Terms of Service

This policy has been last updated on July 2021

Please read these Terms of Service (the “Terms of Service”) fully and carefully before using http://www.markedprivate.com (the “Site”) and the services, features, content or applications offered by Marked Private. (“we” or “Licensor”) (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

A. By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Site, you agree to these Terms of Service, our Privacy Policy, our DMCA Copyright Policy (as related to the Digital Millennium Copyright Act), and all other operating rules, policies and procedures that may be published from time to time on the Site or through the Services by Licensor, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.

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.

2. Eligibility

A. Reservation of Rights. Licensor 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 Licensor 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.

3. Registration

A. Registration Required. In order to use the Services, you must register with Licensor (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 Licensor without permission.

4. Content

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. Licensor Content. The Services contain Content specifically provided by Licensor 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, Licensor 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 Licensor. 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 Licensor 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 Licensor 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 Licensor 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. Licensor does not guarantee that any Content, including User Content, will be made available on the Site or through the Services. Further, Licensor has no obligation to monitor the Site or the Services. However, Licensor 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 Licensor 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 (Licensor’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 Licensor 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 Licensor or any third party; vi. Impersonates any person or entity, including any employee or representative of Licensor; 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 Licensor in its sole discretion) an unreasonable or disproportionately large load on Licensor’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 Licensor 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 Licensor’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. Licensor 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 Licensor, 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 Licensor,

  • 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 Licensor 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 Licensor 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 Licensor. 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 Licensor.

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 Licensor, and you acknowledge that Licensor 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 Licensor’s gross negligence or willful misconduct. The inclusion of any such link does not imply endorsement by Licensor or any association with its operators. You further acknowledge and agree that Licensor 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 Licensor’s gross negligence or willful misconduct.

7. Termination

Licensor 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 Licensor 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 Licensor 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. Licensor has no special relationship with or fiduciary duty to you. You acknowledge that Licensor has no control over, and no duty to take any action regarding: i. which users gain access to the Services; ii. what Content you access via the Services; iii. what affects 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 Licensor from all liability for you having acquired or not acquired Content through the Services, except for loss, injury, claim, liability or damage due to Licensor’s gross negligence or willful misconduct. Licensor 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 Licensor’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. LICENSOR, 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. LICENSOR 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. LICENSOR 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 LICENSOR, UNLESS SUCH DAMAGE OR LOSS IS DUE TO LICENSOR’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. FURTHERMORE, LICENSOR 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 LICENSOR’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

E. ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18 USC 2701-2711): LICENSOR MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SERVICES OR ANY WEBSITE LINKED TO THE SERVICES. LICENSOR 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 LICENSOR’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 LICENSOR’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

9. Indemnification

You shall defend, indemnify, and hold :Licensor and its third party suppliers and licensors 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 Licensor, 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:

Marked Private

15 Winkler Farm Road

Bedford, NY 10506

Email: support@encappture.com

13. Miscellaneous

A. Modification. Licensor 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 email. Licensor 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 Licensor’s gross negligence or willful misconduct. It is your responsibility to check these Terms of Service periodically for changes.

B. Force Majeure. Licensor shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Licensor’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation, except for loss, injury, claim, liability, or damage due to Licensor’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 Licensor’s prior written consent. Licensor 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 Licensor 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, Licensor 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 Licensor 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 Licensor 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.

14. Contact

You may contact Marked Private at the following address:
Marked Private
5 Winkler Farm Road.
Bedford, NY 10506