Client Terms of Service
THESE TERMS OF SERVICE (“TERMS”) GOVERN YOU AND YOUR AFFILIATES’ USE OF THE PRODUCTS AND SERVICES MADE AVAILABLE TO YOU BY MARKED PRIVATE, LLC (“MARKED PRIVATE”). THE TERMS “YOU” OR “YOUR” SHALL REFER TO YOU PERSONALLY OR, IF YOU REPRESENT A COMPANY OR OTHER SUCH ENTITY, TO THAT COMPANY/ENTITY AND ITS EMPLOYEES, AGENTS AND AFFILIATES AS THE CASE MAY BE.
YOU AGREE THAT BY COMPLETING AND SIGNING AN ORDER FORM WHICH REFERENCES THESE TERMS THAT THESE TERMS BECOME PART OF THE AGREEMENT (AS DEFINED BELOW). IF YOU ARE SIGNING AN ORDER FORM ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS.
ANY OTHER TERMS AND CONDITIONS, WHETHER SET FORTH IN YOUR PURCHASE ORDER OR OTHER DOCUMENTS OR WHETHER ISSUED BY YOU BEFORE OR AFTER THE DATE OF YOUR ORDER, ARE HEREBY EXPLICITLY REJECTED BY MARKED PRIVATE AND SHALL NOT BE BINDING IN ANY WAY ON MARKED PRIVATE.
1. DEFINED TERMS
“Admin(s)” means an individual who is authorized by You to create, copy, delete, and hide Events within the Dashboard, as well as manage Your access to the Platform and analytics. Admins can have limited access to information in Dashboard. Details about types of Admins and access may be found on the Dashboard.
“Affiliates” means, with respect to a party, any person that directly or indirectly Controls, is Controlled by or is under common Control with that party, where “Control” means beneficial ownership of at least fifty percent (50%) of the then-outstanding voting shares or equity interests in the person in question or the ability to otherwise direct the affairs or operations of the person in question, but only so long as such control exists.
“Agreement” means, collectively, these Terms and an applicable Order.
“App” means each Marked Private proprietary mobile, tablet, and web-based application.
“App Store” means the Apple® App Store℠, Google Play™, or other mobile application store.
“Competitor” means any individual or entity engaged in the business of developing or marketing products that are the same as or similar to the Platform.
“Content” means all of the copyrighted materials, data, information, and other content, whether copyrighted or not, originated by You and delivered to Marked Private that enables a Service to operate properly in connection with the Platform and Professional Services.
“End User” means an individual who downloads or otherwise accesses a Published Service. The End User means an individual who either registered through the Published App or is loaded or approved in the Dashboard for registration based on a unique user ID, whether such ID is provided by open signup or by You and regardless of whether the individual downloads the App on its mobile device, tablet, or other device. The End User may use the Service only for that individual’s own personal use and not for resale or distribution to any other person or entity.
“EULA” means an End User License Agreement entered into by End Users that governs use of the Published App.
“Event” means a meeting, experience, or other gathering produced by You.
“Dashboard” means Marked Private’s content management system and portal or the administrator portal.
“Marks” means each of Your trademarks, service marks, and logos that are delivered or made available by You to Marked Private for use in connection with the Agreement.
“Media Assets” means all Content consisting of branded graphics provided by You to be incorporated in a Service through the Dashboard that meets the specifications provided to You by Marked Private.
“Order” means an Order Form that references these Terms and is signed by Marked Private and You.
“Platform” means, collectively, Marked Private’s standard proprietary platform offering consisting of access to Marked Private websites and software (including Dashboard), App provisioning, hosting of the Services, assistance with use of the Dashboard, Service publication and distribution assistance, technical support, and related services made available by Marked Private to You, as identified in an Order.
“Professional Services” means any products, services, consulting, on-site support, or similar professional services ordered by You to be performed by Marked Private, as expressly identified in an Order (and/or SOW).
“Published App” means an App that is published to an App Store or the internet and used for an Event(s). A Published App may be used for single or multiple Events.
“Published Service” means the Published iOS and Android App.
“Service(s)” means an App, or other Customer-branded software product offered by Marked Private.
“SOW” or “Statement of Work” means the fully executed statement that outlines the scope of services outlined as project activities agreed to between You and Marked Private.
“Term” means the period beginning on the Contract Start Date and ending on the Contract End Date, each as specified in Your Order, which may be further extended by the automatic renewal provision of Section 12.1.
“Territory” means one or more of the following regions as indicated by these Terms and/or on Your Order, which shall be one of the following: the Americas (North America, Central America, and South America) or international, including EMEA (Europe, Middle East, and Africa), APAC (Asia, Japan, Australia, and non-US Pacific Islands), and ROW (rest of the world), and excluding countries where the Marked Private Services are not supported. For data privacy, security, and hosting purposes, Your Platform and Apps, shall be for use only in your designated Territory. Should you wish to go outside of your Territory, please contact your Marked Private client success manager to add an additional App to your subscription. Due to data privacy, security, and hosting reasons, the Services are not available and may not be used in certain countries, including the Russian Federation, Belarus, Kazakhstan, and other Eurasian Customs Union countries.
2.1 General. Marked Private shall provide You the Platform, Apps, and Professional Services as stated in an Order. Unless otherwise stated in an Order, access to the Platform is provided on a subscription basis, and Your ability to access and use, and enable Admins, and End Users to access and use, the Platform and content contained therein is dependent upon a current subscription term being in effect. You acknowledge that any Orders You place are not contingent upon the delivery of any future functionality or features, and nothing in this Agreement obligates either party to enter into any Order(s) or any further agreements. You may not access the Platform if You are a Competitor.
2.2 Platform Features. Marked Private will provide You with access to the Platform features, and Your End Users will have access (via the Published App, or other end user interface) to the features listed at https://appsupportservices.com/mp-features . This features list may change from time to time, in which case, Marked Private will use commercially reasonable efforts to maintain the primary features of the Published Apps which are of equivalent functionality as of the date of Your most recent Order. Marked Private will notify and offer You commercially reasonable alternatives if a primary feature of a Published App used by You in Your current Term is discontinued.
2.3 Hosting Services. After all Content has been delivered by You, Marked Private will host and make available such Content together with the Service for access and use by Your End Users and Admins. Marked Private will ensure that the Dashboard does not contain any viruses, spam, files, malware or any other malicious software content that may harm or disrupt Your use of the Dashboard. You acknowledge that Marked Private may limit Your use of the Platform to conform with the End User, Admin, and Published App amounts or components listed in Your Order. You shall pay for bona fide and demonstrable spikes in Your usage.
2.4 End Users. Marked Private will monitor monthly active End User usage and notify You if You exceed the End User count based upon Your Order(s). You will not be responsible for any overages unless notified of having exceeded Your limit. Additional End Users may be provisioned via an Order and their usage rights will expire at the end of the then-current Term. Any unused End Users may not be carried over to any renewal Term upon the expiration of the then-current Term.
2.5 Published Service. Each Service subscription includes the license to publish one (1) Published Service and unlimited Admin roles in the Dashboard to manage the Service. A new subscription and license will have to be procured for any additional Published Service. Furthermore, each license for a Published Service must be assigned at least one (1) Admin and the license must be renewed upon expiration in order for the Published Service to remain available on the App Store or online. Additional subscriptions for Published Services may be provisioned via an Order, and each new Service subscription will also include unlimited Admin roles.
2.6 Admins. Admin roles will be provided to You as stated in an Order. You must activate Admin roles by assigning it to a Published Service. Admin roles may be reassigned to a different Published Service so long as there is always at least one (1) Admin assigned to each Published Service.
2.7 Support. Marked Private will provide technical support for the Dashboard to You and Your End Users as specified in Your Order and as further specified below. Additional information regarding Marked Private support can be found at https://appsupportservices.com/mp-sla
2.8 Access. Marked Private will use commercially reasonable efforts to provide You with access to the Dashboard and Published Apps 98% of the time during the Term, subject to scheduled and planned (with advance notice) maintenance and subject to You and/or Your End Users having adequate connectivity and hardware. Marked Private will use various physical, electronic and procedural security measures to protect Your Content and End User Data. These measures include safeguards to prevent access, use, or modification of such content and data except to provide You use of the Platform, and Published Apps, or as compelled by law. Where Your use of the Platform includes the collection and processing of personal data (as described in the EU Data Protection Directive 95/46/EC or, as of May 25, 2018, the General Data Protection Regulation) within the European Economic Area, the terms of Marked Private’s Data Processing Agreement or other similar data processing agreement otherwise agreed upon by the parties shall apply to such processing.
3. INFORMATION AND CONTENT
3.1 Content Management System. As a part of the Platform, Marked Private will provide You with access credentials to the Dashboard during the Term through which You will be able to add and manage End Users, upload information and other Content for Your App (including push notifications and messages), and access End User data and related usage metrics. You will provide Marked Private with Media Assets for each Service in accordance with the specifications provided by Marked Private, and You must deliver such assets for each Service no later than twenty (20) business days prior to the intended launch date of the Service in order for the Service to be published and made available to End Users. You will also provide all necessary Content through the Dashboard in order for the Service to be made available to End Users in a timely manner.
3.2 Unauthorized Use. You will maintain the confidentiality of all usernames and passwords issued to You for Admins and End Users and are solely responsible for all activities that occur under these usernames. End Users and Admin passwords may not be shared between individuals.
4. APP STORE DISTRIBUTION
4.2 By You. You are responsible for App distribution, subject to the following:
4.2.1 You will comply with all applicable rules, guidelines, and terms and conditions of each App Store relating to the distribution permitted by this Agreement and will only distribute the Apps to End Users subject to a binding agreement that complies with the requirements of the applicable App Store and that contains the following terms: (i) title to, and ownership of, the Apps (excluding any of Your Content and/or Marks therein) remains with Marked Private; (ii) the Apps may not be altered, modified, distributed, transferred, reverse engineered, decompiled, or disassembled; (iii) all warranties, express and implied, are disclaimed on behalf of Marked Private; (iv) all direct, consequential, special, and indirect damages are disclaimed on behalf of Marked Private; and (v) data use and license provisions, as required to be passed on to End Users pursuant to a EULA subject to Section 5 of this Agreement;
4.2.2 In the case of the Apple App Store: (i) You will be solely responsible for obtaining and maintaining a valid iTunes Connect® account during the Term; (ii) You are solely responsible for creating the iOS Distribution Certification, provisioning profile with App ID and Bundle Identifier, and Apple® Push Notifications Production Certificate and associated passwords for each App; and (iii) You must deliver where applicable, the current Apple® Push Notifications Production Certificate to Marked Private no later than fifteen (15) days prior to intended App launch date in order to effect a timely deployment;
4.2.3 In the case of Google Play: (i) You will be solely responsible for obtaining and maintaining a Google Play developer account during the Term; and (ii) You may elect, in your sole discretion, to provide Marked Private with “Release Manager” access to Your Google Play account or, in the alternative, Marked Private can provide You Android .apk files to upload to the App to enable such use; and
4.2.4 Marked Private will use commercially reasonable efforts to provide You with distribution assistance and support to upload the App to the applicable App Store to the extent permitted under applicable App Store guidelines.
4.3 App Store Operator. You agree that the operator of each applicable App Store has the discretion to approve or reject the Apps and that Marked Private shall have no responsibility for any App that is rejected by the owner/operator of such App Store.
4.4 Suspension. Marked Private will have the right to immediately suspend or discontinue the distribution of any Published App in the event that it reasonably determines that such distribution may result in significant harm, damage, or liability for Marked Private.
5. PLATFORM USE AND PROPRIETARY RIGHTS
5.1 Platform License. Marked Private hereby grants to You, subject to the terms and conditions of this Agreement, a limited, revocable, non-exclusive, non-transferable (except as set forth in Section 13.10), fully paid, and royalty-free license to access and use the Platform in the Territory during the Term, solely for Your internal business purposes and for the purpose of uploading and viewing content and data related to the Platform. Marked Private shall own and retain all right, title, and interest in and to the Platform.
5.2 Restrictions on Use. You shall not, and shall not permit any third party to: (i) use the Platform or Services in any manner or for any purpose prohibited by law; (ii) upload any infringing or malicious content or code; (iii) reproduce, modify, adapt, alter, translate or create derivative works from the Platform and/or any Service; (iv) merge the Platform and/or any Service with any other software; (v) reverse engineer, decompile, dissemble, or otherwise attempt to derive the source code for the Platform and/or any Service; or (vi) distribute, sublicense, lease, rent, loan, or otherwise transfer the Platform and/or any Service to any third party except as expressly allowed under this Agreement. You may not, without the express prior written consent of Marked Private, use the Platform in combination with any other products of Competitors to compare, monitor or benchmark the Platform against such other products. You must not remove, alter, or obscure in any way any proprietary notices of Marked Private or its suppliers within the Platform and/or on any Service.
5.3 Marked Private IP
5.3.1 The Platform, Services, and any other work product resulting from the Platform and/or the Professional Services, including, without limitation, notes, records, drawings, designs, works, discoveries, improvements, specifications, operating instructions, inventions, processes, know-how, techniques, trade secrets, software and any derivatives, updates or upgrades to all of the foregoing, which may or may not be included in a portion of the Platform or Professional Services, but excluding all Content, Media Assets and Marks incorporated therein, and all worldwide intellectual property rights in all of the foregoing (collectively, “Marked Private IP”), are the exclusive property of Marked Private. For avoidance of doubt, any copyrightable subject matter developed by Marked Private during the Term of this Agreement is not a work made for hire and shall be owned directly by Marked Private. All licenses granted by Marked Private to You are express, are limited to their terms and conditions specified herein, and there are no implied licenses granted to You to any Marked Private IP.
5.3.2 Marked Private may explicitly identify its ownership or other rights within the Platform, Apps and any other work product resulting from the Platform and/or the Professional Services by using its branding, trademarks, the phrase “Powered by Marked Private” or other identifying material.
5.3.3 Client agrees that Marked Private shall have the right to use Client Marks for inclusion in Marked Private’s marketing materials, including investment presentations, sales decks and website.
5.4 Assignment of Rights. If You obtain any ownership rights in or to any Marked Private IP or any other work product resulting from Marked Private’s performance under this Agreement, You hereby irrevocably and unconditionally: (i) assign all such right, title, and interest to Marked Private; (ii) waive any enforcement of any such ownership rights You may have against Marked Private; (iii) grant Marked Private an unlimited, non-revocable, worldwide, exclusive, transferable, fully paid, royalty-free, non-assessable license to such ownership rights; and (iv) covenant and agree that in the event any moral rights exist that cannot be assigned to Marked Private, You, to the maximum extent permitted by law, shall not exercise such moral rights in any way that might interfere with Marked Private’s economic exploitation of such material or which might inhibit Marked Private from modifying the material in any manner in which Marked Private sees fit.
5.5 License to Your Content, Media Assets and Marks. You hereby grant Marked Private a worldwide, royalty-free and nonexclusive license during the Term to use, reproduce, perform, display, distribute, and modify all Content, Media Assets and Marks (collectively, “Your Licensed IP”), solely for Your benefit as follows: (i) in connection with the Platform and Professional Services; (ii) for creation of, or incorporation of materials into, the Dashboard and any Service; and (iii) in connection with marketing activities as requested by You in the Order. Your Licensed IP is and shall remain Your exclusive property. The license granted by You to Marked Private to use Your Licensed IP as provided herein is express, is limited to its terms and conditions specified herein, and there are no implied licenses granted by You to Marked Private.
5.6 Your Licensed IP. You represent and warrant that: (i) Your Licensed IP is correct and current; (ii) Your Licensed IP is owned by You or You have the right to grant the license in Section 5.5 above; (iii) Your Licensed IP shall not contain nor distribute any viruses, spam, files, malware or any other malicious software content that may harm or disrupt the operation of the Platform; (iv) Marked Private’s placement, provision and/or use of Your Licensed IP shall not violate or infringe the intellectual property, moral, privacy, or publicity rights of any third party; and (v) to the extent necessary, Marked Private’s use of Your Licensed IP has been properly and completely approved for the uses hereunder.
5.7 End User Data. To the extent You use the Platform to collect End User data (such as posts, sessions, photos, and responses to polls from End Users and the names of End Users), including any rights therein, as part of the Platform or use of a Published Service (collectively, “End User Data”), You agree to (i) process End User Data in accordance with local data protection legislation; (ii) inform End Users of the means and purposes for which you process their data; and (iii) inform End Users of their rights to access, delete and modify their personal data.
5.8 License to End User Data. Marked Private will not disclose, transfer, or use any End User Data for any purpose other than to perform its obligations under this Agreement with the following exception: You grant Marked Private a perpetual, worldwide, royalty-free, and nonexclusive right to use, reproduce, modify, and adapt non-personally identifiable usage statistics for the sole purposes of analyzing, reporting on, developing, and improving Marked Private’s services and products.
6. PROFESSIONAL SERVICES.
Marked Private shall perform Professional Services (as identified in an Order or SOW) in a professional and workmanlike manner.
7.1 Fees. You shall pay Marked Private the fees for the Platform provided over the Term and for the Professional Services, in each case as described in the Order or SOW. In the event that You are late or otherwise in default with respect to any payment due herein: (i) You shall pay Marked Private interest at an annual percentage rate of 18% or the maximum rate permitted by law, whichever is lower, on the outstanding sum from the payment due date until the date of full payment and (ii) without limiting its other remedies, Marked Private may suspend and/or terminate access to the Platform and withhold performance of Professional Services. Furthermore, any returned or stopped payments will incur additional handling charges. All subscriptions are non-cancelable, as payment obligations for such subscriptions are incurred at the time the subscription is activated. Fees paid are non-refundable; provided that fees for Professional Services that are unused in the current year may be carried over for Professional Services to be rendered in the following year. Amounts due under an invoice will be paid in the currency specified in the applicable Order, by electronic transfer/ACH, in full, or as further agreed to in writing by Marked Private’s Accounting Office.
7.2 Taxes. The fees exclude all applicable sales, use, value added, and other taxes (other than taxes on Marked Private’s income), duties, charges, and related fees and penalties in each case arising from any payments to be made to Marked Private under this Agreement and/or performance hereunder (collectively, “Taxes”). You will be responsible for payment of all Taxes as set forth in an invoice. You will make all payments of fees to Marked Private free and clear of, and without reduction for, any withholding taxes; any such taxes will be Your sole responsibility, and You will provide Marked Private with official receipts issued by the appropriate taxing authority, or such other evidence as Marked Private may reasonably request, to establish that such taxes have been paid.
8.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products or services, or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the source code for the Apps and all enhancements and improvements in the foregoing, and technical and functional information of the Platform will be considered Confidential Information of Marked Private. You acknowledge and agree that information which is uploaded by You, or on your behalf, for distribution with a Service, whether or not Confidential Information, shall be distributed to your End Users in accordance with this Agreement.
8.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees with a need to know, who have confidentiality obligations no less restrictive than those set forth herein and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files consistent with that party’s records retention/destruction policy) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence. The confidentiality obligations set forth in this Section shall not apply to any information that: (i) becomes generally available to the public through no fault of the Receiving Party; (ii) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (iii) was already known to the Receiving Party at the time of disclosure; or (iv) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees or contractors of the Receiving Party who did not use the Confidential Information.
8.3 Necessary Disclosure. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body; provided, that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THE PLATFORM, SERVICES, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND MARKED PRIVATE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE PLATFORM, SERVICES, AND ITS PERFORMANCE OF THE PROFESSIONAL SERVICES UNDER THIS AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. MARKED PRIVATE DOES NOT WARRANT THAT USE OF THE PLATFORM, SERVICES, AND PROFESSIONAL SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
10. LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF SECTION 8, A CLAIM RELATING TO MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND/OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, OR TO THE PLATFORM, ANY SERVICE, OR PROFESSIONAL SERVICES. EXCEPT FOR A BREACH OF SECTION 8, A CLAIM RELATING TO MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND/OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM, ANY SERVICE, AND/OR PROFESSIONAL SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED TWO (2) TIMES THE AMOUNT OF FEES PAID TO MARKED PRIVATE BY YOU UNDER THIS AGREEMENT. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT SHALL NOT INCREASE EITHER PARTY’S LIABILITY. IN NO EVENT SHALL MARKED PRIVATE’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
11.1 By Marked Private. Marked Private will defend, indemnify and hold You harmless at its own expense for any action against You brought by a third party to the extent that the action is based upon any claim that the Published Services (excluding any Content, Marks, or any End User Data incorporated therein) infringe any U.S. copyrights or misappropriate any trade secrets (including those recognized as such under the Uniform Trade Secret law) and will pay those costs and damages finally awarded against You in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Marked Private will have no obligation under this Section with respect to an infringement claim based upon: (i) any use of the Published Services (or any of their components) not in accordance with this Agreement; (ii) any use of the Published Services (or any of their components) in combination with other products, equipment, software or data not supplied by Marked Private; or (iii) any modification of the Published Services (or any of their components) by any person other than Marked Private and its authorized representatives (collectively, “Excluded Claims”). If any Published Service becomes, or in Marked Private’s opinion is likely to become, the subject of an infringement claim, Marked Private may at its option: (a) procure for You the right to continue using the Published Service; (b) replace or modify the infringing component(s) of the Published Service so that it becomes non-infringing; or (c) terminate this Agreement and refund any fees actually paid by You to Marked Private as advance payment for provision of the Platform for the remainder of the Term then in effect. This Section states Your sole and exclusive remedy and Marked Private’s entire liability for infringement claims and actions.
11.2 By You. You will defend, indemnify and hold Marked Private harmless at Your expense for any action brought against Marked Private, and will pay any settlement You make or approve, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party resulting from or relating to: (i) any actions or omissions on Your part in marketing or distributing the Published Services; (ii) any use of the Services which violate this Agreement or any U.S. or other applicable law, (iii) any representations, warranties, or guarantees made or published by You which are inconsistent with those made in this Agreement; (iv) the Content, Marks, Media Assets; or (v) the Excluded Claims. This Section states the sole and exclusive remedy of Marked Private and Your entire liability for the claims and actions described herein.
11.3 Procedure. The foregoing obligations of the indemnifying party are conditioned upon the indemnitee promptly notifying the indemnifying party in writing of the action, the indemnitee giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnitee cooperating and, at indemnifying party’s expense, assisting in such defense.
12. TERM AND TERMINATION
12.1 Term. Unless sooner terminated as permitted herein, the Agreement shall commence and expire on the dates identified in Your Order. Upon expiration, the Order will automatically renew under the same terms unless either party provides written notice of non-renewal at least thirty (30) days before the end of the then-current term or the parties enter into a new Order that expressly replaces and supersedes the then-existing Order. In the event of any pricing changes prior to expiration of Your current Order, You will be notified of such changes at least forty-five (45) days prior to Your auto-renewal date for such Order.
12.2 Termination. Either party may terminate this Agreement immediately upon written notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured for more than fourteen (14) days after receipt of such notice of breach. Upon termination or expiration of this Agreement for any reason and except as expressly provided herein, all rights and obligations of both parties shall immediately terminate and each party shall promptly return (or, at the other party’s request, destroy) the other party’s Confidential Information as defined in Section 8.2.
12.3 Platform Discontinuance. For a period of not less than thirty (30) days following termination or expiration of this Agreement, You may access the Platform to export or download Your Content and End User Data. During such period, You may not upload any new Content nor create any new Events, and Your then-existing Published Service(s) and Events will be suspended. After such minimum thirty (30) day period and unless legally prohibited, Marked Private will have no obligation to provide You access or maintain Your Content or End User Data.
12.4 Survival. The following Sections shall survive expiration or termination of this Agreement: 1, 3.2, 5.2 – 5.5, 5.7 – 5.10, 7, 8, 9, 10, 12.3, 12.4, and 13. Rights under any then-in-effect EULA shall survive expiration or termination of this Agreement in accordance with their terms.
13.1 Notice. Any notice or communication permitted or required hereunder shall be in writing and if given in person or by courier, it shall be effective upon date of delivery; if sent by fax or standard email, it shall be effective as of the date of transmission; and if notice is given by mail, it shall be effective two (2) business days after deposit in the mail. Notices to You will be sent to the address or email address You provide on the Order. Notices to Marked Private must be sent to: Marked Private, LLC, 5 Winkler Farm Road Bedford, New York 10506, Attention: Legal Department. Each party has the right to change its address for notice by providing the other party at least ten (10) days’ prior, written notice.
13.2 Relationship of the Parties. The parties are independent contracting parties to this Agreement. Neither party is the legal representative, joint venturer, or partner to the other party for any purpose. Neither party has authority to bind the other party to any third party or otherwise to act in any way as the other party’s representative or agent, except as this Agreement provides or the parties expressly agree in writing.
13.3 Legal Costs and Expenses. In the event either party must retain an attorney to enforce this Agreement or to file or defend any action arising out of this Agreement, the prevailing party in the action is entitled, in addition to any other remedies available to it, to recover from the other party its reasonable fees for lawyers and expert witnesses, plus court costs and expenses as a court of competent jurisdiction may fix. The term “prevailing party” for the purposes of this Section includes a defendant who has by motion, judgment, verdict, or dismissal by the court, successfully defended against any claim that has been asserted against it.
13.4 Waiver. No failure or delay by either party in exercising any right, power or remedy under this Agreement operates as a waiver of any right, power or remedy. No waiver of any provision of this Agreement is effective unless in writing and signed by the party against whom the waiver would be enforced. Any waiver by either party of any provision of this Agreement is not a waiver of any other provision of this Agreement, nor does any waiver operate as a waiver of the relevant provision respecting any future event or circumstance.
13.5 Modifications and Amendments. Marked Private may revise these Terms at any time by prominently posting an update to the customer terms of service on the Marked Private website or by providing written notice to You. For purposes of this Section, You agree that written notice to You may be provided by email to the email address set out in the Order. You are responsible for providing us with Your most current e-mail address. In the event that the last e-mail address that You have provided us is not valid, or for any reason is not capable of delivering to You the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of the Platform following posting of changes or notice shall indicate Your acknowledgement of such changes and agreement to be bound by such changes. All modifications or amendments to the Order must be made in a writing signed by both parties in order to be effective.
13.6 Publicity. Upon mutual agreement, the parties may issue a press release, case study, blog post or social media post relating to the business relationship between them.
13.7 Severability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, that provision will be enforced to the extent possible consistent with the parties’ stated intention or, if incapable of enforcement, will be deemed to be deleted from this Agreement while the remainder of this Agreement will continue in full force.
13.8 Entire Agreement. This Agreement constitutes the parties’ entire agreement. This Agreement supersedes all prior or contemporaneous agreements, understandings or communications between the parties, whether oral or written, with respect to its subject matter; provided, however, that any nondisclosure agreement in effect between the parties will remain in full force. You are not relying upon any statement, representation or warranty, whether negligently or innocently made, of any person that is contrary to this Agreement. In the event of conflict between these Terms and an Order, these Terms shall prevail.
13.9 Remedies. You acknowledge that the Services contain valuable trade secrets and proprietary information of Marked Private, that any actual or threatened breach of Sections 5 or 8 shall constitute immediate, irreparable harm to Marked Private for which monetary damages would be an inadequate remedy. In such case, Marked Private will be entitled to immediate injunctive relief without the requirement of posting bond.
13.10 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement, in whole or in part, without first obtaining the other party’s prior written consent, except that either party may assign this Agreement, in whole or in part, without obtaining the consent of the other party, to the assigning party’s Affiliates and/or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of the assigning party’s assets. Any attempted assignment or transfer in violation of the foregoing will be void.
13.11 Export Control and FCPA. You shall not export from anywhere any part of the Platform or any direct product thereof except in compliance with all applicable export laws, rules and regulations, including but not limited to the laws, rules and regulations administered by the U.S. Department of Commerce, the U.S. Department of Treasury, or other agency or department of the United States Government. By placing an Order to use the Platform, You shall not take any action in violation of the U.S. Foreign Corrupt Practices Act and shall make no payment or transfer anything of value, directly or indirectly, to any employee or a government or instrumentality thereof, international organization, political party or official or candidate thereof, to influence any decision to obtain or retain business or secure other advantage. You shall inform Marked Private of any laws in the nature of lobbying registration or disclosure which may be found to apply to use of the Platform, and assist Marked Private in its consideration of and compliance with any such requirements.
13.12 Force Majeure. Any delay in the performance or duties of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the reasonable control of such party; provided, that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
13.13 Governing Law; Venue. This Agreement is governed by and interpreted in accordance with the laws of the State of New York, excluding that body of law related to choice of laws, and of the United States of America. Any proceeding brought to enforce this Agreement or to adjudicate any dispute related to this Agreement must be heard in the courts of Westchester County, New York. Each party submits itself to the exclusive jurisdiction and venue of these courts for purposes of proceedings related to this Agreement, waives forum non conveniens and similar defenses, and agrees that any service of process may be affected by delivery of the summons to the address for notice as specified herein.
Updated Sept. 2018