Terms of Use

Please read the following carefully. IMPORTANT! These Terms of Use (“Terms”) govern your use and access of this website (the “Site”), our mobile and desktop applications (the “Apps”) and our services (collectively, the “Services”) which are owned, operated and provided by Marketcircle Inc. (“Marketcircle”, “we”, “our”, “us”). Please read these Terms carefully before using our Site, Apps and Services. Any person who wishes to use our Site, Apps and Services must accept these Terms without change. By using our Site, Apps, and Services, you are indicating your acknowledgment and acceptance of these Terms and all related policies and guidelines of this Site, including our privacy policy, as described in these Terms are incorporated by reference. If you are accessing our Site, Apps or Services on behalf of a body corporate (which includes a company or other organization with legal personality wherever or however incorporated), a partnership, a trust, a joint venture or an incorporated association or organization (the “Company”), by accessing our Site, Apps or Services you represent and warrant that you are authorized to accept these terms on behalf of the Company and bind such Company. Marketcircle does not own any User Content that you provide while using our Services.

1. Modifications to Terms

We may change these Terms or any other policies or guidelines governing our Site, Apps and Services at any time in our sole discretion. Any changes will be effective upon the posting of the revisions on our Site. Your use of our Site, Apps and Services will be subject to the most current version of the Terms posted on our Site at the time of such use. Your continued use of our Site, Apps and Services after such changes are implemented constitutes your acknowledgment and acceptance of the changes. Please consult these Terms regularly. if you do not agree to any changes to these Terms, please immediately discontinue your use of our Site, Apps and Services.

2. Privacy Policy

Please click here to read and review our Privacy Policy, which describes our privacy policies and practices in detail, as we may amend such policy from time to time. We advise you to check our Privacy Policy on a frequent basis for changes. You hereby consent to our use of your personal information in accordance with the terms and for the limited purposes described in our Privacy Policy. By agreeing to these Terms, you acknowledge and agree that certain information about you is subject to our Privacy Policy.

3. Intended Users

You must be at least eighteen (18) years old to use our Services and Apps. Your use of our Services and Apps is a representation to us that you are at least eighteen (18) years of age. You agree to cooperate with us and any reasonable measures we may use to verify your identity and authority in connection with your use of our Services and Apps.

4. Your Registration Obligations

We may at times require that you register and/or set up an account to use certain portions of our Services or Apps. In order to do so, you may be provided, or required to choose, a password, username, and/or other registration information, including, but not limited to, personal information (collectively, “Registration Information”). You agree and represent that all Registration Information provided by you is accurate and up-to-date. If any of your Registration Information changes, you must update it by using the appropriate update mechanism on our Site or Apps, if available. If we believe that the Registration Information that you provided is not correct, current, or complete, we reserve the right to refuse you access to our Site, Services or Apps. However, we have no obligation to verify the accuracy, currency completeness or usefulness of any Registration Information that you have provided to us.

5. Username/Password

(a) If you register or set up an account on the Site or Apps, you will be solely responsible for maintaining the confidentiality of any username, password, and similar information. You may not authorize others to use your username, password, or similar information. You are solely responsible for all usage or activity on your account including, but not limited to, use of the account by any person who uses your Registration Information, with or without authorization, or who has access to any computer on which your account resides or is accessible.

(b) If you have reason to believe that your account is no longer secure (for example, following a loss, theft or unauthorized disclosure or use of your Registration Information), you must promptly change the affected Registration Information by using the appropriate update mechanism on the Site, if available. We will not be responsible for the unauthorized use of your profile by any other person and disclaim any and all liability that may be associated with such use.

(c) We have the right to cancel or suspend your Registration Information and to suspend, cancel or terminate your account, your use or your access to the Site, Services or Apps, as well as remove and delete any information or User Content related to the Site or any one of the Services (and terminate your use thereof), for any reason whatsoever and at any time in its sole discretion, without notice and without liability to you or any other person.

6. License Grant and Restrictions on Use

(a) So long as you comply with these Terms, Marketcircle hereby grants to you a limited, non-exclusive, non-transferable, revocable, non-sublicensable right to download and use the Apps on a compatible mobile or desktop device solely for the purposes of accessing and using the Services. You may not use our Services or Apps for any other purpose without our express prior written consent.

(b) The Apps is licensed, not sold, to you. Except as expressly provided for in these Terms, Marketcircle reserves all rights, title and interest in and to the Apps and Services, including all intellectual property and other proprietary rights.

(c) You may not and may not authorize any other party to: (i) co‑brand our Services or Apps; (ii) frame our Site; or (iii) hyperlink to our Site, without the express prior written permission of an authorized representative of Marketcircle. For purposes of these Terms, “co‑branding” means to display any name, logo, trade-mark, or other means of attribution or identification of any party in such a manner as is reasonably likely to give a user the impression that such other party has the right to display, publish, or distribute our Services and Apps or which may confuse a user as the nature of the relationship between us and any party. You agree to cease and desist causing any unauthorized co-branding and framing or hyperlinking upon notice from us and at all times you will cooperate with us following our discovery of any such illegal activity.

(d) Marketcircle may, at any time and without notice to you, suspend, disable, limit or terminate access or use of all or part of the Apps or the Services for any reason and without any liability to you whatsoever. While Marketcircle takes great care to ensure the Apps and Services are accurate, errors and/or inaccuracies may occur. Marketcircle may change or update information on the Site at any time without notice, and availability of the Services or the Apps. We make no representations that the Apps or Services are compatible with, or will function or operate with your device or equipment.

7. Additional Terms for Mobile Users

(a) Your use of our Apps must be in accordance with all third party usage rules and policies that may exist from time to time (“Usage Policies”) applicable to you or your use of our Apps that may relate to any service provider, mobile device platform or the method you downloaded our Apps. You are solely responsible for determining the Usage Policies that apply to your use of the Apps.

(b) Your use of the Apps that Marketcircle provides to you designed for use on an Apple iOS-powered mobile device (an "iOS Apps") requires usage of data services. You acknowledge and agree that you are solely responsible for any and all data fees that your wireless service carrier may charge and any other applicable fees in connection with your use of the iOS Apps.

(c) You must not use this Apps on any device that you know or have reason to believe has had its standard protections and limitations have been removed, including, but not limited to a device that has been “rooted” or “jailbroken”.

(d) The following additional terms and conditions apply with respect to any iOS Apps and any Apps you download through Apple’s Mac App Store (collectively, “Apple Apps”):

(i) You acknowledge that these terms are between you and Marketcircle only, and not with Apple, Inc. ("Apple").

(ii) Your use of Marketcircle's Apple Apps must comply with Apple's then-current App Store or Mac App Store Terms of Service, as applicable.

(iii) Marketcircle, and not Apple, is solely responsible for our Apple Apps and the Services and content available thereon.

(iv) Your use of the Apple Apps is limited to Apple branded products that you own or control and as permitted by the Usage Policies set forth in the applicable App Store or Mac App Store Terms of Service.

(v) You acknowledge that Apple has no obligation to provide maintenance and support services whatsoever with respect to our Apple Apps.

(vi) To the maximum extent permitted by applicable law, Apple will have no warranty obligations, whether express or implied by law whatsoever with respect to our Apple Apps. To the extent not effectively disclaimed, any warranties remain with Marketcircle. In the event of any failure of the Apple Apps to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price for Apple Apps to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple Apps and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to confirm to any warranty will be Marketcircle’s sole responsibility.

(vii) You agree that Marketcircle, and not Apple, is responsible for addressing any claims by you or any third party relating to our Apple Apps or your possession and/or use of our Apple Apps, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple Apps fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these terms and any law applicable to us as provider of the Apple Apps.

(viii) You agree that Marketcircle, and not Apple, shall be responsible, in the event of any third party claim that the Apple Apps or your possession and use of our Apple Apps infringes that third party’s intellectual property rights, and Marketcircle, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such third party intellectual property infringement claim.

(ix) You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

(x) You agree to comply with all applicable third party terms of agreement when using our Apple Apps (e.g., you must not be in violation of your wireless data service terms of agreement when using Apple Apps).

(xi) If you have any questions, complaints or claims regarding the Apple Apps, please contact Marketcircle.

(xii) The parties agree that Apple and Apple's subsidiaries are third party beneficiaries to these terms as they relate to your license of Marketcircle's Apple Apps. Upon your acceptance of these terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these terms against you as they relate to your license of the Apple Apps as a third party beneficiary thereof.

8. Proprietary Content

(a) The entire contents of our Apps and Site, including without limitation, all names, designs, graphics, images, illustrations, photographs, artwork, video, audio, software, code, data, text, displays, the Apps and Site’s “look and feel”, logos, slogans, trade-marks, trade names, service marks, domain names, and the design, selection, arrangement and presentation of the Site as a collective work and/or compilation is protected under Canadian copyright, trade-mark, competition and other laws of Canada and other nations, and is owned by us or has been licensed to us. Except as expressly provided in these Terms, nothing contained in this Site and provided by our Services or the Apps should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trade-mark, service mark, or any other intellectual property.

(b) We may, from time to time, provide you with information, documents or resources, verbally, electronically or written (collectively, “Documentation”) owned by us or licensed to us which are protected under copyright, trade-mark, patent and other intellectual property rights. All content in the Documentation, including the collection, arrangement, and assembly of such content, is our exclusive property or licensed to us. You may not copy, sell, license, transfer, publish, reproduce, modify, display, reverse engineer, decompile, disassemble, adapt, translate, transmit, arrange, bundle, sublicense, export, merge, loan, rent, lease, assign, share, outsource, host, distribute in anyway, prepare derivative works based on, re-post, make available to any person or otherwise use, either directly or indirectly, any of the Documentation or content in the Documentation, in whole or in part, in any form or by any means whatsoever, be they physical, electronic or otherwise, for any public or commercial purpose, without our prior written consent. You must not permit, allow or do anything that would infringe or otherwise prejudice our proprietary rights or allow any third party to access the Documentation. The restrictions set out in these Terms do not apply to the limited extent the restrictions are prohibited by applicable law.

9. Third Party Content

(a) Our Services and Apps may also contain information or materials (“Third Party Content”) that is owned or provided by persons other than Marketcircle (“Third Party Providers”), such as our partner companies. We make no representations and warranties with respect to any such Third Party Content and do not undertake to conduct any independent investigation of Third Party Content. Inclusion of Third Party Content from Third Party Providers with our Services or Apps does not mean, unless expressly stated otherwise, that we endorse or agree with such Third Party Content.

(b) You understand that you have no proprietary rights in the Third Party Content and that the Third Party Providers retain all proprietary right, title or interest, including copyright, in their respective Third Party Content.

(c) You must use your best efforts to stop any such copying or distribution immediately after you become aware of such use. You may not copy, sell, license, transfer, publish, reproduce, modify, display, reverse engineer, decompile, disassemble, adapt, translate, transmit, arrange, bundle, sublicense, export, merge, loan, rent, lease, assign, share, outsource, host, distribute in any way, prepare derivative works based on, re-post, make available to any person or otherwise use, either directly or indirectly, any of the Third Party Content, in whole or in part, in any form or by any means whatsoever, be they physical, electronic or otherwise, for any public or commercial purpose, without the prior written consent of the Third Party Providers. You must use your best efforts to stop any such copying or distribution immediately after you become aware of such use.

Our Services and Apps contain hyperlinks to other sites that are not maintained by, or related to, Marketcircle. Hyperlinks to such sites are provided solely as a convenience to you and do not imply any endorsement by Marketcircle of, any affiliation with or endorsement by the owner of the linked site. We have no control over such third party sites. We are not responsible for the availability of such external sites and no endorsement of any third party products or services is expressed or implied by any information, material or content referred to or included on or linked from or to our Services or Apps. Use of such third party sites, including any information, material and services in these sites, is solely at your own risk. You also understand and agree that our Privacy Policy is applicable only while you are using our Services and Apps. Once you are linked to another site, you should read the privacy statement of that site before disclosing any personal information.

11. Subscription to our Services

(a) Trial Period. You must create an account with us to use our Services. We may provide access to the Services without payment for a trial period of thirty days, or as otherwise stated in the sign up process (the “Trial Period”). You may at any time during the Trial Period and thereafter, purchase a Subscription. Your access to the Services will be terminated at the end of the Trial Period if you do not purchase a Subscription. We provide you with the Trial Period for informational purposes only, so you may evaluate our Services and we reserve the right to terminate your Trial Period at any time, without cause.

(b) Subscription. After the conclusion of the Trial Period, you must purchase a subscription and pay a recurring fee to continue to access our Services (“Subscription”). Depending on the type of Subscription you select, your Subscription will continue either on a month-to-month basis or year-to-year, unless terminated in accordance with these Terms. If you purchase a month-to-month Subscription, the Subscription fee for the Services and any other charges you may incur in connection with your use of the Service, such as taxes and possible transaction fees, will be charged on a monthly basis at the start of the then current Subscription period to the payment information you provide. If you purchase an annual Subscription, the Subscription fee for the Services and any other charges you may incur in connection with your use of the Service, such as taxes and possible transaction fees, will be charged on an annual basis at the start of the then current Subscription period to the payment information you provide.

(c) Fees. When you purchase a Subscription (an “Order”), you expressly authorize us (through our Third Party Processors) to charge you for such Subscription fee at the start of each Subscription period. If we cannot successfully process your payment at the start of a Subscription period, we reserve the right to suspend your access to the Services or cancel your Subscription. You agree to update your payment information if such payment information is no longer valid.

(d) Modification to the Subscription Fees. The Subscription fees for the Services are subject to change upon 120 days’ notice from us.

(e) Cancelling Your Subscription. You may cancel your Subscription at any time. Payment for the Subscription fees are non-refundable and you shall be responsible for any fees up to and until the end of the then Subscription period in which your Subscription is terminated. Unless your Subscription is terminated, when you cancel your Subscription, you may still use the Services up until the end of your then current Subscription period.

(f) Conditions. All Orders made through our Site and Apps are subject to the following conditions:

(i) You may only purchase our Services for lawful purposes;

(ii) You agree to provide us with a valid and accepted method of payment for the Services;

(iii) You represent and warrant that you have the legal right to use all payment information you provide us;

(iv) We reserve the right to cancel your Order for any reason; if we cancel your Order we’ll refund any payment you have already remitted to us for such Order;

(v) You understand and agree that you are agreeing to and entering into a complete and binding contract with Marketcircle. You are responsible for providing complete and accurate contact information to us and for notifying us of any changes to such information by using the appropriate update mechanism on our Site;

(vi) All charges will be processed using the currency displayed to you on this Site, unless stated otherwise;

(vii) If you are purchasing Services with a company credit card, you must be an authorized representative of the company; and

(viii) You agree to pay for all charges noted in your Purchase as payable by you. You are responsible for any applicable duties and taxes imposed on any transactions conducted on or in connection with this Site, Apps or Services.

12. User Content

(a) By using our Services, you may have the opportunity to post, upload or otherwise make available content (such as data, text, graphics, images, and any information or materials) to the Services through the Site or the Apps (“User Content”). You agree to only upload User Content to which you own all proprietary right, title and interest, or have a license or written consent from the owner to upload such User Content to our Services.

(b) If you upload User Content that is the personal information of a third party, you agree that you will only do so after you have obtained consent to do so in accordance with applicable privacy laws (“Consent”). You hereby confirm that any and all User Content provided by you to us complies with all applicable laws.

13. Payments

(a) At present, when you pay for our Services, your payment will be processed by Recurly, Inc. (“Recurly”), Bright Market LLC d/b/a FastSpring (“FastSpring”) and Bambora Inc. (“Bambora”, with Recurly, FastSpring, and Bambora collectively referred to as the “Third Party Processors”).

(b) If you have any questions or concerns about your payment information or your agreement with Recurly, please contact Recurly at 1-844-732-8759 or www.recurly.com. If you have any questions or concerns about your payment information or your agreement with Fastspring, please contact Fastspring at 1-877-327-8914 or www.fastspring.com. If you have any questions or concerns about your payment information or your agreement with Bambora, please contact Bambora at 1-833-226-2672 or www.bambora.com. If you have any dispute resolution issues, you may contact us.

14. Use of our Site, Apps and Services

(a) We expect that you will access and use our Site, Apps and Services in a professional, responsible and business-like manner in accordance with applicable laws when uploading User Content through the Services. By using our Services or Apps, you have the opportunity to engage in dialogue with representatives of Marketcircle if you send us emails or contact us through our Site. We welcome your questions, suggestions, ideas and other information (collectively “Suggestions”) that you communicate to us so long as any such Suggestions, User Content, or interaction is not obscene, illegal, threatening, defamatory, libellous, harmful, abusive, harassing, tortuous, homophobic, sexist, vulgar, obscene, hateful or racially, ethically or otherwise objectionable, invasive of privacy, infringing of third party intellectual property or privacy rights, or is otherwise injurious to third parties.

(b) You are not obligated to provide us with Suggestions regarding our Site, Services or Apps. However, if you do provide us with Suggestions, then we retain all rights to any Suggestions that you may provide to us and you agree to grant us a non-exclusive, worldwide, royalty-free, irrevocable license to use your Suggestions in any commercial manner.

(c) You further agree that you must use our Site, Apps and Services for lawful purposes only and represent and warrant that you will not use our Site, Apps and Services to:

(i) e-mail, provide us with or otherwise transmit any Suggestions or User Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

(ii) e-mail, provide us with or otherwise transmit any Suggestions or User Content that infringes, misappropriates, or otherwise violates any third party’s copyright, patent, trade-mark, or other proprietary right of publicity or privacy, or encourages or enables any other party to do so;

(iii) remove any proprietary notices or labels, or any promotional or advertising material, from our Site, Apps and Services;

(iv) e-mail, transmit or send via the Internet any unsolicited or unauthorized advertising, branding, promotional materials, commercial solicitation, political campaigning, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

(v) impersonate any person or entity or misrepresent your affiliation with any other person, company or entity, including without limitation, using a false email address or misleading us as to your identity when you are on our Site or otherwise communicating with us;

(vi) upload, e-mail, send via the Internet or otherwise transmit, any software viruses or any other computer code, files or programs designed to interrupt, destroy, alter, or limit the functionality of any computer software or hardware or telecommunications equipment or that imposes an unreasonable or disproportionately large load on the Site’s infrastructure or limits the functionality of any Marketcircle or third party computer hardware, software, networks, or hardware or telecommunications equipment;

(vii) interfere or attempt to interfere with or disrupt our Site, Apps or Services including but not limited to our servers or networks connected to our Site, including attempting to interfere with the access of any other user, host or network, including without limitation, overloading, initiating, propagating, participating, directing or attempting any “denial of service” attacks, “spamming”, “crashing”, “flooding” or “mail-bombing” our Site or disobeying any requirements, procedures, policies or regulations of networks connected to our Site, Apps and Services;

(viii) direct bots, spiders, crawlers, avatars, intelligent agents or any other automated process at our computer systems or otherwise, create unreasonable load upon any of our computer hardware, network, storage, input/output or electronic control devices;

(ix) intentionally or unintentionally violate any applicable local, provincial, national or international law, rule or regulation applicable in connection with our Site, Apps and Services or any User Content;

(x) modify, adapt, assign, copy, sublicense, translate, rent, sell, reverse engineer, decompile or disassemble any of our Services or Apps (except as may be expressly permitted in these Terms), including but not limited to any portion of our Site;

(xi) Collect, use, disclose, store or distribute any User Content or other personal information of a third party without their express consent;

(xii) Transmit any Information or User Content known by you to be false, inaccurate or misleading; or

(xiii) Transmit any Information or User Content that is intimate, private or that you would not want the public to view or have access to.

15. Disclaimer of Warranties/Limitation of Liability

(a) You understand that we will use commercially reasonable efforts to provide our Site, Apps or Services but we cannot and do not guarantee or promise any specific and intended results, including but not limited to financial or commercial, from the use of our Documentation Site, Apps or Services from the use of our Site, Apps or Services. You also understand that any information in our Documentation is provided for your own convenience and is for informational purposes only. You acknowledge that any reliance on our Documentation, Services and Apps will be at your own risk and that you must evaluate and bear all risks associated with the use of our Documentation, Services and Apps. YOU ARE SOLELY RESPONSIBLE FOR ANY USE OF AND RESULTS FROM USING OUR DOCUMENTATION SITE, APPS OR SERVICES. YOUR USE OF OUR DOCUMENTATION, SITE, APPS AND SERVICES IS ENTIRELY AT YOUR OWN RISK.

(b) We do not represent or warrant that files or information available for access or downloading from the Internet, hyperlinked sites, our Site or any files and emails from us will be free of viruses, worms, malware, Trojan horses or other code that may manifest contaminating or destructive properties. YOUR USE OF THE INTERNET IS AT YOUR OWN RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM ANY INTERNET ACCESS OR OUR DOCUMENTATION, SITE, SERVICES, OR APPS.

(c) YOUR USE OF OUR SITE, SERVICES, APPS AND DOCUMENTATION IS AT YOUR OWN RISK. OUR SITE, SERVICES, APPS AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS, WARRANTIES, GUARANTEES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, GUARANTEES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NON-INFRINGEMENT OR THOSE ARISING OUT A COURSE OF DEALING, PERFORMANCE OR USAGE OF TRADE. WE MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS REGARDING THE AVAILABILITY APPROPRIATENESS, COMPLETENESS, ACCURACY, OR CURRENCY OF OUR SITE, SERVICES, APPS OR DOCUMENTATION. FOR GREATER CLARITY, WE DO NOT REPRESENT OR WARRANT THAT: (I) OUR SITE, APPS OR SERVICES DO NOT AND WILL NOT INFRINGE, OR BE SUBJECT TO ANY INTELLECTUAL PROPERTY CLAIMS, OR A CLAIM OF INFRINGING THE TRADEMARK OR OTHER RIGHTS OF ANOTHER PARTY; (II) OUR SITE, APPS OR DOCUMENTATION WILL BE UNINTERRUPTED, FUNCTIONAL, SECURE, RELIABLE, ACCURATE, COMPLETE, CURRENT, USEFUL, SUITABLE, SECURE OR ERROR-FREE; (III) OUR SITE, APPS OR SERVICES WILL BE SUITABLE, ACCURATE, CORRECT, RELIABLE, COMPLETE, TIMELY, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS AND EXPECTATIONS IN ANY WAY; (IV) ANY DEFECTS IN OUR SITE, SERVICES, APPS OR DOCUMENTATION WILL BE CORRECTED; AND (V) WE HAVE VERIFIED OR ENDORSED ANY THIRD PARTY CONTENT. OUR SITE, SERVICES, APPS AND DOCUMENTATION MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND WE MAY MAKE CHANGES OR IMPROVEMENTS TO THE SITE, SERVICES, APPS AND DOCUMENTATION AT ANY TIME.

(d) IN NO EVENT SHALL MARKETCIRCLE, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, THIRD PARTY PROVIDERS, AGENTS OR ADVISORS (“ASSOCIATED PERSONS”) BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF INCOME, LOSS OF PROFITS, LOSS OF ANTICIPATED SALES, LOSS OF OPPORTUNITIES, BUSINESS INTERRUPTION, FAILURE TO REALIZE UNEXPECTED SAVINGS, DAMAGE TO PROPERTY, CLAIMS OF THIRD PARTIES, LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES OR OTHER ECONOMIC OR PERSONAL LOSS ARISING FROM OR IN CONNECTION WITH: (I) YOUR USE OF OR RELIANCE ON ANY INFORMATION PROVIDED BY US ON OUR SITE, SERVICES, APPS OR STATED IN OUR DOCUMENTATION; (II) YOUR USE OF OR INABILITY TO USE OUR SITE, APPS OR SERVICES; (III) YOUR VIOLATIONS OF TRADEMARK INFRINGEMENT OR OTHER INTELLECTUAL PROPERTY RIGHTS; (IV) ANY FAILURE OF PERFORMANCE OF OUR SITE, SERVICES AND APPS, WHETHER RELATED TO ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES OR LINE FAILURE; (V) THE UNAUTHORIZED USE OF YOUR ACCOUNT AND PASSWORD BY ANY PERSON; (VI) ANY THIRD PARTY CONTENT OR HYPERLINKED SITES; (VII) YOUR USER CONTENT OR INFORMATION THAT YOU TRANSMITTED OR SHARED THROUGH OR IN CONNECTION WITH OUR SERVICES; OR (VIII) ANY OTHER MATTERS RELATING TO OUR SITE, SERVICES, APPS AND DOCUMENTATION, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, FUNDAMENTAL BREACH, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, WHETHER OR NOT WE HAD ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT YOU MIGHT INCUR SUCH DAMAGES. THE LIMITATIONS ON MARKETCIRCLE’S LIABILITY OR THE LIABILITY OF ASSOCIATED PERSONS TO YOU IN THIS SECTION SHALL APPLY WHETHER OR NOT MARKETCIRCLE OR SUCH ASSOCIATED PERSONS HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

(e) WE DISCLAIM ANY AND ALL SUCH ABOVE REPRESENTATIONS, WARRANTIES AND CONDITIONS TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR CONDITIONS OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.

16. Indemnity

You agree at all times to defend, indemnify and hold harmless Marketcircle, its employees, contractors, agents, officers, directors, successors and assigns (the “Indemnified Parties”) from and against any claims, losses, judgements, actions, proceedings, damages, costs and expenses (including without limitation, reasonable legal and other fees and disbursements) incurred by any of the foregoing parties due to or resulting from your use or misuse of our Site, Services, Apps or Documentation, or from your violation of these Terms, including your failure to appropriately obtain Consent from a third party. You will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of your use of our Site, Services, Apps and Documentation, including but not limited to trademark infringement or other intellectual property claims from third parties.

17. System Security

You are prohibited from using any services or facilities provided in connection with our Site, Services or Apps to compromise security or tamper with our system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited. We reserve the right to investigate suspected violations of these Terms and to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone believed to be violating these Terms.

18. Dispute Resolution

Any dispute, controversy or claim arising out of or relating to these Terms, including any disputes relating to the Site, Services, Apps or Documentation, will be finally resolved by arbitration under the Arbitration Rules of the ADR Institute of Canada, Inc. The arbitration will be conducted by one arbitrator and the seat of Arbitration will be Toronto, Ontario. The language of the arbitration will be English. The decision of the arbitrator shall be binding upon the parties hereto.

19. Governing Law; Jurisdiction

These Terms and any action related thereto or related to our Site, Services, Apps or Documentation shall be governed, controlled, interpreted and defined by and under the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any principles of conflicts of laws. The United Nations Convention on the International Sale of Goods is explicitly excluded from this agreement. Subject to Section 18, you agree that any action at law or in equity arising out of or relating to these Terms or your use of our Site, Services, Apps or Documentation will be filed only in a court located in Toronto, Ontario, Canada, and you hereby irrevocably and unconditionally consent and submit to the non-exclusive jurisdiction of such courts for the purpose of any such action. Your use of our Site, Services, Apps and Documentation is void where prohibited by laws in jurisdictions to which you are otherwise subject, and you agree not to visit or use our Site, Services, Apps or Documentation in any such circumstances.

20. Termination

You acknowledge and agree that these Terms shall remain in effect for so long as you use our Site, Services, Apps or Documentation. You agree that this agreement can only be terminated by you once you have stopped using our Site, Services, Apps or Documentation. We reserve the right to suspend or terminate your use of our Site, Services, Apps or Documentation and remove and discard any information or User Content related to you and your use of our Site, Services, Apps or Documentation at any time, for any reason, with or without cause, if we believe that you are violating these Terms in any way. If you wish to terminate your account, you may choose to cease use of the Site or to send us a notification. If you are dissatisfied with our Site, Services, Apps or Documentation, including these Terms, your sole remedy is to discontinue using our Site, Services, Apps or Documentation by ceasing to use the Site, which includes ceasing to use the Services and the Apps.

21. Entire Agreement

These Terms and any of our other legal notices, policies and guidelines linked to these Terms constitute the entire agreement between you and Marketcircle relating to your use of our Site, Services, Apps and Documentation and supersede any prior understandings or agreements (whether oral or written), claims, representations, and understandings of the parties regarding such subject matter and the Terms may not be amended or modified except in writing or by making such amendments or modifications available on our Site.

22. No Agency; Third Party Beneficiary

We are not your agent, fiduciary, trustee, or other representative. Nothing expressed or mentioned in or implied from these Terms is intended or will be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to these Terms. These Terms and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of you, Marketcircle and the Associated Persons.

23. Assignment

You may not assign, convey, subcontract or delegate your rights, duties or obligations hereunder without our prior written consent. Marketcircle may assign these Terms and the rights and obligations granted hereunder without your consent.

24. Severability

If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.

25. No Waiver

We will not be considered to have waived any of our rights or remedies described in these Terms unless the waiver is in writing and signed by us. No delay or omission by us in exercising its rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. Our failure to enforce the strict performance of any provision of these Terms will not constitute a waiver of our right to subsequently enforce such provision or any other provisions of these Terms.

26. Headings

The headings used in these Terms are included for convenience only and have no legal or contractual effect and shall not affect the construction or interpretation of these Terms.

27. Language

You agree that English will be the language of our Site and of all transactions occurring in connection with our Services and Apps, and you agree to waive any right to use and rely upon any other language or translations. You acknowledge that it is your express wish that these Terms have been drawn up in English. C'est la volenté expresse des parties que la présente convention ainsi que tous les documents legales qui s'y rattachent soient rédigés en anglais.

28. Last Modified

These Terms and Conditions were last modified on February 20th, 2018.

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