Terms of Services
1. Acceptance of the Terms of Service
2. Changes to the Terms of Service
Marketing Machine AI may amend the Terms related to the Services, from time to time, at its sole discretion, unless otherwise stipulated herein. You are responsible for reviewing any updated Terms of Service we may send to you and contacting us to update your e-mail address. Your continued use of our Services represent that you agree to be bound by all the terms in the revised terms of services.
3. Our Services
3.1. In General
Marketing Machine AI provides Services and support to Customers conducting online marketing and technology development. In general, our Services will perform materially as described in the Documentation (defined below) when used in accordance with our instructions. To the extent within our reasonable control, we will not materially decrease the functionality of our Services during a subscription term, and we will not knowingly introduce any Malicious Code (defined below) into your systems.
Marketing Machine AI will use all commercially reasonable effort to make the Services available to you pursuant to these Terms, provide our standard support for the Services to you at no additional charge, and provide you with online Services 24 hours a day, 7 days a week, except for any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay or denial of service attack.
Our Services can only be purchased through subscriptions or written agreement mutually executed by both parties. Services are subject to usage limits as set forth in the Documentation (defined below) and these Terms, including, for example, the quantities specified in subscription forms or written agreements. If you exceed a contractual usage limit, we may work with you to seek to reduce your usage so that it conforms to that limit. If, notwithstanding our efforts, you are unable or unwilling to abide by a contractual usage limit, we may require that you order additional quantities of the applicable Services and/or pay any invoice for excess usage in accordance with Section 5 (Payment for Services).
BY REGISTERING AN ACCOUNT WITH US (“ACCOUNT”) OR USING OUR SERVICES, YOU ACKNOWLEDGE AND AGREE THAT MARKETING MACHINE AI DOES NOT GUARANTEE QUALITY, ACCURACY, SAFETY AND LEGALITY OF THE INFORMATION IN OUR DATABASE. YOU ARE ADVISED TO SEEK THE LEGAL ADVICE FROM A LICENSED PRACTITIONER TO EVALUATE THE SUITABILITY OF OUR SERVICES FOR YOUR BUSINESS PRIOR TO USING OUR SERVICES.
3.2. Beta Services
From time to time, we may invite you to try our beta Services (“Beta Services”). You may accept or decline any such trial in your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under the Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date, or the date that a version of the Beta Services becomes generally available or the date that we elect (in our sole discretion) to discontinue the Beta Services. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
4. Third Party Applications
4.1. Acquisition of Third Party Applications
The Services may be compatible or useful in connection with a third party applications or services, including, for example, other applications and implementation and other consulting services. Any acquisition by you of such other third party applications or services, and any exchange of data between you and any other provider, is solely between you and the applicable other provider.
WE DO NOT WARRANT OR SUPPORT THIRD PARTY APPLICATIONS OR OTHER SERVICES, WHETHER OR NOT THEY ARE DESIGNATED BY US AS “CERTIFIED” OR OTHERWISE.
4.2. Integration with Third Party Applications
The Services may contain features designed to interoperate with third party applications (such as Google OAuth and Google+). To use such features, you may be required to obtain access to third party applications from their providers, and may be required to grant us access to your account(s) on the other applications. If the provider of other application ceases to make the third party applications available for interoperation with the corresponding Service features on reasonable terms, we may cease providing those Service features without entitling you to any refund, credit, or other compensation.
5. Payment for Services
5.1. Payment In General
Every Customer shall be responsible for timely payment of all fees specified on our invoices in U.S. dollars and other obligations set forth in the physical or electronic order form, including any addenda and supplements thereto. By using our Services, you acknowledge and agree that our fees are based on Services purchased rather than actual usage; that our fees cannot be cancelled once charged and all fees paid are non-refundable; and that all payments to subscription services must be paid in full, in advance, and in accordance with the terms of the agreement. You further acknowledge and agree that during the term of any subscription, the subscription fee cannot be reduced, by for example, reducing the amount of Service usage.
By using our Services, you acknowledge and agree that our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, as “Taxes”). You are solely responsible for paying all Taxes associated with the use of our Services. If you are exempt from certain Taxes, you shall provide us with the valid Tax exemption documentation.
5.3. Late Payments
In the event that your credit card was declined, your check was bounced, or your payment was not timely made for any or no reason, we will automatically charge and you shall be automatically responsible for all reasonable surcharges, including but not limited to any administrative fees, processing fees and fines. In addition, if any of your payment is 20 or more days overdue (or 10 or more days overdue in the case of amounts you have authorized us to charge to your credit card), we may choose, at our sole discretion and without limiting our other rights and remedies, accelerate your unpaid fee obligations to be immediately due. In addition, we reserve our right to suspend, terminate, or delete your Accounts or Services upon a 10 day prior notice.
This Section 5.3 (Late Payments) does not apply to any payment or invoices under a good faith dispute and/or resolution.
5.4. Future Functionality
You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
6. Conditions for Using Our Services
The Services are not directed to or intended for use by anyone under the age of 18. By using our Services, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from our Services, or engaged in any activity that could result in suspension or removal from our Services, (d) have all right, power and authority to enter into and perform this Agreement; (e) the execution of this Agreement and performance of this Agreement will not violate any other agreement to which you are party; (f) this Agreement constitutes the legal, valid and binding obligation to you; and (g) you shall perform this Agreement in accordance with all applicable laws, including any laws, rules and regulations related to unsolicited commercial communications.
6.2. Representations and Warranties
You acknowledge and agree that your use of our Services is subject to your adherence certain documentations, such as written agreements and certain service descriptions, pricing information and user guides available on our Website, as amended and/or updated from time to time (“Documentation”), and incorporated herein by reference.
You further acknowledge, agree, represent and warrant that:
– you shall not use our Service for any unlawful purpose;
– you shall not infringe rights of Marketing Machine AI or a third party, including any property, intellectual property, privacy rights of Marketing Machine AI or a third party;
– you shall not use our Services in violation of any of the Terms herein, including the DPA;
– you shall not use our Services in violation of your contractual or other legal obligations, including applicable personal data protection laws;
– you shall not commit any unlawful acts using our services, including any infringing, libelous, tortious acts;
– you shall not “stalk” or otherwise harass any person;
– you shall not make false representations about your affiliations;
– you shall not use any software, program, file, scripts, agents, or any other code, including, for example, viruses, worms, time bombs and Trojan horses, (“Malicious Code”) that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
– you shall not engage in any conduct that interferes with our Website, App or Services, or restricts or inhibits any other person from using or enjoying the same, or which, in Marketing Machine AI’ sole judgment, exposes Marketing Machine AI or any of its officers, directors, employees or agents to any liability or detriment of any type;
– you shall not copy any part of our Service including any feature, function or user interface thereof;
– you shall not use or attempt to use reverse engineer to reconstruct any of Marketing Machine AI’ Services;
– you shall not harvest or otherwise collect any data, information or content from our Website or App, including by using manual or automated software, devices, or other processes to “crawl”, “scrape” or “spider” any page of the Website or App to copy, obtain, propagate, distribute or misappropriate any content;
– you shall not permit any direct or indirect access of our Services that circumvents or attempts to circumvent a contractual usage limit;
– you shall not access our Services with the intent to build a competitive product or service;
– you shall not frame or mirror any part of our Service, other than framing on your own intranets or otherwise for your own internal business purposes;
– you shall not engage in any activity that can reasonably cause injury, loss or damage to a Marketing Machine AI or third party;
– you have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction; and
– you shall notify Marketing Machine AI regarding (i) any illegal, suspicious, or fraudulent activity, (ii) any security or data breaches, (iii) any activity that violates these Terms, (iv) any misrepresentations, errors, or inaccuracies you discover, or (v) any illegal or improper bribe, kickback, payment give or thing of value from any of our employees or agents in connection with this Agreement.
– You acknowledge and agree you are responsible for your own acts and omissions. Marketing Machine AI reserves the right to delete or disable access to any Account or Service for any or no reason.
By registering an account with Marketing Machine AI (an “Account”) or using our Services, you represent and warrant that you shall:
– provide accurate, truthful, current and complete information, whether on our Services or to a third party;
– maintain and promptly update the information, including any billing and contact information;
– maintain the security of your password, including not disclosing your password to another;
– not permit anyone else to access or otherwise use your Account;
– not access or otherwise use, or attempt to access or use, an Account of another other than your own; and
– immediately notify us if you discover or otherwise suspect any security breaches related to the Website, the App, your Account, or our Services.
– Notwithstanding the aforementioned, you may reassign your Account to a new individual when you no longer require ongoing use of the Service.
7. Intellectual Properties
7.1. Marketing Machine AI’ Intellectual Properties
(a) Ownership of Marketing Machine AI Intellectual Properties
Unless otherwise indicated in writing by us, the Website, App, software, code, database, lists and all content and other materials contained therein, including, without limitation, the Marketing Machine AI logo, trademarks, trade names, service marks, slogans and all designs, text, graphics, pictures, information, data, software, sound files (as described herein), other files and the selection and arrangement thereof (collectively, the “Content”) are the proprietary property of Marketing Machine AI or our licensors, as applicable, and are protected by U.S. and international copyright laws. No rights to the Contents are granted to you hereunder other than as expressly set forth herein.
(b) Limited License
Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable license to access and use the Services in connection with your marketing campaigns and technology development. However, such license is subject to these Terms and does not include any right to:
– sell, resell license, sublicense, distribute, rent or lease the Services and the Contents;
– use the Services and the Contents for commercial purposes unrelated to your marketing campaigns;
– distribute, publicly perform or publicly display any Content;
– modify or otherwise make any derivative uses of the Services or Content, or any portion thereof;
– use any data mining, robots or similar data gathering or extraction methods;
– download (other than the page caching) any portion of the Services or Content, except as expressly permitted by us; and
– use the Services or Content other than for their intended purposes, which shall be limited to use in furtherance of the Services.
– Any use of the Services or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Marketing Machine AI or any third party, whether by estoppel, implication or otherwise.
(c) Federal Government End Use
We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in the Agreement. If a government agency has a need for rights not granted under these terms, it must negotiate with us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
7.2. Customer Content
Our Services permit electronic data, material, and information to be created, submitted, received, processed, collected, transmitted, and stored by or for you through our Services and/ or a third party application, (collectively, “Customer Content”). By using our Services, represent, warrant, acknowledge and agree not to create, submit, process, transmit or store any of the following:
– Customer Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
– Customer Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
– Customer Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
– Customer Content that contains material misrepresentations;
– Customer Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
– Customer Content that impersonates, or misrepresents your affiliation with, any person or entity;
– Customer Content that references or depicts Marketing Machine AI or our Services but fails to disclose a material connection to us, if you have one;
– Customer Content that contains any private or personal information of a third party without such third party’s consent;
– Customer Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; and
– Customer Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the our Services, or that may expose Marketing Machine AI or others to any harm or liability of any type.
We are not responsible or liable for any Customer Content. Although we have no obligation to screen, edit or monitor Customer Content, we reserve the right, and have absolute discretion, to remove Customer Content stored on our Services at any time and for any reason. You are solely responsible for creating backup copies of and replacing any Customer Content at your sole cost and expense.
We do not claim any ownership interest in your Customer Content. However, by creating, submitting, receiving, processing, collecting, transmitting, and storing Customer Content on or through our Services you hereby grant Marketing Machine AI a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, aggregate, analyze, perform and publicly and display your Customer Content to provide our Services in accordance with these Terms.
By using our Services, represent and warrant that
– you own and control all of the rights to the Customer Content or you otherwise have all necessary rights to use such Customer Content;
– you authorize Marketing Machine AI to use such Customer Content for the purposes described in these Terms;
– the Customer Content is accurate and not misleading or harmful in any manner;
– the Customer Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
7.3. Feedback and Suggestions
You grant to us and our affiliates a worldwide, perpetual, irrevocable, royalty-free license to make, have made, use, distribute, modify, make derivative works of, incorporate into the Services and otherwise exploit in any manner any suggestion, enhancement request, recommendation, correction or other feedback provided by you or users relating to the operation of the Services or any of our products or services.
7.4. Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Services to or terminating the Accounts of Customers, in appropriate circumstances or in our sole discretion who infringe the intellectual property rights of another. If you believe that anything on our Services infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Marketing Machine Inc.
523 Trace Circle #208
Deerfield Beach, FL 33441
Email: [email protected]
If a material you have posted to our Services was removed or disabled in error, you may file a counter notice pursuant to the Digital Millennium Copyright Act.
Please consult the Digital Millennium Copyright Act, for example at 17 U.S.C. § 512, for the requirements of a proper notification.
You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
8. Confidential Information
“Confidential Information” means all information, whether oral or written, disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information excludes any information that, without breach of any obligation owed to the Disclosing Party or any other third party,
– is public or generally known to the public;
– was known to the Receiving Party prior a disclosure from the Disclosing Party;
– is received from a third party; or
– was independently developed by the Receiving Party,
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but not less than reasonable care, to protect the Confidential Information of the Disclosing Party. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, and except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose these Terms to any one without the other party’s prior written consent, except when the disclosure is made to the party’s affiliates, legal counsel and accountants on a need to know basis. Notwithstanding the aforementioned, the Receiving Party may disclose any Confidential Information to the extent compelled by law, provided that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted under law, and provide reasonable assistance, to the extent feasible and practical, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
9. Term and Termination
9.1. Term of Agreement
This Agreement is effective on the date you first accept it pursuant to Section 1 of these Terms and continues until all subscriptions or services hereunder have expired or have been terminated.
9.2. Term of Purchased Subscriptions
The term of each subscription shall be as specified in the applicable agreement or subscription. Except as otherwise specified in the agreement, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter) unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. All Services (including emails sent to leads on behalf of the Customer) will terminate upon termination of a subscription.
A party may terminate the Agreement:
– for cause of a material breach upon 30 days written notice to the other party and if such breach remains uncured at the expiration of such period;
– if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.4. Refund or Payment upon Termination
If the Agreement is terminated by you in accordance with Section 9.3 (Termination) of these terms, we will refund we have collected for any period after the effective date of termination. If the Agreement is terminated by us in accordance with Section 9.3 (Termination), you shall pay any unpaid fees covering the remainder of the term of all agreements. In no event will termination relieve you of your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
9.5. Customer Data Portability and Deletion
Upon a written request made within 30 days after the effective date of a termination or expiration of the Agreement under these Terms, we will make the Customer Data associated with your Account available to you for export or download. We will have no obligation to maintain or provide any Customer Data to you 30 day after the termination or expiration of this Agreement, and may continue to use the Customer Data in aggregate form.
9.6. Surviving Provisions
Sections 5 (Payment for Services), 7 (Intellectual Properties), 10 (General Disclaimers), 11 (Limitation of Liability and Release), 12 (Indemnification), 9.4 (Refund or Payment upon Termination), 9.5 (Customer Data Portability and Deletion), 13 (Dispute Resolution, Governing Law, Venue, Jurisdiction), 14 (Miscellaneous).
10. General Disclaimers
MARKETING MACHINE AI IS ONLY RESPONSIBLE FOR PROVIDING THE WEBSITE AND THE SERVICES UNDER THE TERMS OF THIS AGREEMENT. MARKETING MACHINE AI SHALL NOT HAVE ANY LIABILITY WITH RESPECT TO ANY COMMUNICATIONS CREATED, STORED, OR TRANSMITTED THROUGH THE SERVICES.
MARKETING MACHINE AI DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OF OUR DATABASE OR LISTS. UNLESS EXPRESSLY PROVIDED OTHERWISE HEREIN, ALL SERVICES AND BETA SERVICES ARE PROVIDED ON AN “AS IS”, “WHERE IS” BASIS, WITH ALL FAULTS AND, WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, (1) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE, AS TO THE WEBSITE, APP, THEIR CONTENT AND MATERIALS AND SERVICES; (2) THAT THE WEBSITE, CONTENT, MATERIALS, AND SERVICES, WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE ACCURATE, RELIABLE, AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; (3) WITH RESPECT TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE WEBSITE, CONTENT, MATERIALS, SERVICES, AND LISTINGS. Marketing Machine AI FURTHER DISCLAIMS ANY OTHER WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE WEBSITE, CONTENT, MATERIALS OR SERVICES WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
11. Limitation of Liability and Release
UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM MARKETING MACHINE AI PARTIES ANY INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF USE OR EMOTIONAL DISTRESS), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, FOR ANY HARM OR DAMAGE CAUSED BY, ARISING FROM, OR RELATING TO THE USE OF THE WEBSITE, APP, THEIR CONTENTS, OR OUR SERVICES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL MARKETING MACHINE AII’ TOTAL LIABILITY TO YOU FROM A SINGLE INCIDENT EXCEED THE AMOUNTS OF PAYMENTS WE RECEIVE FROM YOU IN THE 12 MONTHS PRECEDING THE INCIDENT. IN NO EVENT WILL MARKETING MACHINE AI’ TOTAL AGGREGATE LIABILITY TO YOU EXCEED THE TOTAL AMOUNT OF PAYMENTS WE RECEIVE FROM YOU. YOUR EXCLUSIVE REMEDIES IN THE EVENT THAT MARKETING MACHINE AI BREACHED ANY OF ITS WARRANTIES TO YOU HEREIN, ARE (1) TERMINATION AS DESCRIBED UNDER SECTION 9.3 (TERMINATION) OR (2) REFUND OF PAYMENT AS DESCRIBED UNDER SECTION 9.4 (REFUND OR PAYMENT UPON TERMINATION).
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
THE PROVISIONS OF THIS SECTION 11 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND MARKETING MACHINE AI.
12.1. Indemnification by Us
WE WILL DEFEND YOU AGAINST ANY CLAIM, DEMAND, SUIT OR PROCEEDING MADE OR BROUGHT AGAINST YOU BY A THIRD PARTY ALLEGING THAT THE TECHNOLOGY UNDERLYING OUR SERVICES INFRINGES OR MISAPPROPRIATES SUCH THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS (A “CLAIM AGAINST YOU”) AND WILL INDEMNIFY YOU FROM ANY DAMAGES, ATTORNEY FEES AND COSTS FINALLY AWARDED AGAINST YOU AS A RESULT OF, OR FOR AMOUNTS PAID BY YOU UNDER A COURT APPROVED SETTLEMENT OF, A CLAIM AGAINST YOU, PROVIDED THAT (1) YOU PROMPTLY GIVE US WRITTEN NOTICE OF THE CLAIM AGAINST YOU; (2) YOU GIVE US SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF THE CLAIM AGAINST YOU (EXCEPT THAT WE MAY NOT SETTLE ANY CLAIM AGAINST YOU UNLESS IT UNCONDITIONALLY RELEASES YOU OF ALL LIABILITY); (3) YOU GIVE US ALL REASONABLE ASSISTANCE, AT OUR EXPENSE; AND (4) THE CLAIM AGAINST YOU DOES NOT RELATE TO CUSTOMER DATA OR ANY LEADS OR LEAD DATA GENERATED BY OUR SERVICES.
IN THE EVENT OF A DISPUTE, WE RESERVE THE RIGHT TO, AT OUR SOLE DISCRETION, AND AT NO COST TO YOU (1) MODIFY OUR SERVICES; (2) OBTAIN A LICENSE FOR YOUR CONTINUED USE OF THE SERVICE IN ACCORDANCE WITH THE AGREEMENT; AND (3) TERMINATE YOUR SUBSCRIPTIONS FOR THAT SERVICE UPON THIRTY (30) DAYS WRITTEN NOTICE AND REFUND YOU ANY PREPAID FEES COVERING THE REMAINDER OF THE TERM OF THE TERMINATED SUBSCRIPTIONS.
12.2. Indemnification by You
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS MARKETING MACHINE AI, AND OUR PAST, PRESENT AND FUTURE EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, CONSULTANTS, EQUITY HOLDERS, SUPPLIERS, VENDORS, SERVICE PROVIDERS, PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, AGENTS, REPRESENTATIVES, PREDECESSORS, SUCCESSORS AND ASSIGNS (INDIVIDUALLY AND COLLECTIVELY, THE “MARKETING MACHINE AI PARTIES”) AGAINST ANY CLAIM, DEMAND, SUIT OR PROCEEDING MADE OR BROUGHT AGAINST MARKETING MACHINE AI PARTIES BY A THIRD PARTY ALLEGING YOUR CUSTOMER DATA, YOUR USE AND DISCLOSURE OF ANY DATA GENERATED FROM OUR SERVICES (INCLUDING ANY LEADS OR LEAD DATA), OR YOUR USE OF OUR SERVICES, INFRINGES OR MISAPPROPRIATES A THIRD PARTY RIGHT, VIOLATES YOUR CONTRACTUAL OR LEGAL OBLIGATIONS, OR VIOLATES ANY APPLICABLE LAW, RULES, OR REGULATION, EXCEPT TO THE EXTENT SUCH INDEMNIFICATION IS PROHIBITED BY LAW (A “CLAIM AGAINST US”). YOU WILL INDEMNIFY, DEFEND AND HOLD MARKETING MACHINE AI PARTIES HARMLESS FROM ANY CLAIM DAMAGES, AWARDS, JUDGMENTS, LOSSES, LIABILITIES, OBLIGATIONS, PENALTIES, INTEREST, FEES, EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES) AND COSTS (INCLUDING, WITHOUT LIMITATION, COURT COSTS, COSTS OF SETTLEMENT AND COSTS OF PURSUING INDEMNIFICATION AND INSURANCE), OF EVERY KIND AND NATURE WHATSOEVER IN CONNECTION TO A CLAIM AGAINST US, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, MATURED OR UNMATURED, OR SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, PROVIDED THAT (1) WE PROMPTLY GIVE YOU WRITTEN NOTICE OF THE CLAIM AGAINST US; (2) WE GIVE YOU SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF THE CLAIM AGAINST US; (EXCEPT THAT YOU SHALL NOT SETTLE ANY CLAIM AGAINST US UNLESS IT UNCONDITIONALLY RELEASES US OF ALL LIABILITY); AND (3) WE GIVE YOU ALL REASONABLE ASSISTANCE, AT YOUR EXPENSE.
12.3. Exclusive Remedy
THIS SECTION 12 STATES THE INDEMNIFYING PARTY’S SOLE LIABILITY TO AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY AGAINST THE OTHER PARTY FOR ANY TYPE OF CLAIM DESCRIBED IN THIS SECTION 12.
13. Dispute Resolution, Governing Law, Venue, Jurisdiction
Each party agrees to the governing law of the State of Delaware without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of federal and state courts sitting in Delaware.
Except as otherwise specified in the Agreement, all notices, permissions and approvals shall be deemed to have been given upon:
– personal delivery;
– the second business day after mailing; or
– the first business day after sending by email.
– Notwithstanding the aforementioned, email shall not be sufficient for notices of termination or indemnification purposes.
All notices, permissions and approvals to Marketing Machine AI pursuant to this Agreement shall be delivered to:
Marketing Machine Inc.
Attn: Chief Executive Officer
523 Trace Circle #208, Deerfield Beach, FL 33441 USA.
Email: [email protected]
All notices, permissions and approvals to the Customer pursuant to this Agreement shall be delivered to the address or e-mail address on the record. All billing-related notices will be sent to the relevant billing contact designated by you. All other notices shall be sent to the relevant service system administrator designated by you.
It is the responsibility of the Customer to update its contact information with Marketing Machine AI. Marketing Machine AI is not responsible for any correspondences that failed to reach the Customer due to a change in address or e-mail address not reported to Marketing Machine AI.
14.2. Entire Agreement and Order of Precedence
The Agreement, including the DPA, is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any subscription or in any other ordering documentation that You may provide (excluding subscriptions) is void. In the event of any conflict or inconsistency between the subscription and these Terms of Service, the subscription shall control and govern.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign the Agreement in its entirety (including all subscriptions), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
14.5. No Waiver of Rights
No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and a party’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
14.6. No Third Party Beneficiary
Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
14.7. International Use
If you gain access to the Services from locations outside the United States, you will be responsible for compliance with all local laws of any such other location, and in no event will you use the Services or Site Content in violation of U.S. export laws or regulations.
14.8. Export Compliance
Our Services may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit any one to access or use our Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
14.9. Relationship of the Parties
During the terms of the Agreement, the parties are deemed independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
15. EU GDPR DATA PROCESSING ADDENDUM
15.1. Marketing Machine AI requires you to accept the provisions of this Data Processing Addendum which is intended to meet the data protection adequacy and security requirements of the GDPR – Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. Therefore, if the GDPR applies to your activity (for instance because you are established in the European Union or established outside the European Union but you offer good or services to data subjects who are in the European Union) — you need to accept these Data Processing Addendum terms to be compliant with GDPR so that you can process such GDPR-eligible personal data with Marketing Machine AI. Unless you accept the Agreement involving this DPA your contract with Marketing Machine AI will lack those terms therefore if GDPR applies to your activity you must refrain from using Marketing Machine AI’ Service unless you accept this DPA.
The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this DPA have the meanings given in the GDPR.
15.2. For the reasons mentioned above, if you choose to accept Terms and enter the Agreement, you enter this Data Protection Agreement which reflects the conditions governing processing and security of the personal data you submit to our system or which may be processed by you when connect your e-mail account thereto, i.e. submitted, stored, sent or received via the App, hereinafter referred to as the “Customer Data”. Please note that whenever we use the word “you” in this DPA, we also mean any persons who use the Services on your behalf, including your employees, subcontractors and other personnel members.
In accordance with the GDPR regulations, this DPA shall be governed and construed in accordance with the laws of Poland as a European Union’s member state. The DPA is concluded for the whole period from the acceptance of the Agreement and this DPA until the end of Marketing Machine AI’ provision of the Services under the Agreement, which shall include periods of suspension of Services’ provision or other post-termination periods when we may refrain from deleting your data.
15.3. Subject Matter and Circumstances of Data Processing.
Marketing Machine AI shall not be the controller of the Customer Data you may submit to our Services and will process such information within the Services solely in the processor’s role and – depending on the scope of your activity – you may be the controller or processor of this data. If the GDPR applies to the processing of Customer Data and you are the processor, you explicitly warrant us that your instructions and actions with respect to that Customer Data processing, including hereby appointment of Marketing Machine AI as another processor, have been authorized by the relevant controller.
The personal data which may be processed (i.a. submitted, stored, sent or received) by you when you use the Services may include the following categories of data: names, e-mail address, telephone, profession, company’s name and address, city and country of the company, user IDs, presentations, images, calendar entries and other data which may be relevant for your purposes of permitted usage of our Services.
The Customer Data which you may process might concern the following categories of data subjects: users of the Services who may include your employees and contractors, the personnel of your customers, suppliers and subcontractors or any other person who transmits data via the Services, including any individuals collaborating and communicating with user of the App.
If the explicit consent of data subject is your legal basis to process the Customer Data via our Systems, you represent and warrant us the each such consent is freely given and taken in accordance with applicable laws. In this context you indemnify Marketing Machine AI of all claims and actions of third parties related to the processing of Customer Data via Services without explicit consent or other legal basis under the respective laws.
15.4. Scope of Processing. Data Deletion. Subprocessors.
We enable you to delete Customer Data during this DPA by using functionalities within Services – including deleting data for limited period or by instant permanent deletion. If the term indicated above expires or you choose to delete data permanently, the Customer Data may not be recovered. Each of such actions will be acknowledged as your instruction to delete relevant Customer Data you submitted or keep within our systems. When the Agreement is terminated or otherwise expires we shall delete your non-aggregated data, including non-aggregated Customer Data, and/or give you their copy (return them) subject the terms of Agreement.
15.5. Security Measures. Data incidents. Liability.
We have implemented and will maintain all the appropriate technical and organisational measures to protect Customer Data to ensure a level of security against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to Customer Data, including encryption of personal data, introducing and maintaining systems ensuring the ongoing confidentiality, integrity, availability and resilience of processing, systems ensuring ability to restore the availability and access to Customer Data in the event of a physical or technical incident.
You shall acknowledge that the abovementioned technical and organisational measures to protect Customer Data involve i.a.: physical security, logical security, separation of databases, policy regarding the removal of magnetic and optical data (including hard drives, portable storage media, backup platforms, etc.), procedures regarding database management, provisions regarding the collection, marking, verification, processing, and distribution of the data, management of access to personnel, including determination of the methodology for providing access to data, restrictions upon access, and keeping an updated list of persons with access rights, confidentiality undertakings for those persons with access rights, encryption of personal data, provisions regarding operations of the systems and maintaining ongoing data integrity, confidentiality, availability and resilience of processing systems and services, monitoring for the discovery of breaches of data integrity and methodology for reparation of such breaches, provisions regarding employee reliability and record of data misuse in accordance with the level of data sensitivity. We shall also regularly test, assess and evaluating the effectiveness of technical and organisational measures for ensuring the security of the Customer Data processing.
If you have further questions on our technical and organisational means for personal data protection you shall inquire us to provide you with additional information prior to submitting Customer Data to our systems or it shall be otherwise considered that you agree that taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Data as well as the risks to individuals our data protection standards are appropriate to the risk in respect of the Customer Data.
We also ensure that our employees, contractors and subprocessors have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality to the extent applicable to their scope of performance.
If we become aware of a data incident – meaning a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data on systems managed by or otherwise controlled by Marketing Machine AI, excluding unsuccessful attempts or activities that do not compromise the security of Customer Data, unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems – we will notify you of the Data Incident promptly and without undue delay and promptly take reasonable steps to minimize harm and secure Customer Data. Such Data Incident notification will describe, to the extent possible, details of the Data Incident, including steps taken to mitigate the potential risks and steps we may recommend you to address the Data Incident. We will deliver you such notification to your e-mail address or, at our discretion, by phone call or other direct communication. It is your sole responsibility to provide us with and update your current and valid contact information. Neither of our notifications or communications regarding Data Incidents shall be construed as an acknowledgement of our fault or liability with respect to the Data Incident.
By entering this DPA you explicitly acknowledge, agree and confirm that Marketing Machine AI will never assess the contents of Customer Data you may submit, store, send or receive using our Services in order to identify information subject to any specific legal requirements or to assess your compliance with any laws or infringements thereof. Therefore you are solely responsible for complying with applicable incident notification laws and fulfilling any third party notification obligations related to any Data Incident(s).
You agree that, without prejudice to our obligations under hereby section 15.5, you shall be solely responsible for your use of the Services, including: making appropriate use of the Services and exercise adequate security controls to ensure a level of security appropriate to the risk in respect of the Customer Data, securing the account authentication credentials, systems and devices which you may use to access the Services and backing up your Customer Data.
As we provide solely online Services we shall have no obligation to protect Customer Data that you may choose to store or transfer outside of Marketing Machine AI systems, for instance for physical storage – in any form. If you have further questions on our technical and organisational means for personal data protection you shall inquire us to provide you with additional information prior to submitting Customer Data to our systems or it shall be otherwise considered that you agree that taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Data as well as the risks to individuals our data protection standards are appropriate to the risk in respect of the Customer Data.
Notwithstanding our obligations we may have in respect to this DPA, you shall also take all the reasonable precaution steps in order to ensure appropriate security and to prevent any destruction, loss, alteration, disclosure, unauthorised or illegal access to or acquirement of Customer Data and any other personal data you may process using via Services and Marketing Machine AI systems. If the data you process via Services were accessed or obtained by an unauthorised person or if there occurs a breach of such personal data security, you shall immediately notify Marketing Machine AI on such Data Incident and shall cooperate with us in order to take any steps deemed required for the mitigation of any loss or damage. In this case the respective provisions of sections 15.5 and 15.6 apply adequately to the cooperation we will demand from you.
If you breach any obligations you may have under the GDPR you shall be unconditionally and solely liable and it shall compensate Marketing Machine AI and any third parties or data subjects against (a) any damage, loss, costs, taxes and expenses (including legal charges related to judicial experts and lawyers), (b) the refund of any fines or penalties paid by us to the supervisory authority, (c) any other damages resulting from the negligence, fault or gross misconduct or from any breach of an obligation related to Customer Data and other personal data processed via the Services as a consequence of non-complying with this DPA and the GDPR.
We will consider any breach of any representation or provision of the DPA and the GDPR by you shall represent a gross breach of the Agreement and it shall entitle us to terminate the Agreement immediately by sending a termination notice, without any grace or remedy period and without any other formality, notification or intervention of any court of law or another jurisdictional body.
15.6. Cooperation on Data Protection and Execution of Data Subjects’s Rights.
To the extent necessary for the reason of this DPA, Marketing Machine AI will make available for your review the documents and information to demonstrate our compliance with our obligations under this DPA. If GDPR applies to the processing of Customer Data, we will also allow you or your appointed independent auditor to conduct audits (including inspections) to verify our compliance with obligations under this DPA, including our documentation and we will contribute to such audits. In any case such audits will be subject to prior arrangements and reasonably agreed terms for such audits and inspections which may involve fees based on our reasonable costs of such reviews. If you wish to appoint an auditor, we may object to your choice if in our reasonable opinion the appointed auditor is not suitably qualified or independent, a competitor of Marketing Machine AI or otherwise manifestly unsuitable. If this is the case we will require you to appoint another auditor or conduct the audit itself.
If applicable, we will assist you in ensuring compliance with any of you obligations in respect of data protection impact assessments and prior consultation, including if applicable Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, taking into account the nature of the processing and the information available to us, for instance by providing you additional security information or providing the information with regard to performance of the Agreement including this Data Processing Addendum.
During the term of the Agreement, we enable you to access, rectify and restrict processing of Customer Data, including deletion of this data (subject to the hereinabove terms) and to export Customer Data – in a manner consistent with the functionalities of the Services.
If Marketing Machine AI receives any request from a data subject in relation to Customer Data we may process, we will advise the data subject to submit their request to you and you shall be responsible for to respond to any such request including, where necessary, by using the functionality of the Services. Nevertheless, taking into account the nature of the processing of Customer Data via the Services, we will assist you in fulfilling any obligation to respond to requests by data subjects, including obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR. Depending on the case, we may provide you Services’ functionalities to perform our commitments you assist you or we may help you in other appropriate manner, including serving you with additional information on processing of Customer Data.
Shall you have any questions in respect of this Data Protection Addendum, please contact us at:
Marketing Machine Inc..
523 Trace Circle #208
Deerfield Beach, FL 33441
Email: [email protected]