User Agreement

Disclaimer of Warranties

THE SERVICES WE AND OUR SERVICE PROVIDERS PROVIDE ARE PROVIDED TO YOU ON A STRICTLY “AS IS,” “WHERE IS,” AND “WHERE AVAILABLE” BASIS. NEITHER WE NOR ANY SERVICE PROVIDER REPRESENT OR WARRANT TO THE ACCURACY, COMPLETENESS, CURRENTNESS, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS OF THE MARKETR PLATFORM FOR A PARTICULAR PURPOSE OR THE INFORMATION CONTAINED THEREIN OR SERVICES CONTAINED THEREON. MARKETR DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE SITE OR USE OF THE SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, OR ERROR-FREE.

Disclaimer of Liability

EXCEPT TO THE EXTENT REQUIRED BY LAW, NEITHER WE NOR ANY SERVICE PROVIDER SHALL BE LIABLE TO YOU, WHETHER IN CONTRACT OR TORT, FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SIMILAR DAMAGES, INCLUDING LOST PROFITS, DIMINUTION IN BUSINESS VALUE, OR LOST BUSINESS OPPORTUNITIES (EVEN IF WE AND/OR ANY SERVICE PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF) IN CONNECTION WITH THIS AGREEMENT, YOUR USE OR ATTEMPTED USE OF MARKETR, OR ANY OF THE INFORMATION, SERVICES OR TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. MARKETR’S TOTAL LIABILITY FOR BREACH OF THIS AGREEMENT SHALL BE LIMITED BY THE FEES PAID BY YOU FOR THE SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM.

THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO ANY DAMAGE OR INTERRUPTIONS CAUSED BY ANY COMPUTER VIRUSES, SPYWARE, SCAMWARE, TROJAN HORSES, WORMS, OR OTHER MALWARE THAT MAY AFFECT YOUR COMPUTER OR OTHER EQUIPMENT, OR ANY PHISHING, SPOOFING, DOMAIN TYPOSQUATTING, OR OTHER ATTACKS, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS, OR ANY FORCE MAJEURE. NEITHER WE NOR ANY SERVICE PROVIDER GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO MARKETR.

IF THIS DISCLAIMER OF LIABILITY SECTION IS DEEMED TO CONFLICT WITH ANY OTHER SECTION OF THIS AGREEMENT, THIS DISCLAIMER OF LIABILITY SECTION SUPERSEDES THE OTHER SECTION.

Reasonable Care

We agree to take reasonable care and use commercially reasonable efforts in executing our responsibilities to you pursuant to this Agreement.

You agree that we cannot be held responsible for any failure or delay to act by any service provider, or any other participant that is within the time limits permitted by this Agreement or prescribed by law, or that is caused by your negligence.

Force Majeure

You agree and understand that in no event shall we or any service provider be liable for any delays, failure in performance or interruption of service which result directly or indirectly from any cause or condition, whether or not foreseeable, beyond our or any service providers’ reasonable control, including, but not limited to, any act of God, action or inaction of civil or military authorities, act of war, terrorism, sabotage, civil disturbance, strike or other labor dispute, accident, state of emergency or interruption, loss, or malfunction of equipment or utility, communications, computer (hardware or software), Internet or network provider services.

Indemnities

In no event shall we or any service provider be liable for any act, omission, error of judgment, or loss suffered by you in connection with this Agreement or your use or attempted use of Marketr. You agree to indemnify and hold us and all service providers harmless from or against any or all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including reasonable attorneys’ fees), claims, disbursements or actions of any kind and injury (including death) arising out of or relating to your use of Marketr, or our and any service providers’ performance or nonperformance of duties to you.

If you are a California resident, you waive California Civil Code Section 1542, which states:

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

Legal Costs
You agree to indemnify us and any service provider for actual, reasonable legal costs and expenses directly related to your account that are a result of any regulatory inquiry, legal action, litigation, dispute, or investigation whether such situations have occurred or are anticipated, that arise or relate to you or your use of Marketr. As a result, we will be entitled to charge your Marketr Account for such costs without notice, including legal and enforcement related costs that we incur.

Entire Agreement
This Agreement, our Privacy Policy, and any other policies incorporated by reference herein, comprise the entire understanding and agreement entered into by and between you and Marketr, Inc. as to the subject matter hereof, and supersede any and all prior discussions, agreements, and understandings of any kind (including without limitation any prior versions of this Agreement), between us.

Assignment
This Agreement, or your rights and obligations hereunder, may not be transferred by you, but may be assigned by us without restriction. Any attempted transfer or assignment by you in violation hereof shall be null and void. This Agreement shall be binding and inure to the benefit of the parties hereto and our successors, and permitted assigns.

Relationship of the Parties
You agree and understand that nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture, or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein.

Injunctive Relief
You agree and understand that your obligations and the obligations of each user set forth in this Agreement are necessary and reasonable in order to protect us and our business. You expressly agree that due to the unique nature of our business, monetary damages would be inadequate to compensate us for any breach by you of your covenants and agreements set forth in this Agreement. Accordingly, you agree and understand that any such violation or threatened violation shall cause irreparable injury to us and that, in addition to any other remedies that may be available, in law, in equity or otherwise, we shall be entitled to obtain injunctive relief against any threatened breach of this Agreement or your continuation of any such breach, without the necessity of proving actual damages.

Severability
You agree and understand that if any provision of this Agreement, or application thereof, is determined to be invalid or unenforceable under any rule, law, or regulation or by any governmental agency, local, state, or federal, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law. You further agree and understand that the validity of or enforceability of any other provision (or of such provision, to the extent its application is not invalid or unenforceable) of this Agreement shall not be affected.

Change of Control
In the event that we are acquired by or merged with a third-party entity, we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from you as part of such merger, acquisition, sale, or other change of control.

Survival
You agree and understand that all provisions of this Agreement, which by their nature extend beyond the termination or expiration of this Agreement, including, but not limited to, sections pertaining to suspension, investigations, remedies for breach, termination, debts owed, general use of Marketr, disputes with us, and general provisions, shall survive the termination or expiration of this Agreement.

Miscellaneous
Section headings in this Agreement are for convenience only, and do not govern the meaning or interpretation of any provision of this Agreement. Unless the express context otherwise requires: (i) the words “hereof,” “herein,” “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (ii) the terms defined in the singular have a comparable meaning when used in the plural and vice versa; (iii) wherever the word “include,” “includes” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”; (iv) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if”; and (v) the word “or” shall not be interpreted to be exclusive.

English Language Controls
Notwithstanding any other provision of this Agreement, any translation of this Agreement is provided for your convenience. The meanings of terms, conditions, and representations herein are subject to their definitions and interpretations in the English language.

Non-Waiver of Rights
This Agreement shall not be construed to waive rights that cannot be waived under Applicable Laws and Regulations. In addition, our failure to insist upon your strict compliance with any term or provision of this Agreement shall not be construed as a waiver for you to not comply with such term or provision.

Governing Law
This Agreement, your use of Marketr, your rights and obligations, and all actions contemplated by, arising out of or related to this Agreement shall be governed by the laws of the State of New York, as if this Agreement is a contract wholly entered into and wholly performed within the State of New York. YOU AGREE THAT ALL USAGE OF THE MARKETR PLATFORM AND CONTEMPLATED ACCORDING TO THE TERMS OF THIS AGREEMENT SHALL BE DEEMED TO HAVE OCCURRED IN THE STATE OF NEW YORK AND BE SUBJECT TO THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.

Dispute Resolution
You and Marketr agree and understand that any controversy, claim, or dispute arising out of or relating to this Agreement or your relationship with Marketr – past, present, or future – shall be settled solely and exclusively by binding arbitration held in the county in which you reside, or another mutually agreeable location, including remotely by way of video conference administered by National Arbitration and Mediation (“NAM”) and conducted in English, rather than in court. You and Marketr expressly agree that any dispute about the scope of this Agreement to arbitrate and/or the arbitrability of any particular dispute shall be resolved by arbitration in accordance with this section. You and Marketr expressly agree that an arbitrator may issue all appropriate declaratory and injunctive relief necessary to ensure the arbitration of disputes (but only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim). You and Marketr agree to keep any arbitration strictly confidential.

You and Marketr agree that this arbitration provision applies not just to disputes between you and Marketr but also to (a) disputes with Marketr and any other party named or added as a co-defendant along with Marketr at any time, and (b) disputes in which a party is named as a defendant involving claim(s) arising from or related to this Agreement or any other Marketr agreement or program terms, even if Marketr is not named or added as a defendant. Any such co-defendant or defendant is a third-party beneficiary entitled to enforce this arbitration provision.

You and Marketr agree that the arbitrator shall have the authority to order any remedies, legal or equitable, which a party could obtain from a court of competent jurisdiction in an individual case based on the claims asserted, and nothing more. The arbitrator shall not award punitive or exemplary damages to either party, unless such remedies would otherwise be available under applicable law.

You and Marketr agree that this arbitration provision evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. s. 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties to be bound by the provisions of the FAA for all purposes, including, but not limited to, interpretation, implementation, enforcement, and administration of this arbitration provision, and the FAA shall preempt all state laws to the fullest extent permitted by the law.

You and Marketr agree that good-faith, informal efforts to resolve disputes often can result in a prompt, low-cost, and mutually beneficial outcome. Therefore, a party who intends to seek arbitration must first send to the other a Written Notice of dispute (“Dispute Notice”). Any Dispute Notice to Marketr must be sent to [email protected] (“Notice Address”). Any Dispute Notice to you by Marketr will be sent to the email address registered with your Marketr Account. Any Dispute Notice must include: (a) the name, address, and email address of the party providing the Dispute Notice; (b) a description of the nature and basis of the claim or dispute, including any relevant facts regarding Marketr or your use of Marketr; (c) an explanation of the specific relief sought, including the total damages sought, if any, and the basis for the damage calculations; (d) a signed statement from the party providing the Dispute Notice verifying the accuracy of the contents of the Dispute Notice; and (e) if the dispute is from you, and you have retained an attorney, a signed statement from you authorizing Marketr to disclose your account details to your attorney if necessary in resolving your claim or dispute. Any Dispute Notice from you must be individualized, meaning it can only concern your dispute and no other person’s dispute. And any Dispute Notice from Marketr must be individualized, meaning it can only concern you and no other person. You agree that compliance with these informal dispute resolution procedures is a condition precedent to commencing arbitration, and that the arbitrator shall dismiss any arbitration filed without fully and completely complying with these informal dispute resolution procedures.

If you and Marketr do not reach an agreement to resolve a claim within 60 days after the Demand Notice is received, you and Marketr may commence an arbitration proceeding; except that, if either you or Marketr send the other an incomplete Dispute Notice, the 60-day period begins only after a complete Dispute Notice is received. The statute of limitations and any filings fee deadlines shall be tolled while the parties engage in these informal dispute resolution procedures.

Should any dispute proceed to arbitration, you and Marketr agree that any such arbitration shall be conducted in accordance with the prevailing NAM rules and procedures (including the Comprehensive Dispute Resolution Rules (“NAM Rules”), with the following exceptions to the NAM Rules if in conflict:

* The arbitration shall be conducted by one neutral arbitrator;
* All pleadings submitted in arbitration are subject to the standards set forth in Federal Rule of Civil Procedure 11, which, among other things, permits sanctions to be imposed where pleadings are submitted for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
* The arbitrator may issue orders (including subpoenas to third parties, to the extent permitted by law) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes. For example, the arbitrator shall apply the Apex Doctrine and preclude depositions of either party’s current or former high-level officers absent a showing that the officer has unique, personal knowledge of discoverable information and less burdensome discovery methods have been exhausted.

Additionally, if at any time, 25 or more similar demands for arbitration are asserted against either party or their related parties by the same or coordinated counsel or entities (“Mass Filing”), the additional protocols set forth shall apply:

* NAM’s Mass Filing Rules shall apply if the parties’ dispute is deemed by NAM, in its sole discretion pursuant to the NAM Rules and this Dispute Resolution section, to be part of a Mass Filing.
* Any Mass Filing shall be subject to a bellwether proceeding intended to reach a fair and speedy resolution of all claims included in the Mass Filing. In any Mass Filing, NAM shall select 15 demands for arbitration to proceed (“Bellwether Arbitrations”). While the Bellwether Arbitrations are adjudicated, no other demand for arbitration that is part of the Mass Filings may be filed, processed, or adjudicated, and no filing fees for such a demand for arbitration shall be due from either party to the administrator. Any applicable statute of limitations regarding such a demand for arbitration shall remain tolled, beginning when the Mass Filing claimant first provided the other party with its Dispute Notice, as defined above.
* Following the resolution of the Bellwether Arbitrations, the parties shall engage in a global mediation of all remaining demands for arbitration comprising the Mass Filing. The mediation shall be administered by NAM. If the parties are unable to resolve the remaining demands for arbitration comprising the Mass Filing within 30 days following the mediation, the remaining demands for arbitration comprising the Mass Filing shall be administered by NAM on an individual basis pursuant to the NAM Rules.

You and Marketr agree to abide by all decisions and awards rendered in such proceedings and you and Marketr agree that such decisions and awards rendered by the arbitrator shall be final and conclusive, except for any appeal rights under the FAA.

To the extent you or Marketr seek emergency relief in connection with any controversy, claim, or dispute arising out of or relating to this Agreement or the breach thereof, or your relationship with Marketr, you and Marketr agree that this Agreement restricts you or Marketr from seeking emergency relief from any court, including without limitation, temporary restraining orders and/or preliminary injunctions, and you and Marketr agree that, to the extent either party breaches this Agreement by seeking such relief from a court, that party shall be responsible for paying the opposing party’s attorneys’ fees in opposing such relief, and the arbitrator shall render an award of such attorneys’ fees at the earliest possible time after such fees are incurred.

Notwithstanding the foregoing obligation to settle disputes through arbitration, you or Marketr may assert claims, if they qualify, in small claims (or an equivalent) court in New York County or any United States county where you live. However, if the claims are transferred, removed, or appealed to a different court, they shall be subject to arbitration.

You and Marketr agree that you or Marketr may, without inconsistency with this arbitration provision, apply to any court for an order enforcing the arbitral award. You and Marketr irrevocably and unconditionally agree to waive any objection that you or Marketr may now or hereafter have to the laying of venue of any action or proceeding relating to enforcement of the arbitral award in the federal or state courts located in the State of New York.

You and Marketr agree that all such controversies, claims, or disputes shall be settled in this manner in lieu of any action at law or equity. In arbitration the parties waive their rights to have a jury trial.

IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE OR FOR ANY OTHER REASON LITIGATION PROCEEDS IN COURT THEN THE PARTIES AGREE THAT YOU AND MARKETR:

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS AND REGULATIONS, HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES THAT MARKETR PROVIDES OR ANY OTHER MATTER INVOLVING US HERETO, AND

SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL OR STATE COURTS LOCATED IN NEW YORK COUNTY, NEW YORK AND YOU AGREE NOT TO INSTITUTE ANY SUCH ACTION OR PROCEEDING IN ANY OTHER COURT IN ANY OTHER JURISDICTION.

You and Marketr agree to arbitrate solely on an individual basis, and agree and understand that this Agreement does not permit class action or private attorney general litigation or arbitration of any claims brought as a plaintiff or class member in any class or representative arbitration proceeding or litigation (“Representative and Class Action Waiver”). The arbitral or other tribunal may not consolidate more than one User’s claims and may not otherwise preside over any form of a representative or class proceeding. Nothing in this paragraph shall be construed to prohibit settlements on a class-wide or representative basis.

If any portion of this arbitration clause is held to be invalid or unenforceable, the remaining portions will nevertheless remain in force. In any case in which (1) the dispute is filed as a class or representative action; and (2) there is a final judicial determination that all or part of the Representative and Class Action Waiver is unenforceable, the class and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Representative and Class Action Waiver that is enforceable shall be enforced in arbitration. Additionally, if a court determines that a public injunctive relief claim may proceed notwithstanding the Representative and Class Action Waiver, and that determination is not reversed on appeal, then the public injunctive relief claim will be decided by a court after any individual claims are arbitrated, and the parties will ask the court to stay the public injunctive relief claim until the other claims have been finally concluded in arbitration.

You agree that this section of this Agreement has been included to rapidly and inexpensively resolve any disputes with respect to the matters described herein, and that this section shall be grounds for stay or dismissal of any court action commenced by you with respect to a dispute arising out of such matters.

A printed version of this Agreement shall be admissible in judicial or administrative proceedings.