Terms of Service

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Please read these terms of service very carefully before registering for the Encast web site and Service.  These terms of service (“Agreement”) govern you accessing content and using https://www.encast.gives and its affiliate’s web sites and mobile applications.  This Agreement between you (“you”) and Encast, is subject to change by us as described below.  By accepting Terms of Service prompts on any Encast web site, affiliate web site, or mobile application, you (i) accept this Agreement; (ii) agree to be bound by these terms and conditions; and (iii) have entered into a binding agreement between you and Encast.  

1. This web site and any mobile application (collectively the “Site”) is owned and operated by Encast, Inc. (referred to as “Encast” herein). The Site and its content (“Content”) and the Encast HERO service (“Service”) may only be accessed in accordance with this Agreement. Any violation of the copyright in the Content or these terms and conditions may be enforced by Encast or the copyright owner to the fullest extent allowed by law. 

 

2. You acknowledge and agree that Encast may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Encast’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Encast when you stop using the Services. You acknowledge and agree that if Encast disables access to your account, you may be prevented from accessing the Services, your account details or any files or other materials which is contained in your account.

 

3. You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Encast, unless you have been specifically allowed to do so in a separate agreement with Encast. You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).  Unless you have been specifically permitted to do so in a separate agreement with Encast, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.  You agree that you are solely responsible for (and that Encast has no responsibility to you or to any third party for) any breach of your obligations under this Agreement and for the consequences (including any loss or damage which Encast may suffer) of any such breach.

 

4. Encast does not charge for access using its mobile application; however, your carrier rates will apply, such as fees for text messaging and data charges. You hereby acknowledge, agree, and provide consent in order for users to sync any device with your information.

 

5. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from whom such materials originated, which may be you.

 

6. Encast reserves all rights not specifically granted herein. You shall not modify any copyright notices, proprietary legends, any trademark and service mark attributions, any patent markings, and other indicia of ownership on the Content or other materials accessed through the Service.  The delivery of, and license to, the Content and/or access to third party materials does not transfer to you any commercial or promotional use rights in the Content or any portion thereof.  Any use of Content, or descriptions; any derivative use of this Site or its materials; and any use of data mining, robots, or similar data gathering and extraction tools is strictly prohibited.  In no event shall the user frame any portion of the Site or any materials contained therein.  

 

7. While Encast uses reasonable efforts to include accurate and up-to-date information on the Site, Encast makes no warranties or representations as to its accuracy. Encast assumes no liability or responsibility for any errors or representations in the Content or this Site.

 

8. The Site may contain links to other sites on the Internet which are owned and operated by Third Party Vendors and other third parties (the “External Sites”). You acknowledge that Encast is not responsible for the availability of, or the materials located on or through, any External Sites. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or the materials located on such External Sites.

 

9. You and other users of the Site may post comments, reviews, and other materials and submit suggestions, ideas, or other information. You are solely responsible for your conduct and any content that you submit, post, and display on the Site. You may not post materials or content that contains any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, or hateful content or content which is racially, ethnically or otherwise objectionable, or which infringes upon the rights of any third party. You acknowledge that by accessing the Site, you may come into contact with content that you find harmful, offensive, threatening, indecent or objectionable and you acknowledge that Encast shall have no liability to you for the content including, but not limited to explicit language and other potentially offensive material.  You agree to not impersonate any person or communicate under a false name or a name the user is not entitled or authorized to use.  Encast has the right (but not the obligation) to remove, prohibit, edit or discontinue any content on the Site, including content that has been posted by users.  

 

10. If you post content or submit material, unless such content or material submittal is subject to separate terms and conditions, Encast shall own such content and material and you hereby assign any rights in such content and material to Encast. In the event ownership in the content or material cannot be granted to Encast, you grant Encast and its affiliates a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable right and license to make, use, sell, sublicense, reproduce, distribute, perform, display, prepare derivative works from and otherwise exploit all such content and material as if it were the full owner thereof.  Furthermore, you grant Encast, its affiliates, and sublicensees the right to use your name and/or user name in connection with the content.  You represent and warrant that all content and materials you provide: (a) shall be your original work product and will not be based on, or derived from, the proprietary information or items of a third party; and (b) shall comply with all content restrictions set forth in this Agreement.  Furthermore, you represent and warrant that your use of the Service in connection with any Content or third party content complies with all laws including, but not limited to, United States copyright law.  You will defend, indemnify and hold Encast and its affiliates harmless from and against any claims resulting from any content or materials you provide hereunder or your use of the Service.

 

11. At your discretion, you may provide feedback to Encast concerning the functionality and performance of the Service from time to time, including, without limitation, identifying potential errors, improvements, modifications, bug fixes, or enhancements (“Feedback”). If you, through your evaluation or otherwise, suggests any Feedback, you hereby assign the ownership in all Feedback to Encast.  In the event ownership in the Feedback cannot be granted to Encast, you grant Encast at no charge a perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction.  You agree that Encast may disclose that Feedback to any third party in any manner and you agree that Encast has the ability to sublicense all Feedback in any form to any third party without restriction.

 

12. The Site may contain areas in which additional terms and conditions apply. For purposes of the use of such areas, in the event of a conflict between the terms and conditions of such other areas and these Terms and Conditions, the terms and conditions of the other area shall prevail.  Encast may at any time revise these Terms and Conditions by updating this posting.  You are bound by any such revisions and should therefore periodically visit this page to review the current Terms and Conditions to which you are bound.

 

13. You shall not transmit to Encast or upload to this Site any Harmful Code or use or misappropriate the data on this Site for your own commercial gain. “Harmful Code” shall mean any software (sometimes referred to as “viruses,” “worms,” “trojan horses,” “time bombs,” “time locks,” “drop dead devices,” “traps,” “access codes,” “cancelbots” or “trap door devices”) that: (a) is intentionally designed to damage, disrupt, disable, harm, impair, interfere with, intercept, expropriate or otherwise impede in any manner, any data, storage media, program, system, equipment or communication, based on any event, including for example but not limited to (i) exceeding a number of copies, (ii) exceeding a number of users, (iii) passage of a period of time, (iv) advancement to a particular date or other numeral, or (v) use of a certain feature; or (b) would enable an unauthorized person to cause such result; or (c) would enable an unauthorized person to access another person’s information without such other person’s knowledge and permission.

 

14. You may not use your username and password for any unauthorized purpose.

 

15. Encast may retain and use, information collected in your use of the Service, provided such information does not individually identify you. Encast may collect, use and share your personal information in accordance with its Privacy Policy.

 

16. Encast does not knowingly collect any information from anyone who we know to be under the age of 13. If you are under the age of 18, you should use this website only with the involvement of a parent or guardian and should not submit any personal information to Encast. If Encast discovers that a person under the age of 13 has provided Encast with any personal information, Encast will use commercially reasonable efforts to delete such person's personal information from all Encast systems.

 

17. Encast may terminate your access to our Site or the Service for any reason at any time. The provisions that by their nature are designed to survive termination or expiration of this Agreement shall survive termination or expiration of this Agreement or your access to our Site or Service.

 

18. By using this Site, you signify your assent to these terms of use and agree to comply with all applicable laws and regulations, including U.S. export and re-export control laws and regulations, copyright laws and other laws regarding intellectual property. If you do not agree to these terms of use, please do not use the Site.

 

19. The materials on this Site are provided with “Restricted Rights.” Use, duplication, or disclosure by the Government is subject to restrictions as set forth in applicable laws and regulations. Use of the materials by the Government constitutes acknowledgment of Encast’s proprietary rights in them.

 

20. THE MATERIALS, CONTENT ON THIS SITE AND SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. ENCAST SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY CONTENT, MATERIALS POSTED ON THE SITE OR SERVICES.  ENCAST MAKES NO GUARANTEES AS TO UPTIME OR AVAILABILITY OF THE SERVICE.  TO THE FULLEST EXTENT POSSIBLE PURSUANT TO THE APPLICABLE LAW, ENCAST DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR OTHER VIOLATION OF RIGHTS.  THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  ENCAST IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, INCLUDING INTERNET CONGESTION, VIRUS ATTACKS, AND DENIAL OF SERVICE (DOS) ATTACKS.

 

21. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL ENCAST OR ITS THIRD PARTY LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR PROFIT, ARISING OUT OF THE USE, OR THE INABILITY TO USE, THE MATERIALS ON THIS SITE OR THE SERVICE, EVEN IF ENCAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. ENCAST’S AND ITS LICENSORS’ ENTIRE AND AGGREGATE LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED $100, EVEN IF ENCAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IF YOUR USE OF MATERIALS FROM THIS SITE OR THE SERVICE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

 

22. You shall not assign or transfer this Agreement without the prior written consent of Encast. Any attempt to assign or transfer this Agreement by you shall be void.

 

23. The laws of the State of Texas, excluding its conflicts of law rules, govern this Agreement and your use of the Site. Notwithstanding the foregoing, the Arbitration Agreement in Section 30 shall be governed by the Federal Arbitration Act. For the avoidance of doubt, the choice of Texas governing law shall not supersede any mandatory consumer protection legislation in such jurisdictions.

 

24. Encast shall not be liable to you for any delay or failure of Encast to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Encast. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, labor strike, or delays by you in performing any requirements hereunder.

 

25. This Agreement may not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the Agreement by its express terms.

 

26. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.  The invalidity or unenforceability of any provision of this Agreement shall not affect the validity of this Agreement as a whole and any such provision should be enforced by authorities, and reconstructed if need be, to apply to the maximum extent allowable under applicable law.

 

27. The failure by either party to enforce at any time any of the provisions of this Agreement, to exercise any election or option provided herein, or to require at any time the performance of the other of any of the provisions herein will not in any way be construed as a waiver of such provisions. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.

 

28. Reasonable attorneys’ fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement.

 

29. The section headings used herein are for convenience only and shall not be given any legal import.

 

30. Arbitration Agreement. Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to arbitration before the American Arbitration Association (“AAA”) in accordance with the AAA Consumer or Commercial Arbitration Rules. If you are using the product or Services for your personal or household use, the Consumer Arbitration Rules will apply. For disputes arising from any other use of the product or Services, the Commercial Arbitration Rules will apply. The place of arbitration shall be Austin, Texas. The language to be used in the arbitral proceedings shall be English.  The Parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the arbitrator.  The arbitrator may award any form of individual or equitable relief, including injunctive relief. Any award will be final and conclusive to the Parties and may be entered in any court of competent jurisdiction.You agree to the entry of injunctive relief to stop any lawsuit or to remove you as a participant in such a suit. By using the Site in any manner, you agree to this arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Encast. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent covenant. You may opt-out of this Section by providing written notice of your decision within thirty (30) days of the date that you first use the Licensed Application. All claims arising out of or relating to this Agreement, to the Services, or to your relationship with Encast that, for whatever reason, are not submitted to arbitration will be litigated exclusively in the federal or state courts of Travis County, Austin, Texas, U.S.A. You and Encast consent to the exercise of personal jurisdiction of such courts in the State of Texas and waive any claim that such courts constitute an inconvenient forum.

 

31. This Agreement shall constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto.

 

Additional Terms:

 

32. In order to use the ACH (Automated Clearing House) payment functionality in Encast, you must open a "White Label" account provided by Dwolla, Inc. ("Dwolla") and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in the Dwolla account are held by Dwolla's financial institution partners as set out in the Dwolla Terms of Service. You authorize Encast to share your identity and account data with Dwolla for the purposes of opening and supporting your Dwolla account, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla account through Encast, and Dwolla account notifications will be sent by Encast, not Dwolla. Encast will provide customer support for your Dwolla account activity and can be reached at http://www.encast.gives or support@encast.gives