Terms
Should you have any inquiries regarding these Terms of Service or the Services, please contact Marktivity Support at [email protected]
1. DEFINITIONS
Capitalized terms shall be as defined in this section or in the section where they are initially employed.
a. "Authorized User" refers to any individual who is an employee of Customer or an affiliate, partner, service provider, or any other person or entity authorized by Customer to access the Services as per Customer's rights under this Agreement.
b. "Customer Communications" encompasses communications transmitted via the Services, encompassing emails, SMS and MMS messages, interactions on websites and transactions, and other analogous forms of communication.
c. "Customer Data" pertains to all data, information, programs, and other content furnished or conveyed by Customer or its Authorized Users to the Services. This includes, but is not limited to, Customer Marketing Content and personal data, comprising the personal data of end customers and prospects.
d. "Customer Marketing Content" refers to trademarks, trade names, service marks, slogans, logos, other source identifiers, and marketing and promotional content. This encompasses content in Customer Communications provided or conveyed by Customer or its Authorized Users to the Services in conjunction with the advertisement, promotion, and sale of products and services.
e. "Documentation" encompasses the online user guides and other technical materials related to Service usage, including any applicable service descriptions made accessible by Marktivity to Customer. These materials may be periodically updated.
f. "Intellectual Property Rights" covers all intellectual property, industrial property, and other proprietary rights globally. This includes, but is not limited to, rights in patents, patent applications, inventions, trade secrets, know-how, proprietary information, creative works, copyrights, mask works, moral rights, trademarks, service marks, software, data, technology, layout designs, and design rights. It also includes all registrations, applications, renewals, extensions, or reissues of these rights.
g. "Services" denotes Marktivity's cloud-based services, including support and other services available and subscribed to by Customer through a Service Order.
h. "Service Order" pertains to any online or written form or other communication furnished by Marktivity that substantiates Customer's subscription to the Service.
2. MODIFICATION OF THE AGREEMENT
Marktivity reserves the right to modify the Agreement periodically, whether due to changes in the Services, adjustments mandated by legal developments, or for any other justifiable reason. In the event of substantial amendments, Marktivity may (and where legally required, will) send an email to the most recent email address you provided as part of the Agreement. This email will contain an updated version of the Agreement. Marktivity may necessitate your consent to the revised Agreement in a specified manner before allowing further usage of the Services. If you do not concur with any alteration(s) subsequent to receiving notice of such modification(s), you must discontinue using the Services. Conversely, if you continue using the Services, it signifies your acceptance of the aforementioned alteration(s). WE ENCOURAGE YOU TO PERIODICALLY VISIT MARKTIVITY'S WEBSITE TO ACCESS THE CURRENTLY EFFECTIVE TERMS.
3. PROVISION OF SERVICES
a. Access. In accordance with the terms and conditions stipulated in this Agreement, Marktivity grants Customer a non-exclusive, non-transferable, non-sublicensable, and revocable right to access and utilize the Services for the duration of the Term (as defined below). Customer has the authority to authorize its Authorized Users to employ the Services, with the understanding that Customer shall be held responsible for ensuring that each Authorized User adheres to and complies with the terms and conditions outlined in this Agreement.
b. Limitations. Customer shall not, and shall not allow any Authorized User or other party to: (a) modify, adapt, adjust, translate, or produce derivative works from the Services; (b) sublicense, lease, rent, lend, distribute, or in any way transfer the Services or Documentation to any third party; (c) engage in reverse engineering, decompilation, disassembly, or any form of source code discovery (or the underlying concepts, algorithms, structure, or organization) of the Services, unless expressly permitted by applicable law (and with prior written notification to Marktivity); (d) circumvent, remove, or disable any copy protection or security mechanisms of the Services; (e) employ or exhibit the Services in a manner that competes with Marktivity; (f) erase any indications of proprietary rights from the Services; (g) make unauthorized attempts to access, or disrupt the stability, performance, or security of the Services or the data contained therein; (h) copy or utilize the Services or Documentation except as expressly authorized herein; or (i) employ the Services in violation of the Acceptable Use Policy. Marktivity retains the right, though it is not obligated, to review and monitor all usage of the Services to ensure compliance with the terms and conditions outlined in this Agreement.
c. Service Interruptions. Customer acknowledges that access to and utilization of the Services may be suspended during any planned or unplanned downtime or unavailability of any portion or the entirety of the Services, for various reasons, including but not limited to power outages, system malfunctions, other interruptions, or any other acts, d. Non-Marktivity Products and Services. Customer may utilize the Services to interact with products or services that are not provided by Marktivity, including webshops or e-commerce platforms ("Non-Marktivity Services"). If Customer opts to integrate the Services with any Non-Marktivity Services, Customer is obligated to ensure that such integration complies with the terms and conditions established by the provider of the Non-Marktivity Services ("Provider").
Any acquisition of Non-Marktivity Services by Customer, and any exchange of data between Customer and any Provider of Non-Marktivity Services, are solely the responsibility of Customer and the respective Provider. Marktivity does not guarantee or endorse any Non-Marktivity Services, regardless of whether they are designated as "certified" or otherwise by Marktivity. Marktivity assumes no responsibility for any disclosure, alteration, or deletion of Customer Data resulting from access by such Non-Marktivity Services or their Providers. Additionally, some Non-Marktivity Services may necessitate Customer or Marktivity to provide certain Customer Data that Marktivity processes on behalf of Customer to the Provider. In such cases, Marktivity considers Customer's request to integrate with the Non-Marktivity Services as an instruction to provide this data to the Provider in accordance with the Provider's terms and conditions. If Customer does not wish to provide this data to the Provider, Customer must promptly request the suspension of integration with the respective Provider.
4. USE OF THE SERVICES
a. Configuration Responsibilities. The onus of setting up and configuring the Services lies with Customer, encompassing tasks such as granting access to the Services for its Authorized Users. Customer is also responsible for procuring and maintaining, at its own expense, all necessary telecommunications, computer hardware, software, services, and internet connectivity required for accessing the Services via the internet. Should Marktivity provide any assistance or guidance to Customer regarding Service setup, configuration, or support, such assistance or advice should not be construed as legal advice under any circumstances.
b. Customer Account. Customer bears sole responsibility for safeguarding and preserving the security of its account, passwords, and any access protocols, including keys, generated in connection with the use of the Services. Customer must exert commercially reasonable efforts to prevent unauthorized access to its account and the Services. Customer is fully liable for all activities, including associated charges, that transpire in connection with its account and use of the Services. In the event of any suspected or confirmed compromise of Customer's account or the Services, including unauthorized usage or access, or any other known or suspected security breach, Customer must promptly notify Marktivity via email at [email protected]. Such notification should occur within twenty-four (24) hours of discovering the breach.
c. Suspension, Restriction, and Termination of Access. Marktivity retains the right, without incurring liability to Customer, to immediately suspend, terminate, or restrict Customer's access to the Services if Marktivity reasonably determines any of the following: (i) Customer, or its Authorized Users, are using the Services in contravention of applicable laws, regulations, or this Agreement; (ii) Customer employs the Services in an unauthorized, inappropriate, or fraudulent manner; (iii) Customer's utilization of the Services detrimentally impacts Marktivity's equipment or service to other users; (iv) Marktivity is legally prohibited by a court order or governmental agency from providing the Services; (v) there is a denial of service attack or any other event that, in Marktivity's sole discretion, may pose a risk to the Services or other customers if access is not suspended; (vi) a security incident or other disaster affects the Services, their security, Customer's account, or Customer Data; or (vii) any amount owed under this Agreement remains unpaid for more than fifteen (15) days after the due date. Marktivity shall not be liable for any damages, liabilities, or losses arising from any suspension, restriction, or termination of Customer's right to use the Services as per this Section.
d. Phone Number Registration. Mobile phone carriers are responsible for verifying the authenticity and compliance of all registered phone numbers. To ensure a smooth registration process, please provide accurate and complete information. Any fraudulent or unauthorized use of a registered phone number may result in the suspension or termination of your service.
5. INTELLECTUAL PROPERTY
a. Ownership. Marktivity acknowledges and affirms that the Services (including the Documentation) are safeguarded by copyright and other statutes related to Intellectual Property Rights. It is recognized that the Services encompass valuable confidential information developed by Marktivity and its suppliers, involving substantial investments in time and financial resources. Exclusive ownership of the Services, along with all worldwide Intellectual Property Rights associated therewith, remains vested in Marktivity and its suppliers. Any rights not expressly conferred upon Customer in this Agreement are retained by Marktivity and its suppliers. This Agreement does not grant Customer any express or implied license or entitlement of any nature concerning the Services, or any portion thereof, including any right to acquire possession of any software, source code, data, or other technical materials pertaining to the Services, unless expressly specified herein.
b. Ongoing Advancements. Marktivity acknowledges that Marktivity may continuously enhance, provide, and supply ongoing innovations to the Services in the form of new features, functionalities, and efficiencies. Consequently, Marktivity retains the prerogative to periodically modify the Services. Certain modifications may be furnished to Customer at no additional cost. In instances where Marktivity introduces additional functionality to a specific Service, Marktivity may make the implementation of such enhancements contingent upon Customer's payment of additional fees. However, Customer may continue to utilize the version of the Services that Marktivity generally offers (without the additional features) without incurring supplementary charges.
c. Feedback. Should Customer or its Authorized Users furnish any comments or suggestions pertaining to the Services, whether in written or oral form (collectively referred to as "Feedback"), Marktivity reserves the exclusive right, at its sole discretion, to employ the Feedback without any restrictions, and such Feedback shall not be regarded as confidential on the part of Customer. Accordingly, Customer hereby grants Marktivity, acting on behalf of itself and its Authorized Users, an irrevocable, perpetual, worldwide, non-exclusive, royalty-free license and right to incorporate the Feedback into Marktivity's products and services.
d. Aggregated Data. Marktivity may compile and derive aggregated data from Customer Data, devoid of any identification of Customer, third-party entities, or individuals. This aggregated data may be employed and disclosed by Marktivity for legitimate business purposes, encompassing but not limited to enhancing the Services, fostering service and product development, conducting research, and marketing endeavors. Additionally, Marktivity may gather and analyze Customer Marketing Content for the purpose of enhancing and improving the Services, as well as for other developmental, diagnostic, and remedial objectives.
6. FEES AND EXPENSES; PAYMENTS
a. Fee Arrangements. In exchange for the Services, Marktivity shall remunerate Marktivity according to the prevailing fees specified in the "Account" section of Marktivity's account within the Services, unless otherwise delineated in a relevant Service Order ("Fees"). Marktivity holds the prerogative to withhold service and suspend or terminate the Services until all outstanding amounts are fully settled. During any temporary suspension of Marktivity's access to the Services, applicable Fees will continue to accumulate.
b. Fee Adjustments. Marktivity shall furnish Marktivity with a fourteen (14) days advance notice regarding any alterations to the fees. Any fee adjustments shall be effective at the outset of Marktivity's subsequent Term. Marktivity's continued utilization of the Services subsequent to a Fee adjustment will signify Marktivity's consent to the modified Fees.
c. Billing, Invoicing, and Payment Terms. Marktivity will bill Marktivity the Fees for the Services in advance for each billing cycle, commencing on or after the first day of the corresponding billing period. All Fees for Services must be remitted in US Dollars and are non-refundable. In the case of payments made via credit card or eCheck, (a) Marktivity hereby grants Marktivity irrevocable authorization to charge the credit card or alternative payment method provided for any outstanding amounts when due, (b) payment amounts due will be automatically processed, (c) if a credit card is declined, Marktivity will make attempts to contact Marktivity for an alternative payment method, and (d) should the credit card expire, Marktivity hereby grants Marktivity permission to reattempt the credit card charge using a later expiration date. In the event that Marktivity fails to resolve any issues resulting from credit card declines or expirations, Marktivity may terminate the account due to non-payment. Marktivity agrees to communicate any billing disputes to Marktivity within fourteen (14) days of the delivery of the billing statement or invoice; otherwise, any disputes not raised within this timeframe shall be forfeited. Late payments, including those stemming from credit card declines, shall accrue interest at a rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law, whichever is lower. If Marktivity initiates a collections process to recover unpaid Fees pursuant to this Agreement, Marktivity shall be entitled to recover from Marktivity all associated costs, encompassing reasonable attorney fees. Should Marktivity furnish Marktivity with an invoice for any Fees or interest payments due under this Agreement, the invoiced amounts shall be payable upon receipt, unless otherwise outlined in the Service Order.
d. Taxation. The Fees do not encompass any applicable sales, use, value-added, or analogous taxes, nor do they encompass duties, tariffs, assessments, export and import fees, or other comparable levies. Marktivity shall assume responsibility for settling all such taxes (excluding taxes founded on Marktivity's income), fees, duties, and charges, along with any resultant penalties and interest, arising from the payment of the Fees and the provision of the Services. Any taxes mentioned herein that are charged by Marktivity will be computed based on the tax rates corresponding to the billing address disclosed by Marktivity. Such amounts will be added to the Fees and billed to Marktivity's authorized payment method. If Marktivity qualifies for tax exemption, it must furnish Marktivity with appropriate evidence of this exemption. In the event that Marktivity does not levy any of the aforementioned taxes, Marktivity is accountable for ascertaining whether taxes are due and, if applicable, for remitting these taxes to the relevant tax authorities in Marktivity's jurisdiction. Marktivity shall effect all Fee payments to Marktivity devoid of any reductions for withholding taxes. Any taxes of this nature imposed on Fee payments to Marktivity will be Marktivity's sole obligation, and Marktivity will supply Marktivity with official receipts issued by the pertinent tax authority, or any other evidence requested by Marktivity, to substantiate the payment of such taxes. Marktivity undertakes to indemnify, shield, and absolve Marktivity in relation to any legal actions instigated by any tax authorities concerning this Agreement.
e. Expenditures. If expressly approved by Marktivity in a Service Order, Marktivity shall reimburse Marktivity for reasonable out-of-pocket expenditures (comprising travel and subsistence costs) incurred while fulfilling its obligations for specific Services under the aforementioned Service Order. Marktivity bears sole responsibility for all costs and expenditures incurred in connection with this Agreement.
7. CUSTOMER DATA AND RESPONSIBILITIES
a. Ownership of Customer Data. Customer Data, including all associated Intellectual Property Rights on a global scale, unequivocally belongs to Customer in its entirety, establishing Customer as the sole proprietor. In consideration of providing the Services and in accordance with the terms of this Agreement, Customer hereby grants Marktivity a non-exclusive, transferable, sublicensable, royalty-free, fully paid, and worldwide license to process and utilize Customer Data as necessary for the provision of the Services and as otherwise sanctioned within this Agreement. Customer asserts that it is the rightful owner or legal custodian of, or holds the requisite rights and will obtain the essential authorizations, valid consents, and releases to lawfully transmit, store, and utilize all Customer Data in conjunction with the Services and to confer the rights accorded to Marktivity pursuant to this Agreement.
b. Handling of Customer Personal Data. In relation to Customer Personal Data (as defined in the Data Processing Agreement), Marktivity shall undertake the collection, utilization, disclosure, and other processing activities while upholding the privacy, confidentiality, and security of Customer Personal Data in compliance with the stipulations delineated in the Data Processing Agreement. This Data Processing Agreement is hereby integrated into this Agreement by reference. Please note that the Data Processing Agreement does not extend to Account Information.
c. Utilization of Customer Account Information. Marktivity's utilization of Account Information shall align with the principles set forth in the Privacy Notice, and Customer consents to such utilization. The term "Account Information" encompasses information provided by Customer to Marktivity during the establishment or administration of its Marktivity account. This information encompasses, but is not restricted to, names, usernames, login credentials, phone numbers, email addresses, and billing information affiliated with a Marktivity account.
d. Customer's Data and Security Responsibilities. Both Customer and its Authorized Users shall have access to Customer Data and assume accountability for any alterations or deletions made to Customer Data, as well as the safeguarding of all passwords and other account-related information essential for accessing and employing the Services. Marktivity retains the capacity to retrieve or export Customer Data from the Services by means of the self-service tools provided by Marktivity. Marktivity is encouraged to independently generate backups of Customer Data. Marktivity bears sole responsibility for the precision, quality, integrity, legality, reliability, and appropriateness of all Customer Data and the methods by which Customer has acquired such data. Marktivity is also responsible for ensuring adequate security measures, protection, and backup mechanisms for Customer Data.
e. Customer Communications. Marktivity shall adhere to all applicable laws and regulations pertinent to its utilization of the Services, encompassing Customer Communications and Customer Marketing Content. These laws and regulations encompass, but are not limited to: (a) any governing legislation related to online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property rights, electronic marketing message transmission, and the dispatch of SMS and/or MMS text messages; and (b) the legal and regulatory frameworks applicable to commerce within each jurisdiction to which Marktivity disseminates marketing communications addressed to residents of that jurisdiction. Marktivity acknowledges and concurs that Marktivity (c) lacks control or oversight over Customer Communications, does not warrant the accuracy, integrity, security, or quality of such Customer Communications, and (d) bears no responsibility for securing requisite consents or permissions from the recipients of Customer Communications. Upon request, Marktivity shall provide reasonable evidence of compliance with the provisions outlined in this Section. Marktivity is absolved of any obligation to provide Services if it reasonably believes that Marktivity has failed to adhere to these provisions.
8. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
a. Mutual Assurances and Guarantees. Marktivity and Customer both confirm and guarantee that: (i) they possess full corporate authority, power, and consent to enter into this Agreement, and (ii) the execution of this Agreement, as well as the fulfillment of their obligations and responsibilities hereunder, neither have nor will contravene any agreement to which they are party or by which they are otherwise bound.
b. Customer Affirmations and Pledges. Customer affirms and pledges that: (i) Customer maintains a legally sound privacy policy, which is accessible to end customers and prospects prior to their provision of any Customer Personal Data to Customer or Marktivity; (ii) the Customer Data and the utilization of Customer Data (a) will not infringe upon, misappropriate, or otherwise violate the Intellectual Property Rights or any other rights of any third party, (b) will not constitute defamation, intrusion upon privacy or publicity, or otherwise infringe upon any comparable rights of any third party, and (c) will not be employed for activities contrary to the law or to promote such activities, encompassing, without limitation, any actions that may be unlawful or harmful to any individual or entity; (iii) Customer will not distribute, share, or facilitate the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; and (iv) Customer will adhere to and consistently uphold the terms and conditions of any online coupon or akin marketing offer, deal, or advertisement to promote Customer's products and services, whether offered or otherwise promoted via the Services.
c. Limited Warranty. Marktivity warrants that, when utilized in accordance with the provisions of this Agreement, the Services will substantially adhere to the specifications detailed in the Documentation throughout the Agreement's term. This warranty does not extend to performance issues of the Services arising from (i) content supplied by Customer or third parties in association with the Services (including Customer Data); (ii) Customer's data structures, operational environment, hardware, or other technology; (iii) the use or combination of the Services with any software, services, or hardware not supported by Marktivity; (iv) external factors affecting the Services, such as issues with the hardware, network, or other infrastructure utilized with the Services; (v) unauthorized or improper utilization of the Services; or (vi) any modification of the Services undertaken by Customer or its Authorized Users. Following Customer's written notification to Marktivity of any breach of the above warranty during the Agreement's term, Marktivity shall, as Customer's exclusive remedy, make commercially reasonable efforts to rectify the non-conformity. In the event Marktivity fails to rectify the non-conformity, Customer may opt to terminate the Agreement.
d. Disclaimer. THE LIMITED WARRANTY SET OUT IN SECTION 8C IS INTENDED EXCLUSIVELY FOR THE BENEFIT OF CUSTOMER. UNLESS EXPRESSLY STATED IN SECTION 8C AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING THE DOCUMENTATION) ARE PROVIDED "AS IS," AND MARKTIVITY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER EXPRESSED OR IMPLIED, WHETHER IN WRITTEN OR ORAL FORM, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, COURSE OF DEALING, USAGE OF TRADE, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR ANY OTHER STATUTORY WARRANTIES OR CONDITIONS, REGARDING THE UTILIZATION, MISUTILIZATION, OR INABILITY TO UTILIZE THE SOFTWARE, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART), OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY MARKTIVITY, INCLUDING ANY OFFERS. WITHOUT RESTRICTING THE FOREGOING, MARKTIVITY DOES NOT WARRANT THAT THE SERVICES WILL CONFORM TO CUSTOMER'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME, OR BE FREE OF ERRORS. CERTAIN STATES AND JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR THE LIMITATION OF THE DURATION OF AN IMPLIED WARRANTY, THUS SOME OF THE AFOREMENTIONED LIMITATIONS MAY NOT BE APPLICABLE TO CUSTOMER.
9. LIMITATION OF LIABILITY
a. Liability Constraint. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MARKTIVITY, ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, VENDORS, SUPPLIERS, OR THIRD-PARTY PARTNERS, BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR RELIANCE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST REVENUES, LOST PROFITS, OR ANY OTHER DAMAGES ARISING FROM CUSTOMER'S OR ANY OTHER THIRD PARTY'S USE OF, OR INABILITY TO USE, THE SERVICES. THIS INCLUDES, BUT IS NOT LIMITED TO, DAMAGES SUCH AS LOSS OF TECHNOLOGY, LOSS OF DATA, INTERRUPTIONS, OR LOSS OF USE, WHETHER OR NOT MARKTIVITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. UNDER NO CIRCUMSTANCES SHALL MARKTIVITY'S AGGREGATE LIABILITY, ITS LICENSORS', OR VENDORS' LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY CUSTOMER FOR THE SERVICE DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL INCIDENT THAT GAVE RISE TO LIABILITY HEREUNDER, AFTER DEDUCTING ANY DAMAGES PREVIOUSLY COMPENSATED BY MARKTIVITY TO CUSTOMER DURING THAT SIX (6) MONTH PERIOD.
b. Foundational Agreement. The parties hereby confirm that the limitations of liability delineated in this Section 9 shall persist and remain effective despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the Fees have been determined and the Agreement has been contracted in reliance upon these limitations of liability, and that these limitations constitute an indispensable foundation of the agreement reached between the parties.
10. CONFIDENTIALITY
a. Confidential Information. Throughout the term of this Agreement, either party (referred to as the "Disclosing Party") may share certain information related to its business, technology, products, services, or other confidential and proprietary matters (collectively, "Confidential Information") with the other party (referred to as the "Receiving Party"). Confidential Information may be provided in written, oral, or visual form, and it is considered confidential if: (a) in tangible form, the Disclosing Party has explicitly labeled it as proprietary or confidential in writing; (b) in oral or visual form, the Disclosing Party has identified it as proprietary or confidential at the time of disclosure; or (c) it is generally understood and reasonably treated as confidential and/or proprietary information. For clarity, the Services, Documentation, as well as all enhancements and improvements thereof, shall be considered Confidential Information of Marktivity.
b. Safeguarding Confidential Information. The Receiving Party agrees not to use or reveal the Confidential Information of the Disclosing Party to any third party, except as required for exercising its rights and fulfilling its obligations under this Agreement. Access to the Confidential Information shall be limited to the Receiving Party's employees and contractors who have a legitimate need to know, are bound by confidentiality obligations no less stringent than those outlined herein, and have been informed of the confidential nature of the information. Furthermore, the Receiving Party shall protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure, employing the same degree of care it applies to safeguard its own similarly sensitive proprietary information, but not less than reasonable care. Upon the Disclosing Party's request or upon termination of this Agreement, the Receiving Party shall either return the Confidential Information to the Disclosing Party or destroy it (or permanently erase electronic files), retaining only the copies necessary for ongoing usage under this Agreement. The Receiving Party shall provide written notice to the Disclosing Party, confirming compliance with this provision, unless such action is prohibited by applicable law.
c. Exceptions. The obligations regarding confidentiality, as set forth in this section, shall not apply to information that: (a) becomes publicly accessible without any fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party without any obligations of confidentiality; (c) the Receiving Party can demonstrate, by clear and convincing evidence, was already within its knowledge without restrictions when disclosed; or (d) is independently created by the Receiving Party's employees and contractors who had no access to the Confidential Information. Additionally, the Receiving Party may disclose Confidential Information if such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or if it is required by applicable law or a court order. In such cases, the Receiving Party shall promptly (to the extent legally permissible) notify the Disclosing Party in writing about the required disclosure and shall reasonably cooperate with the Disclosing Party in seeking an appropriate protective order if requested.
d. Remedies. Any actual or threatened breach of this Section 10 may result in immediate, irreparable harm for which monetary damages would be insufficient. If a court with proper jurisdiction determines that the Receiving Party has breached (or attempted or threatened to breach) any of its obligations outlined in this Section 10, the Receiving Party agrees that, without the need for additional findings of irreparable harm or other conditions for injunctive relief, it will not contest the entry of a suitable order compelling compliance and restraining any further breaches (or attempted or threatened breaches).
11. INDEMNIFICATION
a. By Marktivity. Marktivity will, at its own expense, defend Customer against any legal action brought forth, and shall bear any settlement that Marktivity approves, or any damages ultimately awarded in such legal action, in cases where the action is based on a third party's assertion that the Services infringe upon or unlawfully appropriate any Intellectual Property Rights in the United States, Canada, European Union member countries, or the United Kingdom. If any part of the Services becomes, or in the judgment of Marktivity is likely to become, subject to an infringement claim, Marktivity may, at its discretion: (a) secure the right for Customer to continue using the Service; (b) replace or modify the Services in a way that renders them non-infringing without significantly impairing their functionality; or (c) terminate this Agreement and reimburse Customer for the prorated portion of any prepaid fees attributable to any unused Services. Upon such termination, Customer must immediately cease all utilization of the Services. Nevertheless, it is important to note that Marktivity shall have no obligation under this Section or otherwise concerning any infringement claim that arises from: (d) Customer Data; (e) any usage of the Services not in accordance with this Agreement or as specified in the Documentation; (f) any combination of the Services with other products, equipment, software, or data not provided by Marktivity; (g) any alteration of the Services by any party other than Marktivity; (h) alterations to the Services based on specifications furnished by Customer (all these circumstances under clauses (i) through (j) shall be collectively referred to as "Customer Indemnity Responsibility"). This Section 11A represents Customer's sole and exclusive recourse and the complete liability of Marktivity, or any officers, directors, employees, shareholders, contractors, or agents of the foregoing, for third-party claims and actions described in this Section 11A.
b. By Customer. Customer shall indemnify, defend, and absolve Marktivity, its officers, directors, affiliates, subsidiaries, licensors, agents, and employees (each referred to as a "Marktivity Party") from and against any and all losses, damages, liabilities, expenses determined by a court or agreed upon in a settlement, including all reasonable attorneys' fees and court costs related to: (a) a Customer Indemnity Responsibility; (b) Customer's breach or alleged breach of any representation, warranty, or obligation under the Agreement, or any violation of the law; or (c) the use, transmission, access, disclosure, or any other processing of Customer Data.
c. Procedure. The obligations of the indemnifying party, as detailed above, are expressly subject to the following conditions: (a) the indemnified party shall promptly notify the indemnifying party in writing of any actual or potential claim or lawsuit; (b) the indemnifying party shall exclusively control the defense or resolution of any claim or lawsuit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or lawsuit.
12. TERMS AND TERMINATION
a. Term. This Service Agreement takes effect when Customer registers an account and remains in force until all Services subscriptions specified in all Service Orders have expired or been terminated. Unless otherwise specified in an applicable Service Order, Customer's subscription to the Services begins upon account registration and continues for an initial period of thirty (30) days (the "Initial Term"). Subsequently, unless otherwise specified in a Service Order, each relevant Service Order will automatically renew for successive thirty (30) day periods (each referred to as a "Renewal Term"), unless either party gives notice of its intention not to renew before the expiration of the Initial Term or the then-current Renewal Term. Customer must provide a minimum of five (5) days' advance notice, and Marktivity must provide a minimum of fifteen (15) days' advance notice. Customer's notification of non-renewal to Marktivity must follow the instructions detailed on the Marktivity website's Cancellation page and must receive confirmation from Marktivity. The Initial Term and all Renewal Terms collectively constitute the "Term."
b. Termination. Either party may promptly terminate this Agreement by notifying the other party if the other party substantially breaches this Agreement, and the breach remains unremedied for more than thirty (30) days following written notice of the breach. Marktivity may terminate this Agreement at any time without cause and without prior notice. Furthermore, Marktivity may terminate this Agreement with notice to Customer if (a) Customer becomes the subject of bankruptcy proceedings or any insolvency, receivership, or liquidation proceedings; (b) Customer fails to make payments as specified in Section 6; or (c) Customer has a free-tiered account that remains inactive for twelve (12) months or longer. Upon termination, Customer is not entitled to a refund of any previously paid Fees for Services, except when Marktivity terminates without cause or Customer terminates due to Marktivity's unremedied material breach, in which case Customer may be eligible for a pro-rated refund of prepaid and unused Fees remitted to Marktivity.
c. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted herein, cease immediately (with the exception that all payment obligations accrued prior to termination or expiration remain in effect); and (b) each party must adhere to the requirements for returning or destroying all Confidential Information of the other party, as outlined in Section 10.2. Furthermore, Marktivity has no obligation to retain any Customer Data following termination or expiration of this Agreement and may delete all Customer Data, unless required by applicable law. All liabilities arising under this Agreement before the effective date of termination, and the following Sections, will endure beyond the expiration or termination of this Agreement for any reason: 1 (Definitions), 2 (Modification of the Agreement), 4.3 (Suspension, Limitation, and Termination of Access), 5 (Intellectual Property), 6 (Fees and Expenses; Payments), 8.4 (Disclaimer), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Indemnification), 12.3 (Effect of Termination), and 13 (Miscellaneous).
13. MISCELLANEOUS
a. Marketing. Customer agrees that Marktivity may make reference to Customer by using Customer's name, logo, and trademark in Marktivity's marketing materials and on its website. Customer acknowledges and agrees that Marktivity does not certify or endorse any of Customer's products, services, or content, and Marktivity has no obligation to do so.
b. Governing Law and Venue. This Agreement and any disputes arising from it will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law principles. Customer consents to the personal jurisdiction and venue of the state and federal courts located in Boston, Massachusetts for any legal action related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any lawsuit against Marktivity for any reason must be initiated within one (1) year after the cause of action arises.
c. Export. Customer agrees not to export, re-export, or transfer any software, technology, or information that is part of the Services or the Documentation in violation of any applicable export control or other laws and regulations of the United States or any other relevant jurisdiction.
d. Severability. If any provision of this Agreement is found to be invalid or unenforceable for any reason, the other provisions of this Agreement will remain valid and enforceable. The invalid or unenforceable provision will be modified to the maximum extent permitted by law to make it valid and enforceable.
e. Waiver. Waiver of any provision of this Agreement on one occasion will not constitute a waiver of that provision on any other occasion.
f. No Assignment. Customer may not assign its rights or delegate its obligations under this Agreement without the express prior written consent of Marktivity. Any assignment by Customer without Marktivity's prior written consent is null and void. Marktivity may assign its rights or obligations under this Agreement without notice or consent. This Agreement benefits and binds the permitted successors and assigns of each party.
g. Force Majeure. Marktivity is not responsible or liable for any delay or failure to perform its obligations under this Agreement if its operations or activities are affected by causes or events beyond its reasonable control, including but not limited to acts of God, equipment failure, terrorism, war, civil unrest, epidemics, pandemics, natural disasters, fire, explosions, earthquakes, floods, hurricanes, extreme weather conditions, embargoes, labor disputes, labor or material shortages, transportation disruptions, governmental actions, or other similar events.
h. Independent Contractors. Each party is an independent contractor, and nothing in this Agreement creates an agency or partnership relationship between the parties. Neither party has the authority to act on behalf of the other.
i. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
j. Notices. Customer is responsible for providing Marktivity with its current email address. If the provided email address is not valid or capable of receiving required notices, Marktivity's dispatch of the email containing such notice will still be considered effective. Customer may provide notice to Marktivity at the following email address: [email protected]. Notice is deemed given on the first business day following successful email transmission to Marktivity.
k. Entire Agreement and Order of Precedence. The relevant Service Order, Data Processing Agreement, Acceptable Use Policy, these Terms of Service, and API Terms of Use constitute the final, complete, and exclusive agreement between the parties regarding the subject matter herein. This Agreement supersedes all prior discussions between the parties on the subject matter. In case of a conflict, the Agreement documents will govern in the order of precedence as stated in the previous sentence. The API Terms of Use apply separately to Customer's use of Marktivity's APIs and API documentation. Any terms and conditions in any acknowledgment, invoice, purchase order, or other form provided by Customer are null and void. No modification or amendment to this Agreement, or waiver of any rights under this Agreement, will be effective unless it is in writing and signed by authorized representatives of Customer and Marktivity.
