What about Children’s Privacy?
The Services are structured to attract adults to use the system to invite guests to an event or join an event they have been invited to in order to communicate in a private online setting. The Service is not intended for independent use by children under the age of 13 years and it is not intended to collect, use, or disclose Personal Information from children under 13 years. Accordingly, we do not intend to collect Personal Information from anyone under 13 years. If we learn that we have collected Personal Information from a child under 13 years, we will delete that information or immediately seek the parent’s consent for that collection. Below we summarize potential instances of collection and outline how and when we will provide parental notice and/or seek parental consent. In any instance that we collect Personal Information from a child, we will retain that information only so long as reasonably necessary to fulfill the activity request or allow the child to continue to participate in the activity, and ensure the security of our users and our services, or as required by law.
This policy is in accordance with the U.S. Children’s Online Privacy Protection Act (“COPPA”) and outlines our practices in the United States regarding personal information of children under 13 years. For more information about COPPA and general tips about protecting children’s online privacy, please visit https://www.consumer.ftc.gov/features/feature-0038-onguardonline.
Unsolicited Information Shared by Child Users:
If a EnCappture Adult Member/Parent allows their child access to their EnCappture account and the child engages in some of our online activities, including sending messages, using Instant Messaging (IM), sharing photos and videos, posting on the MP event newsfeeds – they might share information that is considered Personal Information. Personal Information that we may collect appears below under the heading “What Personal Information does EnCappture collect?” How we may use Personal Information and our disclosure practices appears under the heading “How do we use the information we receive?” All content posted on a private event page can only be viewed by a member of the event. It is never publicly accessible. As stated above, if we learn that we have collected Personal Information from a child under 13 years, we will delete that information or immediately seek verifiable parental consent by email for the collection. If you believe your child is participating in an activity that collects Personal Information and you or another parent/guardian have NOT received an email providing notice or seeking your consent, please feel free to contact us at support@enCappture.com. We will not use parent emails provided for parental consent purposes to market to the parent, unless the parent has expressly opted in to email marketing or has separately participated in an activity that allows for such email contact.
Although there is no foolproof system for protection of Personal Information, EnCappture’s model only allows users to share with real life friends (members of the event) and as previously stated, all content posted on a private event page can only be viewed by a member of the event. It is never publicly accessible. Should EnCappture ever plan to post the content publicly or share it with a third party for the third party’s own use, we will obtain a higher level of parental consent.
Email Consent: In the event EnCappture wishes to collect Personal Information from a child, COPPA requires that we first seek a parent or guardian’s consent by email. In the email we will explain what information we are collecting, how we plan to use it, how the parent can provide consent, and how the parent can revoke consent. If we do not receive parental consent within a reasonable time, we will delete the parent contact information and any other information collected from the child in connection with that activity.
High-Level Consent: In the event EnCappture collects Personal Information from a child that will be posted publicly, we will seek a higher level of consent than email consent. Such “high-level” methods of consent include but are not limited to asking for a credit card or other payment method for verification (with a nominal charge involved), speaking to a trained customer service representative by telephone or video chat, or requiring a signed consent form by mail, email attachment, or fax. After providing high-level consent, a parent may have the opportunity to use a pin or password in future communications as a way to confirm the parent’s identity.
In addition to those rare instances where a child’s personal information is posted publicly (after receiving high-level parental consent), we also may share or disclose personal information collected from children in a limited number of instances, including the following:
• We may share information with our service providers if necessary for them to perform a business, professional, or technology support function for us.
• We may disclose personal information if permitted or required by law, for example, in response to a court order or a subpoena. To the extent permitted by applicable law, we also may disclose personal information collected from children (i) in response to a law enforcement or public agency’s (including schools or children services) request; (ii) if we believe disclosure may prevent the instigation of a crime, facilitate an investigation related to public safety or protect the safety of a child using our sites or applications; (iii) to protect the security or integrity of our sites, applications, and other technology, as well as the technology of our service providers; or (iv) enable us to take precautions against liability.
Parental Choices and Controls:
At any time, parents can refuse to permit us to collect further personal information from their children in association with a particular account, and can request that we delete from our records the personal information we have collected in connection with that account. Please keep in mind that a request to delete records may lead to a termination of an account, membership, or other service. Parents can contact us to request access to, change, or delete their child’s personal information by sending an email to us at support@enCappture.com. A valid request to delete personal information will be accommodated within a reasonable time.
What Personal Information does EnCappture collect?
The information we gather from users enables them to register for our Services, and allows us to personalize those Services for those users. We collect the following types of information from our users.
When a new account is created we collect: first and last name, email address, password and profile picture (optional).
Additional information collected from you during use:
If you send us an email or other message, we may keep your message, email address and contact information to respond to your request. When you register for the Services, you will provide Personal Information, such as your name, username, password, and email address. You acknowledge that this information is personal to you, and by creating an account on EnCappture, you allow others, including EnCappture, to identify you. We may use your contact information to send you information about our Services or to market to you. You may unsubscribe from these messages by contacting us at support@enCappture.com. To the extent you provide EnCappture with Personal Information, you are not anonymous to us. We will collect, hold and record the information you provide to us.
Through your use of the Services, you may provide us with content, such as branding and logos, for use along with your use of the Services. This can also include information in or about the content you provide, such as the location of a photo or the date a file was created. We will use and store this content only pursuant and related to your use of the Services.
Personal information collected automatically:
We receive and store certain types of information whenever you interact with our Services. EnCappture automatically receives and records information on our server logs from your browser including your IP address, cookie information, and the page you requested.
Generally, our Services automatically collect usage information, such as the numbers and frequency of visitors to our site and its components. EnCappture may use this data in aggregate form, that is, as a statistical measure. This type of aggregate data enables us to figure out how often individuals use parts of the Services so that we can improve the Services and make them as appealing to as many users as possible. As part of this use of information, we may provide aggregate information to our partners about how our customers, collectively, use the Site. We share this type of statistical data so that our partners also understand how often people use their services and our Services, so that they, too, may provide you with an optimal online experience.
We may receive a confirmation when you open an email from us if your computer supports this type of program. We use this confirmation to help us make emails more interesting and helpful and improve our service. If you do not want to receive email or other mail from us, please unsubscribe through support@enCappture.com
We collect information from or about the computers, phones, or other devices where you install or access our Services. We may associate the information we collect from your different devices, which helps us provide consistent Services across your devices. Here are some examples of the device information we collect:
● Attributes such as the operating system, hardware version, device settings, file and software names and types, battery and signal strength, and device identifiers.
● Device locations, including specific geographic locations, such as through GPS, Bluetooth, or WiFi signals.
● Connection information such as the name of your mobile operator or ISP, browser type, language and time zone, mobile phone number and IP address.
What about cookies?
Cookies are alphanumeric identifiers that we transfer to your computer’s hard drive through your browser to enable our systems to recognize your browser and tell us how and when pages in our site are visited and by how many people. EnCappture cookies do not collect Personal Information, and we do not combine the general information collected through cookies with other Personal Information to tell us who you are or what your screen name or email address is.
Information to any third-party ad network:
To increase the effectiveness of ad delivery, we may include a file, called a web beacon, from an ad network within the Service. The web beacon allows the ad network to provide anonymized, aggregated auditing, research and reporting for advertisers. Web beacons also enable the ad networks to serve ads to you when you visit other websites. Because your web browser must request these advertisements and web beacons from the ad network’s servers, these companies can view, edit or set their own cookies, just as if you had requested a web page from their site.
Sharing of your Personal Information using the services:
EnCappture will not share your Personal Information with any other users of the Services unless you so request explicitly, either in writing, or through use of applicable features of the Services.
How do we use the information we receive?
Personal Information about our users is an integral part of our business. We are dedicated to providing an engaging and customizable experience for all of our users. We may share your Personal Information only as described in this policy.
We use all the information we have to help us provide, support and improve our Services. We combine information that we receive about you (such as gender, age, geographic location, etc.) with information about your events and activities on the Site and the Services to identify trends and other statistical information. We may use this data to provide third parties with statistics that might be relevant to the marketing and sale of their goods and services. We may use data to deliver our Services, make suggestions for you by using this information to understand how you use and interact with our Services and to personalize content. When we have location information, we can tailor our Services for you like, event check in, locating an event, offers in your area. We conduct surveys for research on features in development and use this information to improve our products.
Non-Private or Non-Personal Information:
For clarity, we may share or disclose your non-private, aggregated or otherwise non-Personal Information with advertisers, service providers, and other persons with whom we conduct business. Conversely, these advertisers, service providers and other persons may share with us non-private, aggregated or otherwise non-Personal Information about you that they have independently developed or acquired.
We do not share your Personal Information with advertisers without your consent. We may allow advertisers to choose the characteristics of users who will see their advertisements and we may use any of the non-personally identifiable attributes we have collected (including information you may have decided not to show to other users) to select the appropriate audience for those advertisements. Even though we do not and will not share your information with advertisers without your consent, if you click on or otherwise interact with an advertisement there is a possibility that the advertiser may place a cookie in your browser and note that it meets the criteria they selected.
Partners, vendors, service providers:
Affiliated Businesses We Do Not Control:
In certain situations, businesses with whom EnCappture becomes affiliated may sell items or provide promotions to you through the Services. In other situations, EnCappture may provide services, or sell products jointly with affiliated businesses. You can easily recognize when an affiliated business is associated with your transaction, and we will share your Personal Information that is related to such transactions with that affiliated business, if you have agreed to be solicited by marketing partners.
We employ other companies and people to perform tasks on our behalf and need to share your information with them to provide products or services to you. Unless we tell you differently, EnCappture’s agents do not have any right to use Personal Information we share with them beyond what is necessary to assist us. You hereby consent to our sharing of Personal Information for the above purposes.
Communication in response to User Content:
As part of the Services, you will receive from EnCappture email and other communications. You acknowledge and agree that by availing yourself of the Services, you allow EnCappture to send you email and other communication that it determines in its sole discretion relate to your use of the Services.
We may send you offers on behalf of other businesses. However, when we do so, we do not give the other business your name and address. If you do not wish to receive these offers, please email us at support@enCappture.com.
In some cases, we may choose to buy or sell assets. In these types of transactions, customer information is typically one of the business assets that is transferred. Moreover, if EnCappture, or substantially all of its assets, were to be acquired, or in the unlikely event that EnCappture goes out of business or enters bankruptcy, customer information would be one of the assets that is transferred or acquired by a third party. You acknowledge that such transfers may occur, and that any acquirer of EnCappture may continue to use your Personal Information as set forth in this policy.
Protection of EnCappture and Others:
We may release Personal Information when we believe in good faith that release is necessary to comply with that law; enforce or apply our conditions of use and other agreements; or protect the rights, property, or safety of EnCappture, our employees, our users, or others. This includes exchanging information with other companies and organizations for fraud protection and credit risk reduction.
With Your Consent:
Except as set forth above, you will be notified when your Personal Information may be shared with third parties and will be able to prevent the sharing of this information.
What Personal Information can I access and change?
You can access any Personal Information that you provide to EnCappture, through your account settings. To the extent information appears to be missing from your account settings pages, you may contact us at support@enCappture.com in order to inquire about the missing information. You will be able to, either through the Services or through contact with our customer support representatives, modify most of the Personal Information you provide to us.
Is Personal Information about me secure?
Your EnCappture account Personal Information is protected by a password for your privacy and security. You need to prevent unauthorized access to your account and Personal Information by selecting and protecting your password appropriately and limiting access to your browser by signing off after you have finished accessing your account.
EnCappture endeavors to ensure that user account information is kept private. However, EnCappture cannot guarantee the security of user account information. Unauthorized entry or use, hardware or software failure, and other factors, may compromise the security of user information at any time.
Deleting your account:
Should you ever decide to delete your EnCappture account, you may do so by contacting us at support@enCappture.com. If you terminate your account, your profile will be removed from the site and deleted from EnCappture’s servers. Because of the way we maintain EnCappture, such deletion may not be immediate, and residual copies of your profile information or posts may remain on backup media. Even after your account is terminated, EnCappture may retain and use certain data contributed by you, indefinitely.
What choices do I have?
As stated previously, you can always opt not to disclose information to use, even though it may be needed to take advantage of certain aspects of the Services.
In certain circumstances, you are able to add or update certain information on pages as described in the “What Personal Information Can I Access” section above. When you update information, however, we may maintain a copy of the unrevised information in our records.
What happens when I invite Friends?
Questions or concerns:
If you have any questions or concerns regarding privacy using the Service, please send us a detailed message to: support@enCappture.com. We will make every effort to resolve your concerns.
Terms of Service
This policy has been last updated on May 2018
Please read these Terms of Service (the “Terms of Service”) fully and carefully before using http://www.enCappture.com (the “Site”) and the services, features, content or applications offered by EnCappture, LLC. (“we” or “EnCappture”) (collectively with the Site, the “Services”). These Terms of Service set forth the legally binding terms and conditions for your use of the Site and the Services.
The Services are currently under intense development and different aspects of the Services will be deployed over the coming months. Some parts of these Terms of Service refer to functionality that has not yet been implemented or deployed. Once such functions are available for use, by continuing to use the Services you agree that those parts of these Terms of Service shall go into effect.
1. Acceptance of Terms
B. These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
A. Reservation of Rights. EnCappture may, in its sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time.
B. Compliance with Laws. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.
C. Authority. If you are registering with EnCappture on behalf of an entity, or on behalf of a third party (e.g., if you are a manager or an agent) or on behalf of your child under the age of 13, you represent and warrant that you have full authority to bind that entity to these Terms of Service.
D. No Third Party Beneficiaries. The Services are offered only for the use of the named account holder, and not for the use or benefit of any unidentified third party.
A. Registration Required. In order to use the Services, you must register with EnCappture (thereby becoming a “Registered User” and creating an “Account”). You must provide accurate and complete information and keep your account information updated.
B. Restrictions. You shall not: i. select or use as a username a name of another person with the intent to impersonate that person; ii. use as a username a name subject to any rights of a person other than you without appropriate authorization; or iii. use as a username a name that is otherwise offensive, vulgar or obscene.
C. Account Security. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You must notify us immediately of any breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account.
D. No Use without Permission. You may never use another person’s Account or registration information for EnCappture without permission.
A. Definition. For purposes of these Terms of Service, the term “Content” includes, without limitation, contact information, calendar information, schedules, contract clauses, videos, audio clips, written posts and comments, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services.
B. User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Services by Registered Users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. 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 you or any other party resulting therefrom. When you delete your User Content, it will be removed from the Services. However, you understand that any removed User Content may persist in backup copies for a reasonable period of time (but will not following removal be shared with others).
C. EnCappture Content. The Services contain Content specifically provided by EnCappture or its partners and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
D. Use License. Subject to these Terms of Service, EnCappture grants each Registered User of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use the Content, in connection with that Registered User’s use of the Services under these Terms of Service. Use, reproduction, modification, distribution or storage of any Content for use in the course of using the Services consistent with these Terms of Service, is expressly prohibited without prior written permission from EnCappture. You shall not sell, license, rent, or otherwise use or exploit any Content that you do not own for commercial use or in any way that violates any third party right.
E. License Grant. By submitting User Content through the Services, you hereby do and shall grant EnCappture a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform the User Content only as is strictly necessary for EnCappture to perform its duties in connection with the Site and the Services. To the extent the Services allow sharing of your User Content, and to the extent you choose to share your User Content, you also hereby do and shall grant each Registered User of the Site and/or the Services that you have allowed to access your User Content a non-exclusive license to your User Content through the Site and the Services. For clarity, the foregoing license grant to EnCappture does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to the material in your User Content, unless otherwise agreed in writing. No User Content shall be made available to others unless you elect to make it available to them. You represent and warrant that you have all rights to grant such license to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
F. Availability of Content. EnCappture does not guarantee that any Content, including User Content, will be made available on the Site or through the Services. Further, EnCappture has no obligation to monitor the Site or the Services. However, EnCappture reserves the right to (i) remove, any Content in its sole reasonable discretion, at any time, without notice to you and 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 EnCappture is concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Content from the Services.
5. Rules of Conduct
A. As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity, and all activity connected to your Account, in connection with the Services.
B. You shall not (and shall not permit any third party to) either (1) take any action or (2) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
i. infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty (EnCappture’s DMCA Copyright Policy can be found here); ii. You know is false, misleading, untruthful or inaccurate; iii. Is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by EnCappture in its sole reasonable discretion; iv. Constitutes unauthorized or unsolicited advertising, junk or bulk email (“spamming”); v. Contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of EnCappture or any third party; vi. Impersonates any person or entity, including any employee or representative of EnCappture; or vii. Includes anyone’s identification documents or sensitive financial information.
C. You shall not: (i) take any action that imposes or may impose (as determined by EnCappture in its sole discretion) an unreasonable or disproportionately large load on EnCappture’s (or its third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass any measures EnCappture may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto- responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of EnCappture’s guidelines and policies.
D. You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
E. EnCappture also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to support requests, or (v) protect the rights, property or safety of EnCappture, its users and the public.
F. We don’t tolerate bullying or harassment. We allow you to speak freely, but remove content that appears to purposefully target private individuals with the intention of degrading or shaming them. This content includes, but is not limited to:
● Comments that identify and shame individuals on EnCappture,
● Images altered to degrade private individuals,
● Photos or videos of physical bullying posted to shame the victim, and
● Repeatedly targeting other people with unwanted messages.
G. We strive to welcome people to an environment free from abusive content. To do this, we rely on people like you. If you see something on EnCappture that you believe violates our terms, please report it to us by flagging content in the app. We are dedicated to review things you report to help make sure EnCappture remains safe.
● Reporting something doesn’t guarantee that it will be removed because it may not violate our policies.
● The number of reports does not impact whether something will be removed. We never remove content simply because it has been reported a number of times.
● The consequences for violating our Community Standards vary depending on the severity of the violation and the person’s history on EnCappture. For instance, we may warn someone for a first violation, but if we continue to see further violations we may restrict a person’s ability to participate in events on EnCappture.
H. Not all disagreeable or disturbing content violates our Standards. For this reason, we offer you the ability to control what you see by blocking, and reporting media and people, you don’t want to see – and we encourage you to use these controls to better personalize your experience.
6. Third Party Services
The Services may permit you to link to other websites, services or resources on the Internet and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under the control of EnCappture, and you acknowledge that EnCappture is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources except for loss, injury, claim, liability, or damage due to EnCappture’s gross negligence or willful misconduct. The inclusion of any such link does not imply endorsement by EnCappture or any association with its operators. You further acknowledge and agree that EnCappture shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such website or resource, unless such damage or loss is due to EnCappture’s gross negligence or willful misconduct.
EnCappture may terminate your access to all or any part of the Services at any time, with or without cause, upon five (5) days’ notice, which may result in the forfeiture and destruction of all information associated with your membership. Should EnCappture believe that you are violating the Rules of Conduct as set forth in Section 5, we can terminate your Account immediately. If you wish to terminate your Account, you may do so at any time. Any fees paid to EnCappture are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
8. Warranty and Other Disclaimers
A. EnCappture has no special relationship with or fiduciary duty to you. You acknowledge that EnCappture has no control over, and no duty to take any action regarding: i. which users gains access to the Services; ii. what Content you access via the Services; iii. what effects the Content may have on you; iv. how you may interpret or use the Content; or v. what actions you may take as a result of having been exposed to the Content.
B. You release EnCappture from all liability for you having acquired or not acquired Content through the Services, except for loss, injury, claim, liability or damage due to EnCappture’s gross negligence or willful misconduct. EnCappture makes no representations concerning any Content contained in or accessed through the Services, and it will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services, except for loss, injury, claim, liability, or damage due to EnCappture’s gross negligence or willful misconduct.
C. THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. ENCAPPTURE, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
D. ENCAPPTURE DOES NOT GUARANTEE THAT THE SERVICES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS. IN PARTICULAR, THE OPERATION OF THE SERVICES MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES, AND SUCH FAILURES MAY RESULT IN ERRORS OR DATA LOSS. ENCAPPTURE DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING, OR BY THE LOSS OF ANY DATA OR INFORMATION YOU PROVIDE TO ENCAPPTURE, UNLESS SUCH DAMAGE OR LOSS IS DUE TO ENCAPPTURE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. FURTHERMORE, ENCAPPTURE DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON EXCEPT FOR LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE DUE TO ENCAPPTURE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
E. ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18 USC 2701-2711): ENCAPPTURE MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SERVICES OR ANY WEBSITE LINKED TO THE SERVICES. ENCAPPTURE WILL NOT BE LIABLE FOR THE PRIVACY OF E-MAIL ADDRESSES, REGISTRATION AND IDENTIFICATION INFORMATION, DISK SPACE, COMMUNICATIONS, CONFIDENTIAL OR TRADE-SECRET INFORMATION, OR ANY OTHER CONTENT STORED ON ENCAPPTURE’S EQUIPMENT, TRANSMITTED OVER NETWORKS ACCESSED BY THE SERVICES, OR OTHERWISE CONNECTED WITH YOUR USE OF THE SERVICES, EXCEPT FOR LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE DUE TO ENCAPPTURE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
You shall defend, indemnify, and hold EnCappture harmless, its affiliates and each of its respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable outside attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Site, Services, Content, or otherwise from your User Content, violation of these Terms of Service, negligence, or your of any intellectual property or other right of EnCappture, any person or entity.
10. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION). 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.
11. Governing Law and Jurisdiction
These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of Westchester County, New York.
12. Intellectual Property Infringement Notification Process
We respect the intellectual property (IP) rights of others, and we expect users of our Services and website to do the same. We will respond to notices of alleged IP infringement that comply with applicable law. For example, we respond to notices of alleged copyright and trademark infringement and terminate accounts of repeat infringers according to the process set out in the Copyright Act.
If you believe that your content or information has been copied in a way that constitutes copyright, trademark, and/or patent infringement, please provide us with the following information: (i) a physical or electronic signature of the IP owner or a person authorized to act on their behalf; (ii) identification of the protected work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (such as the username); (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the IP’s owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the IP owner.
We reserve the right to remove any content alleged to be infringing without prior notice and at our sole discretion. If there is an instance of alleged IP infringement appearing on or through the Services or on our website, please contact us in writing at:
PO Box 934
Bedford, NY 10506
A. Modification. EnCappture reserves the right, at its sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services or via e-mail. EnCappture may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability, except for loss, injury, claim, liability, or damage due to EnCappture’s gross negligence or willful misconduct. It is your responsibility to check these Terms of Service periodically for changes.
B. Force Majeure. EnCappture shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond EnCappture’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation, except for loss, injury, claim, liability, or damage due to EnCappture’s gross negligence or willful misconduct.
C. Assignment. These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with EnCappture’s prior written consent. EnCappture may assign, transfer or delegate any of its rights and obligations hereunder without consent.
D. Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
E. Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e- mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
F. No Waiver. The failure of EnCappture to enforce any part of these Terms of Service shall not constitute a waiver of its right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance, does not mean that we will do so in the future. In order for any waiver of compliance with these Terms of Service to be binding, EnCappture must provide you with written notice of such waiver, provided by one of its authorized representatives.
G. Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
H. Entire Agreement and Severability. These Terms of Service are the entire agreement between you and EnCappture with respect to the Services and use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and EnCappture with respect to the Site. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. 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.
You may contact EnCappture at the following address:
Po Box 934
Bedford, NY 10506