By signing up for the MarketersChoice.com services (hereinafter referred to as the "Services"), you hereby agree to the following Terms of Service:
This Terms of Service document, as amended by MarketersChoice.com, its partners, subsidiaries, affiliates, successors and assigns (hereinafter referred to collectively as "MarketersChoice.com", "we" and/or "us"), along with any applicable order page (hereinafter collectively referred to as the "Agreement") constitutes a legally binding contract between MarketersChoice.com and the person or organization that submits an order for the Services, pays for Services, and/or utilizes the Services ("Customer", "Client" and/or "you"). You and MarketersChoice.com together may be referred to herein as the "Parties" and either alone may be referred to as a "Party".
MarketersChoice.com reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future customers. MarketersChoice.com may make such changes or modifications to the terms and conditions contained in this Agreement in accordance with the terms of this Agreement and Client’s continued use of the Services following MarketersChoice.com’s posting of any changes or modifications will constitute Client’s acceptance of such changes or modifications.
You acknowledge that you have read, understand and agree to be bound by all of the terms and conditions of this Agreement, as well as all other applicable rules or policies, terms and conditions, or service agreements that are or may be established by MarketersChoice.com from time to time and are incorporated herein by reference. You may also elect to purchase additional Services from MarketersChoice.com, our partners and/or other third parties, which may have their own service agreements or other related terms and conditions, and it is your obligation to review, accept and abide by those agreements as well as this Agreement.
A. The Services may include any one or more of the following elements, depending upon the package and options selected by the Client during the ordering process:
- i. Shopping Cart and eCommerce software that facilitates the sale of products by the Client to customers on a website controlled by the Client;
- ii. Email marketing tools and services;
- iii. Online advertising tools and services;
- iv. Affiliate marketing tools and services; and
- v. Online website store builder services.
B. MarketersChoice.com will provide Client with a limited license to use and receive the Services hereunder and MarketersChoice.com will further provide the Services ordered by the Client subject to the terms, conditions and limitations applicable to the Services that are set forth in the Agreement and on the MarketersChoice.com website.
C. Client will pay for the Services at the price and in accordance with any fee schedule indicated upon Client’s ordering of the Services. MarketersChoice.com may change the prices for the Services at any time and any such change in prices will be effective immediately after MarketersChoice.com posts the change on its website or otherwise provides notice to Client in accordance with this Agreement. All fees collected under this Agreement are fully earned when due and non-refundable when paid except as expressly provided for herein. All fees due under this Agreement must be paid via credit card or other payment method acceptable to MarketersChoice.com.
D. The Services are either owned by MarketersChoice.com or licensed from a third party. In accordance with this Agreement and subject to the payment of applicable fees, MarketersChoice.com will provide certain hosting, support and other miscellaneous Services licensed by Client under this Agreement during the term of this Agreement. Any hosting to be provided by MarketersChoice.com under the Agreement shall be on servers operated by or for MarketersChoice.com ("MarketersChoice.com Servers") and several merchants may share the resources and network capacity of those MarketersChoice.com Servers.
E. MarketersChoice.com agrees to comply in all material respects with the Payment Card Industry Data Security Standard ("PCI-DSS") to the extent applicable to MarketersChoice.com and to the extent MarketersChoice.com is storing, processing, or transmitting any "Cardholder Data" or "Sensitive Authentication Data" (as those terms are defined under the PCI-DSS) in connection with the Services.
F. MarketersChoice.com reserves the right to change, amend and/or alter the Services or to otherwise provide equivalent or equal Services without prior notice to Client. Client agrees to receive administrative communications from MarketersChoice.com in regards to the Services, Client’s account, policy changes and system updates.
G. For any free or discounted trial offers the following terms apply:
- i. For all MarketersChoice.com services with the exception of our eCommerce store builder services, for any free or discounted trial offer, by accepting such offer you are agreeing to enroll in a MarketersChoice.com "Professional" account with "Plus Support", at a cost of $139.00 every four weeks billed to your credit card, unless you cancel prior to the end of the trial period by contacting MarketersChoice.com at 888-792-1961 (U.S. customers) or 705-792-1961 (international customers).
- ii. For our eCommerce store builder services, for any free or discounted trial offer, by accepting such offer you are agreeing to enroll in a MarketersChoice.com "Premium" account with "Plus Support", at a cost of $109.00 every four weeks plus a 1% transaction fee on products and services sold through the store, billed to your credit card, unless you cancel prior to the end of the trial period by contacting MarketersChoice.com at 888-792-1961 (U.S. customers) or 705-792-1961 (international customers).
H. For any purchase of 1ShoppingCart services on a new non-trial account basis, by choosing to purchase the services or otherwise opening an account, you hereby agree to also be enrolled in a four week free trial of “Plus Support”, which will be billed to your credit card at a cost of $10.00 every four weeks following the free trial, unless you cancel prior to the end of the trial period by contacting 1ShoppingCart.com at 888-792-1961 (U.S. customers) or 705-792-1961 (International customers).
I. Third Party Licensors
- i. Client acknowledges and agrees that the Services may include and/or may be provided, in some cases, by third party Licensors to MarketersChoice.com (hereinafter "Third Party Licensors"). For all Services that are provided by Third Party Licensors to MarketersChoice.com, Client agrees with and shall abide by all Third Party Licensor terms and conditions, if any. Such Third Party Licensor terms and conditions are available upon request (the "Additional Terms and Conditions"). Any Additional Terms and Conditions are in addition to and supplement the terms and conditions provided in this Agreement. Client acknowledges and agrees that it will be subject to all Additional Terms and Conditions and that all such Additional Terms and Conditions shall be incorporated into this Agreement, to the extent those Additional Terms and Conditions do not conflict with the terms and conditions of this Agreement, as if set forth fully herein. Client further agrees that it will be subject to all Additional Terms and Conditions where Client elects to add services to its Services package.
- ii. Client acknowledges that MarketersChoice.com may, at its sole discretion, change any Third Party Licensors that provide services under this Agreement, or add or delete discrete services from the Services. In the event that MarketersChoice.com changes Third Party Licensors, MarketersChoice.com may provide Client with notification of changes in Third Party Licensors and refer Client to information posted on MarketersChoice.com' website relative to that change which shall become Additional Terms and Conditions for the purposes of this Agreement.
- iii. Client further expressly agrees that in conjunction with any use of any MasterPass Online services on Client’s website and/or otherwise in connection with the Services, Client agrees to the Additional Terms and Conditions related thereto and located online here, and further authorizes MarketersChoice.com to accept such Additional Terms and Conditions on Client’s behalf. Client expressly authorizes MarketersChoice.com to opt Client in to the MasterPass Online services, and should Client be opted-in to any such services by MarketersChoice.com, Client shall have the right to opt-out of such services by contacting MarketersChoice.com at 888-792-1961.
2. Payment & Fees.
A. The Services will commence on the date Client's order for the Services is accepted by MarketersChoice.com (the "Effective Date") and will thereafter continue on the basis of successive billing periods (with the first day of each billing period being a "Billing Date") until terminated by either party in accordance with this Agreement. For each billing period, MarketersChoice.com will automatically charge the Client’s credit card on each Billing Date for (i) any non-refundable recurring subscription fees as well as any other annual or one-time fees due in advance for the billing period beginning on that date, and (ii) any transaction fees and all other fees designated to be paid in arrears based on the value of goods and services sold through the Client’s Website (as defined below) during the previous billing period. Client acknowledges and agrees that all recurring fees referenced in the Agreement or otherwise related to the Services are to be recurring transactions billed on an ongoing basis until the Services are terminated in accordance with this Agreement.
B. All fees are quoted in U.S. Dollars and exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and you will be responsible for payment of all such taxes (other than taxes based on MarketersChoice.com's income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement.
C. Without limiting any of MarketersChoice.com's rights hereunder, should any fee payment become delinquent or not be retrievable from Client’s credit card when due, MarketersChoice.com may suspend or cancel the Services; however charges may continue to accrue in accordance with the Term of this Agreement and price of Services. Additionally, MarketersChoice.com may bill an additional charge to reinstate a suspended Customer account. Client acknowledges and agrees that MarketersChoice.com is not responsible whatsoever for any effect the suspension of Services might have on the Services or the results or effectiveness thereof. If MarketersChoice.com provides any Service discount to Customer and Customer defaults on its payments or obligations as outlined herein, MarketersChoice.com may rescind all discounts and require full payment for the Services. MarketersChoice.com reserves the right to refer any amounts owed hereunder to a third party for collection in the event of ongoing default. On any amounts not paid when due, Customer agrees to pay interest at the rate of 1.5% per month (18% per year) or, if such rate is in excess of the rate allowed by law, then Customer agrees to pay the highest rate allowed by law. In addition, Customer agrees to pay all costs of collection, including costs of litigation and reasonable attorneys' fees. MarketersChoice.com may also continue to submit charges on Client's credit card from time to time until all fees due are paid.
D. CUSTOMER UNDERSTANDS AND AGREES THAT ALL MarketersChoice.com FEES AND CHARGES ARE NONREFUNDABLE AND THAT MarketersChoice.com MAY CHANGE ANY FEE, RATE OR PLAN AT ANY TIME UPON NOTICE TO CUSTOMER IN ACCORDANCE WITH THIS AGREEMENT.
E. Additionally, Client permanently and irrevocably waives any and all right to enact a ‘chargeback' (that is, a disputed, reversed or contested charge with the applicable bank, credit card or charge card) against these payments for any reason whatsoever against MarketersChoice.com.
F. If expressly noted in the ordering process Client may receive a refund of 100% of the amount paid hereunder if Client terminates the Services within thirty (30) days or less after the Effective Date. However, Client acknowledges and agrees that if Client has surpassed any such thirty (30) day period, Client will not be entitled to a refund. Notwithstanding the foregoing, Client acknowledges and agrees that any such refund will not apply to any transaction fees owed by Client under the Agreement. Additionally, if Client purchase Services with an annual billing arrangement, Client may receive a 100% refund for fees paid for the current annual term for those annual Services, provided Client terminates those Services within thirty (30) days after the annual renewal date.
3. Ownership and License.
A. The Services provided by MarketersChoice.com hereunder, and all worldwide intellectual property rights therein, are the exclusive property of MarketersChoice.com. All rights in and to the Services not expressly granted to Client in this Agreement are wholly reserved by MarketersChoice.com.
B. Subject to the terms and conditions of this Agreement, MarketersChoice.com grants to Client a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Services. You acknowledge that the Services and their structure, organization, and source code constitute valuable trade secrets of MarketersChoice.com. Accordingly, except as expressly allowed under this Agreement, you will not, either directly or through a third party, (i) copy, modify, adapt, alter, translate, or create derivative works from the Services; (ii) distribute, sublicense, lease, rent, loan, or otherwise transfer the Services to any third party; or (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Services. In the event of expiration or termination of this Agreement for any reason, the licenses granted under this Agreement shall automatically and immediately cease and you shall destroy all copies the Services or related documentation in your possession.
"Background Technology" means computer programming & formatting code or operating instructions developed by or for MarketersChoice.com and used to host or operate a Website or a Web server in connection with a Website. Background Technology includes, but is not limited to, any files necessary to make forms, buttons, checkboxes, and similar functions and underlying technology or components, such as style sheets, animation templates, interface programs that link multimedia and other programs, customized graphics manipulation engines, and menu utilities, whether in database form or dynamically driven. Background Technology does not include any Customer Content or any derivatives, improvements, or modifications of Customer Content. All rights to the Background Technology not expressly granted to Customer hereunder are wholly retained by MarketersChoice.com. Where such Background Technology is provided to Customer hereunder, Customer may not either directly or through a third party, (i) copy, modify, adapt, alter, translate, or create derivative works from the Background Technology; (ii) distribute, sublicense, lease, rent, loan, or otherwise transfer the Background Technology to any third party; or (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Background Technology. In the event of expiration or termination of this Agreement for any reason, the any Background Technology licenses granted under this Agreement shall automatically and immediately cease and you shall destroy all copies the Background Technology or related documentation in your possession.
C. Subject to the terms and conditions of this Agreement, MarketersChoice.com grants to Client a non-exclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses) to use and reproduce certain trademarks provided to Client by MarketersChoice.com under this Agreement ("MarketersChoice.com Marks"), solely for use in the display on those locations as designated by MarketersChoice.com in its sole discretion. MarketersChoice.com grants no rights in the MarketersChoice.com Marks other than those expressly granted in this Section. Client acknowledges MarketersChoice.com's exclusive ownership of the MarketersChoice.com Marks. Client agrees not to take any action inconsistent with such ownership and Client agrees not to adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the MarketersChoice.com Marks or in such a way as to create combination marks with the MarketersChoice.com Marks. At MarketersChoice.com's request (in its sole discretion), Client will immediately discontinue any use and display of the MarketersChoice.com Marks. Client acknowledges and agrees that, except with respect to the trademark license granted herein in and to the MarketersChoice.com Marks, no licenses are granted by MarketersChoice.com to any other trademarks, service marks, or trade names owned by MarketersChoice.com, its parent, or affiliates.
D. Certain additional features that MarketersChoice.com may make available to Client in conjunction with the Services may require access to and/or installation of additional software (including third party software) that is subject to supplemental or independent terms and conditions ("Additional Software"). Similarly, MarketersChoice.com may make available additional services (including third party services) that are subject to supplemental or independent terms and conditions ("Additional Services"). Client agrees that Client will not use such Additional Software or Additional Services unless Client has agreed to the applicable terms and conditions, including but not limited to Client’s payment of additional fees as required.
E. If Client purchases a domain name as part of the boarding process for the Services (the "Domain Name" and/or "URL") Client will be considered the owner of the Domain Name; however MarketersChoice.com will be listed as the technical contact. By using the Services, Client represents and warrants that any name or word submitted to be used as all or part of the Domain Name does not infringe any trademark or domain name rights of any third party. Moreover, Customer warrants that it has a present good faith intention to use the Domain Name in connection with a commercial or personal endeavor and that it is not merely "cyber squatting," i.e., obtaining the Domain Name merely to attempt to sell the rights to the Domain Name or sub domain to some third party. Client further represents and warrants that the Domain Name will not violate the MarketersChoice.com Acceptable Use Policy and other acceptable use provisions referenced or listed herein.
4. Use and Ownership of Digital Images.
The Services may contain clipart and photo images (collectively, the "Images") and as such MarketersChoice.com may provide the Images to you in the process of providing the Services. The Images are either owned by MarketersChoice.com or licensed from a third party. Unless otherwise stipulated by MarketersChoice.com, your use of the Images is subject to the restrictions set forth in this Section and otherwise in accordance with this Agreement.
Provided Customer is not in breach of this Agreement or any of the representations and warranties contained herein, and provided Customer pays the applicable fees, Customer may do the following subject to the restrictions set forth in this Agreement (upon termination of the Services or this Agreement all Customer rights and licenses in and to the Images shall immediately terminate):
- incorporate the Images into your own original work and publish, display and distribute your work on the Website. You may not, however, resell, sublicense or otherwise make available the Images for use or distribution separately or detached from a product or webpage. For example, the Images may be used as part of a webpage design, but may not be made available for downloading separately or in a format designed or intended for permanent storage or re-use by others. Similarly, Customer may be provided with copies of the Images (including digital files) as part of work product, but Customer is not permitted to use the Images separately or as part of any other product;
- back up, copy, or archive the Images as necessary for internal use, and only as necessary for that use. Any copy or archive you make must include the Image's copyright information; and
- in the normal course of workflow, convey to a third party (such as a printer) temporary copies of the Images that are integral to your work product and without which the product could not be completed.
Customer may not:
- create scandalous, obscene, defamatory or immoral works using the Images, nor use the Images for any other purpose which is prohibited by law;
- use the Images or any part of it as part of a trademark, service mark, or logo. MarketersChoice.com and those third parties from whom they have licensed images retain the full rights to the Images, and therefore Customer cannot establish their own rights over any part of the Images;
- remove any copyright or trademark from any place where it appears on the Images or its accompanying materials;
- rent, lease, sublicense or lend the Images, or a copy thereof, to another person or legal entity without the express written consent of MarketersChoice.com;
- transfer the rights to the Images, accompanying materials or storage media for the Images, except as specifically provided for in this Agreement. All other rights are reserved by MarketersChoice.com and those third parties from whom MarketersChoice.com has licensed images;
- reverse engineer, decompile, or disassemble any part of the Images, accompanying materials or storage media for the Images, subject to applicable law;
- copy or reproduce the Images, accompanying materials or storage media for the Images;
- display the Images in any digital format or for any digital use at a resolution greater than 640x480 pixels, except in editorial or preliminary design work. Doing so will be viewed as an attempt to distribute the Images in violation of this Agreement;
- re-sell, distribute or sub-license the Images, storage media for the Images, or the rights to use the Images to anyone for any purpose, except as specifically provided for in this Agreement; or
- use the Images in any way that could be considered defamatory, libelous, pornographic, immoral, obscene or fraudulent, either by making physical changes to it, or in the juxtaposition to accompanying text. Customer agrees not to use Images as part of any use involving sensitive subject matter, as determined by MarketersChoice.com in its sole discretion, including but not limited to the following sensitive subjects: all sexual issues, sexually transmitted diseases, substance abuse, alcohol, tobacco, cancer, mental ailments, alternative lifestyles issues, and physical or mental abuse, without advance written consent from MarketersChoice.com and any model in such Image. Sensitive subject usage pertains to both commercial and editorial uses.
5. Client Responsibilities.
Customer shall be responsible for the following (whereby failure to adhere to these responsibilities shall constitute a material breach of this Agreement):
- providing current and updated Customer information (including but not limited to Customer's name, address, email address, postal address, phone and fax numbers, etc.) for MarketersChoice.com's use in contacting Customer regarding the Services, keeping Client's profile updated, and otherwise as necessary in regards to the Services;
- providing all necessary and required information, data, text, music, sound, images, photographs, graphics, video, messages, tags and custom images (including, but not limited to, design, pamphlets, brochures, logos, and other images) and other materials ("Content") to be used in connection with a Customer website or online store ("Website") or otherwise for use in conjunction with the Services, other than that Content which MarketersChoice.com expressly agrees to supply;
- acquiring any authorizations necessary to use intellectual property (including, but not limited to, copyrights and trademarks) or information of third parties;
- contacting MarketersChoice.com for all changes and modifications to the Services starting from the date of sale and otherwise remaining engaged in the related processes;
- providing MarketersChoice.com with unrestricted access to the Website and/or related accounts as needed for MarketersChoice.com to provide the Services hereunder;
- granting to MarketersChoice.com and its subcontractors the necessary rights and licenses with respect to the Website, the Content and materials related thereto in order to carry out obligations under this Agreement;
- allowing MarketersChoice.com to make a reasonable number of archival or back-up copies of the Website as deemed necessary by MarketersChoice.com in providing the Services;
- ensuring that Customer maintains a current and complete backup of their Content at all times;
- obtaining Internet connectivity to access the Website, to send and receive e-mail, and to otherwise access and utilize the Internet; and
- contacting MarketersChoice.com with notice of Customer's decision to cancel or discontinue the Services. IF NO SUCH NOTIFICATION IS GIVEN TO MarketersChoice.com BY CUSTOMER, MarketersChoice.com WILL ASSUME CUSTOMER IS SATISFIED WITH AND ACCEPTS ALL SERVICES, AND MarketersChoice.com WILL BILL ANY RELATED FEES DIRECTLY TO CUSTOMER'S CREDIT CARD.
6. Customer Representations and Warranties.
Customer hereby represents and warrants as follows:
- Customer can form legally binding contracts under applicable law;
- Customer is at least eighteen (18) years old and is responsible for supervising the activities of any under-age user;
- to Customer's knowledge, there is no action, proceeding, or investigation pending or threatened which questions, directly or indirectly, the validity or enforceability of this Agreement;
- entering into this Agreement or otherwise purchasing the Services will not conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default, or result in a termination of, any agreement or instrument to which the Customer is a party;
- Customer has taken all actions required by applicable law, and have obtained all consents which are necessary to authorize or enable it to enter into this Agreement and/or purchase the Services;
- to the extent that Customer is a business entity, the individual ordering the Services or otherwise entering into this Agreement on behalf of Customer has been duly authorized and are empowered to bind Customer to this Agreement;
- Customer shall ensure the accuracy of materials provided to MarketersChoice.com, including, without limitation, Content, descriptive claims, warranties, guarantees, nature of business, and contact information for Customer;
- Customer shall acquire any authorizations necessary for hypertext links to third party websites used on the Website or otherwise in conjunction with the Services;
- to the extent Customer gathers any personal information about visitors to the Website, Customer shall not share that personal information with any third party without first obtaining a visitor's consent;
- Customer will not provide Content or other materials, or use the Services in any manner that infringes on a proprietary interest of any third party, including without limitation, any copyright, trademark, domain registration right, trade secret or patent right, and will further not use the Services as a mechanism designed to facilitate such infringement; and
- Customer's Content, other materials provided in conjunction with the Services, and use of the Services shall in all respects conform to all applicable federal, state, county, and municipal laws, regulations, governmental agency orders, and court orders (including those governing the export of technical information).
Customer further represents and warrants that they will not provide or use any Content or other materials or use the Services or the Website in a manner deemed to be any of the following:
- encouraging illegal or criminal conduct;
- promoting, facilitating or engaging in, consumer deception or fraud, drug use, drug dealing, pyramid schemes, gambling, or any other illegal activities;
- promoting or providing of instructional information about illegal activities or physical harm or injury to any group, individual, institution or property;
- offensive, including without limitation, bigotry, racism, discrimination, hatred, or profanity;
- pornographic or obscene in any manner whatsoever;
- violent or encouraging violence;
- disparaging, defamatory, libelous, or results in an invasion of privacy;
- containing any viruses, Trojan horses, worms, time bombs, cancel bots, or other computer programming routines that are intended to damage or interfere with any system, data or personal information;
- intentionally holding MarketersChoice.com or their employees, directors or stockholders up to public scorn, ridicule, or defamation; or
- stating or implying that the Website is placed by MarketersChoice.com or any party with a contractual relationship with MarketersChoice.com, or that such parties endorse Customer's products or services.
For all domain names or uniform resource locators used by Customer in conjunction with the Services (collectively the "URL's"), Customer represents and warrants that any name or word submitted to be used as all or part of a domain name or URL does not infringe any trademark or domain name rights of any third party. Moreover, Customer further represents and warrants that it has a present good faith intention to use any domain name or URL it requests in connection with the Services and that it is not merely "cybersquatting" (i.e., obtaining the a domain name merely to attempt to sell the rights to the domain name or subdomain to some third party).
Customer further represents and warrants that they will use the Services in accordance with MarketersChoice.com's Acceptable Use Policy and in a manner that does not interfere with or disrupt other network users, services, or equipment. Without limiting any of its other rights set forth herein, MarketersChoice.com reserves the right to terminate or suspend any and all Services without notice if any such interference is determined by MarketersChoice.com to exist. Such interference or disruption includes, but is not limited to:
- scale distribution of messages, including bulk e-mail or unsolicited spam e-mail, or wide-scale distribution of messages to inappropriate mailing lists, newsgroups, or other public or private forums;
- propagation of computer worms or viruses; and/or
- use of the network to make unauthorized entry to other computational, information, or communications devices or resources. This includes unauthorized security probing activities or other attempts to evaluate the security integrity of a network or host system without permission.
7. Customer Website and Content.
A. Client will be solely responsible for the development, operation and maintenance of the Website, including the operation of the Website, accepting, processing and filing customer orders generated through the Website, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through the Website. Client agrees that MarketersChoice.com has no obligation to back-up any data related to the Website's operations and Client should independently take appropriate steps to maintain such data in accordance with Client’s needs and requirements (even if the Website is developed through MarketersChoice.com’s online store builder).
B. Client will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the Content on the Website or otherwise utilized by Client in conjunction with the Services, including all descriptions of the products and services Client offers or sells to customers via the Website and/or Services. Client retains all rights, title and interest in and to all intellectual property rights embodied in the Content, exclusive of any content provided by MarketersChoice.com. Notwithstanding anything contained in the foregoing, if Client breaches any of the covenants of this Agreement, MarketersChoice.com is entitled to immediately suspend or terminate Services, the Website and/or any access to information or data related to Client’s account.
C. Client acknowledges that when providing its services MarketersChoice.com may provide Client with the ability to publish and distribute Client’s own or third party products, services or content, and MarketersChoice.com and its Services are acting only as passive conduits for the distribution and/ or publishing of such products, services and/or Content. MarketersChoice.com has no obligation to Client or any third party, and undertakes no responsibility, to review the Content to determine whether any such Content may incur liability to third parties. Notwithstanding anything to the contrary herein, if MarketersChoice.com believes in its sole discretion (as applicable) that the Content may create liability for MarketersChoice.com, Client agrees that MarketersChoice.com may take any actions with respect to the Content that MarketersChoice.com believes are prudent or necessary to minimize or eliminate MarketersChoice.com's potential liability. MarketersChoice.com shall, as applicable, be the sole judge of what Content or materials may create liability for MarketersChoice.com.
D. Moreover, Client covenants that any products, services, or Content published and distributed on the Website or otherwise in conjunction with the Services shall not violate the MarketersChoice.com Acceptable Use Policy that is incorporated herein by reference and as it may be amended from time to time, nor shall they:
- be false, inaccurate or misleading;
- be fraudulent or involve the sale of counterfeit or stolen items;
- infringe or misappropriates any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- violate any law, statute, ordinance or regulation (including, but not limited to, those governing privacy, publicity, export control, consumer protection, unfair competition, antidiscrimination or false advertising);
- be defamatory, trade libelous, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities;
- be obscene or contain child pornography;
- contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- involve the transmission of any unsolicited commercial or bulk email (known as "spamming") and Client shall not use its account or the Website as a return address for unsolicited commercial mail originating elsewhere or participate in any activities related to so-called pyramid or ponzi schemes;
- involve the collection or attempt to collect personally identifiable information of any person or entity, except with the express written consent of that person or entity and of which consent You shall maintain a written record for a period of three (3) years after any termination of this Agreement;
- be harmful or potentially harmful to the MarketersChoice.com Server structure as determined in MarketersChoice.com's sole discretion, including without limitation overloading the MarketersChoice.com technical infrastructure;
- involve subleasing Client’s account or offering "free space" on or other access to Client’s account or the Website to third parties;
- create liability for MarketersChoice.com and its subcontractors or expose them to undue risk or otherwise engage in activities that MarketersChoice.com, in its sole discretion, determines to be harmful to MarketersChoice.com's affiliates, operations, reputation, or goodwill; and/or
- link directly or indirectly to or include descriptions of goods or services that violate any applicable law, statute, ordinance or regulation.
E. Except as otherwise stated in the Agreement, Customer is to be considered the owner of all Customer Content. During the period that MarketersChoice.com provides Services to you pursuant to this Agreement, you hereby grant to MarketersChoice.com and its subcontractors a limited, non-exclusive, royalty-free, worldwide license to copy, reproduce, distribute, transmit, display, perform, create derivative works from, modify, and otherwise use and exploit the Website and the Content solely for the purpose of rendering the Services hereunder.
F. In the event that Customer posts Content or allows its users to upload Content onto a Website, Customer agrees to designate a copyright agent under the Digital Millennium Copyright Act ("DMCA") (see 17 U.S.C 512(c)(3) for further detail). In the event that a copyright holder contacts MarketersChoice.com's copyright agent under the DMCA, Customer acknowledges and agrees that MarketersChoice.com may take all necessary action as required under the DMCA in its sole discretion, including removing Content from Customer's website.
G. Except as expressly allowed under this Agreement, you will not, either directly or through a third party, transfer your interest in and to the Website to any third party without the express written consent of MarketersChoice.com.
8. Reservation of Rights.
A. Without limiting other remedies or any of its other rights set forth herein, MarketersChoice.com reserves the right to revoke any and all licenses granted hereunder, revoke access to the Services, or to otherwise limit, deny, terminate, or suspend, in whole or in part, any and all Services without notice if (i) Customer fails to pay any fees owed under this Agreement when due, or (ii) in MarketersChoice.com's sole discretion, the Services are used, or to be used, in a manner that is improper, illegal, in contravention of any of the representations or warranties made by Customer herein, or would otherwise amount to a breach of this Agreement or the documents it incorporates by reference. In the event of such termination or suspension, Customer agrees that the unused portion of any fees Customer may have paid for Services are an appropriate recompense to MarketersChoice.com for the time required to respond to and address issues created by Customer's illegal or improper actions, and Customer agrees not to seek recovery of those fees, however Customer acknowledges and agrees that this will not constitute a waiver by MarketersChoice.com of any other available remedies nor will it be considered satisfaction of the matter or any related claims that MarketersChoice.com may have against Customer.
B. MarketersChoice.com further reserves the right to reject, alter, modify, or remove the Website, Website domain name, URL, or any Content (including, but not limited to, any language, words, text, photographs, designs, drawings, graphics, images, symbols, or logos) which MarketersChoice.com deems, in its sole discretion, to be improper, illegal, in contravention of any of the representations or warranties made by Customer herein, or otherwise in breach of this Agreement, and where necessary MarketersChoice.com will also actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about Customer as well as any Services, Websites, domain names, URL's, Content and those persons that may have accessed any of the foregoing. Notwithstanding the foregoing, Customer acknowledges and agrees that MarketersChoice.com shall have no obligation to review any Content.
C. For any Services involving a domain name or Website, for any such domain name or pages of the Website that do not resolve on the Internet, MarketersChoice.com reserves the right to point and/or redirect the domain name and/or pages to a page that may be modified at any time by MarketersChoice.com without prior notice to you and that may include such things as, without limitation (i) links to additional products and services offered by MarketersChoice.com, (ii) advertisements for products and services offered by third-parties, and/or (iii) an Internet search engine interface. If you do not wish to have the related domain name and/or web pages point to such a page, please provide notice to MarketersChoice.com in accordance with this Agreement (i.e., "opt out").
9. Customer Collection and Use of Visitor Data.
10. Term and Termination.
A. Client may terminate this Agreement at any time by giving MarketersChoice.com notice at least seven (7) days prior to the next Billing Date in accordance with Section 11 below.
B. Without limiting any other provisions of this Agreement, MarketersChoice.com may immediately terminate this Agreement at any time for convenience by giving Client notice in accordance with this Agreement. In addition to its other rights contained in this Agreement as they apply to termination, and without limiting those rights in any manner, MarketersChoice.com may immediately terminate this Agreement, limit Client’s activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Client’s account or the Services, in whole or in part, and/or refuse to provide some or all of the Services functionality to Client, without notice, if in MarketersChoice.com’s sole discretion: (i) Client fails to pay any fees in accordance with this Agreement; (ii) Client breaches the covenants of this Agreement; (iii) Client breaches this Agreement or the documents it incorporates by reference in any other manner; (iv) MarketersChoice.com is unable to verify or authenticate any information Client provided to MarketersChoice.com; or (v) MarketersChoice.com believes that Client’s actions may cause financial loss or legal liability for Client or MarketersChoice.com.
C. In the event of termination of this Agreement for any reason, the licenses granted under this Agreement shall automatically and immediately cease and Client shall destroy all copies of the Services in its possession. Following termination the Client will have no right to use or access the Services. Upon termination, there will be no refund provided to Client and all outstanding fees owed by Client shall become immediately due and payable. In its discretion, MarketersChoice.com may permit a Client to recover data from the Services following termination after payment of additional fees. Additionally, if applicable, within thirty (30) days of termination of this Agreement Client must move the Domain Name from any MarketersChoice.com Servers. Termination shall not affect the rights of MarketersChoice.com to recover from Client losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney’s fees or expert witnesses' cost or other costs of any kind under this Agreement.
A. Notice to Customer hereunder shall be deemed effective when (i) delivered orally, by calling Client's representative or by leaving a voicemail for Client's representative at the telephone number in Client's profile, (ii) sent via e-mail to the contact e-mail address in Client’s profile; (iii) sent via fax, to the Customer fax number in Client’s profile; (iv) sent by regular mail, certified mail with return receipt requested, or by Federal Express or other recognized overnight delivery service to the Customer mailing address in Customer’s profile or (v) posted on www.marketerschoice.com and/or any of the applicable pages linked thereto, as updated from time to time. Client may give notice to MarketersChoice.com by certified mail with return receipt requested to the following address:
12808 Gran Bay Parkway, West
Jacksonville, FL 32258
Attn: Legal Department
All mail notices shall be effective upon receipt, email and fax notices shall be effective upon transmission and all Website notices shall be immediately effective upon posting on the Website and/or any of the applicable pages linked thereto.
By providing your contact information to MarketersChoice.com or otherwise entering such information in the Client profile, you agree that MarketersChoice.com may use the information you have provided to contact you via email, postal mail, telephone or fax in any format or manner. MarketersChoice.com may, but shall have no obligation to, send a single notice by various means of delivery (i.e., fax, email, certified mail or express mail). In no event shall MarketersChoice.com be liable to you for choosing to send notice to one address, or by one means of delivery, and not others.
B. Notwithstanding the foregoing, Client must give notice of termination by calling MarketersChoice.com at the following number: 1-705-792-1961.
12. Affiliate Program.
If during the order process Client checked the box to participate in the MarketersChoice.com affiliate marketing program, or has otherwise been accepted by MarketersChoice.com to participate in such affiliate marketing program, the following provisions apply:
- i. MarketersChoice.com will pay a commission (the "Commission") equal to ten (10%) of amounts billed and received by MarketersChoice.com from new customers who purchase services from MarketersChoice.com within six (6) months after clicking on an approved MarketersChoice.com affiliate marketing banner on a website owned or controlled by Client.
- ii. All tracking of referrals and clicks are as determined by MarketersChoice.com’s systems. MarketersChoice.com will not pay Commissions on sales that are subsequently rescinded or charged back and any Commissions paid on such sales must be repaid or debited from future Commissions due.
- iii. Self-referrals are only to be paid in cases where both the referring and referred account both remain in active paid status. Moreover, if the referring account is closed then the commissions will no longer be paid on any existing or new self-referrals.
- iv. In the event that a referral does not appear on a Client’s referral report, the Client has thirty (30) days from the report date to notify MarketersChoice.com of that referral otherwise it will not be processed or otherwise credited or attributed to the Client. For any requests to manually process a referral, the referring account must have been opened prior to the referred account.
- v. MarketersChoice.com will aggregate Commissions due and issue checks only when the check amount is equal to or greater than $50.00 (USD).
- vi. MarketersChoice.com may change the commission rate and other terms and conditions of this affiliate marketing program at any time, with such changes to be effective when posted to the MarketersChoice.com website.
- vii. After enrolling in the affiliate marketing program, a Client must click the referral program link within the Client’s account and use the enclosed tracking link. Client may not use or display on the affiliate link any material that is defamatory, misleading, libelous, obscene or otherwise potentially damaging to the reputation of MarketersChoice.com.
- viii. A Client enrolled in the affiliate marketing program will continue to earn Commissions even after the Client terminates Services. MarketersChoice.com may offset against any Commissions earned, however, any due and unpaid amounts in respect of Services.
A. Customer hereby agrees to indemnify, defend, and hold harmless MarketersChoice.com and each of MarketersChoice.com's officers, directors, employees, agents, and affiliates, from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, judgments, settlements, out-of-pocket costs, expenses and disbursements (including reasonable costs of investigation, and reasonable attorneys, accountants and expert witness fees), of whatsoever kind and nature, that are imposed on or incurred by MarketersChoice.com as a consequence of or in connection with: (i) any breach of this Agreement by Customer, (ii) any breach or violation by Customer of any other MarketersChoice.com term, condition, rule, agreement or policy, (iii) any representation or warranty by Customer that proves to be untrue or inaccurate in any way, (iv) any failure by Customer to perform in accordance with this Agreement, (v) Customer's use of the Services, or (vi) the Website, Content and/or URL's. MarketersChoice.com and the other indemnified parties’ rights hereunder shall not be limited or offset by any contributory negligence by MarketersChoice.com or any other such indemnified party.
B. Customer agrees to give prompt written notice to MarketersChoice.com upon the receipt of notice of any claim by a third party against Customer which might give rise to a claim against MarketersChoice.com, stating the nature and the basis of such claim and, if ascertainable, the amount thereof.
14. No Guarantee of Results.
Client acknowledges that MarketersChoice.com does not guarantee, imply, or predict any type of profit or response from the Services. The Services may be subject to interruptions, loss of data, deletion of data and conditions that prevent the proper operation of the Services resulting from conditions of events outside the reasonable control of MarketersChoice.com and for which MarketersChoice.com will bear no responsibility. Client irrevocably covenants, promises and agrees to indemnify MarketersChoice.com and its assigns and to hold them harmless from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities, joint or several, of whatever kind or nature that they may sustain or to which they may become subject arising out of or relating in any way to the use of the Services, including, without limitation, in each case attorneys' fees, costs and expenses actually incurred in defending against any such claims or enforcing the prerogatives of MarketersChoice.com under this Agreement.
15. Warranty Disclaimer.
YOU AGKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK, AND THAT EXCEPT AS EXPRESSLY PROVIDED HEREIN THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MarketersChoice.com, ITS SUPPLIERS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. FURTHERMORE, MarketersChoice.com DOES NOT WARRANT THAT THE SERVICES AND/OR ANY INFORMATION OBTAINED THEREBY SHALL BE COMPLETE, ACCURATE, UNINTERRUPTED, SECURE OR ERROR FREE. MarketersChoice.com FURTHER MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, NOR DOES MarketersChoice.com MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES.
16. LIMITATION OF LIABILITY.
A. YOU ACKNOWLEDGE AND AGREE THAT MarketersChoice.com WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, TO YOU OR ANY OTHER PARTY FOR ANY (i) TERMINATION, SUSPENSION, LOSS, OR MODIFICATION OF YOUR SERVICE, (ii) USE OF OR INABILITY TO USE THE SERVICE, (iii) INTERRUPTION OF BUSINESS, (iv) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS SITE OR A SERVICE (INCLUDING, WITHOUT LIMITATION, TO WEBSITES ACCESSED BY THE DOMAIN NAME REGISTERED IN YOUR NAME), (v) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, (vi) EVENTS BEYOND MarketersChoice.com'S AND ITS SUBCONTRACTORS' REASONABLE CONTROL, (vii) APPLICATION OF ANY APPLICABLE LAW, REGULATION OR MarketersChoice.com POLICY (INCLUDING, WITHOUT LIMITATION, ANY RELEVANT DISPUTE POLICY OR ANY OTHER ICANN OR SIMILAR GOVERNMENTAL OR SUCCESSOR ORGANIZATION ADOPTED POLICIES), (viii) DISBURSEMENT OR NON-DISBURSEMENT OF FUNDS BY PAYMENT PROCESSORS; (ix) TRANSACTIONS CONDUCTED ON A USER WEBSITE, INCLUDING FRAUDULENT TRANSACTIONS; (x) LOSS INCURRED IN CONNECTION WITH YOUR SERVICES, INCLUDING IN CONNECTION WITH E-COMMERCE TRANSACTIONS; (xi) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (xii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY USING YOUR SERVICES, OR (xiii) ANY OTHER MATTER RELATING TO YOUR USE OF THE SERVICES.
B. ADDITIONALLY, MarketersChoice.com WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, GOODWILL, DATA, THE COST OF REPLACEMENT GOODS OR SERVICES, BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES), WHETHER FORSEEABLE OR NOT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF MarketersChoice.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS OR OMISSIONS BY MarketersChoice.com, INCLUDING WITHOUT LIMITATION, ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR TECHNICAL OPERATIONS.
C. IN NO EVENT SHALL MarketersChoice.com'S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES, BUT IN NO EVENT SHALL IT BE GREATER THAN FIVE HUNDRED DOLLARS ($500.00), AND YOU ACKNOWLEDGE AND AGREE THAT THIS WILL BE YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT AND OTHERWISE IN RELATION TO YOUR USE OF THE SERVICES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
D. YOU ALSO ACKNOWLEDGE AND AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF OUR SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION INITIALLY AROSE OR SUCH CLAIM OR CAUSE OF ACTION SHALL BE PERMANENTELY BARRED.
E. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS CONTAINED IN THIS SECTION ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND ABSENT SUCH LIMITATIONS, MarketersChoice.com WOULD NOT ENTER INTO THIS AGREEMENT OR PROVIDE SERVICES HEREUNDER. EACH PARTY ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.
F. MarketersChoice.com SHALL ALSO HAVE NO LIABILITY FOR ANY CONTENT PROVIDED BY CUSTOMER THAT INFRINGES OR VIOLATES ANY RIGHTS OF THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, RIGHTS OF PUBLICITY, RIGHTS OF PRIVACY, PATENTS, COPYRIGHTS, TRADEMARKS, TRADE SECRETS, AND/OR LICENSES. MarketersChoice.com DISCLAIMS ANY RESPONSIBILITY FOR ANY CONTENT, GOODS, AND SERVICES SOLD BY CUSTOMER OR OTHERWISE AVAILABLE THROUGH THE WEBSITE, OR THE QUALITY OR ACCURACY OF ANY INFORMATION ON THE WEBSITE. MarketersChoice.com WILL NOT ENDORSE, WARRANT, OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH THE WEBSITE, AND WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN CUSTOMER AND THIRD-PARTY PURCHASERS OF PRODUCTS OR SERVICES OFFERED THROUGH OR RESULTING FROM THE SERVICES OR USE OF THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL SALES OF GOODS OR SERVICES, CREDIT CARD TRANSACTIONS, BANKING OR SECURITIES TRANSACTIONS, OR ANY BUSINESS, SERVICE OR MERCHANDISE AGREEMENTS.
A. Governing Law and Venue. This Agreement shall be governed by the laws of the United States of America and the State of Florida, without regard to conflict of laws principles, as if the Agreement was a contract wholly entered into and wholly performed within Duval County in the State of Florida. Customer agrees that any judicial proceeding relating to or arising out of this Agreement or the Services shall be instituted only in a federal or state court of competent jurisdiction in Duval County in the State of Florida, and Customer consents to the personal jurisdiction of such court and waives the right to challenge the jurisdiction of such court on grounds of lack of personal jurisdiction or forum non conveniens or to otherwise seek a change of venue. Customer also agrees to waive the right to trial by jury in any action that takes place relating to or arising out of this Agreement or the Services.
B. Legal Compliance. Client shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding its use of the Services.
C. Agency & Partnerships. This Agreement does not create any agency, employment, partnership, joint venture, franchise, or other similar or special relationship between you and MarketersChoice.com. Neither Party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other Party or its affiliates, whether express or implied, or to bind the other Party or its affiliates in any respect whatsoever.
D. Entire Agreement. This Agreement, as well as any additional MarketersChoice.com terms and conditions, rules, policies, and service agreements, together with all modifications thereto, constitute the entire agreement between you and MarketersChoice.com concerning your use of the Services and any other subject matter related to this Agreement, and supersedes and governs all prior proposals, agreements or other communications between you and MarketersChoice.com (including, but not limited to, any prior versions of this Agreement). Customer may not waive, modify or supplement this Agreement, in whole or in part, except for written permission or amendment by MarketersChoice.com. MarketersChoice.com reserves the right to unilaterally modify and revise the Agreement from time to time. Such modifications or revisions shall be provided to Customer via the Notice provisions set forth in Section 11 above (Notice), and Customer shall be deemed to have accepted, and to be apprised of and bound by, any such modifications or revisions to the Agreement.
E. Force Majeure. Neither Party shall be deemed in default hereunder, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the Party relying upon this Section shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, MarketersChoice.com may immediately terminate this Agreement and shall have no liability therefore.
F. Assignment. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of MarketersChoice.com. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. MarketersChoice.com may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without notice to or consent of the Customer. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
G. No Third Party Beneficiary. You acknowledge and agree that nothing herein, express or implied, is intended to nor shall be construed to confer upon or give to any person, other than you, any interests, rights, remedies or other benefits conveyed to you herein.
H. Severability; Waiver. Any failure by MarketersChoice.com to enforce any of its rights under this Agreement or any applicable laws shall not constitute a waiver of such right. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, MarketersChoice.com will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of MarketersChoice.com as reflected in the original provision. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
I. Headings and Interpretation. The Section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. Also, in all references herein to any parties, persons, entities or corporations, the use of any particular gender, or the plural or singular number is intended to include the appropriate gender and number as the text of this Agreement may require. When used in this Agreement, the term "including" means "including without limitation," unless expressly stated to the contrary.
J. Survival. Section 1 (Services), Section 2 (Payment & Fees) with respect to any outstanding fees owed for the Services, Section 3 (Ownership and License), Section 4 (Use and Ownership of Digital Images), Section 5 (Client Responsibilities), Section 6 (Client Representations and Warranties), Section 7 (Customer Website and Website Content), Section 8 (Reservation of Rights), Section 9 (Customer Collection and Use of Visitor Data), Section 10 (Termination and Suspension), Section 13 (Indemnification), Section 15 (Warranty Disclaimer), Section 16 (Limitation of Liability), and Section 17 (General) shall survive any termination or expiration of this Agreement where necessary for MarketersChoice.com to enforce its rights therein.
K. Prohibited Transactions. Client warrants that Client is not, nor is Client acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control ("OFAC"). In addition, Client is not, nor is Client acting on behalf of any person or entity that is, a Specially Designated National ("SDN"), as OFAC may so designate from time to time. In addition to all other rights and remedies available to Company under this Agreement, and at law and in equity, Client’s breach of this section shall result in immediate termination of the Agreement and forfeiture of any and all Services or amounts previously provided, paid and/or owed to Client under this Agreement.
L. Miscellaneous. Each party hereto agrees that its performance under this Agreement shall in all respects conform to all applicable laws, rules, and regulations of the United States governing the export of technical information. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Services or this Agreement.