Last Updated: Oct 5, 2023
You can see our previous Terms of Service here.
These Terms of Service (these “Terms of Service”) constitute a legally binding agreement between you and Circular Exchange, Inc. (together with its affiliates, “Circular”, “we”, “our” or “us”) governing your use of the Circular Platform (as defined below) and our website (the“Site”). The related services provided by Circular, including the Circular Representative (as defined below), to potential Suppliers and Customers (each as defined in Section 1) and the Site are collectively referred to as the “Circular Platform”.
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” OR SIMILAR BUTTON, REGISTERING FOR AN ACCOUNT, OR ACCESSING OR USING THE CIRCULAR PLATFORM, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE Circular PLATFORM. These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access the Platform, whichever is earlier. If you accept or agree to these Terms of Service on behalf of your employer or another legal entity, you represent and warrant that (i) you have full legal authority to bind your employer or such entity to these Terms of Services; (ii) you have read and understand these terms of service; and (iii) you agree to these Terms of Service on behalf of the party that you represent. In such event, “you” and “your” will refer and apply to your employer or such other legal entity.
Any personal data you submit to the Circular Platform or which we collect about you is governed by our Privacy Policy (“Privacy Policy”), available at https://circular.co/privacy/. You acknowledge that by using the Circular Platform you have reviewed the Privacy Policy. The Privacy Policy is incorporated by reference into these Terms of Service and together form and are hereinafter referred to as this “Agreement”.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND Circular CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION (SECTION 14). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
The Circular Platform is a web-based procurement and supply chain platform that facilitates end-to-end sales process between companies (“Customers”) who seek to purchase recycled materials (the “Products”) and companies who supply such materials (“Suppliers”) through the provision of the following services:
Customers and Suppliers together are hereinafter referred to as “Users”. If you agree on the terms of the Contract with another User, you and such other User form a binding contract directly between the two of you as set forth in more detail in Section 3 below.
You agree not to request, make or accept any purchase order or payment outside of the Circular Platform to avoid paying fees, taxes or for any other reason. You agree not to encourage other Customers or Suppliers to take actions outside the Circular Platform in violation of these Terms of Service. In the event you purchase the Products without engaging Circular in the “Procure” services (a “Direct Purchase”) from a Supplier that (i) you had never purchased from prior to the introduction by Circular and (ii) was listed in a Proposal in the 12 months prior to such Direct Purchase, then you shall pay Circular a fee equal to 2% of the aggregate value of the Direct Purchase within 5 business days of receipt of a payment notice from Circular.
The Circular Platform only enables connection, coordination and communication between Users for the fulfillment of the purchase and sale of the Products. Circular is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of the Products or Users, nor of the actions or omissions whatsoever of any Users. Circular makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Products requested or provided by, or the communications of or between, Users identified through the Circular Platform, whether in public, private, or offline interactions or otherwise.
NEITHER SUPPLIERS NOR CUSTOMERS ARE EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF CIRCULAR. CIRCULAR DOES NOT SUPPLY THE PRODUCTS. USERS HEREBY ACKNOWLEDGE THAT CIRCULAR DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A SUPPLIER’S PRODUCTS OR RELATED SERVICES AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR SUCH PRODUCTS AND SERVICES IN ANY MANNER, INCLUDING BUT NOT LIMITED TO WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
You must register with Circular and create an account to use the Circular Platform (an “Account”) and as part of that process you will be requested to provide certain information, including without limitation your name, company name, full address, phone number and email address. By using the Circular Platform, you agree to provide true, accurate, current and complete information as prompted by the registration process and to maintain and promptly update the Account information to keep it accurate, current and complete. You are the sole authorized user of your Account. You are responsible for maintaining the confidentiality of any log-in, password, and Account number provided by you or given to you by Circular for accessing the Circular Platform. You are solely and fully responsible for all activities that occur under your password or Account, even if not authorized by you. Circular has no control over the use of any User’s Account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or Account or you suspect any other breach of security, you agree to contact Circular immediately.
The person signing up for the Circular Platform will be the contracting party (“Account Owner”) for the purposes of these Terms of Service and will be the person who is authorized to use any corresponding Account we provide to the Account Owner in connection with the Circular Platform; provided, however, that if you are signing up for the Circular Platform on behalf of your employer, your employer shall be the Account Owner. As the Account Owner, you are solely responsible for complying with these Terms of Service and only you are entitled to all benefits accruing thereto. Your Account is not transferable to any other person or account. You must immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of our security or the security of your Account.
All contracts placed on the Circular Platform or otherwise facilitated by Circular are governed by the applicable Contract.
You understand that you are not buying directly from Circular, but from the Supplier, or selling directly to Circular, but to the Buyer, each an independent party. Circular does not source, manufacture, store or inspect the Products sold through the Circular Platform and does not guarantee or warrant that the quality of such Products or other material purchased or obtained by you will meet your expectations. Any legal claim related to a Product you purchase must be brought directly against the Supplier. You release Circular from any claims related to the Products sold through the Circular Platform, including for defective items, misrepresentations by the Supplier, or items that caused physical injury (like product liability claims).
By purchasing a Product or submitting a specification sheet or a purchase order on the Circular Platform, such User certifies that it has provided accurate Product descriptions, specifications, pricing and other material terms. However, typographical errors, inaccuracies or omissions relating to such terms may occur. We are not responsible if information on the Circular Platform is not accurate, complete or current. Any reliance on the Product information is at your own risk.
Payment for the Products and service fees is made directly from the Customer to the Supplier and Circular via the applicable third party payment processing system (the “PSP”), and not by or through Circular. Customers will be solely responsible for paying for the Product and Circular is not obligated to pay Supplier for Customer's failure to pay.
Payment and any other expenses must be paid through the PSP as indicated on the Circular Platform. You may be required to register with the PSP, agree to terms of service of the PSP, provide your payment or remittance details to the PSP and go through a vetting process at the request of the PSP to set up an account with the PSP (the “PSP Services Agreement”). By accepting these Terms of Service, each User agrees that they have downloaded or printed, and reviewed and agreed to, the PSP Services Agreement. Please note that Circular is not a party to the PSP Services Agreement and that you, the PSP and any other parties listed in the PSP Services Agreement are the parties to the PSP Services Agreement and that Circular has no obligations, responsibility or liability to any User or any other party under the PSP Services Agreement.
All amounts paid by Customer to Circular are non-cancelable and non-refundable.
“User Generated Content” is defined as any content, information, and materials that may be textual, audio, or visual that you provide, submit, upload, publish, or make otherwise available to the Circular Platform and its Users, including without limitation to images and information of the Products. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Circular:
You hereby represent and warrant to Circular that your User Generated Content (i) will not be false, inaccurate, incomplete or misleading; (ii) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (iii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (iv) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (v) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (vi) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vii) will not represent you being employed or directly engaged by or affiliated with Circular or purport you to act as a representative or agent of Circular; and (viii) will not create liability for Circular or cause Circular to lose (in whole or in part) the services of its ISPs or other suppliers.
By making available any User Generated Content through the Circular Platform, you hereby grant to Circular a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, access, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Generated Content on, through or by means of the Circular Platform. We do not claim any ownership rights in any such User Generated Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such User Generated Content.
You represent and warrant that: (i) you are 18 years of age or older or are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts, (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide, and (iii) where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of the company or other organization you registered the Account for and to bind such entity to this Agreement.
You further represent and warrant that (i) you have read, understand, and agree to be bound by these Terms of Service and the Privacy Policy in order to access and use the Circular Platform, (ii) you will fulfill the commitments you make to other Users, including paying and receiving payment, fulfilling orders agreed upon on the Circular Platform, and only utilizing the PSP specified or approved by us to make or receive payment on the Circular Platform, (iii) you will act professionally and responsibly in your interactions with other Users and (iv) when using or accessing the Circular Platform, you will act in accordance with any applicable local, state, or federal law or custom and in good faith.
You agree not to engage in any of the following prohibited activities, among others: (i) copying, distributing, or disclosing any part of the Circular Platform in any medium other than as allowed by the Circular Platform and these Terms of Service; (ii) using any automated system (other than any functionalities of the Circular Platform), including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Circular Platform; (iii) transmitting spam, chain letters, or other unsolicited email or attempting to phish, pharm, pretext, spider, crawl, or scrape; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Circular Platform; (v) violating any international, federal, provincial or state regulations, rules, laws, or local ordinances; (vi) conducting any unlawful purposes or soliciting others to perform or participate in any unlawful acts; (vii) uploading invalid data, viruses, worms, or other software agents through the Circular Platform; (viii) infringing upon or violate our intellectual property rights or the intellectual property rights of others; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) harassing, insulting, harming, abusing, defaming, abusing, harassing, stalking, threatening, intimidating or otherwise violating the legal rights (such as of privacy and publicity) of any other users or visitors of the Circular Platform or staff member of Circular; (xi) interfering with or any activity that threatens the performance, security or proper functioning of the Circular Platform; (xii) uploading or transmitting viruses or any other type of malicious code; (xiii) attempting to decipher, decompile, disassemble or reverse engineer any of the software or algorithms used to provide the Circular Platform; (xiv) bypassing the security features or measures we may use to prevent or restrict access to the Circular Platform, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Circular Platform or the content therein; (xv) attempting to access unauthorized Accounts or to collect or track the personal information of others; (xvi) using the Circular Platform for any purpose or in any manner that infringes the rights of any third party; or (xvii) encouraging or enabling any other individual to do any of the foregoing.
You hereby warrant and represent that, other than as fully and promptly disclosed to Circular as set forth below, you do not have any motivation, status, or interest which Circular may reasonably wish to know about in connection with the Circular Platform, including without limitation, if you are using or will or intend to use the Circular Platform for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Circular in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the Circular Platform.
Unless otherwise agreed to in writing between you and Circular, either party may terminate these Terms of Service for any or no cause, at any time. You may cancel and delete your Account at any time by either using the features on the Circular Platform to do so (if applicable and available) or by written notice to support@circular.co. After cancellation, you will no longer have access to your Account, your profile or any other information through the Circular Platform; provided that your access to Search services shall, if applicable, continue for the then-current paid term.
The provisions of these Terms of Service which by their intent or meaning intended to survive such termination, including without limitation the provisions relating to disclaimer of warranties, limitations of liability, and indemnification, shall survive the any termination of these Terms of Service and any termination of your use of or subscription to the Circular Platform and shall continue to apply indefinitely.
We reserve the right to refuse the Circular Platform to anyone for any reason at any time. Circular may terminate or limit your right to use the Circular Platform in the event that we are investigating or believe that you have breached any provision of this Agreement, by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice. If Circular terminates or limits your right to use the Circular Platform pursuant to this section, you are prohibited from registering and creating a new Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.
Even after your right to use the Circular Platform is terminated or limited, this Agreement will remain enforceable against you. Circular reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with Section 14 of these Terms of Service.
Circular reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Circular Platform at its sole discretion. Circular is not liable to you for any modification or discontinuance of all or any portion of the Circular Platform. Circular has the right to restrict anyone from completing registration as a User if Circular believes such person may threaten the safety and integrity of the Circular Platform, or if, in Circular’s discretion, such restriction is necessary to address any other reasonable business concern.
Following the termination or cancellation of your Account, we reserve the right to delete all your data, including any User Generated Content, in the normal course of operation. Your data cannot be recovered once your Account is terminated or canceled.
The Circular Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Circular or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Circular Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Circular does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Circular is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Circular has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Circular Platform at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Circular expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Circular Platform. You hereby agree to hold Circular harmless from any liability that may result from the use of links that may appear on the Circular Platform.
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the Circular Platform is owned by Circular, excluding User Generated Content, which Users hereby grant Circular a license to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Circular owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Circular Platform without Circular’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content.
Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Circular and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Circular, including without limitation Circular and Circular logos, are service marks owned by Circular.
Any other trademarks, service marks, logos and/or trade names appearing via the Circular Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
Notwithstanding the foregoing, Users grant Circular a nonexclusive, non-transferrable, non-sublicensable, license to use, reproduce, modify, adapt, publish, translate, and create derivative works from such User’s logos, brands, promotional graphics, and related marketing designs, as well as such User’s corporate and/or trade name, as necessary to (i) market the Products to prospective Customers and (ii) facilitate end-to-end sales processes on the Circular Platform.
Additionally, you may choose to or we may invite you to submit comments, ideas, or feedback about the Circular Platform, including without limitation about how to improve our services or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited, and without restriction and will not place Circular under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Circular does not waive any rights to use similar or related Feedback previously known to Circular, developed by its employees, or obtained from sources other than you. You acknowledge that all email and other correspondence that you submit to us shall become our sole and exclusive property.
Circular respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Circular Platform infringe upon your copyright or other intellectual property right, please send the following information to Circular’s Copyright Agent at copyright@circular.co:
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Circular and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the Circular Platform in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall promptly notify Circular in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Circular upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Circular’s trade secrets, confidential and proprietary information, and all other information and data of Circular that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary and confidential information relating to Circular or Circular’s business, operations or properties, including information about Circular’s staff, Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
THE CIRCULAR PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CIRCULAR MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE CIRCULAR PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE CIRCULAR PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE CIRCULAR PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
CIRCULAR DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED ON THE CIRCULAR PLATFORM.
UNDER NO CIRCUMSTANCES WILL CIRCULAR OR ITS AFFILIATES, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, LICENSORS, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “CIRCULAR AND AFFILIATES”), OR THEIR CORPORATE PARTNERS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY CIRCULAR, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE CIRCULAR PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT CIRCULAR AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE LOWER OF (I) THE TOTAL FEES PAID BY YOU TO CIRCULAR DURING THE SIX MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE OR (II) ONE HUNDRED DOLLARS ($100), TO THE EXTENT PERMITTED BY APPLICABLE LAW.
You hereby agree to indemnify, defend, and hold harmless Circular and its officers, directors, employees, agents, attorneys, insurers, successors and assigns (the “Indemnified Parties”) from and against any and all Liabilities incurred in connection with (i) your use or inability to use the Circular Platform or fulfill a purchase or sale order, or (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any User or third party and (iv) any content submitted by you or using your Account to the Circular Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or loan on our infrastructure. Circular reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Circular.
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND Circular CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND Circular TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
You agree that, in the event any dispute or claim arises out of or relating to your use of the Circular Platform, you will contact us at support@circular.co and you and Circular will attempt in good faith to negotiate a written resolution of the matter directly. You agree that if the matter remains unresolved for 30 days after notification (via certified mail or personal delivery), such matter will be deemed a “Dispute” as defined below. Except for the right to seek injunctive or other equitable relief described under the “Binding Arbitration” section below, should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then you agree that you will not be entitled to recover attorneys' fees, even if you may have been entitled to them otherwise.
Binding Arbitration. You and Circular agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of the Circular Platform (collectively “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. This means that you and Circular both agree to waive the right to a trial by jury. Notwithstanding the foregoing, you may bring a claim against Circular in “small claims” court, instead of by arbitration, but only if the claim is eligible under the rules of the small claims court and is brought in an individual, non-class, and non-representative basis, and only for so long as it remains in the small claims court and in an individual, non-class, and non-representative basis.
Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution’ section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at 1-800-778-7879).
Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
Arbitration Location and Procedure. Unless you and Circular agree otherwise, the seat of the arbitration shall be in San Francisco, California. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of documents you and Circular submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties.
Arbitrator’s Decision and Governing Law. The arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Disclaimers and Limitations of Liability” section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Fees. Each party’s responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
Except as provided in Section 14 or expressly provided in writing otherwise, this Agreement and your use of the Circular Platform will be governed by, and will be construed under, the laws of the State of California, without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement.
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
Failure by Circular to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Circular with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. In the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (i) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (ii) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (1) to a parent or subsidiary, (2) to an acquirer of assets, or (3) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement will inure to the benefit of Circular, its successors and assigns.
Circular reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement, suspend, discontinue, or delete any of the terms and conditions of this Agreement (including these Terms of Service and Privacy Policy) and review, improve, modify or discontinue, temporarily or permanently, the Circular Platform or any content or information through the Circular Platform at any time, effective with or without prior notice and without any liability to Circular. Circular will endeavor to notify you of material changes by email, but will not be liable for any failure to do so. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Circular Platform. Your continued use of the Circular Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes. Circular may also impose limits on certain features or restrict your access to part or all of the Circular Platform without notice or liability.
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement 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 email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
If you have any questions about these Terms of Service or about the Circular Platform, please contact us by email at support@circular.co.