IF YOU LIVE IN (OR ARE A BUSINESS WITH A PRINCIPAL PLACE OF BUSINESS IN) THE UNITED STATES, PLEASE READ THE “BINDING ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW. IT AFFECTS HOW DISPUTES ARE RESOLVED.
These license terms are an agreement between you and EchoMark, Inc. (“EchoMark”). They apply to the software named above and any EchoMark services or software updates (collectively “Software”), except to the extent such services or updates are accompanied by new or additional terms, in which case those different terms apply prospectively and do not alter your or EchoMark’s rights relating to pre-updated Software or services. IF YOU COMPLY WITH THESE LICENSE TERMS, YOU HAVE THE RIGHTS BELOW. BY USING THE SOFTWARE, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THEM, DO NOT USE THE SOFTWARE. If you are using the Software on behalf of a corporation, limited liability company, sole proprietorship, partnership, association, or other legal entity, regardless of whether or not it is organized or operated for the profit or financial benefit of its shareholders or other owners (“Organization”), you are agreeing to these license terms for that Organization and promising that you have the authority to bind that Organization to these terms. In that case, “you” and “your” will refer to that Organization and its individual users.
1. INSTALLATION AND USE RIGHTS.
a) Subscription Plans. Different features and levels of service are offered under different pricing plans, the limits and features of which are available at https://echomark.com/ (each a “Subscription Plan”). Your rights and obligations with respect to certain features of the Software will be based in part on the Subscription Plan you choose.
b) Individual Users. If you acquire the right to use the Software as an individual, you may access and use any number of copies of the Software on your devices, solely for your internal business purposes and in accordance with the terms of your Subscription Plan.
c) Organizational Users. If you acquire the right to use the Software on behalf of an Organization, you may install and use any number of copies of the Software on your Organization’s devices, solely for its internal business purposes. You will ensure that any individual user who obtains the Software from your Organization, or otherwise uses the Software pursuant to the license granted to your organization under this agreement, complies with the terms and limitations set forth in this agreement.
d) Work or School Accounts. You can sign into the Software with a work email address, Microsoft Exchange Account, or Google Account (“Email Account”). If you do, you agree that the owner of the domain associated with your Email Account may control and administer your account, access and process your data (including the contents of your communications and files), and that you have no reasonable expectation of privacy in your account. You further agree that your use of the Software may be subject to: (i) your organization’s guidelines and policies regarding the use of the Software; and (ii) the agreements EchoMark has with you or your organization, and in such case these terms may not apply.
e) Third Party Components. The Software may include third party components with separate legal notices or governed by other agreements, as may be described in the ThirdPartyNotices file(s) accompanying the Software.
f) Competitive Benchmarking. If you are a direct competitor, and you access or use the Software for purposes of competitive benchmarking, analysis, or intelligence gathering, you waive as against EchoMark, its subsidiaries, and its affiliated companies (including prospectively) any competitive use, access, and benchmarking test restrictions in the terms governing your software to the extent your terms of use are, or purport to be, more restrictive than EchoMark’s terms. If you do not waive any such purported restrictions in the terms governing your software, you are not allowed to access or use the Software, and will not do so.
2. SCOPE OF LICENSE. The Software is licensed, not sold. EchoMark reserves all other rights. Unless applicable law gives you more rights despite this limitation, you will not (and have no right to):
a) work around any technical limitations in the Software that only allow you to use it in certain ways;
b) reverse engineer, decompile or disassemble the Software, or otherwise attempt to derive the source code for the Software, except and to the extent required by third party licensing terms governing use of certain open source components that may be included in the Software;
c) remove, minimize, block, or modify any notices of EchoMark or its suppliers in the Software;
d) use the Software for commercial, non-profit, or revenue-generating activities;
e) use the Software to send, knowingly receive, upload, download, use, or re-use any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, illegal, or otherwise objectionable;
f) use the Software in any way that is against the law or to create or propagate malware; or
g) share, publish, distribute, or lease the Software, provide the Software as a stand-alone offering for others to use, or transfer the Software or this agreement to any third party.
3. USER FILES AND OUTPUTS.
a) User Files. The Software may provide functionality permitting you to upload, submit, transmit, or otherwise make your User Files available to the Software and other users, either by directly uploading your User Files via EchoMark’s website or automatically when you connect the Software to your exchange account. EchoMark is not responsible for your User Files. You expressly understand and agree that you are solely responsible for the User Files, including their content, legality, reliability, and appropriateness, as well as for all activity that occurs under your account, whether done so by you or any third person using your account. You represent and warrant that your User Files do not (1) violate applicable law, (2) violate or infringe any third party rights, including intellectual property rights or privacy, publicity, or moral rights, or (3) contain any viruses or malicious code or content, such as any software that interferes with, disrupts, damages, or provides unauthorized access to devices, servers, networks or other properties or services of any third party. “User Files” means all files processed through the Software, which may include (without limitation) emails, documents, and images. EchoMark reserves the right to take down or reject any User Files in its sole and absolute discretion.
b) Outputs. The software allows you to use your User Files to produce Outputs. “Output” means any media produced by the Software using your User Files, including without limitation any previews, exports or saved files produced by you using the Software or by the Software itself (whether this occurs manually or automatically). When a User File is processed through the Software and becomes an Output, it may be altered from its original form. These alternations may include non-substantive changes to spacing, formatting, word choice, phrasing, punctuation, etc. By processing your User Files through the Software, you agree and consent to these changes being made.
4. FEEDBACK. If you give feedback about the Software to EchoMark, you give to EchoMark, without charge, the right to use, share and commercialize your feedback in any way and for any purpose. You will not give feedback that is subject to a license that requires EchoMark to license its software or documentation to third parties because EchoMark includes your feedback in them. These rights survive this agreement.
5. DATA.
a) Data Collection. The Software may collect information about you and your use of the Software, and send that to EchoMark. EchoMark may use this information to provide services and improve our products and services. You can learn more about data collection and use in the help documentation and the privacy statement at https://echomark.com/privacy-statement/. Your use of the Software operates as your consent to these practices.
b) Processing of Personal Data. To the extent EchoMark is a processor or subprocessor of personal data in connection with the Software, EchoMark commits to comply with the following requirements, as provided in Section 28 of European Union General Data Protection Regulation:
i. only use subprocessors with the consent of the controller and remain liable for subprocessors;
ii. process personal data only on instructions from the controller, including with regard to transfers;
iii. ensure that persons who process personal data are committed to confidentiality;
iv. implement appropriate technical and organizational measures to ensure a level of personal data security appropriate to the risk;
v. assist the controller in its obligations to respond to data subjects’ requests to exercise their GDPR rights;
vi. meet the GDPR’s breach notification and assistance requirements;
vii. assist the controller with data protection impact assessments and consultation with supervisory authorities;
viii. delete or return personal data at the end of provision of services; and
ix. support the controller with evidence of compliance with the GDPR.
c) Customer Control. If you delete your User Files or Outputs in the Software, those files will be fully removed from our systems. However, we may retain the metadata necessary in order to recreate those User Files or Outputs if you request, unless you separately choose to delete that metadata as well.
d) What We Do With Your Content. When you use the Software, we may derive a hashed version of your User Files and/or Outputs that contains the same formatting, but none of the same content (the “Derived Content”). Instead, characters, numbers, images, tables, drawings, etc. will all be randomly selected to destroy your content while preserving the original formatting for our learning dataset. The Derived Content will be used to improve and maintain the operation of the Software. EchoMark reserves all rights to the Derived Content.
e) Debugging and Support. When you use the Software, we may collect and use the content in your User Files and Outputs exclusively for debugging and support purposes. By using the Software you consent to this collection and use. If you would like to revoke this consent, you may do so by contacting us as provided in Section 19 (Contact Information).
6. EXPORT RESTRICTIONS. You must comply with all domestic and international export laws and regulations that apply to the Software, which include restrictions on destinations, end users, and end use.
7. LEGAL COMPLIANCE. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
8. SUPPORT SERVICES. EchoMark is not obligated under this agreement to provide any support services for the Software. Any support provided is “as is”, “with all faults”, and without warranty of any kind.
9. UPDATES. The Software may periodically check for updates, and download and install them for you. You may obtain updates only from EchoMark or authorized sources. You agree to receive these automatic updates without any additional notice. Updates may not include or support all existing software features, services, or peripheral devices.
10. BINDING ARBITRATION AND CLASS ACTION WAIVER. If you and EchoMark have a dispute, you and EchoMark agree to try for sixty (60) days to resolve it informally. If you and EchoMark can’t resolve your dispute within this time period, you and EchoMark agree to binding individual arbitration before the American Arbitration Association under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity are not allowed; nor is combining individual proceedings without the consent of all parties.
11. SUBSCRIPTION FEE. When you purchase a paid Subscription Plan for the Software (each such purchase, a “Subscription”), you expressly authorize EchoMark or our third-party payment processor to charge you for such Software. You represent and warrant that you have the legal right to use all payment methods that you provide to us. All fees are stated and solely payable in U.S. Dollars, non-refundable, and not subject to setoff. You are solely responsible for any bank fees, interest charges, finance charges, overdraft charges, and any other fees you incur as a result of the charges billed by us. If you fail to pay the full amount owed to us, EchoMark may limit your access to the Software, in addition to any other rights or remedies we may have. If your Subscription Plan involves recurring fees (each, along with any applicable taxes and other charges are a “Subscription Fee”) you acknowledge that your Subscription Plan has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or EchoMark. EchoMark (or our third party payment processor) will automatically charge you in accordance with the term of your Subscription Plan, on the calendar day corresponding to the commencement of your Subscription using the payment information you have provided. If your Subscription begins on a day not contained in a later month, your payment method will be charged on the nearest day that EchoMark deems appropriate (e.g. a Subscription beginning on January 31st will be next charged on February 28th). Please note that the amount of the Settlement Fee is subject to change, although EchoMark will notify you before any such change goes into effect. Your Subscription continues until cancelled by you or EchoMark terminates your Subscription in accordance with this agreement.
12. TERMINATION. Without prejudice to any other rights, EchoMark may terminate this agreement if you fail to comply with any of its terms or conditions, including any terms or conditions of your Subscription Plan. In such event, you must destroy all copies of the Software and all of its component parts. You may cancel your Subscription at any time but please note that such cancellation will only be effective at the end of the then-current Subscription period. Unless required by law, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD AT THE TIME OF SUCH CANCELLATION.
13. ENTIRE AGREEMENT. This agreement, and any other terms EchoMark may provide for supplements, updates, or third-party applications, is the entire agreement for the Software.
14. APPLICABLE LAW AND PLACE TO RESOLVE DISPUTES. If you acquired the Software in the United States or Canada, the laws of the state or province where you live (or, if a business, where your principal place of business is located) govern the interpretation of this agreement, claims for its breach, and all other claims (including consumer protection, unfair competition, and tort claims), regardless of conflict of laws principles, except that the FAA governs everything related to arbitration. If you acquired the Software in any other country, its laws apply, except that the FAA governs everything related to arbitration. If U.S. federal jurisdiction exists, you and EchoMark consent to exclusive jurisdiction and venue in the federal court in King County, Washington for all disputes heard in court (excluding arbitration). If not, you and EchoMark consent to exclusive jurisdiction and venue in the Superior Court of King County, Washington for all disputes heard in court (excluding arbitration).
15. CONSUMER RIGHTS; REGIONAL VARIATIONS. This agreement describes certain legal rights. You may have other rights, including consumer rights, under the laws of your state, province, or country. Separate and apart from your relationship with EchoMark, you may also have rights with respect to the party from which you acquired the Software. This agreement does not change those other rights if the laws of your state, province, or country do not permit it to do so. For example, if you acquired the Software in one of the below regions, or mandatory country law applies, then the following provisions apply to you:
a) Australia. You have statutory guarantees under the Australian Consumer Law and nothing in this agreement is intended to affect those rights.
b) Canada. If you acquired this Software in Canada, you may stop receiving updates by turning off the automatic update feature, disconnecting your device from the Internet (if and when you re-connect to the Internet, however, the Software will resume checking for and installing updates), or uninstalling the Software. The product documentation, if any, may also specify how to turn off updates for your specific device or software.
c) Germany and Austria.
i. Warranty. The properly licensed Software will perform substantially as described in any EchoMark materials that accompany the Software. However, EchoMark gives no contractual guarantee in relation to the licensed Software.
ii. Limitation of Liability. In case of intentional conduct, gross negligence, claims based on the Product Liability Act, as well as, in case of death or personal or physical injury, EchoMark is liable according to the statutory law.
Subject to the foregoing Section 15(c)(ii), EchoMark will only be liable for slight negligence if EchoMark is in breach of such material contractual obligations, the fulfillment of which facilitate the due performance of this agreement, the breach of which would endanger the purpose of this agreement and the compliance with which a party may constantly trust in (so-called "cardinal obligations"). In other cases of slight negligence, EchoMark will not be liable for slight negligence.
16. DISCLAIMER OF LEAK REPORTS. If an Output is leaked, the Software may be used to identify which version of that Output was leaked. The results of this investigation will be provided to you in a report (“Leak Report”). We work hard to ensure that that Leak Reports are reliable to a reasonably high level of accuracy. However, absolute certainty is not possible in this area, and there is a non-zero percent chance of error. See our support page at support.echomark.com for additional information concerning the reliability of the Software, as well as the margin of error for Leak Reports. Accordingly, EchoMark disclaims any responsibility for the content or accuracy of a Leak Report. You are advised to acquire additional evidence before using the Leak Report as the basis for taking a particular action.
17. DISCLAIMER OF WARRANTY. THE SOFTWARE IS LICENSED “AS IS.” YOU BEAR THE RISK OF USING IT. ECHOMARK GIVES NO EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, ECHOMARK EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
18. LIMITATION ON AND EXCLUSION OF DAMAGES. IF YOU OR YOUR EMPLOYEES HAVE ANY BASIS FOR RECOVERING DAMAGES DESPITE THE PRECEDING DISCLAIMER OF WARRANTY, YOU CAN RECOVER FROM ECHOMARK AND ITS SUPPLIERS ONLY DIRECT DAMAGES UP TO U.S. $5.00. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES.
This limitation applies to (a) anything related to the Software, services, content (including code) on third party Internet sites, or third party applications; and (b) claims for breach of contract, warranty, guarantee, or condition; strict liability, negligence, or other tort; or any other claim; in each case to the extent permitted by applicable law.
It also applies even if EchoMark knew or should have known about the possibility of the damages. The above limitation or exclusion may not apply to you because your state, province, or country may not allow the exclusion or limitation of incidental, consequential, or other damages.
19. CONTACT INFORMATION. If you have questions, complaints or claims with respect to the Software, please contact: support@echomark.com.
Please note: To the extent that the Software is used or distributed in Canada, some of the clauses in this agreement are provided below in French.
Remarque: Ce Logiciel étant distribué au Canada, certaines des clauses dans ce contrat sont fournies ci-dessous en français.
EXONÉRATION DE GARANTIE. Le Logiciel visé par une licence est offert « tel quel ». Toute utilisation de ce Logiciel est à votre seule risque et péril. EchoMark n’accorde aucune autre garantie expresse. Vous pouvez bénéficier de droits additionnels en vertu du droit local sur la protection des consommateurs, que ce contrat ne peut modifier. La ou elles sont permises par le droit locale, les garanties implicites de qualité marchande, d’adéquation à un usage particulier et d’absence de contrefaçon sont exclues.
LIMITATION DES DOMMAGES-INTÉRÊTS ET EXCLUSION DE RESPONSABILITÉ POUR LES DOMMAGES. Vous pouvez obtenir de EchoMark et de ses fournisseurs une indemnisation en cas de dommages directs uniquement à hauteur de 5,00 $ US. Vous ne pouvez prétendre à aucune indemnisation pour les autres dommages, y compris les dommages spéciaux, indirects ou accessoires et pertes de bénéfices.
Cette limitation concerne:
• tout ce qui est relié au Logiciel, aux services ou au contenu (y compris le code) figurant sur des sites Internet tiers ou dans des programmes tiers; et
• les réclamations au titre de violation de contrat ou de garantie, ou au titre de responsabilité stricte, de négligence ou d’une autre faute dans la limite autorisée par la loi en vigueur.
Elle s’applique également, même si EchoMark connaissait ou devrait connaître l’éventualité d’un tel dommage. Si votre pays n’autorise pas l’exclusion ou la limitation de responsabilité pour les dommages indirects, accessoires ou de quelque nature que ce soit, il se peut que la limitation ou l’exclusion ci-dessus ne s’appliquera pas à votre égard.
EFFET JURIDIQUE. Le présent contrat décrit certains droits juridiques. Vous pourriez avoir d’autres droits prévus par les lois de votre pays. Le présent contrat ne modifie pas les droits que vous confèrent les lois de votre pays si celles-ci ne le permettent pas.
