THE SIRKLE TERMS OF SERVICE

Introduction

Concept

The SIRKLE is a hyper-local promotion platform that allows a Business to promote its sales promotions on the Platform.  Consumers can then access the products on promotion by directly contacting the Business.  The SIRKLE also offers an eCommerce functionality that will allow a consumer to buy products from a Business that promotes on SIRKLE through the Platform.  The consumer will always deal directly with the business, and the SIRKLE will only facilitate the transaction.  SIRKLE provides both a website and an App to its users to access the services.

Acceptance

By using the SIRKLE Website, App or Services in any manner, you are bound by these Terms of Service, as well as the Incorporated Terms identified below (collectively, the “Terms”). If you do not agree to the Terms, then do not use the SIRKLE Website, App or Services. If you are accepting these Terms on behalf of a company, organization, government, or other legal entity, you represent and warrant that (a) you are authorized to do so, (b) the entity agrees to be legally bound by the Terms, and (c) neither you nor the entity are barred from using the Services or accepting the Terms under the laws of the applicable jurisdiction.

Scope

These Terms govern your use of the SIRKLE Website, App and Services. Incorporated Terms

The following policies, guidelines, and agreements (“Incorporated Terms”) are hereby incorporated into, and form an integral part of, the Terms to which you are agreeing to be bound:

  • Privacy Policy
  • Fees and Billing Terms 
  • Acceptable Use Policy 
  • Infringing Materials Protocol

Modifications

SIRKLE reserves the right, in its discretion, to change, modify, add to, or remove portions of the Terms (collectively, “Changes”), at any time. SIRKLE will notify you of Changes  by posting a revised version of the Terms incorporating the Changes to its Website. Your continued use of the Website, App or Services following notice of the Changes will mean that you accept and agree to the Changes. Such Changes will apply prospectively beginning on the date the Changes are posted to the Website.

Contracting Entity

“SIRKLE” means the SIRKLE entity with which you are entering into this Agreement. If you have previously entered into an agreement with SIRKLE, then “SIRKLE” means that entity. If you have not previously entered into an agreement with SIRKLE, then “SIRKLE” means the entity identified herewith in any country of operation:

Certain Definitions

 “Services” means all SIRKLE’S services that are provided to both business and consumer users, though the platform.

“Promoted Products” means any third-party business information, website, product, service, or materials referenced in, accessible through, or provided in connection with, the Website or Services.

“Website” means the SIRKLE website located at www.thesirkle.com(including all associated internet country codes), together with all SIRKLE websites and webpages accessible there, and the Account control panel.

“App” means the Android and iOS App made available on the App Stores that allows access to SIRKLE services.

Eligibility

Minimum Age

The SIRKLE Services, App and Website are available only to persons who are the age of majority and can form legally binding contracts under applicable law in their country of residence. Without limiting the foregoing, the Services, App and Website are not intended to be used by individuals under the age of 18. If you do not qualify, please do not use the Services or access the Website or App.

Registration

To use the Services, either as a business or as a consumer, you must register an account with SIRKLE.   

  • Businesses may be required to pay a registration fee as well as a monthly subscription fee.  Upon registration, they will have to provide company as well as personal details, including selecting a password (“Account Credentials”). You may also be required to provide valid bank details, or to subscribe to a prescribed payment product, should you choose to use the eCommerce Functionality. Businesses  will provide true, accurate, current, and complete information when registering for an Account and will update the information as necessary to keep your Account and payment information current. SIRKLE reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
  • Consumers may use the SIRKLE website and App free of charge.  For a consumer to buy a product from a business via the SIRKLE eCommerce Functionality, they will have to register an account with SIRKLE / the business. In registering an account, you will have to provide your personal details as well as a delivery address, as well as other detail that may be required by the business that you are buying from.  

Security

General

Both businesses and consumers (“Users”) are responsible for maintaining the security of their Account Credentials. You will not share your Account Credentials with any third party.

Marketplace Payment Product

SIRKLE will make use of the Stripe Connect Payment Portal in territories where Stripe is active.  In South Africa we will make use of PayFast.  SIRKLE is responsible for the security of payment data to the extent that SIRKLE has control of that data. To that end, SIRKLE undertakes regular assessments consistent with the Payment Product Industry Data Security Standards.

Use Restrictions

This is an Agreement for services where businesses offer promotions online and consumers connect with them. You are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of or included in the Services or any software, documentation or data related to the Services (“Software”); modify, translate or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.

Intellectual Property

Business User Content

License. SIRKLE does not claim any intellectual property rights over the content you provide to us. All your content remains yours. When providing content using the Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, "IP Rights") you have in that content or associated with your store in connection with our provision, expansion, and promotion of the Services, in any media known now or developed in the future. Fully permitted under applicable law, you waive your right to enforce against SIRKLE, our assignees, our sublicensees, and their assignees your IP Rights in that content in connection with our, those assignees', and those sublicensees' use of that content in connection with our provision, expansion, and promotion of the Services.

Representations and Warranties. You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this Agreement, does not and will not infringe any IP Rights of any third party. SIRKLE takes no responsibility and assumes no liability for any content provided by you or any third party.

SIRKLE Content

Restrictions. All rights not expressly granted by SIRKLE to you in these Terms are hereby reserved by SIRKLE. There are no implied rights. You may not use, imitate, or copy, in whole or in part, any SIRKLE trademark, service mark, trade dress, logo, or other branding (collectively, “Marks”) without, in each instance, SIRKLE’s prior written consent, in SIRKLE’s discretion. All permitted use of SIRKLE’s Marks will inure to the benefit of SIRKLE.

Ownership. As between the parties, the Website, App and Services, including, without limitation, any and all APIs (if applicable), Software, documentation, images, video, content, logos, page headers, custom graphics, design and user interface elements, scripts, and other materials contained therein or provided in connection therewith, and all modifications, enhancements, and updates thereto, as well as all IP Rights associated with any of these materials (collectively, "SIRKLE IP") are owned by SIRKLE and/or  our assignees, our sublicensees, and their assignees.   You have no right or license in or to the SIRKLE IP other than the right to use the Services, in compliance with the Terms, during the applicable subscription period.

Feedback. You may provide SIRKLE with ideas, opinions, recommendations, feedback, or advice in connection with your use of the Services (collectively, "Feedback"). If you submit Feedback to SIRKLE, you hereby grant SIRKLE an irrevocable, perpetual, transferable, non-exclusive, fully-paid-up, royalty-free, worldwide license (sublicensable through multiple tiers) to: (a) use, copy, distribute, reproduce, modify, create derivative works of, adapt, publish, translate, publicly perform, and publicly display such Feedback (or any modification thereto), in whole or in part, in any format, medium or application now known or later developed; and (b) use, and permit others to use, Feedback in any manner and for any purpose (including, without limitation, commercial purposes) that SIRKLE deems appropriate in its discretion (including, without limitation, incorporating Feedback, in whole or in part, into any technology, product or service).

Termination

Term

The Services will be provided to businesses  for the duration of your  subscription to SIRKLE, unless earlier cancelled by you or terminated by SIRKLE. You may cancel your  subscription at any time. These Terms will automatically terminate upon the cancellation of all your  subscriptions. SIRKLE may terminate these Terms or your  subscription(s) at any time, with or without cause, upon written notice. SIRKLE will have no liability to any business  or any third party because of such termination. Termination of these Terms will terminate all your  subscriptions.

Consumers may de-register at any time, should they no longer wish to make use of the eCommerce Functionality.  These Terms will automatically terminate upon your de-registration.  SIRKLE may also terminate consumer registration at any time, with or without cause, upon written notice. SIRKLE will have no liability to any consumer or any third party because of such termination.

Effect of Termination - Businesses. Upon termination of these Terms by either party for any reason, or cancellation or expiration of your subscriptions: (a) SIRKLE will cease providing the Services; (b) you may be entitled to a refund of  subscription fees or any other fees, pro rata or otherwise, at the discretion of SIRKLE; (c) any fees you owe to SIRKLE may immediately become due and payable in full, at the discretion of SIRKLE; and (d) SIRKLE may delete your archived data within 30 days. All sections of the Terms that expressly provide for survival, or by their nature should survive, will survive termination of the Terms, including, without limitation, indemnification and limitations of liability.

Third-Party Service Integration. Certain Third-Party Products may be integrated with the Services. SIRKLE may, in its discretion and without liability to you, decide to no longer support such integration and migrate your subscription to a different integration.

Liability Limits; Disclaimers; Indemnification

Limitations of Liability

Excluded Damages and Theories. SIRKLE AND ITS AFFILIATES ASSUME NO RESPONSIBILITY WITH RESPECT TO YOUR OR YOUR USER’S USE OF THE WEBSITE, APP, SOFTWARE, OR SERVICES AND WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXTRAORDINARY, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, LOSS OF PROFITS, AND LOST REVENUE, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT SIRKLE IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

Aggregate Liability. SIRKLE AND ITS AFFILIATES WILL IN NO EVENT BE LIABLE IN AGGREGATE FOR MORE THAN THE TOTAL OF FEES ACTUALLY RECEIVED BY SIRKLE FROM YOU FOR USING THE SERVICES DURING THE 12-MONTH PERIOD BEFORE THE CLAIM OR CAUSE OF ACTION AROSE.

Multiple Claims; Time Limits. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE, SOFTWARE, OR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CLAIM AND CAUSE OF ACTION WILL BE PERMANENTLY BARRED.

Jurisdictions; Limitations. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, THE LIABILITY OF SIRKLE AND ITS AFFILIATES FOR SUCH DAMAGES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THIS LIMITATIONS OF LIABILITY SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS.

Disclaimers

General. YOUR USE OF THE WEBSITE, APP, SOFTWARE AND SERVICES WILL BE AT YOUR OWN RISK AND ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. SIRKLE AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

Specific. SIRKLE MAKES NO WARRANTIES, CONDITIONS OR REPRESENTATIONS ABOUT (a) THE ABILITY OF THE WEBSITE, APP, SERVICES OR SOFTWARE TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT, (b) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE WEBSITE, APP, SERVICES OR SOFTWARE, (c) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY LINKED SITES (THROUGH HYPERLINKS, ADVERTISING OR OTHERWISE), AND/OR (d) THE PROMOTED PRODUCTS

Promoted Products. THE REFERENCE TO, OR AVAILABILITY OF, PROMOTED PRODUCTS IN CONNECTION WITH THE SERVICES OR WEBSITE / APP DOES NOT CONSTITUTE, AND WILL NOT BE CONSTRUED AS CONSTITUTING, AN ENDORSEMENT, AUTHORIZATION, SPONSORSHIP, OR AFFILIATION BY OR WITH SIRKLE WITH RESPECT TO SUCH PROMOTED PRODUCTS.

Legal, Tax, Financial, Other Communications. NO ORAL OR WRITTEN INFORMATION OR ADVICE OR COMMUNICATIONS PROVIDED BY SIRKLE OR ANY OF ITS EMPLOYEES WILL CONSTITUTE PERSONAL, LEGAL, TAX OR FINANCIAL ADVICE OR CREATE A WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND.

Jurisdictions; Limitations. THESE DISCLAIMERS APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED REPRESENTATIONS, CONDITIONS OR WARRANTIES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, SIRKLE’S WARRANTIES, CONDITIONS AND REPRESENTATIONS WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.

Indemnification. You will defend, indemnify, and hold SIRKLE and its affiliates, and the respective directors, officers, employees and agents of each, harmless from and against any and all claims, losses, damages, liabilities and costs (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to your breach of any of these Terms or use by you or any third party (authorized, permitted or enabled by you) of the Services, except to the extent the foregoing directly result from SIRKLE’S own gross negligence or wilful misconduct. SIRKLE reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you. This Indemnification Section will survive any termination or expiration or these Terms.

Miscellaneous

Governing Law; Jurisdiction. The law that will govern the validity and construction of these Terms and apply in any dispute or lawsuit arising out of or relating to these Terms as per local jurisdiction. You hereby consent to and waive all defences of lack of personal jurisdiction and forum non conveniens with respect to, the jurisdiction and venue of the courts located in South Africa. YOU WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT TAKES PLACE RELATING TO OR ARISING OUT OF THESE TERMS. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and is hereby expressly excluded.

Class Action Waiver. You and SIRKLE waive any right to assert any claim against one another by means of any class action or representative action, whether as a class representative or as a member of a class. If, notwithstanding the foregoing waiver, a court or law permits a party to this Agreement to participate in a class or representative action, then the prevailing party will not be entitled to recover attorneys’ fees or costs associated with pursuing the class or representative action, and the party who initiates or participates as a member of the class will not submit a claim or otherwise participate in any recovery secured through the class or representative action.

Export of Services or Technical Data.  You may not export or re-export the Services, or any direct product thereof, including, without limitation, technical data, in violation of any laws of South Africa and/or the laws of the jurisdiction in which you are using the Services. Without limitation by the laws of your jurisdiction, the Services may not be exported or re-exported: (a) into any embargoed country; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders. You will not provide the Services, or any direct product thereof, including, without limitation, technical data, to a person or entity located in, under control of, or a national or resident of any such country or on any such list.

Severability. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms will otherwise remain in full force and effect and enforceable.

No Assignment by You. You may not assign your rights or obligations under these Terms without the prior written consent of SIRKLE, which SIRKLE may refuse in its sole discretion. Any attempted assignment without prior written consent from SIRKLE will be deemed null and void. SIRKLE may assign its right and/or obligations under these Terms at any time. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Waiver. No waiver of any provision of these Terms, nor consent by SIRKLE to the breach of or departure from any provision of these Terms, will in any event be binding on or effective against SIRKLE unless it be in writing and signed by a duly authorized representative of SIRKLE, and then such waiver will be effective only in the specific instance and for the specific purpose for which given.

Entire Agreement. These Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of these Terms, and any modifications must be in a writing signed by both parties, except as otherwise provided herein.

Section Headings. The section headings and titles in these Terms are for convenience only and have no legal or contractual effect. These Terms will be interpreted without application of any strict construction in favour of or against you or SIRKLE.

Independent Contractors. No agency, partnership, joint venture or employment relationship is created by these Terms or your use of the Services, and you do not have any authority of any kind to bind SIRKLE in any respect whatsoever.

Force Majeure. SIRKLE will have no liability to you, your users, or any third party for any failure by SIRKLE to perform its obligations under these Terms in the event that such non-performance arises as a result of the occurrence of an event beyond the reasonable control of SIRKLE, including, without limitation, an act of war or terrorism, natural disaster, failure of electricity supply, riot, civil disorder, or civil commotion or other force majeure event.

Virtual Machine Commands and Runtime Engines. Use of SIRKLE’S website design platform to author webpages (or portions thereof) that are displayed using virtual machine commands or a runtime engine is prohibited.