Terms and Conditions
Last Updated: February 3, 2010
OpenACircle
12712 Park Central Drive, Suite 100
Dallas, Texas 75251
IMPORTANT - READ CAREFULLY: YOUR USE OF THE OPENACIRCLE WEBSITE AND ASSOCIATED SOFTWARE (THE "SERVICE") IS CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS.
IMPORTANT-READ CAREFULLY: BY CLICKING THE "I AGREE" BUTTON OR BY UTILIZING THE OPENACIRCLE (OAC) SERVICES YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. THE OAC SERVICES ARE NOT AVAILABLE TO PERSONS UNDER 18 YEARS OF AGE.
1.
PRODUCT/SERVICE OVERVIEW
OpenACircle (OAC) is a service offered to you which provides you with an online meeting and an information sharing environment for you and those you invite into your shared environment (Circle). As such, information that you choose to upload (assets) or display (personal information) will be available to anyone invited into the circle (s) of your creation. Each Circle is password protected and the design intent is that only these people will be able to view the information and/or assets in that Circle. No one will be able to enter the site and search for you to see if you are a member. All invitations into your Circle(s) are made through external notifications using email. Every effort will be made by OAC to provide you and the members of a Circle with a secure environment in which you will be able to plan, communicate and make decisions.
a. This is a legal agreement ("Agreement") between you and OpenACircle ("OAC"), for use of the OAC services which you selected or initiated, which may include audio, video and web communications services provided by OAC ("Services"). "You" refers to the individual who registered for the Services.
b. If You do not agree with the terms of this Agreement, do not use or join any Circle supported by the Services and immediately follow the TERMINATION clause found in this Agreement. Any software associated with the Services is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
2. SERVICES. OAC will provide the Services in accordance with this Agreement. OAC may at its sole discretion modify the features of the Services from time to time without prior notice.
3. RESPONSIBILITY FOR CONTENT OF YOUR COMMUNICATIONS. You agree that you are solely responsible for the content of all visual, written or audible communications sent by you, uploaded by you to a Circle or presented in OAC meetings hosted or attended by you. You further agree not to use the Services to communicate any message or material that is harassing, libelous, threatening, obscene or indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation. Although OAC is not responsible for any such communications, OAC may delete any such communications of which OAC becomes aware, at any time without notice to you.
4. CHARGES IF ANY). While OAC provides a free level of service to interested parties, most services that you elect to use have charges applied for use of that service. You will be notified of any such charges that are applicable and will have the opportunity to decline said charges and corresponding use of chargeable services. Should you wish to pay for selected chargeable services, You agree that OAC may charge to Your credit card all amounts due and owing for the Services, including Service fees, set up fees, subscription fees, overage fees, conferencing fees, or any other fee or charge associated with Your use of the Services.
a. In an effort to attract new subscribers, OAC reserves the right to modify programs, packages and prices any time.
b. You agree that in the event OAC is unable to collect the fees owed to OAC for the Services through Your Account, OAC may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by OAC in connection with such collection activity, including collection fees, court costs and attorneys' fees. You further agree that OAC may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
c. Subscriber account status. From the moment you subscribe to the Service, Your account will remain “active” until properly terminated under terms specified in this Agreement. NO CREDIT CARD SHALL BE REQUIRED OR BILLED WHEN USING THE FREE (TRIAL) VERSION OF THE SERVICE. For all other Service levels, whether monthly or annual, you will be charged every billing period on the same date (or as close as possible), until you terminate your subscription.
d. Grace period. In the event that OAC is unable to process your monthly or annual subscription payment, you will be notified via email and provided a link or method to access your account and update your account information and payment method. Your Account will be “Locked” after a five (5) day grace period. During this grace period, all functions and features of the Service shall be available to you; but the intent of this period is to update your account information and payment method. Once your account has been updated with valid payment information, it shall be immediately returned to the “active” status.
e. Locked status. If the “Grace” period ended without any updates to your account information or payment method, your account and access to the Services shall be “Locked.” In this state, all functions and features of the Service shall be disabled until your account has been updated with valid payment information. Access to Your account shall be solely limited to the ability to update your account information and payment method. Unless modified, your account will remain in a “Locked” status for ninety (90) days, then “Disabled.”
f. Disabled Status. Any Account that remains in a “Locked” state for more than ninety (90) days shall be “Disabled.” In this process, all of your account data, including circles, connections and any uploaded files will be permanently deleted.
g. Downgrade Policy. You may downgrade any account in good standing by providing written notice to OAC via e-mail to support@OpenACircle.com. However, the new plan will not take effect if any of your usage levels (storage, # of circles or members per circle) exceed the new (downgraded) package levels. EVEN IF REQUESTED, OAC CUSTOMER SUPPORT CAN NOT DELETE CIRCLES, REMOVE FILES OR REMOVE CIRCLE MEMBERS. YOU MUST COMPLETE THE NECESSARY ACTION TO BRING YOUR USAGE TO WITHIN THE LIMITS OF THE DOWNGRADED PACKAGE. Please note, monthly or annual charges will continue at the level or package consistent with your usage of the OAC Service.
5. NO COMMERCIAL USE. Other than using the Services for communicating within Your Circle(s) or meetings in which You are an active participant, and as permitted under the terms and conditions of this Agreement or other written agreements between You and OAC, the Services may be used for internal business or personal purposes only. You may not resell, distribute, and make any commercial use of, use on a timeshare or service bureau basis, or use to operate a Web-site or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services. You shall not use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the websites, Services, or any network or networks connected to the Services or security systems.
6. PROPRIETARY RIGHTS. OAC and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks and service marks associated or displayed with the Services. You will not remove, deface or obscure any of OAC's or its suppliers' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Services. You may not reverse engineer, reverse compile or otherwise reduce to human readable form any software associated with the Services.
7. TERMINATION. You may terminate this Agreement by providing written notice to OAC via e-mail to support@OpenACircle.com. Termination of your account will include termination of all circles created by you, destruction of their contents, and the inability of other members to access said Circles. Such termination will be effective on the last day of the term, subject to (30) days prior written notice. If you fail to comply with any provision of this Agreement, OAC may terminate this Agreement immediately without notice. Sections 1 through 12, inclusive, shall survive any termination of this Agreement. Upon any termination of this Agreement, You must cease any further use of the Services and destroy any copies of associated software within your possession and control.
a. Early Termination Fee. Following proper notification, the remaining full months of any annual subscription may be refunded on a pro-rated basis, less an “early termination fee” of $10.00 (ten US dollars and no cents). This fee shall be applied to the pro-rated credit due, and the remaining (net) balance shall be applied to the credit card on file.
b. Monthly Subscriptions. There will not be a pro-rated or full month refund applied to any monthly subscription; nor will there be an “early termination fee” applied to any monthly subscription that has been properly terminated under this agreement.
8. EXPORT RESTRICTIONS. You acknowledge that the Services or portion thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
9. INJUNCTIVE RELIEF. You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to OAC, its affiliates, suppliers and any other party authorized by OAC to resell, distribute, or promote the Services ("Resellers"), and under such circumstances OAC, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
10. NO WARRANTIES. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED "AS IS" AND OAC, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. OAC, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES, REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES, REGARDING ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. You agree to indemnify, defend and hold harmless OAC, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from Your use of the Services, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity. Without limiting the foregoing, the Services are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, OAC, its affiliates, suppliers and Resellers specifically disclaim any express or implied warranty of fitness for such purposes.
11. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OAC OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF OAC, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, OAC'S, ITS AFFILIATES', SUPPLIERS' AND RESELLERS' MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE PREVIOUS 12 MONTHS.. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you.
12. MISCELLANEOUS
a. Choice of Law and Forum. This Agreement shall be governed by and construed under the laws of the State of Texas, U.S.A. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving Dallas County, Texas.
b. Waiver and Severability. Failure by either party to exercise any of its rights under or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
c. General Provisions. This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. OAC may change the terms of this Agreement at any time by posting modified terms on its website. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. All notices or other correspondence to OAC under this Agreement must be sent to the address as provided by OAC for such purpose. Any and all rights and remedies of OAC upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on OAC, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement.