages.
You acknowledge and agree that Encomm is not responsible or liable for any Third Party content linked to from the Site or Services. This includes but is not limited to accuracy, integrity, quality, usefulness, legality, safety, and intellectual property rights. The inclusion of such linked content in no way indicates endorsement by, or association with, Encomm.
You agree that Encomm is not responsible or liable for any alleged or real damages or losses incurred through the use of Third Party content, goods, or services. Your use of Third Party content is solely at your own risk.
Disclaimer, Exclusion, and Limitation of Liability
Encomm MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SITE, SERVICES, OR DATA MADE AVAILABLE FROM THE SERVICES. YOUR USE OF THE SITE OR SERVICES, AND ALL CONTENT, MATERIAL, AND THIRD PARTY SOFTWARE AND CONTENT ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
Encomm DISCLAIMS ANY WARRANTY THAT THE SITE, THE SERVICES, OR ANY CONTENT, INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SOFTWARE AND CONTENT, WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, SERVICES, AND SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT FROM TIME TO TIME Encomm MAY REMOVE THE SITE OR CEASE PROVIDING THE SERVICES FOR INDEFINITE PERIODS OF TIME WITHOUT PRIOR NOTICE OR NOTIFICATION. YOUR ACCESS TO AND USE OF THE SITE AND SERVICES MAY BE INTERRUPTED OR SUSPENDED FROM TIME TO TIME FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, EQUIPMENT MALFUNCTIONS, PERIODIC UPDATING, MAINTENANCE OR REPAIR OF THE SITE OR SERVICES, OR OTHER ACTIONS THAT Encomm, IN ITS SOLE DISCRETION, MAY ELECT TO TAKE. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE NOT ENTITLED TO DAMAGES OR ANY OTHER FORM OF COMPENSATION OR RELIEF WHEN OUTAGES, DELAYS, DOWNTIME, MALFUNCTIONS, SECURITY OR SYSTEM BREACHES, OR OTHER INTERRUPTIONS OF SERVICE OCCUR.
Encomm MAKES NO GUARANTEE REGARDING: (A) THE NUMBER OF VISITORS, VIEWS, OR CONVERSIONS ON ANY OF YOUR PAGES; OR (B) THE COMPATIBILITY OF ANY SOFTWARE, HARDWARE, OR CONTENT WITH THE SITE OR SERVICES. YOU ARE NOT ENTITLED TO COMPENSATION, REFUNDS, CREDITS, DAMAGES OR ANY FORM OF RELIEF SHOULD THE SITE OR SERVICES NOT MEET YOUR EXPECTATIONS.
YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR PAGE IS COMPATIBLE WITH THE SITE AND/OR SERVICES. Encomm DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR ANY UNAUTHORIZED USE OF YOUR CONTENT BY THIRD PARTIES OR OTHER USERS OF THE SITE OR SERVICES, AND IS NOT RESPONSIBLE FOR PROTECTING YOUR CONTENT.
Encomm IS NOT RESPONSIBLE FOR THE ACTS, OMISSIONS, OR FAILURES OF ANY THIRD-PARTY CONTENT, SERVICE, NETWORK, OR SOFTWARE OR HARDWARE PROVIDER, INCLUDING BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS, HOSTING SERVICES USED BY Encomm, TELECOMMUNICATIONS PROVIDERS, CONTENT PROVIDED BY OTHER USERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY Encomm.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, APPS , IS DONE AT YOUR OWN DISCRETION AND RISK. YOU AGREE THAT YOU, SOLELY, ARE RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE, AND/OR FOR ANY LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER COMMUNICATED ORALLY OR IN WRITING, FROM Encomm EMPLOYEES, OR VIA THE SITE OR SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
THE SITE AND SERVICES ARE OFFERED AND CONTROLLED BY Encomm FROM ITS FACILITIES IN Washington. Encomm MAKES NO REPRESENTATIONS THAT THE SITE OR SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SITE OR SERVICES FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
YOU AGREE THAT NEITHER Encomm NOR ITS OWNERS, OFFICERS, DIRECTORS, AFFILIATES, CONTRACTORS, LICENSORS, EMPLOYEES OR AGENTS, WILL BE HELD LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF, FOR ANY TANGIBLE OR INTANGIBLE DAMAGES OR LOSSES ARISING FROM OR RELATING TO: THIS AGREEMENT, YOUR USE OF OR INABILITY TO USE THE SITE OR SERVICES, OR YOUR USE OF THIRD PARTY MATERIALS, CONTENT, OR SERVICES.
Encomm WILL NOT BE HELD RESPONSIBLE FOR ANY DAMAGES, LIABILITIES, LOSSES, OR OTHER CONSEQUENCES THAT YOU MAY INCUR IN THE EVENT THAT THE SITE AND/OR SERVICES ARE MODIFIED, SUSPENDED OR DISCONTINUED.
IN NO EVENT SHALL Encomm AND ITS AFFILIATES’, REPRESENTATIVES’, OFFICERS’, DIRECTORS’, STOCKHOLDERS’, EMPLOYEES’, OR AGENTS’ AGGREGATE LIABILITY FOR ALL CLAIMS, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE COST OF CUSTOMER’S SUBSCRIPTION.
You agree to indemnify, defend, and hold harmless the Indemnified Parties, from and against any Third Party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys’ fees) (collectively and individually, “Claims”) incurred by or made against the Indemnified Parties in connection with any Claims arising out of or relating to this Agreement, the Site or the Services, including but without limitation in relation to: (a) your use, non-use or misuse of, or connection to the Site, the Services, Consumer Goods and any Content, including without limitation your Profile Information and any third party Content forming part of the Site; (b) your violation or alleged violation of this Agreement; and (c) your violation of any rights, including intellectual property rights, of a third party and otherwise as set out herein. Encomm reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Encomm and you agree to cooperate with Encomm’s defense of these Claims. You agree not to settle any matter without the prior written consent of Encomm. Encomm will use reasonable efforts to notify you of any such Claims upon becoming aware of it.
Waiver of Jury Trial and Class Action Rights
IN ANY DISPUTE ARISING OUT OF OR RELATED TO THE SITE, THE SERVICES, A SUBSCRIPTION AND/OR THIS AGREEMENT, YOU HEREBY EXPRESSLY GIVE UP: (I) YOUR RIGHT TO A TRIAL BY JURY; AND (II) YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING, WITHOUT LIMITATION, CLASS ACTION LAWSUITS.
In any dispute between you and Encomm relating to this Agreement, the Site, or the Services, you agree that the dispute shall be governed exclusively by the laws of the state of Washington, USA, without regard to its conflict of law provisions.
Except for any claim involving the ownership of intellectual property, Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in Seattle, King County, Washington, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, King County, Washington.
Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND Encomm ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
You agree that you will not bring a claim under or relating to this Agreement more than twelve (12) months from when your claim first arose.
If any portion of this Agreement is deemed unlawful, void, or unenforceable by any arbitrator or court of competent jurisdiction, such decision will not invalidate the Agreement as a whole. Only that portion that is unlawful, void, or unenforceable will be stricken from this Agreement.
Waiver of Rights
You agree that if Encomm does not exercise or enforce a legal right or remedy contained in the Agreement or under applicable law, this is not a waiver of Encomm’s rights. Those rights or remedies will still be available to Encomm should we choose to exercise them.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that Encomm may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Encomm agree that these Terms (including any applicable order form(s) or service agreements) are the complete and exclusive statement of the mutual understanding between you and Encomm, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Encomm, and you do not have any authority of any kind to bind Encomm in any respect whatsoever. You and Encomm agree there are no third-party beneficiaries intended under these Terms.
You may contact Encomm by email at firstname.lastname@example.org, by telephone at 1-866-556-1566
Acceptable Use Policy
All capitalized terms not defined in this Acceptable Use Policy (AUP) have the meanings given to them in the main body of the Agreement.
This AUP applies to your use of the Site and Services provided by Encomm.
The examples described in this AUP are not exhaustive. Encomm (“we”) may modify this AUP at any time, without prior notice. By using the Site or Services, you agree to the latest version of this AUP. If you violate this AUP or authorize, encourage, or help others to do so, Encomm may immediately, without notice or liability, suspend or terminate your use of the Services.
Reporting Suspected Violations
Encomm encourages you to report suspected violations by sending an email with the page(s) in question, and the details of the alleged infraction, to email@example.com. We will investigate any reported violations of this AUP and will respond where appropriate or necessary, at our sole discretion. You agree to accept, in full, any conclusions related to an investigation into your complaint, without limitation.
No Illegal, Harmful, or Offensive Use or Content
You may not use, or encourage, promote, facilitate or instruct others to use, the Site or Services for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive. Prohibited activities or content include, but are not limited to:
Any illegal activities, including advertising, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography.
Harmful or Fraudulent Activities.
Activities that may be harmful to others, our operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices.
Content that infringes or misappropriates the intellectual property or proprietary rights of others.
Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts.
Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
No Security Violations
You may not use the Site or Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device. Prohibited activities include, but are not limited to:
Accessing or using any system without permission, including attempting to probe, scan, or test the vulnerability of a system or to breach any security or authentication measures used by a system.
Monitoring of data or traffic on a system without permission.
Falsification of Origin
Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route, or otherwise falsifying or masking your identity or source. This prohibition does not include the use of aliases or anonymous remailers.
No Network Abuse
You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them. Prohibited activities include, but are not limited to:
Monitoring or Crawling
Monitoring or crawling of a system that impairs or disrupts the system being monitored or crawled.
Denial of Service (DoS).
Inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.
Interfering with the proper functioning of any system, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
Operation of Certain Network Services
Operating network services like open proxies, open mail relays, or open recursive domain name servers.
Avoiding System Restrictions
Operating network services like open proxies, open mail relays, or open recursive domain name servers.
No E-Mail or Other Message Abuse
You will not distribute, publish, send, or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements. You will not alter or obscure mail headers or assume a sender’s identity without the sender’s explicit permission. You will not collect replies to messages sent from another internet service provider if those messages violate this AUP or the AUP of that provider.
Further Prohibited Conduct
You further agree that you will not:
(a) facilitate the unlawful distribution of copyrighted or trademarked content;
(b) except as expressly permitted by Encomm, license, sublicense, rent, or lease the Services to any Third Party;
(c) advertise to or solicit users who have requested not to be contacted about other services, products, or commercial interests, or who have unsubscribed from your marketing materials;
(d) use the Site or Services, or information obtained therein to stalk, threaten, or in any way harass another person or persons;
(e) collect, use, disclose, or disseminate data, including Personal Information, without informed consent, for unlawful purposes, or in violation of applicable law or regulations;
(f) request, solicit or in any way obtain access to usernames, passwords, or other authentication credentials for the purpose of automating logins to the Site or Services;
(g) attempt to gain unauthorized access to Encomm’s systems;
(h) engage in any activity that disrupts, diminishes the quality, interferes with the performance, or impairs the functionality of the Site or Services;
(i) decompile, reverse engineer, or attempt to access any source code underlying the Site, the Services, or other Encomm technology;
(j) copy, archive, store, reproduce, display, publish, or in any way distribute or create derivative works from all or any part of the Site or Services, without express authorization;
(k) access the Site or Services in order to build a product using similar ideas, features, functions, interfaces, or graphics as those found in the Site or Services;
(l) access the Site or Services in order to monitor their availability, performance, or functionality, or for any other benchmarking or competitive purposes;
(m) upload any Content, software, or code designed to: cause a security breach or override, interfere with the functionality or performance of the Site or Services, or prevent others from accessing or using the Site or Services;
Our Monitoring and Enforcement
We reserve the right, but do not assume the obligation, to monitor the Site and the Services (and any use of them), and to investigate any violation of this AUP or misuse of the Site or Services. Encomm may, at our sole discretion and without liability:
(a) investigate violations of this AUP or misuse of the Site or Services; and/or
(b) remove, disable access to, or modify any content or resource that, in our sole determination, violates this AUP or any other agreement we have with you for use of the Site or Services.
We may report any activity that we suspect violates any law or regulation to law enforcement officials, regulators, or any other appropriate Third Party. Our reporting may include disclosing customer information. We also may cooperate with law enforcement agencies, regulators, or any other appropriate Third Party to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this AUP.