CERCLE.AI, INC.Terms and Conditions for Use of Services Agreement
Effective date: September 18, 2024 Welcome to Cercle.AI! This Terms and Conditions of Use of Services Agreement (“Agreement”) provides the general terms and conditions that apply to everyone who accesses or uses the Cercle.ai website(s) (“Website”) and all content therein, the Cercle.ai mobile applications (“App”) and all content therein, and any Cercle.ai services provided through the Cercle.ai website(s) and/or through the Cercle.ai mobile applications (collectively, the Website, the App, and the services are referred to hereinafter as the “Services”), all of which are owned, operated, and provided by Cercle.ai, Inc. (“Cercle,” “we,” “us,” “our”). This Agreement constitutes a binding contract between you, as the user of the Services (“you,” “your”), and Cercle, and it applies to you as soon as you access or use any of the Services. If you are accessing or using the Services on behalf of an organization or corporate entity, this Agreement binds your organization or corporate entity from the moment you use or access any of the Services. Accordingly, please read this Agreement carefully, because it constitutes a written contract between you and Cercle in regard to your use of our Services, and it affects your legal rights and obligations. Each time you access and/or use our Services, you agree to be bound by and comply with all the terms and conditions of this Agreement. Therefore, do not use the Services if you do not agree to all of the terms of this Agreement. Also, please note that (as stated in Section 10.B. (“Updates to this Agreement”) below) Cercle reserves the right to modify, change, amend, update, or supplement the terms and conditions of this Agreement at any time without prior notice. Therefore, we recommend that you review this Agreement from time to time to determine if changes have been made to this Agreement, because you will be bound by the most recent version of this Agreement: You understand and acknowledge that Cercle shall only be posting the most recent version of this Agreement on the Website and in the App (if active), that you are bound by the most recent version of this Agreement at any time you use or access Services in any manner, and, therefore, you agree that it is your responsibility to review this Agreement on a regular and frequent basis.
NO MEDICAL ADVICE OR TREATMENT and YOUR ASSUMPTION OF RISK CERCLE DOES NOT OFFER MEDICAL ADVICE OR TREATMENT AS PART OF THE SERVICES. ANY CONTENT PROVIDED OR ACCESSED THROUGH THE SERVICES, INCLUDING BUT LIMITED TO INFORMATION PROVIDED BY CERCLE’S STAFF IN RESPONSE TO QUESTIONS YOU MAY SUBMIT BY MEANS OF THE SERVICES, IS FOR INFORMATIONAL PURPOSES ONLY.
THE SERVICES ARE NOT INTENDED BY CERCLE FOR USE IN MEDICAL EMERGENCIES, AND THEY SHOULD NOT BE USED EITHER DURING A MEDICAL EMERGENCY OR FOR THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION.
CERCLE IS NOT RESPONSIBLE OR LIABLE FOR ANY ACTION YOU TAKE OR FAIL TO TAKE BASED ON INFORMATION THAT YOU MAY OBTAIN THROUGH THE SERVICES. IF YOU USE THE SERVICES, YOU DO SO AT YOUR OWN RISK, AND YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE TO THE FOLLOWING:
A. THAT THE SERVICES ARE NOT INTENDED BY CERCLE TO CONSTITUTE MEDICAL ADVICE OR TREATMENT FOR ANY SPECIFIC INJURY, MALADY, DISEASE, MEDICAL CONDITION, OR AILMENT; AND
B. THAT CERCLE MAKES NO WARRANTY OR REPRESENTATION THAT YOUR USE OF THE SERVICES WILL IMPROVE YOUR HEALTH OR PROVIDE HEALTH BENEFITS, AND THEREFORE THAT YOU HAVE NO REASONABLE EXPECTATION OF ANY SUCH RESULT FROM YOUR USE; AND
C. THAT, UNDERSTANDING AND AGREEING TO THE FOREGOING, YOU ASSUME ALL RISKS FROM THE USE OF THE SERVICES AND YOU ACCORDINGLY RELEASE AND DISCHARGE CERCLE FROM RESPONSIBILITY OR LIABILITY FOR ANY AND ALL LEGAL CLAIMS WHICH MAY ARISE FROM YOUR USE OF THE SERVICES.
SERVICES and CONTENT. A. Content. The Services contain, or may contain, a variety of materials and other items relating to Cercle and its products and services, and similar items from our licensors, merchants, partners, vendors, network members, and other third parties who support us or are affiliated with us (collectively “Partners”). All content in the Services, including, but not limited to, all layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the App and/or the Website, and the compilation, assembly, and arrangement of the materials of the Services and any and all copyrightable material (including source and object code), trademarks, logos, trade names, service marks, company names, and trade identities of various parties, including those owned by Cercle and those owned by third parties and licensed to Cercle are defined collectively as “Content,” which term includes all of the foregoing. Also, for clarity, please know that the term Services extends to and includes Content, and, therefore, all of your obligations concerning Services under this Agreement include and extend to Content.
B. Ownership. The Services and the Content (including any past, present, and future versions) are either owned by Cercle or controlled by Cercle through licenses granted to Cercle by its Partners. All right, title, and interest in and to the Content available via the Services is the property of Cercle or of its Partners, and is protected by U.S. federal copyright, trademark, patent, and trade secrets laws and by other federal and state intellectual property and unfair competition laws. In addition to Cercle’s copyright ownership of the Content, Cercle owns a copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content. “Intellectual Property Rights,” as used in this Agreement, means any and all rights belonging to Cercle and existing under patent law, copyright law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, in any intellectual property, which includes, but is not limited to, patentable inventions, ideas, and processes, trade secrets, trademarks, trade names, copyrightable works, and any confidential information. As between you and Cercle, Cercle retains all its respective titles, interests, and ownership in the Website, the App(s), the Content, and all the Services, and you understand and acknowledge that neither you nor any other User acquires any ownership in any Intellectual Property Rights regarding any of the foregoing.
C. Limited License Granted to You. Subject to your strict compliance with this Agreement, Cercle grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license (the “Limited License”) to access and use the Services in accordance with the instructions we provide for such use. The foregoing Limited License does not give you any ownership of, or any other intellectual property interest in, the Services or any Content, and Cercle reserves the right to suspend or terminate, at any time and for any reason, your Limited License without any advance notice to you, and without any liability. No right or license other than the Limited License may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Cercle. Any unauthorized use of the Services or any Content for any purpose is strictly prohibited. D. Rights of Others. In using the Services, you must respect the rights of others. Your unauthorized use of Content or the Services may violate rights owned by Cercle or its licensors, and/or your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws. If you make unauthorized use of Content owned by Cercle or its licensors or of materials owned by a third party, your use may result not only in the termination or suspension of your account or your ability to use the Services, but also in personal liability for you, as well as potential criminal liability.
E. Third-Party Websites. The Services may provide links to other websites operated by third parties who are not related to, affiliated with, or endorsed by Cercle. Because Cercle has no control over such third-party websites, you understand and acknowledge that Cercle is not responsible for the availability of such websites and bears no responsibility or liability whatsoever for any content, advertising, services, products, or other materials on or available from such websites. Accordingly, you acknowledge and agree that Cercle shall have no responsibility or liability, directly or indirectly, for any damage or loss suffered by you and caused directly or indirectly by such third-party websites. Further, you understand, acknowledge, and agree that this Agreement does not apply to third-party websites and that your use of such websites is subject to the terms and conditions and policies of the owner or owners of such third-party websites.
USER CONDUCT IN USING THE SERVICES. You hereby understand, acknowledge, and agree that you will not do any of the following: alter, modify, edit, amend, abridge, add to, delete from, adapt, repackage, or change any of the Content or the Services in whole or in part; and/or remove any notices of copyright, any watermarking, or any other proprietary notices or language referring to Cercle’s ownership of the Content and the Services; and/or copy, reproduce, publish, distribute, or redistribute any of the Content, in whole or in part, to any person who is not an authorized User of the Services; and/or attempt to sell, resell, lend, lease, license, sublicense, assign, or otherwise transfer or attempt to transfer the Content, the Services, any rights granted under this Agreement, or any intellectual property rights owned by Cercle to any other person or entity; and/or provide any other person or entity access to the Services by means of your username and/or your password; and/or attempt to lend, lease, license, sublicense, transfer, assign, sell, or resell your username(s) and password(s) to any other person or entity; and/or decompile, disassemble, translate or reverse engineer any portion of the Services or the Content, or otherwise discover or duplicate any technology, routines, computer software, algorithms, methods or underlying ideas or design or user interface techniques included in any portion of the Services or the Content; and/or monitor, gather, copy, or distribute such Content (except as may be a result of standard search engine or activity or use of a standard Internet browser) on the Services by using any robot, rover, “bot,” spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; and/or frame or use framing techniques to enclose any Content (including any images, text, or page layout) and display any Content within the frame on another website; and/or insert any code or product to manipulate Content in any way that affects, adversely or otherwise any other User’s experience with the Services; and/or make or attempt to make any commercial use or exploitation of the Services or any of the Content; and/or circumvent, disable or otherwise interfere with the security features of the Services or the Content, or any features that prevent or restrict use or copying of any Content or enforce limitations on use of the Content; and/or collect or harvest any PII, including usernames and passwords, from the Services; and/or create multiple accounts by manual or automated means or under false or fraudulent pretenses; and/or create or transmit unwanted electronic communications or “spam” to other Users of the Services; and/or transmit any viruses, worms, defects, Trojan horses or other code sequence or routines of a destructive nature on or in the Services; and/or use the Services or the Content to violate the security of any computer network, to crack passwords or security encryption codes, or to transfer or store illegal material; and/or use any metatags or any other “hidden text” utilizing any Cercle trademarks and/or use any device, software or routine that interferes with the proper working of the Services or the Content; and/or claim the Services or any of the Content as your property, your creation, or your work of authorship, in whole or in part; and/or contest or dispute Cercle’s ownership of all Intellectual Property Rights in the Services and the Content; and/or use the Content after the termination date of your account; and/or fail at any time to provide true, accurate, complete, and current account registration data and information; and/or engage in any activities through or in connection with the Services that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, salacious, injurious, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Cercle; and/or use the Services and/or the Content, in whole or in part, in any manner not authorized by this Agreement. YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT ANY VIOLATION OF THE FOREGOING PROVISIONS MAY, IN CERCLE’S SOLE DISCRETION AND JUDGMENT, SUBJECT YOU TO THE IMMEDIATE SUSPENSION OR TERMINATION OF YOUR ACCOUNT, AND MAY SUBJECT YOU TO CRIMINAL LIABILITY AND/OR LIABILITY FOR DAMAGES, COSTS, EXPENSES, OR FEES (INCLUDING ATTORNEY’S FEES) INCURRED BY CERCLE IN ENFORCING ITS RIGHTS AGAINST YOU UNDER THIS AGREEMENT. CUSTOMER ACCOUNTS. A. Registration. To access or use some features of the Services, you must become a registered Customer. If you are under the age of eighteen, you are considered to be a minor and you may not become a registered Customer. The Services’ practices governing any resulting collection and use of your registration are disclosed in the Cercle Privacy Policy <<LINK>>. You acknowledge and agree that your decision to register is purely voluntary and optional.
B. Usernames and Passwords. When you become a registered Customer, you will select your own password at the time of registration (or we may send you an email notification with a randomly generated initial password) and you agree to the following: (1) You will not use a username (or e-mail address) that is already being used by someone else, that may impersonate another person, that belongs to another person, that violates the intellectual property rights or other right of any person or entity, or that is offensive (Cercle may reject the use of any password, username, or email address for any reason in our sole discretion); and (2) You will provide accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete for as long as you use the features to which the registration relates; and (3) You are solely responsible for all activities that occur on or in the Services under your account, password, and username, including all activities conducted by any person who is under your employment or acting under your supervision and to whom you have delegated limited responsibility for undertaking certain tasks for you in regard to the Services (a “Delegate”) whether or not you specifically authorize the activity of such Delegate or any such other person (except to the extent that any activity occurs due to unauthorized use of your password and username by another person or entity); and (4) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your computer, smartphone, pad, tablet, smartwatch (collectively, “Internet Access Device(s)”), so that others may not access any password protected portion of the Services using your name, username, or password; and (5) You will immediately notify Cercle of any unauthorized use of your account, password, or username, or any other breach of security; and (6) You will not sell, transfer, or assign your account or any account rights.
Cercle shall have no liability for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. C. Termination of Your Account. If any information that you provide as part of your account registration is false, inaccurate, outdated, incomplete, or violates this Agreement, or any legal requirement or state or federal law, then Cercle may suspend or terminate your account in its sole discretion. Cercle also reserves the general right to terminate your account or suspend or otherwise deny you access to it or its benefits, all in our sole discretion, for any reason, and without advance notice to you or any liability to you or to any third party.
D. Services Access Charges. Cercle reserves the right, upon reasonable notice, to charge for access to some or all of the Services, charge for access to premium functionality or Content on some or all of the Services. Cercle further retains the right to change the terms and conditions for accessing the Services or portions of the Services; and the right to restrict access to the Services or portions of the Services, in whole or in part, based on any lawful eligibility requirements Cercle may elect to impose (e.g., geographic or demographic limitations). Cercle may modify, revalue, increase, or decrease fees due from Users for various Content features on or in the Services at its sole discretion without advance notice or liability.
E. Your Use of an Internet Access Device and Third-Party Components. You understand and agree that your use of any Internet Access Device and/or all third-party hardware, software, services, telecommunication services (including Internet connectivity), or other items used by you to access the Website (“Third-Party Components”) are the sole and exclusive responsibility of you alone, including all costs of your use of such Third-Party Components, and that Cercle has no responsibility for such third-party components, services, or your relationships with such third parties. You agree that you shall at all times comply with the lawful terms and conditions of your agreements with such third parties. Cercle does not represent or warrant that the Services are compatible with any specific third-party hardware or software or any other Third-Party Components. You are responsible for providing and maintaining an operating environment as reasonably necessary to accommodate and access the Services.
F. Wireless Features. The Services includes certain features and services that are available to you via your Internet Access Device. These features and services may include the ability to access the Services’ features and upload content to the Services, receive messages from the Services, and download applications to your wireless Internet Access Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Internet Access Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier directly with questions regarding these issues. You understand and acknowledge that Cercle has no responsibility or liability for your ability or inability to access or take advantage of any Wireless Features due to your carrier, your phone service plan, your Internet Access Device, or any other Third-Party Component.
G. Customer Service. Cercle will respond to consumer service requests and other similar inquiries if properly communicated to Cercle. Please contact us at info@cercle.ai YOUR GENERAL REPRESENTATIONS AND WARRANTIES. You represent and warrant the following in respect of this Agreement: A. You have the necessary authority to enter into this Agreement and you understand its terms; and B. If you are an individual, you are over the age of eighteen, or that you are a minor using the Services under the immediate supervision of a parent, guardian, or other responsible adult; and C. You will cooperate with all of the instructions, rules, and procedures that apply to your use of the Services; D. You have provided and will continue to provide true, accurate, current, and complete registration information; and E. You will respect and abide by all of your obligations under this Agreement, and you will perform your obligations under this Agreement diligently; and F. You will comply with all laws and regulations applicable to this Agreement.
YOUR INDEMNIFICATION RESPONSIBILITIES. You shall indemnify and hold harmless Cercle, its affiliate companies, its officers, directors, employees, agents, and representatives from, and, at your expense, shall defend Cercle against, any loss, damage or expense (including reasonable legal costs) that Cercle incurs or becomes liable for as a result of any breach by you of any of the terms of this Agreement; any negligent, reckless or willful act or omission by you or your agents or others for whom you are responsible; any failure by you to comply with applicable laws in performing under this Agreement; any misuse by you of the Services and/or the Content; or, any claim made against Cercle by any third party for which Cercle is not liable under this Agreement, and which arises as a consequence of your use of the Services. You shall reimburse Cercle for its expenses under this Section as they are incurred. Cercle shall have the right, at its own expense, to participate in the defense of any claim, action or proceeding against which it is indemnified hereunder. You, in the defense of any such claim, action, or proceeding arising under this Section shall not, except with the written consent of Cercle, enter into any settlement which adversely affects Cercle’s rights or which does not include, as an unconditional term, a release granted to Cercle of all liabilities in respect of such claim, action or proceeding.
NO OTHER WARRANTIES FROM CERCLE. CERCLE’S REPRESENTATIONS AND WARRANTIES THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT ARE THE ONLY REPRESENTATIONS AND WARRANTIES PROVIDED BY CERCLE WITH RESPECT TO THE SERVICES AND THE CONTENT, AND ANY OTHER ITEM OR SERVICE PROVIDED BY CERCLE. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT ONLY TO THE EXPRESS WARRANTIES PROVIDED UNDER THE AGREEMENT, THE APP, THE SERVICES, THE CONTENT, AND ANY OTHER ITEMS OR SERVICES ARE PROVIDED ON AN “AS-IS,” AND “AS-AVAILABLE” BASIS. CERCLE EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING: ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; ANY WARRANTY REGARDING RESULTS OBTAINABLE OR TO BE OBTAINED BY YOU OR ANY USER AS A RESULT OF PROVISION OR USE OF THE SERVICES AND/OR THE CONTENT; AND ANY WARRANTY OF UNINTERRUPTED OR ERROR-FREE OPERATION OF OR ACCESS TO THE APP, THE SERVICES OR THE CONTENT. CERCLE RESERVES THE RIGHT TO MODIFY AND OR REMOVE ANY PORTION OF THE SERVICES INCLUDING ANY CONTENT, AT ANY TIME, WITH OR WITHOUT NOTICE TO YOU OR TO OTHER USERS. NO ORAL OR WRITTEN INFORMATION BY CERCLE OR ANY OTHER ENTITY OR PERSON SHALL CREATE ANY ADDITIONAL REPRESENTATION OR WARRANTY BY CERCLE. CERCLE DOES NOT REPRESENT, WARRANT, OR GUARANTY TO YOU OR ANY USER ANY PARTICULAR RESULTS TO BE ACHIEVED AS A RESULT OF YOUR USE OF THE SERVICES AND/OR THE CONTENT. YOU UNDERSTAND AND ACKNOWLEDGE THAT CERCLE HAS NO RESPONSIBILITY OR LIABILITY FOR ANY ACTION YOU TAKE OR FAIL TO TAKE BASED ON YOUR USE OF THE SERVICES AND/OR THE CONTENT. CERCLE IS NOT LIABLE FOR ANY DAMAGES THAT YOU OR ANOTHER USER MAY SUFFER ARISING OUT OF USE, DELAY IN PROVIDING, OR INABILITY TO USE, THE SERVICES AND/OR THE CONTENT, INCLUDING ANY AND ALL DAMAGES WHICH MAY RESULT FROM LOSS OF PRIVATE USER-GENERATED CONTENT. CERCLE IS NOT LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF ANY OF YOUR USER-GENERATED CONTENT OR YOUR REGISTRATION INFORMATION OR DATA.
SERVICES AND CONTENT DISCLAIMER. CERCLE UNDERTAKES NO RESPONSIBILITY FOR, AND DISCLAIMS ALL LIABILITY ARISING FROM, ANY INABILITY OF YOU OR OTHER USERS TO ACCESS THE SERVICES AND/OR THE CONTENT. CERCLE PROVIDES ACCESS TO THE SERVICES AND THE CONTENT ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MAKES NO REPRESENTATION, WARRANTY, PROMISE, OR GUARANTY THAT THE SERVICES AND/OR THE CONTENT WILL BE AVAILABLE OR FULLY OPERATIVE AT ANY TIME OR ON AN UNINTERRUPTED OR ERROR-FREE BASIS. THE SERVICES AND/OR THE CONTENT MAY CONTAIN ERRORS, GLITCHES, BUGS, OR OTHER DEFECTS. CONTENT, INCLUDING USER-GENERATED CONTENT, IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, MAY CONTAIN ERRORS OR INACCURACIES, SHOULD NOT BE INTERPRETED AS PERSONAL, FINANCIAL, OR MEDICAL ADVICE, AND CERCLE IS NOT RESPONSIBLE FOR ANY ACTIONS YOU TAKE OR FAIL TO TAKE BASED ON THE CONTENT OR ON USER-GENERATED CONTENT SUBMITTED BY ANY USER. YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT THE VIEWS EXPRESSED IN USER-GENERATED CONTENT ARE NOT PRE-REVIEWED OR PRE-APPROVED BY CERCLE AND THEREFORE DO NOT REPRESENT ANY EXPRESS OR EXPLICIT VIEW OF CERCLE ON ANY TOPIC WHATSOEVER. YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDIES IN THE EVENT OF YOUR DISSATISFACTION WITH THE SERVICES AND/OR THE CONTENT ARE FOR YOU TO NOTIFY CERCLE ABOUT YOUR DISSATISFACTION, IN WHICH CASE CERCLE WILL REVIEW THE COMPLAINT WITH CERCLE’S TECHNICAL AND SUBJECT-MATTER EXPERTS, AND/OR TO STOP USING THE SERVICES AND/OR THE CONTENT.
LIMITATION OF LIABILITY FOR CERCLE. IN NO EVENT WILL CERCLE’S LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES, REGARDLESS OF THE CLAIM OR FORM OF ACTION, INCLUDE ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR CLAIMS FOR LOSS OF DATA, INFORMATION, PRIVATE USER-GENERATED CONTENT, BUSINESS OR PROFITS, UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF CERCLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT CERCLE’S MAXIMUM AGGREGATE LIABILITY TO YOU UNDER OR RELATING TO THIS AGREEMENT UNDER THEORIES OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE OF ACTION, WILL NOT EXCEED AN AMOUNT, IN AGGREGATE, EQUAL TO THE FEES PAID BY YOU TO CERCLE IN THE TWELVE MONTHS PRIOR TO WHEN THE DAMAGES FIRST AROSE. YOU UNDERSTAND AND AGREE THAT YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR RELATIONS WITH OTHER USERS, AND THAT CERCLE SHALL NOT BE LIABLE TO YOU OR ANY OTHER USERS, UNDER ANY CIRCUMSTANCES, FOR ANY DISPUTE THAT ARISES BETWEEN YOU AND ANOTHER USER OF THE SERVICES OR THE CONTENT.
GENERAL PROVISIONS. A. Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of New York. Disputes arising under this Agreement shall proceed through three levels of resolution, if necessary: negotiations between you and Cercle, mandatory mediation, and court proceedings. Any dispute which arises under this Agreement and cannot be resolved by good-faith negotiations between the parties within ninety (90) days must be submitted for a mandatory mediation procedure in New York, New York before a neutral mediator chosen and appointed by Judicial Arbitration and Mediation Services, Inc. (“JAMS”). The mediation shall take place on within forty-five (45) days after the mediator has been appointed, and at the direction of the mediator. The mediation shall take place on one business day and shall last no longer than ten (10) hours unless the parties mutually agree to an extension of the mediation procedure. The mediator shall apply U.S. and New York law to substantive issues and the JAMS procedural rules for commercial mediation to procedural issues. The parties shall bear their own costs for the mediation, and they shall split equally the costs and fees of the mediator. If either party is unsatisfied with the resolution provided by the mediator, either party may file a claim in the appropriate state or federal court sitting in the Southern District of New York. You hereby consent and absolutely agree to the jurisdiction of state and federal courts sitting in the Southern District of New York for resolving any disputes arising under this Agreement which cannot be resolved either by negotiations or by mediation between you and Cercle.
(1) Cercle’s Right to Injunctive Relief. The foregoing provision regarding dispute resolution will not apply to any legal action taken by Cercle to seek an injunction or other equitable relief in connection with any loss, cost, expense, or damage (or any threatened or potential loss, cost, expense, or damage) relating to the Services, the Website, the App(s), any Content, your User-Generated Content and/or Cercle’s Intellectual Property Rights, Cercle's operations, and/or Cercle's other products or services.
(2) Your Waiver of Injunctive or Equitable Relief. IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSSES, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICES, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT ORDER OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY SERVICES, WEBSITE, CONTENT, USER-GENERATED CONTENT, UNSOLICITED IDEAS AND MATERIALS, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, OR CONTROLLED BY CERCLE (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR BY A PARTNER OF CERCLE.
B. Updates to this Agreement. Cercle reserves the right to modify, change, amend, update, or supplement the terms and conditions of this Agreement at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Website so that they are accessible via a link on the Website, and that your use of the Website after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms and to the most recent version of this Agreement. The Updated Terms will be effective as of the time that Cercle posts them on the home page of the Website, in the header of this Agreement, or such later date as may be specified in them. You understand and acknowledge that Cercle shall only be posting the most recent version of this Agreement on the Website and in the downloadable App, that you are bound by the most recent version of this Agreement at any time you use or access the Services in any manner, and, therefore, you agree that it is your responsibility to review this Agreement on a regular and frequent basis
C. Severability and Interpretation. If any provision of this Agreement is for any reason deemed invalid, unlawful, void, or unenforceable by a court of competent jurisdiction, then that provision will be deemed severable from this Agreement, and the invalidity of the provision will not affect the validity or enforceability of the remainder of this Agreement (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in this Agreement, the word will be deemed to mean “including, without limitation.”
D. Communications. Whenever you communicate with Cercle electronically, such as via e-mail and text message, you consent to receive communications from Cercle electronically. Please note that, except as set forth in the provisions of this Agreement regarding the DMCA, we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. E. Law Enforcement and Termination of Accounts or of the Website. Cercle reserves the right, without any limitation, to investigate any suspected breaches of its security or its information technology or other systems or networks, investigate any suspected breaches of this Agreement, investigate any information obtained by Cercle in connection with reviewing law enforcement databases or complying with criminal laws, involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, prosecute violators of this Agreement, and discontinue the Services, in whole or in part, or suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Cercle under this Agreement. Upon suspension or termination of your access to the Services, or upon notice from Cercle, all rights granted to you under this Agreement will cease immediately, and you agree that you will immediately discontinue use of the Services. The provisions of this Agreement, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Cercle in this Agreement, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, and mandatory mediation.
F. Assignment. Cercle may assign its rights and obligations under this Agreement, in whole or in part, to any party at any time without any advance notice to you or other Users. This Agreement may not be assigned by you in whole or in part, without the prior written consent of Cercle. G. No Waiver. Except as expressly set forth in this Agreement, no failure or delay by you or Cercle in exercising any rights or remedies under this Agreement will operate as a waiver of that or any other right or remedy.
