Your use of the Site is subject to the terms and conditions of this Agreement. In addition, as set forth more fully below, any purchase or lease of goods or services from Encore, including through the Site, shall be subject to such additional terms and conditions as may be set forth in any proposal or order (whether in electronic or other form), associated with the event for which such purchase is made (the “Purchase Terms”).
- THE SITE. For purposes of this Agreement, “Site” means any Encore website, application, software, program, platform, tool, digital channel and/or the Content (defined below), together with and including, all of the hardware, software, code, interfaces and connectivity used to operate and maintain same. For purpose of this Agreement, “Content” means any and all of the text, data, illustrations, images, graphics, photographs, audio, video and audio-video clips and all of the other information and materials made available through the Site.
(a) As between you and Encore, Encore owns all right, title and interest in and to the Site, including all copyrights, patent rights, trademark rights, trade secret rights, rights in know-how, and all other intellectual property rights therein or appurtenant thereto. No right, title or interest in or to the Site is transferred to you under this Agreement, nor by virtue of your use of the Site.
(b) The entire Content of the Site is copyrighted under United States law and if applicable, Canadian law and international copyright laws and treaty provisions. The copyrights in the Content of the Site are owned by Encore or by third parties who have licensed their materials to Encore. The Content of the Site is copyrighted as a collective work under United States copyright law and, if applicable, Canadian law and international copyright laws and treaties, and Encore owns the copyright in the selection, coordination, arrangement and enhancement of the Content.
(c) All of the trademarks, service marks and logos (collectively, “trademarks”) displayed on the Site belong exclusively to Encore or their respective owners and may not be reproduced, displayed or used without the written permission of the trademark owner. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the trademarks. You are strictly prohibited from misusing any of the trademarks or other materials on the Site.
- LIMITED USE.
Subject to the terms and conditions of this Agreement, Encore grants you a limited, revocable, non-transferable license to use the Site for your internal business purposes in accordance with the terms and conditions of this Agreement. You may only use the Site in its intended manner for legitimate purposes and shall not use the Site for any other purposes, including making any speculative, false or fraudulent orders or any orders in anticipation of third-party demand. You shall not use, copy, reproduce, publish, display publicly, perform publicly, distribute, transmit, transfer, modify or create derivative works based on the Site, in whole or in part, without first obtaining written permission from Encore.
- ADDITIONAL RESTRICTIONS.
(a) You shall not: (i) delete or modify any copyright or trademark notices or language of attribution; (ii) publish, perform, display or post any part of the Site on any other Internet site or any networked computer environment; or (iii) publish, perform publicly, display publicly or broadcast any part of the Site in or on any other media.
(b) You shall not use the Site for any purpose that is unlawful or prohibited by this Agreement. You shall not use the Site in any manner that could damage, disable, overburden or impair any Encore server or any network connected to any Encore server, or interfere with others’ use and enjoyment of any part of the Site. You shall not attempt to gain unauthorized access to the Site or other accounts, computer systems or networks, including through hacking, Password mining or any other means. You shall not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site.
(c) In no event shall you sell, resell or exploit for any commercial purposes, all or any part of the Site, or access to or use of the Site. You shall not use any “robot,” “spider” or other automatic device, or a program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor or copy any part of the Site. Encore does not permit or authorize use of or access to the Site to collect, compile, harvest or obtain any information about others, including others’ e-mail addresses. You shall not alter the Site or use any device, software or routine to interfere or attempt to interfere with the proper working of the Site.
(d) You shall not use the Site to post or transmit any unlawful, threatening, libelous, defamatory, fraudulent, obscene, indecent, inflammatory, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. You shall not use the Site to post or transmit any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes, or any other unsolicited commercial communication or message (commercial or otherwise), or engage in spamming or flooding. In addition, you shall not post or transmit any material or information which (i) infringes the rights of others or violates their privacy or publicity rights, (ii) is protected by copyright, trademark or other proprietary right, unless you have the express written permission of the owner of such right, (iii) contains a virus, trojan horse, worm, bug or other harmful item or computer code, or (iv) is used to unlawfully collude against another person in restraint of trade or competition. You are responsible for your compliance with all applicable laws, regulations and policies of all relevant jurisdictions.
- You represent and warrant that: (a) you are at least 18 years of age; and (b) you possess the legal right, capacity and authority to enter into this Agreement on your behalf and, if applicable, the corporation or other legal entity on whose behalf you are accessing the Site and to bind you and such corporation or other legal entity, to this Agreement, including any liability incurred in connection with your Username and Password.
- GOOD AND SERVICE DESCRIPTIONS.Encore and its affiliates attempt to be as accurate as possible. However, Encore does not warrant that product or service descriptions or other Content of this Site is accurate, complete, reliable, current, or error-free.
- You agree that if you submit suggestions, ideas, comments or questions or post any other materials or information on or through the Site (“Comments”), you hereby grant Encore and its affiliates a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display such Comments in any form, media or technology, now known or later developed and specifically waive any and all moral rights in the Comments in favor of Encore. If you are a corporation, you will arrange to have applicable individuals waive any and all moral rights in favor of Encore. You are solely responsible for all Comments.
- ELECTRONIC COMMUNICATIONS. When you visit the Site or send e-mails, short message service, or other digital communications to Encore, you are communicating with Encore electronically. You consent to receive communications from Encore electronically. Encore may communicate with you by e-mail, short message service, or by posting notices on the Site or any of its digital channels. You agree that all agreements, notices, disclosures and other communications that Encore provides to you electronically satisfy any legal requirement that such communications be in writing.
- CHANGE OR DENY ACCESS. Encore reserves the right, at any time with or without prior notice, to change the Site, limit access to the Site or shut down the Site.
- DISCLAIMER OF WARRANTIES.
(a) ENCORE, ITS AFFILIATES AND ANY THIRD-PARTY PROVIDERS AND DISTRIBUTORS MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND REGARDING THE SITE AND/OR ANY CONTENT ALL OF WHICH ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ENCORE, ITS AFFILIATES AND ANY THIRD PARTY PROVIDERS AND DISTRIBUTORS EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF INFORMATIONAL CONTENT AND NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
(b) ENCORE MAKES NO PROMISE, COVENANT, REPRESENTATION, WARRANTY OR GUARANTEE THAT YOU OR ANY OTHER USER OF THE SITE WILL OBTAIN ANY PARTICULAR OR TANGIBLE RESULT OR GOAL THROUGH THE USE OF THE SITE OR THAT THE SITE OR ANY CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH THE SITE OR ENCORE WILL BE APPROPRIATE FOR ANY PARTICULAR USE TO WHICH YOU MAY PUT THEM. ENCORE, ITS AFFILIATES AND ANY THIRD PARTY PROVIDERS OR DISTRIBUTORS DO NOT REPRESENT OR WARRANT THAT THE SITE, ITS SERVERS, THE CONTENT, OR ANY DIGITAL COMMUNICATIONS SENT FROM ENCORE ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR ARE OR WILL BE AVAILABLE ON AN UNINTERRUPTED AND ERROR FREE BASIS.
(c) ENCORE, ITS AFFILIATES AND ANY THIRD-PARTY PROVIDERS AND DISTRIBUTORS DO NOT REPRESENT OR WARRANT THAT THE SITE, DIGITAL COMMUNICATIONS OR THE CONTENT WILL BE UNINTERRUPTED, ERROR-FREE, RELIABLE, AVAILABLE, CURRENT, COMPLETE, ACCURATE, VIRUS-FREE OR SECURE. ENCORE CANNOT AND DOES NOT WARRANT OR GUARANTEE THAT ANY ELECTRONIC COMMUNICATIONS (INCLUDING VIA THE SITE, E-MAIL OR SHORT MESSAGE SERVICE) OR ANY ELECTRONIC COMMERCE CONDUCTED ON OR THROUGH THE SITE, IS OR WILL BE TOTALLY SECURE.
(d) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN REPRESENTATIONS OR WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF REPRESENTATIONS, WARRANTIES AND CONDITIONS MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITY.
(a) YOUR USE OF THE SITE, DIGITAL COMMUNICATION ALERTS AND THE CONTENT ARE AT YOUR SOLE RISK. IN NO EVENT SHALL ENCORE, ITS AFFILIATES, OR ANY THIRD PARTY PROVIDERS OR DISTRIBUTORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING FOR ANY LOSS OF DATA, PRIVACY, SECURITY, GOODWILL, REVENUE OR PROFITS, COSTS OF LOST OR DAMAGED DATA, OR LIABILITIES TO THIRD PARTIES), WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE SITE, DIGITAL COMMUNICATIONS OR THE CONTENT, INCLUDING (I) ANY USE OF , OR RELIANCE ON, THE SITE, DIGITAL COMMUNICATIONS, THE CONTENT, OR GOODS OR SERVICES ACCESSIBLE, ACCESSED OR USED ON OR THROUGH THE SITE, (II) ANY FAILURE OR DELAY (INCLUDING THE USE OF OR INABILITY TO USE ANY PART OF THE SITE, DIGITAL COMMUNICATIONS OR THE CONTENT FOR TAKING ORDERS), OR (III) THE PERFORMANCE OR NON -PERFORMANCE BY ENCORE OR ANY THIRD PARTY PROVIDERS OR DISTRIBUTORS, INCLUDING NON -PERFORMANCE RESULTING FROM BANKRUPTCY, REORGANIZATION, INSOLVENCY, DISSOLUTION OR LIQUIDATION.
(b) ENCORE AND ITS AFFILIATES ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGE TO, OR VIRUSES OR OTHER CODE THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR USE OR ACCESS TO THE SITE, DIGITAL COMMUNICATIONS, THE CONTENT OR ANY OTHER SITE.
(c) THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EVEN IF AN AUTHORIZED REPRESENTATIVE OF ENCORE, ITS AFFILIATES OR ANY THIRD PARTY PROVIDERS OR DISTRIBUTORS HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND WITHOUT REGARD TO THE EFFECTIVENESS OF OTHER REMEDIES.
(d) IF, NOTWITHSTANDING ANY OF THE FOREGOING LIMITATIONS OF LIABILITY, ENCORE, ITS AFFILIATES OR ANY THIRD PARTY PROVIDER OR DISTRIBUTOR ARE FOUND LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR LIABILITY WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE SITE OR THE CONTENT, THE TOTAL LIABILITY OF ENCORE, ITS AFFILIATES AND ANY THIRD PARTY PROVIDERS AND DISTRIBUTORS SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, US$100.00. THE EXISTENCE OF ONE OR MORE CLAIMS OR CAUSES OF ACTION SHALL NOT ENLARGE THIS LIMIT.
(e) THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMER OF REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
(f) SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
- You shall defend, indemnify and hold harmless Encore, its affiliates, and any third party providers and distributors, and its and their officers, directors, employees and agents from and against all claims, causes of action or demands, suits or other proceedings, including reasonable legal and accounting fees, brought by or on your behalf in excess of the liability described herein or by third parties as a result of your use of the Site, digital communications or the Content. You further agree to defend, indemnify and hold harmless Encore, its affiliates, and any third party providers and distributors, and its and their officers, directors, employees and agents, from and against all claims, demands, suits or other proceedings, and all resulting loss, damage, liability, cost and expense (including reasonable attorneys’ fees), made by any third party due to or arising out of materials or information you submit, post to or transmit through the Site, your access to and use of the Site, digital communications, the Content and other materials, goods and services available on or through the Site and Encore, your violation of this Agreement or your violation of any rights of others. All rights and duties of indemnification that are set forth herein shall survive termination of this Agreement.
- The Site contains links to other websites and digital channels. Such links are provided solely as a convenience to you and not as an endorsement by Encore, its affiliates or any third-party providers or distributors, of such other Web sites and digital channels, including any related materials or information. None of Encore, its affiliates or any third party provider or distributor shall be responsible or liable for any other Web sites or digital channels and make no representation or warranty regarding any other Web sites, digital channels or the materials or information on such Web sites or digital channels. Your use of any such other Web sites or digital channels is at your own risk. You agree that you will bring no suit or claim against Encore, its affiliates or any third party providers or distributors, arising from or based on your use of, or the offer or purchase of goods or services on or through, such other Web sites or digital channels.
- NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.Notifications of claimed copyright infringement should be sent to the Encore Legal Department as the copyright agent by (i) mail at 5100 N. River Road, Schiller Park, IL 60176, Attn: Legal Department; or (ii) email at email@example.com.
- The relationship between Encore and you will be that of independent contractors, and neither of us nor any of our respective officers, agents or employees will be held or construed to be partners, joint ventures, fiduciaries, employees or agents of the other.
- ATTORNEY’S FEES. If Encore or its affiliates take any action to enforce this Agreement, such parties will be entitled to recover from you, and you agree to pay, all reasonable attorney’s fees and any cost of litigation, in addition to any other relief, at law or in equity, to which such parties may be entitled.
- INJUNCTIVE RELIEF. You acknowledge that a violation or attempted violation of any of this Agreement will cause such damage to Encore as will be irreparable, the exact amount of which would be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that Encore shall be entitled as a matter of right to an injunction issued by any court of competent jurisdiction, restraining such violation or attempted violation of this Agreement by you, or your affiliates, partners, or agents, as well as recover from you any and all costs and expenses sustained or incurred by Encore in obtaining such an injunction, including reasonable attorney’s fees. You agree that no bond or other security shall be required in connection with such injunction.
- Encore may, in its sole discretion, terminate this Agreement at any time for any or no reason, with or without prior notice. Without limiting the foregoing, Encore may terminate this Agreement if, in its sole discretion, you fail to comply with any of the terms of this Agreement. Any termination of this Agreement shall not affect any right to relief to which Encore, its affiliates and any third party providers and distributors may be entitled, at law or in equity. Upon termination of this Agreement, all rights granted to you will immediately terminate and revert to Encore, its affiliates and any third party providers or distributors, as applicable and you shall immediately cease all of the Site and the Content. The provisions of this Agreement which by their express or implied terms extend beyond the termination of this Agreement shall continue in full force and effect notwithstanding the termination of this Agreement, including any disclaimer of warranties, limitations of liability, indemnification, ownership and restrictions on use.
- You shall not assign, convey, subcontract or delegate this Agreement or any rights, duties or obligations hereunder. Encore may freely assign, convey, subcontract or delegate this Agreement or any rights, duties and obligations hereunder. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors, assign, heirs and legal representatives.
- Encore has the right to update this Agreement from time to time, and may amend it at any time to incorporate additional terms specific to additional features, materials, products, opportunities or services that Encore may make available on or through the Site. All such updates and amendments are effective immediately upon notice thereof, which we may give by any means, including by posting a revised version of this Agreement or other notice on the Site. You should view this Agreement often to stay informed of changes that may affect you, as your continued use of the Site signifies your continuing consent to be bound by the terms of this Agreement. We expressly reserve the right to make any changes to this Agreement, or to the Site and its Content, at any time with or without prior notice to you.
- ADDITIONAL TERMS. Additional terms and conditions, licenses, and obligations may apply to purchases of goods and services and other uses of portions of the Site, and you agree to abide by any such other terms and conditions.
- These terms and conditions shall be deemed severable. If any provision of this Agreement is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by applicable law, and such determination shall not affect the validity and enforceability of any other remaining provisions.
- Encore’s failure at any time to require performance of any provision of this Agreement or to exercise any right provided for in this Agreement shall not be deemed a waiver of such provision or such right. All waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver by Encore of any breach of any provision of this Agreement or of any right provided for in this Agreement shall be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under this Agreement.
- The headings used in this Agreement are included for convenience only and will not limit or otherwise affect the terms and conditions herein. As used in this Agreement, “including” shall mean “including, but not limited to”.