Creator Terms of Service
These Creator Terms and Conditions between CircleCo, Inc. (“Circle”) and Creator (defined below) govern Circle’s provision of the Service to Creator. Circle and Creator may be referred to herein collectively as the “Parties” or individually as a “Party”. These Creator Terms and Conditions are a legally binding contract between Creator and Circle regarding Creator’s use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A “I AGREE”, EXECUTING AN ORDER (DEFINED BELOW) REFERENCING THESE TERMS (DEFINED BELOW), USING (OR MAKING ANY PAYMENT FOR) THE SERVICE (DEFINED BELOW), OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS, YOU: (A) AGREE TO AND ANY OTHER DOCUMENTS INCORPORATED HEREIN (THIS “AGREEMENT”) ON BEHALF OF YOURSELF AS AN INDIVIDUAL AND “CREATOR” REFERS TO YOU, UNLESS YOU ARE USING THE SERVICE ON BEHALF OF AN ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY, IN WHICH CASE YOU AGREE TO THIS AGREEMENT ON BEHALF OF SUCH ENTITY FOR WHICH YOU ACT AND “CREATOR” REFERS TO SUCH ENTITY; AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CREATOR TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
1.
ACCESS TO AND USE OF THE SERVICE
1.1.
Generally. Circle’s cloud-based service and related software (including mobile applications) (collectively the “Service”) enables Creator to create and manage an online community hosted by Circle and accessible by third-party users, including those to whom Creator has granted access or directed Circle to grant access (such community, the “Community” and such users, “Members”). The features of the Service available to Creator will be determined (a) if Creator has purchased a subscription through Circle’s website, by the subscription tier indicated during the online checkout process or (b) if Creator has executed an order form referencing these terms, then by the description of the Service and related features set forth thereon (each of such online checkout process and such order form, the “Order”). The Order is deemed incorporated into this Agreement.
1.2.
Limited License to Service. During the initial subscription period indicated in the Order (the “Initial Subscription Term”) and subject to Creator’s compliance with this Agreement, Circle hereby grants Creator a limited, non-exclusive, non-transferable, revocable license to:
1.2.1.
access and use the Service to manage and maintain the Community;
1.2.2.
make calls to, and receive data from, any application programming interfaces maintained, and made available to Creator, by Circle for use in connection with the Service; and
1.2.3.
authorize Members to access the Community solely pursuant to terms and conditions between Creator and such Members prepared and approved by Circle (the current template of which is available at https://circle.so/community-terms-template (the “Community Terms”), including, if permitted by the Order, by granting Members a license to install and use the Community App (defined below) on Member-controlled hardware.
1.3.
Restrictions. Creator will not (and will not encourage or permit its Members to): (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party other than as expressly permitted by this Agreement; (b) use the Service to Process (defined below) data on behalf of any third party other than Members; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with Circle, (e) use the Service in violation of any applicable law, rule or regulation, including, but not limited to, violation of any person’s privacy or proprietary rights; (f) use the Service to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of the Service or the Community App (defined below); (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (l) use or launch any automated system that accesses the Service (i.e., bot) in a manner that sends more request messages to any Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; (m) use the Service for benchmarking or any purposes that are competitive with Circle; or (n) otherwise use or attempt to use the Service in violation of this Agreement.
1.4.
Creator Account; Log-in Credentials. To access the Service, Creator must register for an account on the Service (the “Creator Account”) and, in doing so, may be required to provide Circle with information (such name, email address, or other contact information). Creator agrees that the information it provides to Circle is accurate, complete, and not misleading and that it will keep it accurate and up to date at all times. Creator may only access the Service using the mechanism designated by Circle (“Log-in Credentials”). Creator will maintain the confidentiality of its Log-in Credentials and not share the Log-in Credentials with anyone else. Creator is responsible for any and all activities that occur under the Creator Account. Creator will promptly notify Circle if it becomes aware of any compromise of its Log-in Credentials. Circle may Process Log-in Credentials in connection with Circle’s provision of the Service or for Circle’s internal business purposes. Without limiting the foregoing, Creator is solely responsible for ensuring that use of the Service to store and transmit the Creator Materials (defined below) and Community Content (defined below) is compliant with all applicable laws and regulations.
1.5.
Single-Sign On. The Service may allow Creator to permit third parties to sign-up and login via a single sign-on provider. If enabled by the Creator, the Creator will ensure that each such third party agrees to the Community Terms, is bound thereby, and complies therewith. Such third parties will be deemed Members hereunder and Circle hereby disclaims all responsibility and liability for any acts or omissions of a Member who accessed the Service via Creator’s single sign-on functionality.
2.
COMMUNITY TERMS
2.1.
Community Terms. Prior to granting a Member access to a Community, Creator will enter into the Community Terms with each Member of the Community. Creator agrees to be bound by the Community Terms with respect to each Member and designated Circle as Creator’s agent to present the Community Terms to each Member for acceptance through the Service. Creator acknowledges that the Community Terms may be updated from time to time upon notice (email being acceptable), and agrees to be bound by the updated Community Terms. Creator will provide all assistance that Circle may request from time to time (at Circle’s expense) in enforcing the Community Terms and will not challenge, or assist any third party (including any Member) in challenging, the validity or enforceability of the Community Terms. Without limiting the foregoing, where Creator is required to present the Community Terms to Members (including as set forth in Section 1.5), Creator will update the Community Terms and will require each Member to accept such updated Community Terms promptly following Creator’s receipt of notice in accordance with the immediately foregoing sentence.
2.2.
Community Privacy Policy. Prior to granting a Member access to a Community, Creator will provide a privacy policy to each Member of the Community that complies with all applicable laws (“Community Privacy Policy”). Creator may, at Creator’s sole discretion, use the current template privacy policy available at https://circle.so/community-privacy-template (“Template Community Privacy Policy”). FOR THE AVOIDANCE OF DOUBT, CREATOR UNDERSTANDS AND AGREES THAT (A) THE TEMPLATE COMMUNITY PRIVACY POLICY IS PROVIDED FOR REFERENCE ONLY, (B) CIRCLE DOES NOT WARRANT THE SUFFICIENCY NOR ADEQUACY OF THE TEMPLATE COMMUNITY PRIVACY POLICY; AND (C) CREATOR SHALL BE SOLELY RESPONSIBLE FOR PROVIDING MEMBERS THE COMMUNITY PRIVACY POLICY AND THE CONTENTS THEREIN.
2.3.
Community Guidelines. The Service may enable Creator to include additional Creator-specific terms or guidelines for Members of the Community that supplement and are incorporated into the Community Terms (“Creator Terms”). Creator agrees that the Creator Terms will not circumvent, diminish, or otherwise abrogate the rights of Circle or the obligations of Creator under the Community Terms, override any of the language contained in such Community Terms, grant additional rights to Members in relation to the Service, or purport or attempt to do any of the foregoing.
2.4.
Third Party Beneficiary; Breach. Creator agrees that Circle is a third-party beneficiary of the Community Terms and may enforce such Community Terms to the fullest extent at Circle’s sole discretion. Creator acknowledges that any breach of this Section 2 by Creator is a material breach of these Creator Terms entitling Circle to immediately terminate this Agreement without notice.
3.
CREATOR MATERIALS; CONTENT AND DATA; CONTENT DISCLAIMER; DIGITAL MILLENNIUM COPYRIGHT ACT
3.1.
Creator Materials. During the Subscription Term (defined below), and subject to the terms and conditions of this Agreement, Creator hereby grants Circle a limited, sublicensable, non-exclusive, worldwide, royalty-free license to use, copy, display, publicly perform, distribute, modify, edit, adapt, reproduce and create derivative works of any materials made available to Circle by Creator, including software, trademarks, service marks, logos, images, or other content and materials of Creator (collectively, “Creator Materials”), in each case for the purpose of providing the Service in accordance with this Agreement. Without limiting the foregoing, if the Creator Materials include trademarks, logos, or other branding elements and Creator’s subscription enables the application of Creator-provided branding to the Community, then Creator agrees that Circle may brand the Community using such trademarks, logos, branding elements, or other Creator Materials.
3.2.
Community Content. Creator hereby grants Circle a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable (except with respect to personal data to the extent required by applicable law) license and right to collect, access, use, derive, disclose, generate, transfer, transmit, store, host, or otherwise process (“Process”) data, information, and other content and materials (including, but not limited to, text, messages, audio content, video, images, or other works) submitted to, or stored or otherwise Processed by, the Service with respect to the Community (including materials posted on or uploaded to the Community by Creator and Members) (“Community Content”) and data concerning use or performance of the Service (“Usage Data”): (a) during the Subscription Term, for the purpose of exercising Circle’s rights and performing its obligations under this Agreement (including, without limitation, to provide the Service, in response to Creator’s support requests, and to track use of Service for billing purposes) and (b) in perpetuity, in a form that does not identify Creator or any Member as the source thereof and does not otherwise constitute personal data, to develop and improve Circle’s products and services and for all other lawful business practices, such as analytics, benchmarking, and reports. FOR THE AVOIDANCE OF DOUBT, AS BETWEEN CIRCLE, CREATOR, AND EACH MEMBER, CREATOR OR THE APPLICABLE MEMBER RETAINS OWNERSHIP OF ITS INTELLECTUAL PROPERTY RIGHTS IN COMMUNITY CONTENT AND CIRCLE CLAIMS NO OWNERSHIP THEREOF.
3.3.
Other Content. Creator understands and agrees that Members may be part of other communities on the Service, and that “Community Content” does not include data, information, content, and materials Processed in connection with the Service that are subject to Circle’s Terms of Service or the terms of an agreement between the applicable Member and the creator of another community on the Service.
3.4.
Content Disclaimer. Creator understands that by using the Service, Creator may encounter data, information, applications, materials, and other content from third parties, including Community Content (collectively, “Third-Party Materials”). Creator relies upon and uses any Third-Party Materials at Creator’s sole risk. Circle has no liability to Creator for any Third-Party Materials that may be found to be offensive, indecent, or that are infringing, inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality, or otherwise objectionable. Circle is under no obligation to edit or control Third-Party Materials or Community Content that Creator or Members post or publish, and will not be in any way responsible or liable for the foregoing. Circle may, however, at any time and without prior notice, screen, remove, edit, or block any Third-Party Materials or Creator Materials that violate this Agreement or that are otherwise objectionable in Circle’s sole judgment.
3.5.
Digital Millennium Copyright Act. Circle respects Creator rights, and it is Circle’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). Circle’s DMCA policy can be located at https://circle.so/dmca. In the event of a DMCA complaint in relation to a Community, Creator agrees that Circle may respond to such complaint in accordance with its policy.
4.
PRIVACY
4.1.
Privacy. Creator understands and agrees to the processing of its personal data in accordance with Circle’s Privacy Policy (available at https://circle.so/privacy), which is hereby incorporated by reference into Section 4.1 of this Agreement.
4.2.
Data Subject Requests. Creator understands and agrees that it shall be solely responsible for responding to any and all privacy-related requests made by Members in connection with the Community. Creator may request commercially reasonable assistance from Circle in responding to such requests via email at legal@circle.so.
5.
INTELLECTUAL PROPERTY RIGHTS
5.1.
Ownership. Each Party will retain all rights, title and interest in and to all its respective intellectual property or proprietary rights. Circle’s name and logos used or displayed in or on the Service are registered or unregistered trademarks of Circle (collectively, “Circle Marks”), and Creator may not attempt, now or in the future, to claim any rights in the Circle Marks, degrade the distinctiveness of the Circle Marks, or use the Circle Marks to disparage or misrepresent Circle, Circle’s Service or products. The rights granted to Creator to use the Service under this Agreement do not convey any additional rights, including any intellectual property rights therewith. As between the Parties and subject to the limited rights granted herein, all, right, title, and interest in and to (a) the Community Content and Creator Materials are owned by Creator; and (b) the Service, Circle Marks, Usage Data, and all other components used to provide the Service are owned by Circle.
5.2.
Feedback. Creator hereby grants Circle a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback Circle receives from Creator, Members, or other third parties acting on Creator’s behalf.
6.
THIRD-PARTY SERVICES
6.1.
Generally. Certain features of the Service may enable integration with third-party platforms, add-ons, services, or products not provided by Circle (“Third-Party Services”). If Creator directs Circle to transmit data to, or receive data from, a Third-Party Service on Creator’s behalf (including by enabling the applicable integration in the settings of the Service), then Creator authorizes Circle to Process any such data (including Community Content) in connection with the applicable integration, in a manner consistent with the functionality of the Service requested by Creator and the permissions granted to Circle by the relevant integration (which Processing may include, without limitation, performing queries on the data held by the Third-Party Service). Creator acknowledges and agrees that Creator’s use of a Third-Party Service is subject to Creator’s agreement with the relevant provider of such Third-Party Service, and that Circle is not a party to such agreement. Circle does not control and has no liability for Third-Party Services, including their security, functionality, operation, availability, or interoperability with the Service or how the Third-Party Services or their providers use Community Content. All data received from Third-Party Services on behalf of Creator as described in this Section 6.1 will be deemed Community Content under this Agreement.
6.2.
Developer Terms. If permitted by the Order, Creator may request that Circle create a branded mobile application allowing Members to access the Community (the “Community App”), which app may be made available on one or more third party app stores (which app stores are deemed Third-Party Service). As a condition of making available the Community App, Circle may require Creator to (a) create and maintain (at Creator’s sole cost and expense) its own developer account on the applicable third-party app stores and (b) publish the Community App through such developer account. Creator will promptly make available to Members any updated versions of the Community App provided by Circle, and will promptly remove the Community App from its developer account and cease making available the Community App upon request by Circle or upon termination of this Agreement.
7.
BILLING AND PAYMENTS
7.1.
Fees. Unless otherwise set forth in the Order, fees for the Service will be as indicated on Circle’s pricing page located at https://circle.so/pricing (as may be updated from time to time) and will be payable and due to Circle in accordance with the Order. Except as set forth in the Order, all payments will be made in U.S. Dollars via credit card or such other method as Circle communicates to Creator.
7.2.
Taxes. Creator is responsible for paying any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes associated with the Order (“Taxes”), excluding Taxes based on net income. If Circle has the legal obligation to pay or collect Taxes for which Creator is responsible under this Section, the appropriate amount will be invoiced to and paid by Creator unless Creator provides Circle with a valid tax exemption certificate authorized by the appropriate taxing authority.
7.3.
Delinquent Accounts. Circle may suspend or terminate Creator’s and all Members’ access to the Service if Creator fails to timely pay any amounts due under this Agreement. In addition to the amount due for the Service, Creator will be charged fees or charges that are incidental to any chargeback or collection of any unpaid amount due under this Agreement, including collection fees. Circle may, prior to such suspension, elect to offer a 21-day grace period during which Creator may pay past-due amounts to avoid suspension. If Creator’s payment method is no longer valid at the time a fee for a Renewal Subscription Term is due, then Circle reserves the right to delete the Creator Account and any information, Community, or Creator Materials associated with the Creator Account, without any liability to Creator.
7.4.
Fee Increases. Circle may increase the fees for the Service in its sole discretion, provided (a) Circle gives Creator at least 30 days’ prior notice of such fee increase and (b) such fee increase will take effect at the beginning of the next Renewal Subscription Term (defined below).
7.5.
No Refunds. If the Order indicates that a refund is available (e.g., as part of Circle’s 30-day money back guarantee available in connection with certain tiers of Service), then Creator will be eligible for a refund under the applicable terms. Otherwise, no refunds or credits for fees or payments will be provided to Creator if Creator elects to terminate Creator’s subscription to the Service prior to the end of the Subscription Term.
8.
Modification. Creator acknowledges that Circle may modify the features and functionality of the Service at any time in its sole discretion, including by limiting or discontinuing certain features or functionality of the Service, temporarily or permanently, without notifying Creator (except that Circle will use commercially reasonable efforts provide Creator with 30 days’ prior notice in the event of any deprecation of any material feature or functionality of the Service). Circle will have no liability for any change or modification to the Service.
9.
TERM AND TERMINATION
9.1.
Term and Renewal. Unless otherwise set forth in the Order, the Initial Subscription Term commences upon the effective date of the Order. Immediately following the last day of the Initial Subscription Term, this Agreement will automatically renew for successive terms equal in length to the Initial Subscription Term or such other length as may be specified in the Order (each a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”) until canceled. If the Order does not specify a minimum subscription term, then Creator may cancel the Service through the Creator Account on the Service at any time. If the Order provides that Creator’s subscription is non-cancelable, then to cancel the Service Creator must provide written notice of non-renewal to Circle at least 30 days prior to the start of the next Renewal Subscription Term, and such cancelation of the Service will become effective at the end of the then-current Initial Subscription Term or Renewal Subscription Term.
9.2.
Violation of this Agreement. Circle reserves the right to modify, suspend, or terminate the Service and Community, the Creator Account, or a Member’s account or right to access and use the Service and Community, and remove, disable, or discard any Creator Materials and Community Content, in each case if Circle believes that Creator has violated this Agreement. Circle will have no liability to Creator or any Members for taking the foregoing actions. Unless legally prohibited from doing so, Circle will use commercially reasonable efforts to contact Creator directly via email to notify Creator upon taking any of the foregoing actions.
9.3.
Termination for Breach. Circle may terminate this Agreement immediately in the event of a material breach of this Agreement by Creator. In no event will termination of this Agreement relieve Creator of Creator’s obligation to pay any fees payable to Circle under this Agreement.
9.4.
Effects of Termination. Immediately upon termination of this Agreement (a) Creator’s licenses under this Agreement will terminate and (b) Creator will cease use of the Service and Circle will have no obligation to continue providing the Service, including the Community, to Creator or any Member.
9.5.
Survival. Sections 1.3, 1.5, 2, 3, 4, 5, 6, 7, 9.4, 9.5, 10.2, 11, 12, 13, 14, and 15 will survive the expiration or termination of this Agreement.
10.
REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
10.1.
Mutual Warranties. Each Party represents and warrants to the other Party that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of this Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
10.2.
DISCLAIMER. THE SERVICE (INCLUDING THE COMMUNITY AND THE COMMUNITY APP) ARE PROVIDED BY CIRCLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND CIRCLE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CREATOR ACKNOWLEDGES THAT CIRCLE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, NOR THAT THE TEMPLATE COMMUNITY PRIVACY POLICY WILL BE SUFFICIENT OR ADEQUATE TO COMPLY WITH ALL LAWS APPLICABLE TO CREATOR, AND NO INFORMATION OR ADVICE OBTAINED BY CREATOR FROM CIRCLE OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
11.
Free Trials. If Creator receives access to the Service (or any features thereof) on a free or trial basis (a “Free Trial”), then such access or use is permitted only for the period designated by Circle and Circle may suspend Creator’s access to the Service at any time during the Free Trial. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CIRCLE PROVIDES NO WARRANTY OR INDEMNITY FOR FREE TRIALS, AND CIRCLE’S LIABILITY FOR FREE TRIALS WILL NOT EXCEED US $50.00.
12.
LIMITATION OF LIABILITY
12.1.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL CIRCLE OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO CREATOR OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY CREATOR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, REGARDLESS OF WHETHER CIRCLE HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
12.2.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CIRCLE’S AGGREGATE LIABILITY TO CREATOR OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY USE OF (OR INABILITY TO USE) THE SERVICE, WILL IN NO EVENT EXCEED THE FEES FOR SUCH SERVICE PAID BY CREATOR DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CREATOR ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 12.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF CIRCLE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. CIRCLE HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CREATOR THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THIS AGREEMENT.
12.3.
Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Creator. IN THESE JURISDICTIONS, CIRCLE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
13.
INDEMNIFICATION
13.1.
Creator Indemnification. Creator will (a) indemnify and hold harmless Circle and its affiliates (including its and their directors, officers, members, employees and agents) (collectively, “Circle Indemnified Parties”) from and against any claims, demands, causes of action, losses, costs, or damages, including reasonable attorney’s fees, as incurred, arising out of or in connection with a claim brought by any third party against any of the Circle Indemnified Parties arising out of or relating to: (i) Creator’s breach of this Agreement; (ii) the Community Privacy Policy, Community Content, or Creator Materials; (iii) any claim against Circle by a Member or other third party that relates to an act or omission of Creator (including with respect to moderation of a Community or any products or services offered to such Member by Creator); (iv) Creator’s misrepresentation, fraud, negligence, or willful misconduct; or (v) Creator’s violation of law and (b) upon request, defend Circle against any such claim.
13.2.
Indemnification Procedure. Circle will: (a) promptly notify Creator in writing of any claim for which it seeks indemnification under this Section 13.1 (provided that failure to provide such notice promptly will not relieve Creator of its obligations under this Section 13.1 unless such failure materially prejudices Creator) and (b) to the extent Circle requests that Creator defend it against such claim, make all reasonable efforts to provide Creator with information and materials in Circle’s possession regarding such claim and grant Creator sole control over the defense and settlement of such claim (provided, however, that Creator will not dispose of or settle any such claim in any manner requiring more than the payment by Creator of an amount fully indemnified hereunder).
14.
MISCELLANEOUS
14.1.
Assignment. Creator may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Creator’s rights under this Agreement or delegate performance of Creator’s duties under this Agreement without Circle’s prior written consent, which consent will not be unreasonably withheld. Circle may, without Creator’s consent, freely assign this Agreement, including in connection with any merger or change of control of Circle or the sale of all or substantially all of Circle’s assets. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns. Any assignment in violation of this Section 14.1 will be null and void.
14.2.
Entire Agreement; Amendment. This Agreement, together with the Order, constitutes the entire agreement, and supersedes any and all prior agreements between Creator and Circle with regard to the subject matter hereof. This Agreement will apply in lieu of the terms or conditions in any purchase order or other order documentation Creator or any entity which Creator represents provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. Amendments must be in writing and signed by both Parties.
14.3.
Additional Terms. Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services that Circle offers as part of or distinct from the Service (the “Additional Terms”). In those instances, Circle will notify Creator of such Additional Terms prior to the activation of these features, functionality, or services and activation the same in Creator’s Account will be understood to evidence Creator’s acceptance of the Additional Terms. All such Additional Terms are hereby incorporated into this Agreement upon their acceptance by Creator.
14.4.
Conflict. If there is a conflict between or among the terms set forth in Sections 1 through 15 of this Agreement (the “Terms and Conditions”), the Order, or the Additional Terms, the conflict will be resolved in the following descending order of precedence: (a) the Additional Terms, (b) the Order, and (c) the Terms and Conditions.
14.5.
Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
14.6.
Export Compliance and Use Restrictions. The Service and any components of the Service that Circle may provide or make available to Creator or Members may be subject to U.S. export control and economic sanctions laws. Creator agrees to comply with all such laws and regulations as they relate to access to and use of the Service and such other components by Creator and Members. Creator will not access or use the Service if Creator is located in any jurisdiction in which the provision of the Service or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and Creator will not provide access to the Service to any government, entity or individual located in any Prohibited Jurisdiction. Creator represents, warrants and covenants that (a) Creator is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) Creator is not a national of, or a company registered in, any Prohibited Jurisdiction; (c) Creator will not permit Members to access or use a Community in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) Creator will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Creator and any Members are located.
14.7.
Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
14.8.
Notice. All notices to be provided by Circle to Creator under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by Creator on the Order; or (b) electronic mail to the electronic mail address associated the Creator Account. All notices will be deemed to have been given one business day after sending via electronic mail or two (2) business days after being deposited in the mail or with a Courier as permitted above.
14.9.
Governing Law. This Agreement will be governed by the laws of the State of New York, without reference to conflict of laws principles. Any disputes under this Agreement will be resolved in the state and federal courts located in Kings County, New York.
14.10.
Consent to Electronic Communications. By using the Service, Creator consents to receiving certain electronic communications from Circle as further described in Circle’s Privacy Policy. Please read Circle’s Privacy Policy to learn more about Circle’s electronic communications practices. Creator agree that any notices, agreements, disclosures, or other communications that Circle sends to Creator electronically will satisfy any legal communication requirements, including that those communications be in writing.
14.11.
Notice to California Residents. If Creator is a California resident, then under California Civil Code Section 1789.3, Creator may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
15.
NOTICE REGARDING APPLE. This Section 15 only applies to the extent Creator is using Circle’s mobile application on an iOS device. Creator acknowledges that this Agreement is between Creator and Circle only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, Creator may notify Apple, and Apple will refund any applicable purchase price for the mobile application to Creator. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by Creator or any third party relating to the Service or Creator’s possession or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or Creator’s possession and use of the Service infringe a third party’s intellectual property rights. Creator agrees to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of the Agreement, and upon Creator’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Creator as a third-party beneficiary of this Agreement. Creator hereby represents and warrants that: (i) Creator is 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) Creator is not listed on any U.S. Government list of prohibited or restricted parties.
