Last revised on 07/06/2019
The following Customer Agreement will apply to the use of any MarketplaceKit service beginning on May 25, 2018, though you are invited to review and accept its terms at any time before such date.
In order to ensure the provision of high quality data services, MarketplaceKit ("we," "us," or "our") require all users of MarketplaceKit Services to accept the contractually binding responsibilities and obligations contained in this Customer Agreement (the "Agreement"). Definitions of certain capitalized terms in this Agreement shall be defined in Section 15. By clicking on the "I Accept" button at the end of this Agreement, you or the entity you represent ("you" or "your") acknowledge and agree that:
- You are lawfully able to enter into contracts in both the United States of America and the country you are presently residing in;
- You consent to the application of the laws of the State of New Jersey, United States of America;
- You consent to the jurisdiction of the state and federal courts of the State of New Jersey, United States of America, in all matters and/or disputes arising from the construction, interpretation or application of this Agreement unless otherwise expressly provided by this Agreement;
- You will be and are responsible for ensuring the accuracy of your physical and billing addresses, as listed in your Account at all times;
- You will immediately notify us, in accordance with the terms of this Agreement, in the event your physical address and/or billing address is or becomes located within the European Union or European Economic Area;
- You authorize us to appoint our Affiliates and/or Subprocessors to assist in the provision of the MarketplaceKit Services; and
- You shall abide by the terms and conditions of this Agreement and all other applicable Service Level Agreements arising from your use of a MarketplaceKit Service or multiple MarketplaceKit Services.
This Agreement, including the Service Level Agreements, will be effective and replace any previously applicable agreements as of the Effective Date. In the event you are entering into this Agreement for or on behalf of an entity, such as a company you work for, you represent to us that you have lawful and actual authority to bind that entity. Please click here if you have any questions or concerns regarding this Agreement.
Terms and Conditions
1. Our Provision of MarketplaceKit Services
- 1.1 We provide access to data hosting and processing instances ("MarketplaceKits") which may be used by you for your computing resource needs. As a digital infrastructure provider, the MarketplaceKits made available to you are fully customizable, subject to the terms of this Agreement. At all times, we are a Data Processor and we do not have any Proprietary Rights to any data that is accessed, maintained and/or transmitted by you or your End Users to or from a MarketplaceKit Resource.
2. Scope and Precedence
- 2.1. Scope. This Agreement shall apply to all MarketplaceKit Services.
- 2.2. Order of Precedence. Unless otherwise expressly agreed to in writing, this Agreement shall take precedence over all Service Level Agreements. In the event of a conflict between the terms of this Agreement and the terms of a Service Level Agreement, the relevant terms of this Agreement shall take precedence.
- 2.3. Survival. Termination or expiration of a Service Level Agreement shall not result in the termination or expiration of this Agreement.
3. Your Access and Use of MarketplaceKit Services
- 3.1. Generally. Your access and use of the MarketplaceKit Services shall, at all times, comply and conform with:
- 3.1.1. The terms and conditions of this Agreement;
- 3.1.3. The regulations and laws applicable to your access and use of the MarketplaceKit Services.
- 3.1.4. At all times, you acknowledge and agree that you are the Data Controller of all Customer Data, you are solely responsible for obtaining or maintaining the Proprietary Rights for all Customer Data and you are solely responsible, subject to Section 3.4 of this Agreement, for all Customer Data.
- 3.2. Registration. MarketplaceKit Services can only be accessed after the creation of your Account. In order to create your Account, you will be required to provide MarketplaceKit with certain information, including, without limitation, your contact information, payment and billing sources, and digital identification (your "Personal Account Information"). By accessing and using MarketplaceKit Services, you also agree that you will update and ensure that your Personal Account Information is current, accurate and true. We may, at our sole discretion, suspend or terminate your Account, along with any other remedies available to us, if you fail to update or correct the currency, accuracy and truth of your Personal Account Information.
- 3.3. Account Holder. At all times, the person or entity who creates and registers your Account shall be deemed the "Account Holder," who shall be responsible for ensuring that all other End Users (i) comply with the terms and conditions of this Agreement and (ii) are notified of the existence, modification and/or amendment of this Agreement.
- 3.4. Third Party Content. All Third Party Content used in association with MarketplaceKit Services shall conform to the terms of this Agreement. You acknowledge and agree that we are not responsible for testing or screening Third Party Content, and that as such, your use of Third Party Content is at your sole and absolute risk. At all times, we may, at our sole discretion, prohibit the use of Third Party Content after providing you with reasonable notice.
- 3.5. Access and Use. The MarketplaceKit or MarketplaceKits available to your Account have been intentionally designed to allow for broad customization. Unless an activity is the sole and exclusive result of (i) our breach of this Agreement or (ii) an unauthorized party accessing MarketplaceKit Resources that are not licensed to you and which are under our direct control ("Non-Customer Occurrences"), you shall be responsible for all activities that are affiliated or associated with your Account, including, without limitation,
- 3.5.1. Activities arising from the authorized access of your Account by you, your employees, your permitted users or any other third party; and
- 3.5.2. Activities arising from the unauthorized access of your Account by you, your employees, your permitted users or any other third party.
- 3.5.3. Under all circumstances, you are strictly prohibited from permitting, assisting or enabling any individual or entity not listed as an authorized user in your Account from accessing or using your Account. In the event that your Personal Account Information is lost or stolen, or if you believe your Account has been accessed by an unauthorized user, you are required to immediately contact our Customer Support team. Notwithstanding any provision to the contrary, nothing in this Agreement shall be construed, interpreted or applied to impose responsibility or liability on us or our affiliates for any and all activities arising from the authorized or unauthorized access of your Account except as caused by the Non-Customer Occurrences.
- 3.6. Responsibility of Account Holder.
- 3.6.1. Content and Data. You are solely responsible for the access, maintenance, transmission, use, development, acquisition, operation and propriety of any data accessed, maintained or transmitted directly or indirectly by you or your End Users ("User Usage"), including, without limitation, any losses, claims, disputes, controversies or actions arising from User Usage of the MarketplaceKit Services.
- 3.6.2. End User Responsibility. You are responsible for ensuring that your User Usage of the MarketplaceKit Services are properly configured and shall take the necessary steps for securing, protecting and backing up Customer Data. Authentication codes, log-in credentials and user keys generated by us (collectively, "User Verification") are for your direct use only and must be properly secured by you. You are strictly prohibited from disclosing, transferring or licensing any User Verification to any other entity or person unless granted permission by us in writing.
- 3.7. Responsibility for End Users. You are responsible for all End Users which you permit, assist or enable to access or use your Account, Customer Data or the MarketplaceKit Services under this Agreement. Any and all actions or conduct by an End User shall be deemed to have been the actions or conduct of you, without exception.
- 3.7.1. End User Support. You are responsible for providing all applicable customer service to your End Users. You acknowledge and agree that we do not offer any support or services to End Users unless otherwise agreed to in writing by us.
- 3.7.2. End User Violations. You are responsible to ensure that all End Users comply with your obligations under this Agreement. In the event an End User violates a provision of this Agreement, you will be obligated to immediately terminate such End User's access to your Account, Customer Data and/or Services under this Agreement.
4. Privacy of Data and Content
- 4.2. EU Considerations.
- 4.2.1. Generally. From time to time, your access and use of your MarketplaceKit or MarketplaceKits may require the processing of Customer Data by or through the European Economic Area. As a result of certain regulations and laws imposed by the European Parliament and the Council of the European Union, all customers are required to execute the EU Model Contract and/or other appropriate instruments that provide an adequate level of protection in compliance with the EU GDPR and/or the US Privacy Frameworks.
- 4.2.2. EU Model Contract. For purposes of the EU Model Contract and within the meaning of the EU GDPR and/or the US Privacy Frameworks, you acknowledge and agree that (i) you have reviewed the EU Model Contract, (ii) you are a Data Exporter, and (iii) we are a Data Importer.
5. Invoicing and Payments
- 5.1. Generally. By accessing or using your Account or the MarketplaceKit Services, you agree that we are permitted to charge the credit card associated with your Account as determined by us on a monthly basis. Payment is always due within three (3) days of invoicing and access or use of your Account or the MarketplaceKit Services may be interrupted if you are ten (10) days overdue on your payment. In the event you fail to entirely satisfy payment to us within thirty (30) days of an invoice, you agree that we may, at our sole discretion, take any action we deem necessary to recover payment, including, without limitation, the use of third party collection agencies. At all times, you agree that we may charge you an interest rate of three percent plus the federal prime rate per month, as determined by the Wall Street Journal at the time payment is due, for any overdue payments.
- 5.2. Changes In Service Costs. We may increase or add new fees and charges for any MarketplaceKit Service by giving you thirty (30) days advance notice.
- 5.3. Third Party Fees. We are not responsible for any bank fees, interest charges, overdraft charges or other fees resulting from your payment of your invoice. Currency exchange settlements will be based on agreements between you and the provider of your credit card.
- 5.4. Credits and Refunds.
- 5.4.1. Pro-rated credits may be issued by us in the event you retain any active MarketplaceKit Service(s) and have submitted a credit request to us due to (i) our inability to satisfy our Uptime Guarantee or (ii) you downgrade or cancel a pre-paid MarketplaceKit Service. Credit requests can be submitted via your Account portal or MarketplaceKit Manager, and all credits shall be applied strictly against the monthly payment due for the payment period in which the credits were earned.
- 5.4.2. Pro-rated refunds may be issued by us in the event you cease to retain any active MarketplaceKit Services, provided that (i) you submit a refund request via the cancellation form found in your Account portal or MarketplaceKit Manager and (ii) only payments made within one hundred eighty (180) days of a properly submitted cancellation form shall be eligible for refund. In addition to the foregoing, all refunds shall be (i) subject to a five ($5.00) dollar service charge and (ii) issued to the payment method in which the corresponding payment was received by us from you.
- 5.5. Taxes. All fees and charges payable by you will be exclusive of taxes and duties, including without limitation, and where applicable, sales and use tax and value added tax. You will be responsible for providing us any information we request to determine whether we are obligated to collect sales and use tax or value added tax. In the event you are entitled to an exemption from any taxes arising from your access or use of your Account or the MarketplaceKit Services, you will be responsible for providing us with legally sufficient tax exemption documentation for all applicable jurisdictions. If any deduction or withholding is required by law, you shall notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation that is sufficient to us showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
6. Security, Maintenance and Uptime
- 6.1. Security. Subject to Sections 3.6, 3.7 and 4, we will implement reasonable and appropriate measures to secure your Customer Data against accidental or unauthorized access, transmission, loss or disclosure. Unless otherwise expressly specified by an applicable Service Level Agreement, MarketplaceKit shall have no obligation to maintain Customer Data, backup Customer Data, or otherwise store Customer Data on behalf of you or your End Users.
- 6.2. Maintenance. From time to time, MarketplaceKit may perform repairs, replacement, upgrades, updates, patches, fixes or other maintenance which may delay, disrupt, suspend or otherwise impact the MarketplaceKit Service (individually a "Maintenance Event" and collectively the "Maintenance Events"). MarketplaceKit will use commercially reasonable efforts to attempt to minimize the impact of Maintenance Events, but shall at all times have sole and absolute discretion on determining the scope and duration of any Maintenance Event. MarketplaceKit will use reasonable efforts to notify the Account Holder, sent to the Account Holder's registered email address, in advance of a scheduled or planned Maintenance Event, but will be unable to provide advance notice of unplanned or emergency Maintenance Events.
- 6.3. Uptime Guarantee. We guarantee 99.9% monthly MarketplaceKit Services uptime (the "Uptime Guarantee"), provided however, the Uptime Guarantee shall exclude all delays, disruptions, suspensions or otherwise adverse effects to the MarketplaceKit Services caused by:
- 6.3.1. a scheduled or planned Maintenance Event, provided that MarketplaceKit has given the Account Holder at least twenty-four (24) hours' advance notice, which shall be sent to the Account Holder's registered email address;
- 6.3.2. an unplanned or emergency Maintenance Event, provided that MarketplaceKit shall provide an explanation of the unplanned or emergency Maintenance Event to the Account Holder, sent to the Account Holder's registered email address or posted on MarketplaceKit's home website, within seven (7) days of the commencement of the unplanned or emergency Maintenance Event, unless restricted by law or legally binding obligation;
- 6.3.3. User Usage that is in violation of this Agreement; and
- 6.3.4. force majeure events, including without limitation, acts of war, acts of God, natural disaster, pandemic, utility outages, denial of service attacks, and the occurrence of vulnerabilities or exploits which could not have been avoided with commercially reasonable care.When the uptime of MarketplaceKit Services during a particular month is less than 99.9%, subject to the exclusions herein, you may request a pro-rata credit for the affected monthly billing period.
7. Suspension and Termination
- 7.1. Suspension
- 7.1.1. Generally. You acknowledge and agree that we may, at our sole and absolute discretion, suspend you or your End Users from accessing or using any or all of the MarketplaceKit Services, with or without notice, if we determine:
- 184.108.40.206. you or your End User's continued access or use of the MarketplaceKit Services may:
- Result in an actual or possible tort or fraud,
- Expose us or any relevant third party determined by us to an actual or a risk of loss or liability, or
- Adversely impact us or any relevant third party determined by us in any way;
- 220.127.116.11. you are delinquent on your payment obligations for more than ten (10) days; or
- 18.104.22.168. you or your End User is in breach of this Agreement.
- 22.214.171.124. you or your End User's continued access or use of the MarketplaceKit Services may:
- 7.1.2 Effect. Our right to suspend you or your End Users is in addition to our right to terminate this Agreement. If we suspend you or your End Users from accessing or using any or all of the MarketplaceKit Services:
- You and your End Users shall be obligated and bound to this Agreement until this Agreement is terminated,
- You shall remain responsible for all fees and charges incurred during any period of suspension, and
- You shall not be entitled to any payment credits for any period of suspension.
- 7.1.1. Generally. You acknowledge and agree that we may, at our sole and absolute discretion, suspend you or your End Users from accessing or using any or all of the MarketplaceKit Services, with or without notice, if we determine:
- 7.2. Termination.
- 7.2.1. Generally. We may terminate this Agreement, with or without cause, upon providing you with three (3) days advance notice. You may terminate this Agreement at your convenience and for any reason by closing out your account and providing us with notice in accordance with Section 13 hereof, which shall be deemed effective upon written confirmation from us that we received your notice.
- 7.2.2. Effect. Upon termination of this Agreement:
- 126.96.36.199. All your rights and your End Users' rights under this Agreement terminate immediately,
- 188.8.131.52. We shall not be responsible for the storage, backup or maintenance of any of your Customer Data, which may result in the permanent deletion or removal of all your Customer Data,
- 184.108.40.206. You shall remain responsible for all fees and charges incurred through the date of termination, which may including termination fees and charges, and
- 220.127.116.11. The terms of this Section 7.2 shall survive and continue to apply after termination.
8. Your Covenants, Representations and Warranties
- 8.1. End User Covenant. All covenants, representation and warranties made by you in this Section 8 shall jointly apply to you and all of your End Users. You agree that you shall be responsible for notifying all of your End Users of your joint responsibilities under this Agreement, and that breach of this Agreement by any one of you or your End Users shall constitute a breach by all of you and your End Users. You agree that you shall be directly responsible, legally, financially and otherwise, for the performance, conduct and actions of your End Users while such parties are accessing or using the MarketplaceKit Services.
- 8.2. Legal Compliance Covenant. You represent and warrant that all User Usage shall comply with the laws of the United States of America ("US") and the laws of the jurisdiction of your domicile (without regard to such jurisdiction's conflict of law principles), including without limitation, trade control laws and regulations administered by the US Department of Commerce, US Department of State or the US Department of the Treasury. You are solely responsible for determining all applicable US and non-US trade control laws, obtaining any applicable government authorizations, and are liable for any non-compliance.
- 8.3. Data Covenant. By accessing, maintaining or transmitting Customer Data with the MarketplaceKit Services, you represent and warrant that you own all rights, titles and interest in and to Customer Data or have the right to use, reproduce, make derivative works of, or distribute such Data. You expressly grant us the right to process, maintain and use the Customer Data as necessary to provide the MarketplaceKit Services, and that we may disclose Customer Data as permitted by this Agreement or as required or recommended by law.
- 8.4. License Covenant. You represent and warrant that you shall not pursue any claim or action for ownership rights, titles or interest in the MarketplaceKit Services, and use of the MarketplaceKit Services is subject to revocation and termination at the convenience of us. You expressly acknowledge and agree that all licenses granted to you in this Agreement are conditional on your continued compliance with this Agreement, and shall immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the duration of your use of the MarketplaceKit Services, you shall not assert, nor shall you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any MarketplaceKit Services you have used. The terms of this Section shall survive and continue to apply after termination of this Agreement.
- 8.5. Account Holder Covenant. Unless otherwise expressly authorized by us in writing, you represent and warrant that you shall not actually or attempt to (a) modify, alter, tamper with, repair, or otherwise create derivative works of any element of the MarketplaceKit Services, (b) reverse engineer, disassemble, or decompile the MarketplaceKit Services or apply any other process or procedure to derive the source code of any software included in the MarketplaceKit Services, (c) access or use the MarketplaceKit Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the MarketplaceKit Services unless granted prior permission by us in writing.
- 8.6. Publicity Covenant. You shall not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.
9. Our Covenants, Representations and Warranties
- 9.1. User Support. We represent and warrant to you, excluding any of your End Users, that we will provide you with twenty-four hour technical support by way of MarketplaceKit Customer Support, provided that we do not offer technical support for application specific issues, including, without limitation, as application configuration, CGI programming, web or mail server configuration, or any other such issue. You acknowledge and agree that we are not responsible for providing technical support to your End Users.
- 9.2. Limited License. For a period commencing upon the Effective Date and continuing until our termination of your use of the MarketplaceKit Services, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable, non-assignable license to access and use the MarketplaceKit Services strictly in accordance with this Agreement.
10. Affiliates and Subprocessors
- 10.1. Some or all of our obligations under this Agreement may be performed by Affiliates or Subprocessors. All Affiliates and Subprocessors are required to substantially conform to our obligations under this Agreement as applicable to the performance of the MarketplaceKit Services. You expressly grant us authorization for (i) MarketplaceKit to appoint our Affiliates to provide processing or sub-processing services and (ii) MarketplaceKit and our Affiliates to appoint Subprocessors, including without limitation, third party data center, development, production, maintenance marketing, financing and customer support providers in connection to any MarketplaceKit Resource or MarketplaceKit Service.
- 10.2. MarketplaceKit will provide you with a copy of our Subprocessors which relates to your use of a MarketplaceKit Resource or MarketplaceKit Service upon request. If you have a reasonable objection to a Subprocessor which relates to your use of a MarketplaceKit Resource or MarketplaceKit Service, you shall notify MarketplaceKit of your objection in writing and MarketplaceKit shall respond within thirty (30) days of such request (each a "Subprocessor Request"). MarketplaceKit, at MarketplaceKit's sole and absolute discretion, shall determine if we are able to provide the applicable MarketplaceKit Resource or MarketplaceKit Service without the use of the applicable Subprocessor. If MarketplaceKit is unable to reasonably satisfy your concerns within ninety (90) days of a Subprocessor Request, you may terminate your Account and request prorated credits or refunds in accordance with the terms of this Agreement.
- 10.3. Your failure to provide written objections or requests within any of the deadlines provided in Section 10.2 will be deemed to be a waiver of the applicable Subprocessor Request.
- 10.4. MarketplaceKit shall ensure that our Subprocessors shall only be engaged by written contract which imposes processing and sub-processing terms which are substantially no less protective of your Customer Data than this Agreement. MarketplaceKit shall be responsible for procuring Suprocessor performance under this Agreement and shall be liable to Customer for any breach of your Customer Data by a Subprocessor, subject to any indemnification or subrogation agreements entered into by us and the applicable Subprocessor. In all instances not related to a breach of Customer Data by a Subprocessor, you and your End Users expressly acknowledge and agree that any disputes, controversies, claims or actions shall be raised in the first instance against the applicable Subprocessor and not against MarketplaceKit.
11. Disclaimers and Releases
- 11.1. Global Transfers of Personal Data. To the extent that Personal Data originates from the European Economic Area or Switzerland, your transfers of Personal Data to us or to our Affiliates or Subprocessors are made subject to this Agreement, the EU GDPR and the EU Model Contract, with you acting as the Data Exporter and us and/or our Affiliates or Subprocessors acting as the Data Importer. The terms of this Agreement shall be read in conjunction with the EU Model Contract and/or any other appropriate transfer mechanism or device permitted by the laws of the United States of America and the European Union.
- 11.2. Disclaimer of Certain Issues. THE MarketplaceKit SERVICES ARE PROVIDED "AS IS." WE, OUR AFFILIATES AND OUR SUBPROCESSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE MarketplaceKit SERVICES, INCLUDING ANY WARRANTY THAT THE MarketplaceKit SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF RISK OR ADVERSE ELEMENTS, OR THAT ANY CONTENT, INCLUDING YOUR CUSTOMER DATA, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND SUBPROCESSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
12. Limitation of Liability and Indemnification
- 12.1. Indemnification. You will indemnify, defend and hold us, our Affiliates and our Subprocessors harmless from and against all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney fees and legal costs) in connection with disputes, controversies, claims or actions made or brought by a third party arising from: (i) you and your End Users' breach of this Agreement or violation of any applicable law; (ii) you and your End Users' authorized or unauthorized use of the MarketplaceKit Services; (iii) you and your End Users' authorized or unauthorized access, maintenance or transmission of content or data by or through MarketplaceKit Resources; (iv) you and your End Users' wrongful or negligent acts or omission in connection with its performance of any MarketplaceKit Service; (v) you and your End Users' infringement or misappropriation of any Proprietary Right(s); (vi) Customer's disclosure of any information that is confidential or protected by law and (vii) as between you and your End Users.
- 12.2. Limitation of Liability. To the furthest extent of the law, you acknowledge and agree to assume full responsibility for any loss that results from the use of the MarketplaceKit Services and MarketplaceKit Resources including without limitation, technical support, and any services related to hardware and software support and/or maintenance other than a loss that results directly from our reckless or intentional malfeasance or misfeasance. EXCEPT IN INSTANCES WHERE LOSSES ARE DIRECTLY THE RESULT OF OUR RECKLESS OR INTENTIONAL MALFEASANCE OR MISFEASANCE, WE, OUR AFFILIATES AND OUR SUBPROCESSORS SHALL NOT BE LIABLE TO YOU OR YOUR END USERS FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF WE, OUR AFFILIATES AND/OR OUR SUBPROCESSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR HARMS. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR SUBPROCESSORS SHALL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, RESTITUTION, DAMAGES, LOSSES OR HARMS ARISING IN CONNECTION WITH: (I) YOUR INABILITY TO USE THE MarketplaceKit SERVICES, INCLUDING AS A RESULT OF ANY (A) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE MarketplaceKit SERVICES, (B) OUR DISCONTINUATION OF ANY OR ALL OF THE MarketplaceKit SERVICES OR (C) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE MarketplaceKit SERVICES FOR ANY REASON; (II) YOUR COST OF SUBSTITUTE GOODS OR SERVICES; (III) ANY EXPENSES, COVENANTS OR COMMITMENTS MADE BY YOU OR YOUR END USERS IN CONNECTION WITH THIS AGREEMENT OR THE MarketplaceKit SERVICES; OR (IV) ANY UNAUTHORIZED ACCESS, MAINTENANCE OR TRANSMISSION RESULTING IN THE ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE WITH RESPECT TO CUSTOMER DATA OR THE MarketplaceKit SERVICES. IN ANY CASE, THE AGGREGATE LIABILITY OF US AND OUR AFFILIATES AND SUBPROCESSORS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS YOU HAVE ACTUALLY PAID US UNDER THIS AGREEMENT FOR THE MarketplaceKit SERVICES THAT GAVE RISE TO THE DISPUTE, CONTROVERSY, CLAIM OR ACTION.
- 12.3. Force Majeure. We and our Affiliates and Subprocessors shall not be liable for any delay or failure to perform any obligation under this Agreement resulting from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
- 12.4. Government Use. Strictly for the purposes of this Section 12.4, in instances of the MarketplaceKit Services being provided to a governmental entity in its governmental capacity, including any related technical data or accompanying documentation, the MarketplaceKit Services shall be considered "commercial items" as defined in 48 C.F.R. ยง2.101. If you or your End Users are using the MarketplaceKit Services on behalf of a governmental entity and any or all of this Agreement fails to meet that government's needs or are inconsistent in any respect with law, you and your End Users, as applicable, shall immediately discontinue use of the MarketplaceKit Services.
You agree that we may provide you with notices, including those regarding changes to this Agreement or any Service Level Agreements, by email or regular mail to be sent to the addresses listed in your Account or by publication on any MarketplaceKit Resource(s). You must provide us with all notices through MarketplaceKit Customer Support.
14. Amendments or Modification.
This Agreement shall not be amended or modified, nor shall it be deemed, interpreted or construed to be amended or modified, without the prior written consent of an authorized representative of MarketplaceKit.
- 15.1. "Account" means the online portal provided by us which permits you to (i) register for the MarketplaceKit Services and (ii) manage the access, maintenance and transmission of Customer Data by and through the MarketplaceKit Services.
- 15.2. "Affiliates" means any subsidiaries, contractors, representatives, agents, vendors or distributors which, as determined by us in our sole and absolute discretion, assist in the performance of the MarketplaceKit Services.
- 15.3. "Customer" or "Customers" means any individual(s) or entity(ies) authorized to access, maintain, transmit, develop, acquire, operate or otherwise use an Account.
- 15.4. "Customer Data" means all content, including without limitation, all data, text, audio, software (including machine images or processes), or visual (both static and dynamic) files that are provided to us by, or on behalf of, you through your use of the MarketplaceKit Services, and all content provided by you or on your behalf relating to your Personal Data or the Personal Data of your End Users.
- 15.5. "Data Controller" has the meaning as defined in the EU Model Contract.
- 15.6. "Data Exporter" has the meaning as defined in the EU Model Contract.
- 15.7. "Data Importer" has the meaning as defined in the EU Model Contract.
- 15.8. "Data Processor" has the meaning as defined in the EU Model Contract.
- 15.9. "Data Subject" means any natural person who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her/its physical, physiological, mental, economic, cultural or social identity, including without limitation, a full name, company name (if applicable), billing address, credit card number and expiration date, e-mail address, and source
- 15.10. "Effective Date" means, as applicable, (i) May 25, 2018, if you clicked and accepted this Agreement prior to May 25, 2018; or (ii) the date on which you clicked and accepted this Agreement if such date is after May 25, 2018.
- 15.11. "End User(s)" means any individual or entity that directly or indirectly accesses or uses your Account, Customer Data or the MarketplaceKit Services under this Agreement.
- 15.12. "European Economic Area" refers to the following countries: Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
- 15.13. "EU GDPR" means the General Data Protection Regulation (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);
- 15.14. "EU Model Contract" means the Data Processor Agreement and the Standard Contractual Clause C(2010)593 issued by the European Union European Commission, Directorate of General Justice as provided by us to our Customers in the European Economic Area.
- 15.15. "MarketplaceKit" means (i) MarketplaceKit, LLC for all Customers with a billing address located in the United States of America or (ii) MarketplaceKit International Services Company for all Customers with a billing address not located in the United States of America.
- 15.16. "MarketplaceKit Customer Support" means the online ticketing system found here.
- 15.17. "MarketplaceKit Resource" or "MarketplaceKit Resources" means any website, product, software, hardware, application, machine, equipment or property used by us to provide or make available the MarketplaceKit Services.
- 15.18. "MarketplaceKit Service" or "MarketplaceKit Services" means any and all services made available by us, our Affiliates or our Subprocessors, including those services published on any MarketplaceKit Resource.
- 15.19. "Personal Data" means any information relating to a Data Subject that you or your End Users directly or indirectly provide to us as part of the MarketplaceKit Services or any Data Subject's use of any MarketplaceKit Resource.
- 15.21. "Proprietary Rights" means any right, interest or authorized or permitted ability to use, distribute, redistribute, produce, reproduce or display any tangible or intangible property protected by patent, copyright, trade secret, trademark, or other intellectual property right.
- 15.23. "Subprocessors" means any subsidiaries, contractors, representatives, agents, vendors or distributors engaged to process Customer Data as part of the MarketplaceKit Services.
- 15.24. "Third Party Content" means all content, including without limitation, all data, text, audio, software (including machine images or processes), or visual (both static and dynamic) files that are used by you and/or your End Users that were not directly provided to you by us.
16. Additional Terms.
- 16.1. English Language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
- 16.2. No Assignment. You are strictly prohibited from assigning, delegating or sublicensing any or all of this Agreement or the MarketplaceKit Services, and any and all rights, obligations, duties, responsibilities, or interests therein, without our prior written consent, which consent may be withheld for any reason or for no reason.
- 16.3. No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
- 16.4. No Waiver. Our failure to demand or enforce compliance or performance of any term of this Agreement, regardless of the length of time for which such failure continues, shall not be deemed to be a present or future waiver of our right to demand or enforce compliance or performance at a later time. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the compliance or performance of the same or any other obligation. All waivers by us must be in writing and executed by an authorized representative of us to be effective.
- 16.5. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be deemed to be modified to permit its enforcement to the maximum extent permitted by law, or reformed if modification is not permitted, and the Agreement shall remain in full force and effect as modified.
- 16.6. Governing Law and Venue. You and your End Users acknowledge and agree that you, your End Users, this Agreement and all claims, actions, causes of action, suits, litigation, controversies, hearings, charges, complaints or proceedings arising in whole or in part under or in connection with this Agreement, shall be governed by and construed in accordance with the domestic substantive laws of the State of New Jersey, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. All proceedings arising from this Agreement shall be exclusively venued in the state court in Atlantic County, New Jersey or the federal court in Camden County, New Jersey. You and your End Users expressly consent to exclusive jurisdiction and venue in those courts. We may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our, our affiliates, or any third party's intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
- 16.7. Headings. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
- 16.8. Entire Agreement. This Agreement includes the Service Level Agreements and constitutes the final, complete, and exclusive statement of the agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between you and us, inclusive of all mediums and methods of correspondence, negotiation and otherwise communication. We shall not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document.