Terms Of Service
PLEASE READ THESE TERMS OF SERVICE (“AGREEMENT”) CAREFULLY BEFORE USING THE ADVANCED PUBLISHING, SOCIAL INBOX, ANALYTICS AND COLLABORATION TOOLS SERVICES (THE “SERVICES”) OFFERED BY ECLINCHER, INC. (“COMPANY”). IN THIS AGREEMENT, “YOU” MEANS YOU AS AN INDIVIDUAL AND/OR YOUR COMPANY AND ANYONE ELSE AT YOUR COMPANY WHO YOU AUTHORIZE TO USE ECLINCHER’S SERVICES USING LOGIN CREDENTIALS APPROVED BY YOU (“AUTHORIZED USERS”). BY VISITING THE WEBSITES OR USING THE SERVICES (INCLUDING, BUT NOT LIMITED TO, AN APPLICATION, A MONTHLY OR YEARLY SUBSCRIPTION ACCOUNT) IN ANY MANNER, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE WEBSITE OR SERVICES. USE OF COMPANY’S SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. ACCESS TO AND USE OF THE SERVICES.
A. General Use Terms. The eclincher.com website and domain name and any other linked pages, features, content, or application services (including without limitation any mobile application services) offered from time to time by Company in connection therewith (collectively, the “Website”) are owned and operated by Company. Subject to the terms and conditions of this Agreement, Company may offer to provide certain software or services (including without limitation mobile applications (each an “Application”)) that have been selected by you solely for use by You and your Authorized Users, and not for the use or benefit of any third party. The term “Services” includes, without limitation, any Application, use of the Website, any service Company performs for you, and the Content (as defined below) offered in connection therewith. Company may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or Content. Company may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. Company reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the Website, or by sending you a notice via email or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
B. Agency Use Terms. If you are an Agency (as defined below), you may use the Services on behalf of Users who are your clients. In addition, it shall not constitute a violation of this Agreement if you charge your clients a fee for such use of the Services. As an Agency, you will be liable for all use of the Services by your clients. By adding any client to your account, you represent and warrant that you have obtained all necessary authorizations and consents from such clients to bind them to these Terms. If you use the Services on behalf of your clients, or grant access to the products to your clients, you will be responsible for ensuring that such clients are not able to access confidential or proprietary information of another client. “Agency” shall mean a business or organization providing advertising, marketing, or social media services on behalf of another business, person, or group.
C. Restrictions on Use Based Upon Age. Company does not knowingly collect or solicit personal information from anyone under the age of 18 or knowingly allow such persons to register for the Services. If you are under 18, please do not attempt to register for the Services or send any information about yourself to us, including your name, address, telephone number, or email address. No one under age 18 may provide any personal information to Company or on the Services. In the event that we learn that we have collected personal information from a child under age 18 without verification of parental consent, we will delete that information as quickly as possible. If you believe that we might have any information from or about a child under 18, please contact us at [email protected]
You represent and warrant to Company that: (i) you are of legal age to form a binding contract or have your parent’s permission to do so, and you are at least 18 years or age or older; (ii) all registration information you submit is accurate and truthful; and (iii) you will maintain the accuracy of such information. You also certify that you are legally permitted to use and access the Services and take full responsibility for the selection and use of and access to the Services. This Agreement is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.
2. CONTENT AND OWNERSHIP.
You retain all ownership rights in the data (or “Content,” as defined in the next sentence) you submit to our Services. Content is defined to include, but is not limited to, text, graphics, articles, photographs, images, illustrations, videos, and is protected by U.S. and international copyright. Content may only be used in accordance with the terms of this Agreement. You grant the Company a nonexclusive, revocable, worldwide, perpetual, fully paid-up and royalty-free right to use, copy, prepare derivative works of, distribute, publish, remove, retain, add, process, or analyze this information for the sole purpose of providing the Services to you and your Authorized Users. You represent and warrant that you are entitled to and authorized to submit the Content and that such Content is accurate and does not infringe any third-party rights and is not in violation of any contractual restrictions you have with others.
Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holder’s rights. You agree that you will not use our Services to infringe anyone’s intellectual property rights. We will investigate copyright infringement claims if they are reported to us to [email protected]
You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.
You understand that all information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which such content originated and that Company will not be liable in any way for any errors or omissions in any Content you or your Authorized Users access or disseminate through the Services. Further, under no circumstances will Company be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred by you or to any third party to whom you disseminate Content in connection with use of or exposure to such Content. You understand that Company cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. Additionally, Company cannot guarantee the authenticity of any data which users or merchants may provide about themselves, their products or services. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
You also understand that to the extent the Content you share with the Company intentionally or inadvertently includes personally identifiable private information subject to regulation under the European General Data Protection Regulation (“GDPR”), the California Consumer Privacy Act or any other privacy law or regulation, the Company will use reasonable measures to comply with such laws and regulations. In particular, you agree that the Company is a “Data Processor” as defined in the GDPR; the Company’s responsibilities are outlined in the Data Processor Agreement, which is posted on this website at: https://eclincher.com/gdpr-compliance/.
You agree that the Company owns statistical analyses interpreting your data and the use of your Content resulting from your or your Authorized Users’ use of the Services (other than any personally identifiable data). When we extract, compile, synthesize, or analyze this data, we will only use it in anonymized, de-identified, or aggregated form without specifying the source of the data. We collect such data for any lawful purpose and without a duty of accounting to you.
3. LICENSES AND ACCEPTABLE USE.
3.1 License to Use
Subject to your complete and ongoing compliance with these Terms, the Company grants you a limited, non-transferable, non-sublicensable, revocable license and permission to access and use the Services for your use during the Term at the level of service for which you have paid all applicable Fees.
3.2 Appropriate Use.
You shall (i) be responsible for yourself and your Authorized Users’ compliance with this Terms of Service; (ii) be solely responsible for the accuracy, quality, integrity, and legality of your Content and by which you acquired or generated the Content; (iii) use commercially reasonable efforts to prevent unauthorized access to our Services, including keeping your password and user name confidential and not permitting any third party to access or use your user name, password, or account for the Services; (iv) be solely responsible and liable for all activity conducted through your account in connection with the Services; (v) promptly notify the Company if you become aware of or reasonably suspect any security breach, including any loss, theft, or unauthorized disclosure or use of your (or any Authorized User’s) user name, password, or account; (vi) use the Services only in accordance with applicable laws and government regulations; (vii) comply in all respects with all the terms of service of the Supported Platforms, such as:
- Facebook Terms of Service: https://www.facebook.com/terms.php and https://www.facebook.com/page_guidelines.php
- Instagram Terms of Service: https://help.instagram.com/478745558852511
- Twitter Terms of Service: https://twitter.com/en/tos
- YouTube Terms of Service: www.youtube.com/t/terms
- LinkedIn Terms of Service: https://www.linkedin.com/legal/user-agreement
- Any Terms of Service issued by social network or other integrated Platforms you may manage using the Services
Without limiting the foregoing, you represent and warrant that you will not be using the Services to access or use content from Twitter for any unlawful, discriminatory purposes and/or profiling based on sensitive categories of information prohibited by law. User Protection of the Twitter Developer Agreement can be found at https://developer.twitter.com/en/developer-terms/agreement).
You acknowledge and agree that we have no obligation to issue any refunds. You warrant, represent and agree that you will not contribute any Content or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without Company’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of Company; or (vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. Company reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Company is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not Company, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, and you warrant that you possess all rights necessary to provide such content to Company and to grant Company the rights to use such information in connection with the Services and as otherwise provided herein.
You are responsible for all of your activity in connection with the Services. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Services. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other user of the Services. Use of the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Services, or any processes that run or are activated while you are not logged on to the Services, or that otherwise interfere with the proper working of or place an unreasonable load on the Services infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl”, “scrape”, or “spider” any page of the Website is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Services.
You agree not to use, and not to knowingly display, distribute, or otherwise make Content or information derived from the Services available to any entity for the purpose of: (i) conducting or providing surveillance or gathering intelligence, including but not limited to, investigating or tracking individual social media users or their content, or to obtain information on social media users or their content, in a manner that would require a subpoena, court order, or other valid legal process; (ii) tracking, alerting, or other monitoring of sensitive events (including but not limited to protests, rallies, or community organizing meetings); (iii) conducting or providing surveillance, analyses or research that isolates a group of individuals or any single individual on social media for any unlawful or discriminatory purpose or in a manner that would be inconsistent with the individual users’ reasonable expectations of privacy; (iv) violating the Universal Declaration of Human Rights (located at http://www.un.org/en/documents/udhr/), including, without limitation, Articles 12, 18, or 19; or (v) targeting, segmenting, or profiling individuals based on sensitive personal information, including health (e.g. pregnancy), negative financial status or condition, political affiliation or beliefs, racial or ethnic origin, religious or philosophical affiliation or beliefs, sex life or sexual orientation, trade union membership, data relating to any alleged or actual commission of a crime, or any other sensitive categories of personal information prohibited by law.
We have the right to terminate your account or suspend your access to the Products, if we reasonably suspect that you have violated any of the restrictions in this Section 4.
5. WARRANTY DISCLAIMER.
Company has no special relationship with or fiduciary duty to you. You acknowledge that Company has no control over, and no duty to take any action regarding: which users gain access to the Services, what Content you access via the Services, what effects the Content may have on you, how you may interpret or use the Content, or what actions you may take as a result of having been exposed to the Content. You release Company from all liability for you having acquired or not acquired Content through the Services. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning any Content contained in or accessed through the Services, and Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. Company makes no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. THE SERVICES, CONTENT, WEBSITE AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT WILL OUR AGGREGATE LIABILITY EXCEED THE AMOUNT OF FEES COLLECTED FROM YOU FOR THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM. NO CLAIM, SUIT OR ACTION MAY BE BROUGHT AGAINST THE COMPANY AFTER MORE THAN SIX MONTHS FROM THE DATE THE UNDERLYING CAUSE OF ACTION HAS OCCURRED.
6. SUPPORT AND UPGRADES.
User support, including but not limited to live chat, account management and phone support, are included in this Agreement and may be changed by the Company at any time. Any support, such as upgrades, patches, enhancements, or fixes to the Services that may be made available by Company at its sole discretion, shall become part of the Services and subject to this Agreement.
7. FEES, BILLING, PAYMENT AND TAXES.
The Company offers paid Services through its Website and the Apple App Store. Paid Services include any of the Company monthly, yearly, or multi-year paid Services plans and add-ons (including, but not limited to Basic, Premier, Agency, and Enterprise plans). By selecting one of the paid Services plans you agree to pay the Company the subscription fee indicated for that plan. Payments will be charged in advance beginning on the day you sign up for a paid plan and will cover the use of those Services for the monthly or annual period you select when you sign up. Fees for Services are not refundable. You are responsible for all sales taxes, value-added taxes and all other similar taxes assessed by a government entity associated with the delivery of the Services offered by the Company (except income taxes owed by the Company).
9. REGISTRATION AND SECURITY.
As a condition to using some aspects of the Services, you may be required to register with Company and select a password and user name (“Company User ID”). If you are accessing the Services through a third party site or service (such as “Facebook Connect”), Company may require that each of your Company User ID’s be the same as each of your user names for such third party site or service. You shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (i) select or use as a Company User ID a name of another person with the intent to impersonate that person; or (ii) use as a Company User ID a name subject to any rights of a person other than you without appropriate authorization. Company reserves the right to refuse registration of or cancel a Company User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password. If you access the Services through a third party site or a service, you will provide your third party account credentials to Company, and you are consenting to have the information in those accounts transmitted into your Company account, and you agree that you shall only use accounts owned by you, and not by any other person or entity.
If you, as a customer, add Authorized Users to your account, you must bind each of the Authorized Users to this Agreement. You are responsible for all Content that your Authorized Users post or otherwise transmit via the Services. You acknowledge and agree that a login may only be used by one (1) person, and that you will not share a single login among multiple people. You are responsible for maintaining the confidentiality of your login and account, and are fully responsible for any and all activities that occur under or in connection with your login or account. Except for as provided in Section 1B (Agencies), you agree that you will not trade, transfer, or sell access to your login or account to another party unless otherwise agreed to in writing by the Company.
As a User, you represent and warrant that you are: (i) 18 years or older, (ii) not prohibited or restricted from having an eclincher account, and (iii) not a competitor of or using the Services for purposes that are competitive with the Company.
You agree to use reasonable efforts to prevent unauthorized use of the Services and notify us immediately if you discover any unauthorized use through your account. You will take all necessary steps to terminate the unauthorized use and agree to cooperate with us in preventing or terminating such unauthorized use of the Services.
You will indemnify and hold the Company, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made against the Company by any third party due to or arising out of your access to the Services, use of the Services, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.
11. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE (I) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (II) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (III) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
12. INTERACTION WITH THIRD PARTIES.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between users of our Services or between users and any third party, you understand and agree that Company is under no obligation to become involved. In the event that you have a dispute with one or more other users or third parties, you hereby release Company, its officers, employees, agents, and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
13. TERMINATION or CANCELLATION.
This Agreement shall remain in full force and effect while you use the Services. You may terminate or cancel your use of Services at any time by requesting to cancel from our live chat support on eclincher.com website. All cancellations will cancel your subscription effective as of the next renewal date without refund. Once the Company receives a termination or a cancellation notice before the next subscription renewal date, we will cancel your subscription and you will not be charged again. All mobile subscriptions to the Company Services are managed by the App Stores (Apple App Store or Google Play store). If you wish to cancel a mobile subscription, please use your mobile device to access your App Store subscriptions and cancel from there.
Company may terminate or suspend your access to the Services or your subscription at any time, for any reason, with fifteen (15) days’ notice, which may result in the forfeiture and destruction of all information associated with your subscription. If the Company terminates your subscription due to breach any of the terms or conditions of this Agreement, you will have the fifteen (15) day notice period to cure the breach. Upon termination of your account, your right to use the Services will immediately cease. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Company’s prior written consent. Company may transfer, assign or delegate this Agreement and its rights and obligations without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever. Headings for each section have been included above for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede.
15. ARBITRATION; GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Santa Clara County, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California.
If you have any questions, complaints, or claims with respect to the Services, you may contact us via our live chat on our website, eclincher.com or by email at [email protected].
You agree that all notices or other communications regarding your account and/or your use of the Services (“Communications”), may be provided to you electronically and you agree to receive all Communications from us in electronic form. You may print a copy of any Communications and retain it for your records. All electronic Communications will be considered just as legally binding as if they were in paper form. You may revoke your consent to receive Communications electronically, but if you revoke your consent to receive Communications electronically, we reserve the right to terminate your right to use our Services.
The information contained in this Agreement is subject to change without notice. Updated by the eclincher team on April 10, 2020.