Terms & Conditions
This Agreement is a legally binding contract between you (“you” or “your”) and Encore Technologies (as the entity responsible for the enterprise using Encore Technologies software and services, including all registered users associated with that enterprise) and incorporates by reference all applicable program, subscription, activation, ordering, and pricing terms provided to you, whether online or offline, for the Services selected by you and for other Encore Technologies services made available to you. These terms shall apply to any upgrades or new features you purchase for the Services, as well as any additional Encore Technologies internet-based services you may subscribe to via the Services.
Definition of the Permitted Use
- A Binding Contract. By accessing or using the Services, or by clicking “I AGREE” (or “ACCEPT” or “REGISTER” on the registration page on our website), you signify your understanding of this Agreement and your agreement to be bound by its terms and conditions. You will not have access to or use of, or be given any rights in, the Services and/or Software, as applicable, unless you agree to the terms and conditions set out in this Agreement. Acceptance of separate agreements with Encore Technologies and/or its affiliates may also be required to gain access thereto. If the person who clicks “ACCEPT/AGREE/REGISTER” is an employee of yours (“Agent”), that employee is agreeing to the terms and conditions of this Agreement on your behalf and is representing that he or she is authorized to bind you to the terms and conditions of this Agreement.
2. Permitted Use Area: You are hereby granted a limited, personal, non-exclusive, non-transferable, and non-sublicensable license to access and use the Services, solely for the purposes set forth in the activation and ordering terms, during the initial term of your subscription (and any Renewal Term, as set forth herein), subject to and conditioned upon your payment of all Fees and strict compliance with the terms and conditions set forth in this Agreement.
3. Use Restriction: You, your Users, and any third party you permit shall not directly or indirectly:
(a) make any use of the Services that is not permitted by the license granted or as otherwise set forth in this Agreement.
(b) grant anyone else the right to use the Services under your own or another’s license or sublicense, copy, assign, lease, loan, sell, resell, republish, upload, post, transfer, or commercially exploit the Services in any way.
(c) alter, translate, adapt, or develop any patentable innovations based on any portion of the Services or its content.
(d) Use or attempt to use services, features, or data from Encore Technologies that have not been included in the Services or made publicly available.
(e) attempt to obtain or access the source code for the Services or any part thereof by reverse engineering, disassembling, decompiling, decoding, or any other means.
(f) impede other licensees or customers from accessing or using the Services, or place an excessive or disproportionately large demand on our system.
(g) Any trademarks or notices of copyright, trademark, patent, or other intellectual property or proprietary rights supplied on or with the Services may not be removed, deleted, altered, or obscured.
(h) violate any federal, state, local, or international laws, regulations, statutes, or rules (“Laws”) in connection with your use of the Services (or its content); or
(i) use the Services in order to conduct any kind of competitive study of the Services, to produce any kind of rival product or service, or for any other commercially damaging purpose to Encore Technologies.
Merchant agrees to register a merchant account with a partner payment processing firm of Encore Technologies, and that Merchant will not use a third-party processing company in exchange for the Software Services and POS System and hardware acquired for our services.
4. Protecting Ideas and Creations: You understand and agree that you are receiving the Services under license and not as a purchase. Your use of the Services is subject to all terms, conditions, and restrictions set forth in this Agreement, but you do not acquire any ownership interest in the Services or any component thereof. Encore Technologies retains all right, title, and interest in and to the Services, the Software, and all Intellectual Property Rights connected thereto not expressly given to you herein. You agree to take commercially reasonable measures to protect the Services against intellectual property infringement, misappropriation, theft, misuse, and unauthorized access, and to contact Encore Technologies promptly if you become aware of any such infringement.
For purposes of this Agreement, “Intellectual Property Rights” shall include, but not be limited to
- Encore Technologies’ branding, trademarks, service marks, or other copyrightable material,
- The technology, content, derivatives, and modifications of the Services or Software by whomever made, and
(iii) Copyright, trade secret, and other intellectual property protections in accordance therewith.
5. Fees: Encore Technologies’ services are available for a monthly or annual subscription cost (the “Fees”). Your payments hereunder must be made in U.S. dollars using
(i) a credit or debit card acceptable to Encore Technologies, or
(ii) electronic debit from a valid checking or savings account (collectively, the “Payment Method”), unless otherwise specified in the program ordering and pricing terms provided to you on the website and/or in the program terms for the Services you have selected. You promise that the details of the Payment Method you enter will always be correct and that you will update us immediately if any of these details change.
6. Access and Signup: During the Services’ ordering, signing up for, and registration processes, Encore Technologies will ask for certain information from you (the “Registration Data”). You agree that the information you supply during the registration process will be true, current, and complete, and that you will update this information quickly if it changes. The following events will trigger your acceptance of the Services and the granting of first access to the Services:
(i) your acceptance of this Agreement and
(ii) our receipt and processing of the Registration Data for trial versions of the Services; and After
- You accept this Agreement,
- We receive and process the Registration Data, and
- You pay all applicable Fees or other subscription charges, the Paid Services will become available to you.
In any instance, the Fees for Data Entry Services will not be prorated for any unused portion of the month, and you will be charged either
- On the first (1st) day of the month following your registration, or
- Immediately upon such completion.
7. Users in the Federal Government: It has been determined that the Software meets the definition of “commercial computer software” as set forth in 48 C.F.R. 2.101. Therefore, if you are a government agency or contractor, you will only have the same rights to use the Services as any other end user under license, as set forth in either (a) 48 C.F.R. 227.7201 to 227.7204, for the Department of Defense and their contractors, or (b) 48 C.F.R. 12.212, for all other U.S. government licensees and their contractors.
Transfer, Renewal, and Expiration Dates
8. Test Drive: You may choose to purchase the Services you are using at any time during the agreed-upon trial period (“Trial Period”), and doing so will allow you to keep any Content (as defined below) that you posted, uploaded, or entered into websites made available through the Services during the Trial Period. All content will be removed at the end of the trial period if you have not purchased the Services. If you suffer losses because of the removal of this Content, you cannot hold Encore Technologies liable. By using the trial version of the Services, you acknowledge and agree that your access to and/or use of such Services will terminate and any data you have supplied, provided, or entered in conjunction therewith will be lost upon the expiration of the trial period (as specified on the Website or disclosed during the ordering process).
9. Plan for Subscriptions: Monthly or annual subscriptions are required to use the Services and/or Software. Encore Technologies reserves the right to impose charges to your Payment Method prior to the start of your subscription term on any day between the first (1st) and fifteenth (15th) day of your subscription term. You hereby give Encore Technologies permission to charge your designated Payment Method for all Fees or other sums for the items or services you pick as defined below or as announced by Encore Technologies, including any and all applicable taxes. If you want to pay for your fees with a credit or debit card, Encore Technologies may first request pre-authorization of that account to ensure there are sufficient money or credit available to cover your purchase.
10. Terms of Renewal: Unless and until you cancel your subscription in accordance with the terms of this Agreement, your subscription term (i.e., monthly, or annual, as applicable) will automatically renew (each, a “Renewal Term”). Your Payment Method will be charged or debited at the start of each Renewal Term at the then-current subscription rate in order to continue receiving the Services. Encore Technologies has the sole discretion to set all fees associated with the Software and Services. Encore Technologies will do its best to maintain accurate pricing information. Encore Technologies has the right to offer special promotions to some clients at a time that differ from those offered to others. Neither your offer nor this Agreement will be affected by these discounts unless they are specifically mentioned to you. For your Services and/or Software, Encore Technologies may supplement or alter the terms supplied to you in writing or on the website with respect to any Renewal Term.
11. Cancellation/Refund Policy: If at any time you decide you no longer want to receive the Services, you must submit a written request to Encore Technologies (“Cancellation Request”) in accordance with the terms herein no later than fifteen (15)business days before the end of your current monthly or annual term, as applicable. Cancellation requests that are late, incomplete, or otherwise flawed will not be refunded for the Renewal Terms for which they were submitted.
(a) Requests to cancel services must be sent to firstname.lastname@example.org from the email address you used to register with Encore Technologies, with “Service Cancellation Request” in the subject line. Requests made over telephone or other verbal means are not accepted by Encore Technologies under any circumstances.
(b) Your request to cancel the Services must include the following information:
(i) your Encore Technologies ID and/or location account number;
(ii) the name and address of the location;
(iii) the name and phone number of a person to contact regarding the cancellation; and (iv) the effective date of termination.
(c) We have a 30-day money-back guarantee on all new Back office/POS subscriptions. We provide a 30-day money-back guarantee on all subscriptions if you aren’t completely happy with our service. Requests for refunds will be fulfilled in no more than 10 business days. No subscriptions with more than 30 days remaining in their current billing cycle will be refunded. No refunds will be given for any unused portion of a subscription. Extra Services are not eligible for a refund.
12. Encore Technologies has chosen to part ways: Immediately and without prior notice, Encore Technologies may terminate this Agreement and your rights to use the Services if:
(a) you don’t follow the rules and regulations of this Agreement or don’t fulfill your duties under it;
(i) file, or have filed against you, a petition for voluntary or involuntary bankruptcy (or similar action pursuant to any other insolvency law),
(ii) make, or seek to make, a general assignment for the benefit of creditors, or (iii) apply for, or consent to the appointment of a trustee, receiver, or custodian for a substantial part of your property;
Fees become due hereunder and
(c) Encore Technologies is unable to charge your Payment Method.
Your Registration Data is inaccurate, incomplete, or out-of-date; you fail to update such information when it changes; or Encore Technologies has reasonable reasons to suspect such information is inaccurate, incomplete, or out-of-date.
13. Erase All Records: Before canceling a subscription to Encore Technologies’ Services, the company advises that you retrieve any data or reports that have been stored on the service’s servers on your behalf. Encore Technologies will permanently erase all of your account’s data thirty (30) days after your subscription is cancelled, and you will no longer have access to or the ability to retrieve any of your account’s data.
14. Result of the Breakup: The license granted hereunder shall end upon the expiration or earlier termination of this Agreement, and you shall discontinue using and destroy all copies of the Software and documentation connected thereto. Your responsibility to pay all Fees that may have been due prior to such expiration or termination shall
(i)not be affected by any such expiration or termination, and
(ii)not be affected by any right to a refund.
15. License Assignments: Encore Technologies must first approve any license transfer in writing, and we have the right to charge a transfer fee based on factors we deem relevant. Please contact us through email at email@example.com to discuss the transfer of your license in the event that you or substantially all of your assets are bought by or merged into another corporate entity or sole proprietorship.
16. Indemnification: To the fullest extent permitted by law, you are responsible for your use of the Services and the Software and shall defend, indemnify and hold harmless Encore Technologies, its Suppliers (as defined below), and their affiliates, officers, directors, employees, consultants, affiliates, subsidiaries, and agents (collectively, the “Indemnified Parties”) from and against every claim brought by a third party, and any related costs, damages, losses, liabilities, and expenses (including reasonable attorney’s fees) arising out of, resulting from, or connected with:
(a) your unauthorized use, or misuse, of the Services or Software;
(b) your breach or violation of any portion of this Agreement, any representation, warranty, or agreement referenced herein, or any applicable Laws;
(c) a claim that your Content infringes or misappropriates the intellectual property, confidentiality, privacy, or publicity rights, or otherwise violates any other right, of a third party;
(d) any dispute or issue between you and any third party.Without limiting your indemnification obligations with respect to any matter, Encore Technologies reserves the right, at its own expense, to assume on behalf of any of the Indemnified Parties the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claims.
17. Bans on Exports: You undertake to always comply with the export control restrictions managed by the U.S. Department of Commerce (15 C.F.R. Chapter VII), which apply to this website, the Services, and any software made available as part of the Services. You agree not to export or re-export the Services in violation of U.S. export administration laws and regulations to any country or end user, or to any end user who you know or have reason to know will utilize them in the design, development, or production of nuclear, chemical, or biological weapons. Further, you agree that the Services may contain technical information that is controlled by the U.S. export laws.
18. Disclosing Private Information:If you ever suspect that your account has been compromised, it is your responsibility to promptly notify Encore Technologies and change your password. You agree to take full responsibility for any and all use of your account and password.
Updating and Repairs, Number
19. Maintenance: On the Software or Services, as well as upgrades, bug fixes, patches, other error corrections, tools, utilities, improvements, third party applications, and general updates thereto (collectively, “Updates”), may be performed from time to time at Encore Technologies’s sole discretion. You understand that Encore Technologies is under no duty to create any Updates, much alone Updates for specific problems. You agree that any and all such Updates will be considered Software. You also understand that some or all Updates may be made available to you by downloading them from a website designated by Encore Technologies, and that you are solely responsible for securing and maintaining the necessary internet connection in order to do so. Encore Technologies is under no obligation to make Updates available through any other channels. Any new version or release of the Software issued by Encore Technologies as a standalone or new product is not included in the definition of an Update, and Encore Technologies retains sole discretion to determine whether any issuance constitutes a new version, new release, or Update. You understand that Updates may cause delays, mistakes, or interruptions in the Software or Services. When possible, Encore Technologies will give advance notice of maintenance or other Updates. However, Encore Technologies makes no promises in this regard.
20. Assumptions: You may be able to network with other people who use the Services and the general public through a built-in feature of the Services. These means of communication require access to the Internet. When using these functions, please behave as you would in any public place, including showing respect to and interacting with other users. You must use your best judgment when deciding whether or not to respond to messages from other users. Encore Technologies disclaims any responsibility for, and any liability arising out of, any damages sustained as a result of the submission, viewing, or use of any such content in these facilities. Users can share hypertext links to material that is on the servers of other organizations. Encore Technologies is not obligated to and is not responsible for the content of any externally linked websites. All visits to connected sites are made at the user’s own risk. Don’t give out details you don’t want widely known. You also agree to follow the policies posted on the discussion boards related to the Services you have chosen and made available by Encore Technologies.
21. Only you: And your company and its workers, if and to the extent approved by Encore Technologies, have the right to use the Services. All information, data, text, software, music, sound, photos, pictures, video, messages, or other materials (“Content”) that you upload, post, or store while using the Services are solely your responsibility and liability. With respect to your use of the Services, you agree to
(i) give all necessary and appropriate warnings, information, and disclosure,
(ii) abide by all applicable Laws, and
(iii) take all other necessary and reasonably appropriate actions (collectively, “Information and Actions”). You must not use the Services if you need to supply such Information and Actions and you cannot do so because of limitations in the Services’ design. You promise not to use the Services in any way that violates local, state, or federal financial data sharing and distribution laws. We reserve the right to terminate the accounts of, and to delete all associated financial data for, any users who are suspected of having information related to fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity that is illegal. Encore Technologies does not claim ownership over any information you provide through the website. You are solely responsible for creating and maintaining backups of your data, and you assume all risk in the event of data loss or corruption.
22. Allowed Conduct: You agree that you and your Users shall not, and shall not allow any third party to, use the Services to upload, post, link to, publish, distribute, reproduce, or transmit any:
(a) unlawful, fraudulent, libelous, slanderous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, inappropriate, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute an attack or “flaming” other participants, or would constitute a criminal offense, give rise to civil liability, or otherwise violate any Laws;
(b) Content or data to impersonate other individuals, falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their (or their legal guardian’s, if applicable) consent;
(c) Content or data that would, or would be reasonably likely, to infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, right of publicity, or any other intellectual property or proprietary right;
(d) advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes, or other unsolicited commercial communication (except as otherwise expressly permitted by Encore Technologies), or content that would reasonably be viewed as the product of spamming or flooding;
(e) information or software which contains a virus, trojan horse, worm, or other disruptive or harmful component, or is obtained through the Services for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material); or
(f) information, software, or other material obtained through the Services which is protected by copyright or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or right holder.
23. Make, Keep, and Use Software: Encore Technologies reserves the right to revise, update, or otherwise modify the Services, and to establish or change limits concerning use of the Software and Services, temporarily or permanently, at any time in its sole discretion, including, but not limited to:
(a) the amount of storage space you have on the Software at any given time; and
(b) the number of times (and the max with respect to the security of the system or your Access Information, or in order to comply with relevant Laws, Encore Technologies maintains the right to make any such modifications effective immediately, and to provide you with electronic or writing notice within thirty (30) days following such change. You may refuse such modifications by ending your use of the affected Software and Services. If you continue to use the Software or Services after those changes have been made, it means you accept and agree to the new terms.
25. Authorized Disclosing Clause: You agree that Encore Technologies may disclose your Access Information and Account Data to any other employee(s) or agent(s) whom you designate as a replacement user for your account (by following the procedures required by Encore Technologies to effectuate such replacement) and to any other person you identify as an authorized user of the Software in the set-up interview form or in any subsequent c. For the purpose of improving the Services, issuing promotions, and providing you with ways to compare your business practices with those of other users, you hereby grant Encore Technologies permission to aggregate any past and/or future uploaded, non-personally identifiable account data with that of other users of the Services.
26. Service Tracking: The Services and Content may be monitored from time to time, and Encore Technologies reserves the right to disclose any information as necessary or appropriate to
(i) comply with any law, regulation, or other governmental request,
(ii) operate the Services properly, and
(iii) protect itself or its users. Except as compelled by law, Encore Technologies will not knowingly reveal the contents of any customer’s private email. Encore Technologies may modify, refuse to post, remove, or refuse to remove any information or materials that are deemed unsuitable, unwanted, improper, or in violation of this Agreement, in whole or in part, at its sole discretion.
27. Assembling Data and Making Use of It: You understand that Encore Technologies may, through security features in the Software and/or the provision of maintenance and support services, collect and store information about your use of the Services, the Software, and the equipment on which the Software is installed or through which it is accessed and used. In addition to improving the performance of the Software or developing Updates, Encore Technologies may use such information to verify your compliance with the terms of this Agreement and to enforce Encore Technologies’s rights, including all Intellectual Property Rights in and to the Software.
Accessories, Extras, and Extras, Extras!
28. Items Sold by Other Companies: You agree that Encore Technologies may use and disclose your contact information, including your name and address, to make available to you any services, products, offers, and promotions provided by persons other than Encore Technologies (“Third Party Products”) in connection with the Services that you elect to receive. The Services may also provide you with access to third-party websites (“Third Party Websites”) through which you can access additional information or services. The inclusion of any link to a Third Party Website does not constitute or imply Encore Technologies’s approval, affiliation, sponsorship, endorsement, investigation, verification, or monitoring of the information or products provided on or through such Third Party Website. You are responsible for reviewing any terms, conditions, and policies governing your use of any third party products or third party websites and, where applicable, complying therewith, which may contain terms, conditions, and/or policies that are in addition to and/or different from those of ENCORE TECHNOLOGIES. The use of Third Party Products or Third Party Websites is at your own risk, and you release Encore Technologies from any and all liability arising out of or in connection with
(i) the performance of the Third Party Products,
(ii) the content of, or any link contained on, Third Party Websites, and
(iii) any liabilities or damages of any kind or nature.
29. Reward & Loyalty Schemes: “enCore Rewards” is Encore Technologies’s loyalty program. If you join enCore Rewards or any other loyalty program we may offer in the future, you agree to be bound by these Terms and Conditions as stated herein, as well as any additional terms and conditions that may be promulgated under such other loyalty programs from time to time.
30. Additional: Encore Technologies may inform you about or give you with access to its other services, features, products, applications, online communities, awards, and promotions (“Extra Services”). You should be aware that there may be additional fees and terms associated with using the Extra Services. You understand that certain of your account information, including names, addresses, phone numbers, purchases, and sales, may be uploaded or entered into the Internet in order to access some Extra Services through the Services. To the extent necessary for Encore Technologies to provide the Extra Services to you, including, without limitation, updating and maintaining your data, addressing errors or service interruptions, and enhancing the types of data and services Encore Technologies may provide to you in the future, you hereby grant Encore Technologies permission to use information about your business and usage experience. In order to enhance services and compare business practices to other corporate standards, you also give Encore Technologies permission to combine any business data you provide with that of others in a way that does not personally identify you or any individual. Your information may be used in the development, distribution, and advertising of future Encore Technologies products and services.
Indicators of Sales Activity 31. You may be able to contribute specific data about your inventory purchases and sales through boosted features that are part of the Services. Data such as prices, sales dates and locations, and universal product codes (UPCs), stock keeping units (SKUs), or other product identifiers (together, the “Sales Data”) may be included. In consideration for Encore Technologies’s provision of the aforementioned features, you hereby grant Encore Technologies an irrevocable and perpetual license to
- Sell, offer, transmit, or otherwise make available to third parties all or any portion of the Sales Data,
- Access, use, or otherwise derive benefit from the Sales Data, and
- Sublicense any of the foregoing.
You agree that Encore Technologies has no responsibility to alter your sales Data in any manner, especially if that data includes personally identifiable information.
32. Use on a Mobile Device: You need a membership and internet access to use the Services on your mobile device, and some features may not work with your phone or your service provider. To see if your mobile phone and service provider are compatible with the Services, you can visit the webpage for those services. Encore Technologies reserves the right to discontinue support for certain mobile devices and/or telecommunication providers at any time upon reasonable notice to you, and is under no obligation to do so. Your agreement with your mobile device and telecommunications provider stipulates that you are solely responsible for these requirements, including any changes, upgrades, and payments that may be required.
33. Alpha Functions: Encore Technologies reserves the right to add or modify some aspects of the Services at any time (the “Beta Features”). You acknowledge that your participation in any Beta Feature is entirely optional and that you may be unable to revert to the previous (i.e., non-beta) version of the same or comparable feature once you have participated in the Beta Feature. It’s also possible that any data modified in the Beta Feature won’t be recoverable in the event of a rollback. All Beta Features are supplied “as is” with the caveat that they may involve bugs or inaccuracies that lead to device failure, data corruption, or information loss. When using a Beta Feature, you understand and accept that you do so at your own risk.
Damages, Liability, and Warranties Exclusions
34. All-Purpose: All software and content used in connection with the Services is used at your own risk. OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS,” AND ENCORE TECHNOLOGIES AND ITS LICENSORS, THIRD-PARTY CONTENT AND SERVICE PROVIDERS, DISTRIBUTORS, RESELLERS, AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY ENCORE TECHNOLOGIES AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SERVICES OR ANY ASSOCIATED CONTENT, INCLUDING CONTENT POSTED ON OR LINKED FROM THE SERVICES, IN TERMS OF THEIR ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, OR QUALITY. ENCORE TECHNOLOGIES AND ITS SUPPLIERS MAKE NO GUARANTEES THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THEY WILL BE SECURE, FREE OF BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT, OR DESTRUCTION. If you choose to use or rely on such material, you do so at your own risk. If the exclusions of implied warranties do not apply to you, then the duration of any implied warranties or conditions is limited to sixty (60) days from the earlier of the date of purchase or delivery of the Services.
35. The Observance of Laws: ENCORE TECHNOLOGIES AND ITS SUPPLIERS DO NOT PROVIDE LEGAL, FINANCIAL, ACCOUNTING, OR OTHER PROFESSIONAL SERVICES OF ANY KIND. You should hire a qualified expert if you need help of this kind. ENCORE TECHNOLOGIES AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE, OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE FEDERAL OR STATE STATUTES, LAWS, OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”), THE GRAMM-LEACH-BLILEY ACT OF 1999, AND THE SARBANES-OXLEY ACT OF 2002. You alone are responsible for ensuring that your use of the Services complies with all applicable laws and regulations. 36. Damages and Liability Limits. To the maximum extent permitted by applicable law, the entire cumulative liability of ENCORE TECHNOLOGIES, its affiliates, and its suppliers, and your exclusive remedy for all matters or claims arising from or related to this Agreement, shall be limited to the amount paid by and/or due from the Registered User for the Services to ENCORE TECHNOLOGIES, its affiliates, or its suppliers during the twelve (12) month period immediately preceding the event giving rise to the liability. Encore Technologies, its affiliates, and its suppliers shall not be liable for (a) any indirect, special, incidental, punitive, or consequential damages, or (b) damages related to telecommunications failures, Internet and electronic communications failures, delays, or limitations, loss, corruption, security, or theft of data, viruses, spyware, or other malicious software. ENCORE TECHNOLOGIES WOULD NOT HAVE PROVIDED YOU WITH ANY SERVICES OR SOFTWARE WITHOUT SUCH LIMITATIONS, AND THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ENCORE TECHNOLOGIES AND YOU.
37. Alteration: Encore Technologies reserves the right to update this Agreement at any time, and such updates shall be effective immediately upon publication of the updated Agreement on Encore Technologies’ website. In the event that the Agreement is updated, it will be posted on this website. Upon reasonable notice, including but not limited to posting information concerning such change in the Services selected by you or on a Encore Technologies sponsored website, Encore Technologies reserves the right to change or add to the terms of this Agreement and to change, delete, limit, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to Internet based services, pricing, technical support options, and other product-related policies. By continuing to use the Services or Software following Encore Technologies’ announcement of any such changes, you agree to be bound by such modifications, additions, deletions, or other changes.
38. Law and Jurisdiction: The internal laws of the State of Alabama, without giving effect to any choice or conflict of law provision or rule, shall govern and be construed with respect to all matters arising out of or connected to this Agreement. This Agreement is not governed by the United Nations Convention on Contracts for the International Sale of Goods. Each party irrevocably submits to the exclusive jurisdiction of the federal courts of the United States of America, or the courts of the State of Alabama located in Birmingham, Jefferson County, in any suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby (each, a “Proceeding”). For any Proceeding brought in any such court, service of process, summons, notice, or other document by mail to such party’s address set out below shall be effective service of process.
39. Conflict Management: To the fullest extent permitted by law, any controversy or claim arising out of or relating to this Agreement, or the interpretation, making, performance, breach, validity, or termination thereof shall be finally settled by arbitration in Birmingham, Alabama under the Commercial Arbitration Rules of the American Arbitration Association (the “AAA Rules”), by a single neutral arbitrator appointed in accordance therewith. Without looking to conflict of law principles, the arbitrator will decide any claim or disagreement based on the laws of the State of Alabama. All questions of arbitrability shall be resolved by the arbitrator. Any court with proper jurisdiction may enter judgment on the arbitrator’s award. In the event that a temporary restraining order, preliminary injunction, or other interim or conservatory action is necessary, either party may seek to any court of competent jurisdiction for such relief without violating this arbitration requirement or limiting the authority of the arbitrator. By accepting this Agreement, you are giving up your right to pursue claims covered by this Agreement in a class, collective, or representative action or proceeding. Arbitration under this Agreement shall be conducted only on an individual basis, and not as a class action.
40. Circumstances beyond our control: In the event of a strike, labor dispute, civil disturbance, riot, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, Encore Technologies shall not be responsible or liable to you, or deemed in default or breach hereunder, by reason of such failure or delay in the performance of its obligations hereunder.
41. Disclosed: All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given:
(i) when delivered by hand (with written confirmation of receipt);
(ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested);
(iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during the normal business hours of the recipient; and All such notices and other communications shall be delivered to the appropriate party at the address provided in the Registration Information (or such other address as may be selected by a party from time to time in accordance herewith).
42. Combining Systems: This Agreement, together with the documents incorporated by reference herein, constitutes the entire agreement between you and Encore Technologies with respect to the subject matter contained herein and supersedes all prior and contemporaneous agreements, understandings, and representations between you and Encore Technologies with respect to the Services, the Software, and their use.
43. Let it go: No provision of this Agreement may be waived by either party unless such waiver is in writing and signed by the party making the waiver. No failure to exercise, and no delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege hereunder.
44. Reformation: The invalidity, illegality, or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of any other provision of this Agreement or of such provision in any other jurisdiction.
45. The Term Meaning: The terms “include,” “includes,” and “including” shall be assumed to be followed by the words “without limitation” for purposes of this Agreement; the word “or” is not exclusive; and the phrases “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” pertain to this Agreement. Unless otherwise specified, all references herein to: All references in this Agreement’s appendices, including Sections, Annexes, Schedules, and Exhibits, are to those documents;
46. References: Any reference in (y) to an agreement, instrument, or other document shall be deemed to include such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof, and any reference in (z) to a statute shall be deemed to include such statute as amended from time to time and any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be interpreted in a manner that does not provide deference to the party that drafted or caused the drafting of any document to be interpreted negatively. References in this Agreement to other documents shall be given the same weight and effect as if the whole contents of those documents were set forth in full in this Agreement.
Updated July 11th, 2023