Terms & Conditions
The Client grants Netmark a royalty-free right to list, reference or otherwise identify the Client as a client of Netmark in Netmark’s advertising and marketing, unless the Client notifies Netmark otherwise in writing. Netmark may retain and use information collected from the Client to create anonymous, aggregated reports. The Client expressly grants to Netmark and its affiliates the right to make unsolicited and continued communications, including via email, text, telephone and any other written or electronic communication. The Client has the ability to opt out of communications at any time.
TERMINATION. Netmark may terminate Our Services at any time upon written notice to the Client and without liability. Netmark may also, immediately suspend or terminate the Client’s Service, if Netmark concludes, in its sole discretion, that the Client (a) has breached, violated, or acted inconsistently with the letter or spirit of Our Services, any applicable Netmark Policy or any applicable law, rule, order or regulation; (b) has provided false information as part of the Client’s account information; (c) has failed to keep the Client’s account information complete, true, and accurate; (d) fails to respond to any email communication sent to the email address listed in the Client’s account information; (e) becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or (f) fails to pay any fees, costs or expenses owed to Netmark (each a “Termination for Cause”). Any Termination for Cause by Netmark will take effect immediately.
Upon termination: (a) all rights granted to the Client under Our Services, including the Client’s right to use the Services, shall cease; (b) Netmark shall stop performing all Services (c) the Client shall immediately pay to Netmark any fees due under Our Services. Should Netmark terminate Our Services due to any Termination for Cause, the Client shall remain liable for all fees applicable to the Services as a whole. FEES. The Client agrees to pay all fees, expenses and charges specified in the Proposal provided to the Client and incorporated by reference herein, and for any other services, work or products requested by the Client. All fees and charges quoted by Netmark are to be paid in US Dollars. All fees must be received by Netmark prior to the start of any Services or in accordance to the agreed upon payment terms, subject to approved credit. Upon notices that may be required by applicable law, Netmark may at any time modify its billing practices, change the amount of or basis for determining any fee, expense or charge.
The initial term for Services shall begin on the date specified in the Proposal and continue for the period specified therein. The Client understands and accepts that, unless otherwise expressly stated in the applicable Proposal, Netmark’s Services are subscriptions and operate on an auto-renewal basis such that the Client’s credit card, debit card, electronic payment or other method of payment will be assessed the specified fees at regular intervals. The Client must notify Netmark at least thirty days prior to make a change to the fees. The Client authorizes Netmark to charge the Client for all monthly Services, deemed reoccurring, as listed in the Proposal and for all additional services requested by the Client.
If the Client’s credit card is denied for any reason, Netmark will automatically attempt to resubmit the Client’s card on subsequent days. Should the card be denied, Netmark may terminate or suspend Our Services and stop providing Services to the Client. If Netmark does not receive payment from the card issuer, the Client agrees to pay Netmark all amounts due upon demand. Payments by cash or check will be accepted but must be paid in advance and paid in full. Checks should be addressed and mailed to Netmark, Inc. Checks returned (NSF) will be charged a $35.00 fee. The Client shall be responsible for any and all costs for the collection of amounts owed. The Client acknowledges and agrees that any credit application, credit card, billing and/or payment information provided to Netmark may be shared by Netmark with companies who work on Netmark’s behalf, such as payment processors and/or credit agencies, for the purposes of checking credit, effecting payment to Netmark and servicing the Client’s account.
LATE FEES. If for any reason the Client fails to pay all fees, charges and expenses by the date due for payments, Netmark shall have the right to any or all of the following remedies as well as any other remedies available under applicable law: (i) Assess and collect charges for the late payment in an amount constituting whichever is higher, $35.00 late fee or a interest rate 1.5% per month assessed on the total outstanding balance (or the highest interest rate permitted by law, if less); (ii) Suspend or terminate Our Services or any or all of the Services without incurring any liability whatsoever. Services may be terminated and removed from Netmark’s servers by Netmark with or without notice, and all the information contained within deleted permanently. Netmark is not liable for information or content that is deleted due to an invalid payment method or late payments. Reactivation of the Service after termination or suspension for any reason shall require the payment of all amounts outstanding plus additional setup fees; (iii) Retain, and/or assign unpaid late balances to, a collection agency or attorney for appropriate action.
CANCELLATION. If the Client wishes to cancel Our Services during the initial term as defined in the Proposal, prior to the end of the contractual period, they may do so by providing a written request 10 days prior to the next billing date. A buyout will be charged for the remainder of the initial contract term. The buyout will consist of an amount not less than 35% of the remaining balance of the initial term. At the time a buyout is requested, services will be immediately discontinued, and the buyout amount must be received from the Client within 30 days.
GUARANTEES. Due to numerous factors outside of Netmark’s control, performance forecasts can vary widely, and may not accurately reflect the Client’s future performance. Services are sold “as is” and Netmark does not provide any guarantee or warranty, and specifically disclaims all guarantees or warranties regarding rankings/positions, performance levels, success, service quality, accuracy, or timing of any services performed. Netmark cannot guarantee an increase or decrease in the placement or rankings of any website, webpage, profile, listing, and/or account pertaining to the Client, nor can it guarantee an increase or decrease in visitors, sales, revenue, and/or profit as a result of Services provided. The Client’s Web Properties may be excluded from any search engine and/or third-party website at any time, and without notice, at the sole discretion of the search engine or third-party. All dates, milestones, and deadlines provided are estimates only, and are not guaranteed on firm delivery dates.
OBLIGATION TO PAY. The suspension, termination of Services, or of Our Services, shall not absolve the Client from paying any outstanding charges, fees, expenses, interests and penalties. The Client shall have no right to offset or recoup any amounts owed to Netmark. In addition, the person signing Our Services, jointly and severally, along with the Client, unconditionally guarantees and promises to pay Netmark all indebtedness of the Client in relation to any Services.
LIMITATION OF LIABILITY. To the maximum extent permitted by applicable law, under no circumstances and under no legal theory, tort, contract, or otherwise, shall Netmark be liable to the Client or any other person or entity for any damages, whether direct, indirect, special, incidental, cover, reliance or consequential, including, without limitation, damages that result from the use of or inability to use the products or services or that result from mistakes, omissions, interruptions, deletion of files or e-mail, loss of or damage to data, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not limited to acts of god, communication failure, theft, destruction or unauthorized access to records, programs or services. No claim may be asserted by the Client against Netmark more than 12 months after the date of the cause of action underlying such claim, and unless otherwise specifically set forth in this agreement, the Client’s sole and exclusive remedy for any failure or nonperformance of the services shall be for Netmark to use commercially reasonable efforts to adjust or repair Netmark’s Services. In the event a court of competent jurisdiction awards the Client damages arising out of or in connection with Our Services, regardless of the form of the action (whether in contract, tort (including negligence) or otherwise), the maximum aggregate liability of Netmark to the Client shall not exceed the amount the Client paid to Netmark for the applicable services in the 12 months prior to the accrual of the applicable claim or five hundred dollars ($500.00), whichever is less.
The existence of one or more claims will not increase Netmark’s liability. The Client agrees to defend and indemnify Netmark from any loss, liability, damages or expense (including without limitation costs and reasonable attorney’s fees and expert witness fees) resulting from any third-party claim, action, proceeding or demand related to the Client. In addition, the Client agrees to indemnify and hold Netmark harmless from any loss, liability, damages or expense (including without limitation costs and reasonable attorney’s fees and expert witness fees) arising out of (i) any actual or alleged breach of any representation or warranty provided herein, (ii) any negligence or willful misconduct by the Client, (iii) any allegation that the Client’s information, accounts or actions infringes a third-party’s copyright, trademark or any other proprietary or intellectual property right, or misappropriates a third person’s trade secrets; (v) the effects of any messages distributed by the Client, events hosted by the Client, and/or products or services sold by the Client, (vi) the Client’s use of any third-party product or service; or (vii) any content the Client posts or any materials the Client sends using Netmark’s services.
AMENDMENTS. Netmark reserves the rights to periodically amend, modify, change, revise, suspend, or discontinue any Service in whole or in part, either temporarily or permanently, at its discretion, with or without notice. Netmark may also amend Our Services from time-to-time due to changes in its Services, to account for new laws, or for any other commercially reasonable reason. Unless specified otherwise, amendments to Our Services will become effective upon notification (by email, mail, or by posting on our website). If the Client does not agree with any such amendment, the Client should contact Netmark to receive an exemption or to terminate Services within 30 days of the change in terms. Regardless of how notice was provided, the Client’s continued use of Netmark’s Services following notice or any posting of amended terms, will constitute the Client’s acceptance of such amendments.
CONFIDENTIALITY. Both Netmark and the Client acknowledge and agree that services provided will create an exchange of “Proprietary Information”. Both parties shall keep the “Proprietary Information” in confidence and shall not, at any time during the agreement or for a period of not less than five (5) years after the term of Our Services, without prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the “Proprietary Information”. Excluded from the “Proprietary Information” definition is anything that can be seen by the public in any advertising medium or channel prior to the Client’s engagement of Netmark. The Client shall not disclose the terms or conditions of Our Services, including the Proposal, to any third-party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with a government law, rule or regulation. Netmark shall not, at any time, without the prior written consent of the Client, disclose to any third-party confidential information excluding agents, contractors, servants, officers, employees, and affiliates of Netmark. It is important to note that Netmark records and monitors certain emails, phone calls, and electronic chats, and may disclose any Client information as necessary to satisfy the law, or to protect itself, or others to which Netmark may owe any duties.
SECURITY. The Client shall be solely responsible for securely maintaining any user names, passwords and other account information. Netmark may follow the instructions of any person who represents he/she is authorized by the Client to use or make any changes to any Client accounts. Netmark shall have no liability to the Client for any unauthorized use of the Client’s account. The Client agrees to keep full and complete daily backups of its own Web Properties. The Client shall be solely responsible for replacement of lost information should the need arise.
NO DISPARAGEMENT. A company’s online reputation is very important to its success. For this reason, both parties shall never post, transmit, retransmit, or store any message, material, or content that is about, names, or references the other party or its owners, directors, officers, employees, contractors, or consultants, which is unlawful, disparaging, threatening, obscene, indecent, vulgar, tortious, defamatory, or libelous or that otherwise could adversely affect the reputation and name of the other party. Both parties agree that any website or electronic communications portal may remove any such content without any liability to the either party and that either party hereby holds harmless and waives any cause of action or claim they may have against such websites and their owners. Similarly, both parties agree to never seek or solicit advice on any Internet forums, blogs, community groups or any social media in any manner which would adversely affect the other party or any of its owners, directors, officers, employees, contractors, and/or consultants.
NON-SOLICITATION. During the term of Our Services and for a period of two years after the expiration, cancellation, non-renewal, or termination of this Agreement, for whatever reason, the Client shall not, directly or indirectly: (1) Employ or offer employment to any current or former Netmark employees and/or contractors. (2) Hire or offer to hire any current or former Netmark employees and/or contractors as a contractor, consultant, intern, trainee, or to provide any type of product or service. (3) Request, cause, or induce any current or former Netmark employee and/or contractor to breach any agreement with Netmark or to dissolve their relationship; or (4) Otherwise solicit or attempt to solicit any current or former Netmark employee and/or contractor of Netmark.
SURVIVABILITY. The terms and conditions of Our Services apply to all those obligations that survive or would typically survive any cancellation, expiration, termination, or rescission, including without limitation – warranty, indemnification, liability, and limits thereon, payments and other applicable rights and obligations, despite any failure of consideration or of an exclusive remedy.
SEVERABILITY. The waiver, breach, or failure of either party to enforce any of the terms and conditions of Our Services shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of Our Services. If any provision of Our Services is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of Our Services shall remain in full force and effect.
JURISDICTION. Our Services shall be governed by and construed in accordance with the laws of the State of Idaho. Exclusive jurisdiction and venue shall be in the Idaho State Courts located in Bonneville County, Idaho, United States of America. All litigation shall be conducted on an individual (and not a class-wide) basis. The Client expressly acknowledges and agrees that Our Services prohibits the Client from commencing legal proceedings as a representative of others or joining in any proceeding brought by any other person or entity. It is expressly agreed that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to Our Services.
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