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Marketer Developer Agency General

Marketpath CMS Application Agreement, Rules, Terms and Conditions

Use of Marketpath CMS and associated Software indicates consent to be governed by, limited to and bound by the rules, terms and conditions set forth below, along with any future amendments, as well as other documents incorporated by reference (collectively, the “Agreement”).  Without limitation and to the fullest extent possible, acceptance to be bound by this Agreement shall be indicated by performing any of the following non-exclusive actions: (1) signing a document agreeing to be bound by this Agreement, (2) clicking a button or checkbox on a computer screen identifying acceptance of this Agreement or (3) proceeding to use the Services (as defined below).  If you do not agree to any of the rules, terms or conditions set forth in this Agreement or documents incorporated herein, do not use Marketpath CMS software and services.  

  1. Definitions. Except as modified or further clarified herein, the following definitions shall apply throughout this Agreement:
    1. Account.  An individual or entity to which sites are directly associated.
    2. Agency.  An individual or entity that provides assistance to Accounts or Users in the use and operation of Marketpath CMS.
    3. Credit.  An amount earned through referrals or other predetermined processes that can be credited against a referring Account or may be paid to the referring Account via check, Paypal or other Marketpath-approved means.
    4. Discount.  An amount earned through the referral process that can only be credited against a Referral Partner’s account with Marketpath and which shall not be paid directly to the Referral Partner.
    5. Freelance User.  An individual user of Marketpath CMS not affiliated with any specific Account or Agency 
    6. Live Service.  Site where live, public websites reside.
    7. Management Service.  Site where Users may make additions, updates and other changes to their websites.
    8. Referral Partner.  A partner who refers other Users and Accounts and receives credits or discounts as applicable.
    9. Restricted User.  An individual user of Marketpath CMS that is restricted by agreement with a particular Account or Agency to perform work only on that Account or Agency’s Sites within Marketpath CMS.
      Site.  A managed website within Marketpath CMS.
    10. Standard User.  A User that is not a Restricted User .
    11. Supported User.  A User that has the right to email Marketpath or create a support ticket within the Software for technical support.
      User.  Generically includes all types of Users defined herein and when referenced below, is intended to relate to all types of Users.
  2. Description of Services. Marketpath shall provide the software and services necessary to provide an internet-based website content management application, termed “Marketpath CMS,” for creating, modifying and publishing pages, images and documents to a User’s website (collectively defined as the “Services”).
  3. Eligibility for Use.  Services are meant for use only by those that are eligible to enter into a valid contract under the applicable law.  Minors are not allowed to use any of the services offered on this Site without the written consent and ratification of their parent or guardians.  Marketpath expressly reserves the right to accept or reject the registration application of any user at its sole discretion without assigning any reason to anyone.  By using any of the service(s) offered on the Site, You represent and warrant that:
    1. You have the right, authority, and capacity to enter into this Agreement;
    2. You have read, understand and agree to abide by all the terms and conditions of this Agreement;
    3. You are at least eighteen (18) years of age or acting with the written approval and ratification of an adult parent or guardian;
    4. You are not legally barred from entering into a lawfully executed contract under any of the applicable jurisdictions; and
    5. You shall not engage in any activity or omission that is considered unlawful under any applicable law.
  4. Accounts. An account is required to create and edit Sites.
    1. Account administrative users have full control over all account details, billing, access and Sites created by or linked to the Account.
    2. Accounts may utilize Restricted Users by verifying ownership of the Restricted User’s email domain.
    3. Restricted Users cannot edit profile information except to modify passwords.
    4. Marketpath highly recommends that all Account employees or contractors who are Users of the Services be setup as Restricted Users. By doing so, all access rights of the employee to Account Sites can be revoked if User’s employment or association to Account ends.
    5. Accounts may be billed through the Agency provided that “Bill to Agency” is selected as the payment option at the time of registration.  If the “Bill to Agency” option is selected:
      1. Account Users shall not have access to the billing and payment information relating to the Standard Account.
      2. Account Users cannot alter the billing details by adding or removing features, which must be done by the Agency.
      3. Account Users can change the billing method to “credit card” and revoke the “Bill to Agency” option, although any volume discounts previously available shall be lost to the Standard Account.
    6. Accounts may grant or remove access to the Account to Agencies of their choice and may provide full administrative rights over all aspects of the Account except that such administrative rights shall not include the right to alter or modify the billing and payment arrangements previously established with Marketpath.  
    7. All Sites shall be the property of Accounts only.
    8. Accounts are required to have no fewer than one full-time administrator that has access to the Account.
    9. Accounts that wish to transfer a Site to another Account may request this by emailing support@marketpath.com.  Marketpath will then contact the recipient Account to verify approval of the transfer.  In such event, any future billing obligation associated with the transfer shall be applied to the sending and recipient Accounts. Refunds will NOT be provided to the sending Account.
  5. Agency. An Agency is an group of users created by or affiliated with a marketing, development, or other professional services agency.
    1. Any authorized User may create an Agency, subject to the terms and conditions relating to the use and operation of an Agency.
    2. All Sites created by or affiliated with an Agency shall remain the property of the Account to which it is affiliated.
    3. Agencies may create Accounts which own Sites.  Such Accounts may be billed through the
    4. Agency provided that “Bill to Agency” is selected as the payment option at the time of registration.
    5. Agencies may utilize Restricted Users by verifying ownership of the Restricted User’s email domain
    6. Restricted Users cannot edit profile information except to modify passwords.
    7. Marketpath highly recommends that all Agency employees or contractors who are Users of the Services be setup as Restricted Users. By doing so, all access rights of the employee to Agency, Agency Accounts, and Agency Account Sites can be revoked if User’s employment or association to Agency ends.
  6. Services Availability.  Subject to the terms and conditions of this Agreement, Marketpath shall use its best efforts to ensure that the Services are available for not less than 99.9% of the time.  Users, Agencies and Accounts agree and understand that from time to time, the Services may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Marketpath may undertake from time to time; or (iii) causes beyond the control of Marketpath or which are not reasonably foreseeable by Marketpath including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”).  Host shall provide twenty-four (24) hour advance notice to Users, Agencies and Accounts in event of any scheduled Downtime.  If availability falls below 99.9%, Marketpath will issue a pro-rated, no-cash-value credit for the additional percentage of time in which an Account is unavailable.  Marketpath will not in any way be liable to Users, Accounts or Agencies for additional direct or indirect damages incurred as a result of excessive down time.  This guarantee does not include down-time caused by the acts or omissions of Users, Accounts or Agencies, nor does it include down-time caused by third-party software or applications not developed by Marketpath and which may be utilized on any particular Site or Account.  Live Sites will be accessible at reasonable, industry-standard page load speeds for rendering similar live websites.  Marketpath is also not responsible for reduced page load speeds caused by the acts or omissions of developers, Users, Accounts or Agencies that increase data lookups and constrain server processing.
  7. Account Use. The registered users of a Site within the Services may access their account by keying in their preferred username and password as selected by or assigned to them upon completion of the registration process. Username is a valid email address intended for one (1) person. Password is case sensitive. Accounts deleted by the Account or User will be “soft-deleted,” rendering them inaccessible.  If the Account has not been restored within ninety (90) days from the date it was first deleted by the Account or User, the Account will be permanently deleted.  Marketpath will attempt to restore any permanently-deleted Account upon request and upon proof of up-to-date payment, but Marketpath makes no assurances or guarantees that it will be restored, nor does Marketpath guarantee that it will attempt to restore such accounts.

    Users and/or Accounts shall be solely responsible and liable:
    1. for maintaining the confidentiality, integrity, and security of Your password;
    2. for any disclosure of Your password to any third party, via any online or offline media including, without limitation, message boards, public or private forums, blogs, social networking websites, etc.;
    3. for using the account of another user, at any time;
    4. for all uses of Your account – authorized or unauthorized – and;
    5. to notify Marketpath immediately, if You suspect any unauthorized use of Your Account or Site.
  8. Invoicing and Payment.  Accounts utilizing the Services shall be invoiced as follows:
    1. Sites under development, utilizing only the preview server, shall not be subject to a charge until such time as the Site is published and made available to the public.
    2. Prior to publishing a Site to the live server, Accounts shall establish a recurring credit or debit card charge for the selected services and an initial charge for the selected Services shall have been successfully made.
    3. Invoicing shall be determined based upon the service plan selected by the Account.  Increases in billing due to account changes shall begin to accrue immediately upon selecting the different service plan.  The selection of a reduced-price plan shall not affect billing for the then-current billing cycle but shall begin on the next billing cycle.
    4. Marketpath reserves the right to accept or decline alternate forms of payment at its sole discretion, including through the use of check, Paypal or other means.
    5. All payments shall be made by a valid debit or credit card with sufficient available funds.
    6. Accounts may initially select to be billed through the Account or through an Agency.
    7. Accounts that have established their billing method and payment details with Marketpath cannot thereafter change their billing status to require billing through the Account’s Agency.
    8. Accounts selecting to be billed through an Agency shall be billed on the same billing cycle as the Agency.
    9. Accounts being billed through an Agency may thereafter elect to be billed directly, at which time the Account is responsible for timely establishing a billing and payment account with Marketpath.  If the Account elects to terminate billing through an Agency but fails to establish its own direct billing prior to the next billing cycle, the Account shall become delinquent as identified herein.
    10. All Services shall be invoiced and paid on a monthly basis.  There are no refunds after an invoice has been generated and issued.
    11. All payments shall be invoiced and paid at the beginning of each new billing cycle such that monthly payments shall thereafter be drawn from the designated credit or debit card on the same day each calendar month.
    12. Monthly payment obligations shall not be prorated.  Therefore, if User fails to use a Site for the entire billed and paid monthly period, or deletes a Site altogether prior to the end of the then-current monthly term, no refund, rebate or credit shall accrue.
    13. In the event any charges accrue in a paid monthly term that exceed the standard amount paid by the User for that term, such charges shall be invoiced and paid on the next billing cycle.
    14. Marketpath will make three (3) attempts to process an automatic payment over a three (3) day period.
    15. If the payment fails each time, and if any charges applicable to an Account or Site shall become more than fourteen (14) days overdue, the Account (and any supported Sites) or individual Sites shall be suspended without further notice and interest shall accrue at the rate of eighteen percent (18%) per annum.  Affected Sites will display a message substantially similar to “This site is not currently available.”  Notice of the suspension will be sent to the Account responsible for payment after the Account becomes 28 or more days delinquent.
    16. If all past-due payments are received by Marketpath after the suspension occurs and after the conclusion of the then-current billing period, both the past-due and current billings will be charged to the Account’s credit card or other approved payment method.
    17. If any charges applicable to an Account or Site shall become more than ninety (90) days overdue, the Account (and any supported Sites) or individual Sites shall be permanently deleted without further notice and all content shall be irretrievably lost.  
  9. User Referrals. Users are eligible to receive a Discount through their Accounts, subject to the express terms, conditions and limitations set forth herein.
    1. Users, utilizing the referral URL of any Account with which they have administrative rights, may refer new Users to the Services.  In order to be eligible to receive a Discount, the referral must originate through the Account’s unique referral URL.  No other referral will be eligible for a Discount or Credit.
  10. Account Referrals.  Users are eligible to receive a Credit through their Accounts, subject to the express terms, conditions and limitations set forth herein.
    1. Users, utilizing the referral URL of any Account with which they have administrative rights, may refer new Users from any Account over which the referring User has administrative rights. Any Accounts created by the referred user become eligible for generating referral Credits to the referring Account. In order to be eligible to receive a Discount or Credit, the referral must originate through the Account’s unique referral URL.  No other referral will be eligible for a Discount or Credit.
    2. Discounts or Credits will be earned by and applied to the Accounts through which the referral is made.  Marketpath is not liable for ensuring User receives the benefit of a Discount or Credit.  Marketpath is not responsible for and will not enforce or compel adherence to the terms of any agreement between a User and Account or Account relating to the payment of Discounts or Credits.
    3. Discounts and/or Credits will be earned only after the referred User has signed up with Marketpath CMS, the referred User has actively utilized the Account and Marketpath has begun actually receiving revenue from the referred User.  Upon satisfaction of these preconditions, the referring User’s Account will receive a referral Discount deposited into their Account to be applied to Marketpath CMS Application Services.  No Discount or Credit will be earned except upon actual receipt of funds by Marketpath.  
    4. Discounts and Credits will be earned based upon Marketpath’s then-currently advertised referral percentages and other conditions, which are currently established at 15% of the referred revenue in the first year and 5% of the referred revenue each year thereafter.  Any Discounts or Credits earned will be identified and available on the referring Account’s monthly billing statement on the next month after it is earned.  
    5. All Discounts and Credits earned through the referral process expire automatically and without further notice one year after the first date on which such Discount or Credit was earned and identified on the referring Account’s monthly billing statement.
    6. All Credits and Discounts, as well as the right to receive future Credits and/or Discounts, are forfeited if the referring User or Account becomes inactive.
    7. Referring Users are not eligible for a Discount or Credit to their Account if the referred User is referred to the referring User’s Agency.  Marketpath reserves the right to deny any such Discount or Credit and to retroactively recoup any previously-issued Discounts or Credits issued in violation of this Agreement.  Marketpath further reserves the right to terminate any Account utilized as a referral source in violation of the terms of this referral program.  
    8. This referral program is subject to modification or termination by Marketpath at any time and at its sole discretion.  Users are responsible for ensuring their awareness of any such modifications or terminations.
  11. Discounts and Credits.  Accounts may be eligible to receive credits and/or discounts.  Disbursement of credits may be requested not more than once per month and shall be paid via check, Paypal or such other means as may be exclusively determined by Marketpath.  All available Account Discounts shall be applied in order of issuance from oldest to most recent and shall be used before Credits when used to pay for Marketpath invoices.

    Discounts and Credits are not transferrable.

    The following Discounts and Credits shall be available:
    1. Volume Discounts.
      1. Volume discounts are calculated based upon the total amount billed and paid for all Sites and Accounts operated through the master Account.
      2. Volume discounts will be applied automatically to Account invoices and are in addition to any other discount or credit earned by the Account.
      3. Volume Discounts do not expire, except Marketpath reserves the right to modify, suspend or terminate the volume discount program upon notice to Users, Accounts and Agencies.
      4. Initial volume discounts shall be offered through the Services based upon the following revenue actually generated to Marketpath:
        1. $500.00 or more per month shall result in a 5% discount.
        2. $1,500.00 or more per month shall result in a 7% discount.
        3. $2,500.00 or more per month shall result in a 10% discount.
        4. $10,000.00 or more per month shall result in a 20% discount.
    2. Fixed Discounts and Credits.
      1. Fixed Discounts and Credits may be applied to an Account based on various referral or other promotional programs created and operated by Marketpath.
      2. Fixed Discounts and Credits automatically expire after one (1) year if not used. Marketpath may send a warning prior to expiration but is under no obligation to do so.
    3. Percentage Based Discounts.
      1. Marketpath may issue percentage based Discounts based on various referral or other promotional programs created and operated by Marketpath
      2. Expiration of percentage based Discounts will vary and be dependent on each promotion or offering. If not explicitly stated, the percentage discount will  expire after ninety (90) days.
    4. Manual Discounts and Credits.  Marketpath reserves the right to apply manual discounts and credits to certain Accounts in its sole discretion and based upon factors that it shall solely determine 
  12. Support.  Supported Users that are current on their payment obligations and otherwise are not in breach of this Agreement shall be provided with the following support: (a) a Q&A forum and an informative help website at no charge and (b) email support (varies per plan).  Standard support will be available on non-holiday business days from 8:00 a.m. (ET) to 5:00 p.m. (ET).  Support response times will be not more than 48 hours on days in which support is available.  However, a response time does not guarantee resolution of the issue within the 48-hour period.
  13. Agencies.  Agencies may be created by any User.  Agencies shall be governed by this Agreement, though the terms of this Paragraph shall supersede any general terms contained elsewhere in this Agreement in the event of a direct conflict.
    1. Ownership of content, code and media shall be consistent with the Intellectual Property Rights section of this Agreement.  Ultimate ownership of content, code and media within the Agency shall be determined by separate agreement between the Agency, its Users and associated Accounts.
    2. Marketpath shall not in any manner act as an arbiter of disputes between any parties to an Agency, except to enforce the terms of this Agreement.  Marketpath will abide by any determination of a court of competent jurisdiction in the event of a dispute between parties to an Agency and all claims for damages, losses or expenses against Marketpath based upon same are hereby waived in their entirety.
    3. Any customer or User that is provided access to Marketpath CMS through the use of a Site or Account shall be required to agree to the terms of this Agreement as a precondition to use of the Site or Account.
    4. Agency, to the fullest extent of the indemnification provisions set forth in this Agreement, shall defend, indemnify and hold harmless the Indemnitees as defined herein.
  14. Intellectual Property Rights.  Users and Accounts that are current on their payment obligations and otherwise are not in breach of this Agreement are provided with a limited, non-exclusive, non-assignable license to utilize the Services.  Marketpath retains all intellectual property rights associated with the Services, including but not limited to the management software, live software, various agents, caching system and the like.  Marketpath does not claim and does not own any intellectual property rights to any code, content, images, videos or other media imported to or used in the Services by any User or Account unless created by Marketpath, in which case all intellectual property rights of Marketpath are reserved in said media and content.  User, Account and anyone responsible for uploading or creating any media or content in the Services are responsible for and assume all risks for copyright or other intellectual property infringement with the exception of those items set forth herein over which Marketpath asserts intellectual property rights.  Furthermore, said Users and Accounts shall defend, indemnify and hold Marketpath harmless to the fullest extent of the law permitted against any claims, damages, demands or losses, which includes all attorney fees and other costs of defense, resulting from User or Account’s use of the Services.  Marketpath retains the right at its sole discretion to utilize counsel selected by the indemnifying party or to retain counsel of its choice.  Marketpath further retains the right to settle or compromise any such indemnified claim at its sole discretion.  
  15. Third Party Content.  Marketpath does not represent or endorse the sufficiency, accuracy or quality of any services, information or other content on any Site or Account within the Services.  The Sites or Accounts may contain third party links that are not managed or controlled by Marketpath.  Therefore, Marketpath disclaims any liability for any transaction or dealing by any User, Account or third party utilizing Marketpath CMS.  
  16. Consent to Monitoring.  Marketpath is under no obligation to monitor the information, code or content residing on or transmitted through the Services or any Site.  Marketpath agrees that it will not make any changes to User or Account uploaded or created content in the Services without the express, written consent of the User or Account.  However, anyone accessing or utilizing the Services agrees that Marketpath may, but is not required to, monitor the contents of the Services and all Sites residing therein periodically to (1) comply with any applicable laws, regulations or other governmental requests; (2) operate the Services properly or to protect itself and its users.  Marketpath expressly reserves the right, but not the obligation, to disable an Account or Site without liability whatsoever if it determines in its sole discretion that the content or code (a) poses a security threat to the Services, (b) violates a third-party copyright or other intellectual property rights, (c) contains illegal information or images, (d) violates the terms of this Agreement or (e) is intended to or is used for the purpose of committing illegal conduct.  
  17. Representations and Warranties of Users, Accounts and Agencies.  In addition to the provisions contained herein, the Users, Accounts and Agencies also represent and warrant as follows:
    1. You agree and undertake to abide by and comply with all the applicable laws while interacting with the Services.
    2. You are strictly prohibited from posting personal attacks, pornography in general (whether illegal or not), child pornography, defamation, abusive profanity or the like on any hosted Site.  Marketpath reserves the right to remove such content from any hosted Site at any time without any notice.
    3. You undertake not to use any robot, spider, scraper or other automated means to access the Services for any purpose.
    4. You agree not to circumvent or manipulate the fee structure, the billing process, or fees owed to Marketpath, or cheat the systems in any manner whatsoever.
    5. You are expressly prohibited from indulging in spam using any of the features offered through the Services.
    6. You are expressly prohibited from spreading technological nuisances, like viruses, bots, Trojans, worms, or other programs that amount to damage, destruction, detrimentally interfering with, surreptitiously intercepting, or expropriating any system, data or personal information on other computer systems on the Web.
  18. Non-Continuance.  Marketpath may, at its sole discretion, change, suspend or discontinue any aspect of the Services at any time and for any reason.
  19. Security.  Marketpath takes all reasonable steps to protect information on the Services, but does not guarantee that the data, including credit card information, will be completely secure from misappropriation by hackers or from other nefarious or criminal activities.  Users, Accounts and Agencies are prohibited from violating or attempting to violate the security of the Services or any Site, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the User, Account or Agency is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, "flooding," "spamming," "mailbombing" or "crashing;" (d) sending unsolicited email, including promotions and/or advertising of products or services; or (e) forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting. Violations of system or network security may result in civil or criminal liability. Marketpath will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users, Accounts or Agencies who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Services or any Site thereon.
  20. Warranties.  Except as expressly stated elsewhere in this Agreement, the Services are made available to you on an “as is” basis, without any warranties of any kind and without any representations or guarantees.

    MARKETPATH HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND ENDORSEMENTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.

    NO ADVICE OR INFORMATION GIVEN BY MARKETPATH OR ITS EMPLOYEES SHALL CREATE ANY WARRANTY.

    WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (A) MARKETPATH DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT THIS WEBSITE OR THE INTERNET GENERALLY WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE FROM THIS WEBSITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND (B) MARKETPATH MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES REGARDING (1) THE OPERATION OR PERFORMANCE OF THIS WEBSITE OR ANY THIRD PARTY SITE, (2) THE NATURE, CONTENT OR ACCURACY (EITHER WHEN POSTED OR AS A RESULT OF THE PASSAGE OF TIME) OF ANY INFORMATION, MATERIAL, APPARATUS OR OTHER PROCESS CONTAINED ON, DISTRIBUTED THROUGH, OR LINKED, DOWNLOADED OR ACCESSED FROM THIS WEBSITE (INCLUDING WITHOUT LIMITATION, THOSE CONTAINED ON A THIRD PARTY SITE), (3) ANY PRODUCTS OR SERVICES PURCHASED ON OR THROUGH A THIRD PARTY SITE, OR ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF AN ADVERTISEMENT OR OTHER INFORMATION OR MATERIAL ON OR IN CONNECTION WITH THIS WEBSITE, OR (4) THE INTERNET GENERALLY.

    IN THE EVENT OF ANY CONFLICT BETWEEN THIS SECTION (NO WARRANTIES) AND OTHER TERMS OR PROVISIONS OF THIS AGREEMENT, THIS SECTION SHALL GOVERN.

  21. Disclaimers.  Use of this website is subject to the following disclaimers:
    1. Marketpath does not recommend, warrant or promote the services or products advertised or available through any Site.
    2. Marketpath disclaims any liability for any unauthorized access of User’s account by anyone other than the registered user.
    3. All the Intellectual Property Rights issues and disputes between users shall be negotiated by and between the respective parties.  We do not negotiate or arbitrate between the parties in case of any dispute.
    4. The general content of this Website is informative in nature, and not in the advisory context.
    5. Notwithstanding anything to the contrary contained anywhere, nothing shall prevent Marketpath from cooperating with the authorized investigative agencies to the fullest extent permissible under law.
  22. Indemnity.  You agree to indemnify and hold Marketpath and its members, directors, employees, affiliates, officers, representatives and agents (“Indemnitees”) harmless from any loss, claim, subrogation claim, penalties, expense or demand of any nature, including court costs, interests, amounts paid in compromise or settlement, reasonable attorney’s fees, made by any third party due to, or arising out of, your use of or the content you submit, post, transmit or make available through the Marketpath CMS Application, your use of one or more Sites, your violation of this Agreement, your violation of any rights of any other person, or any other loss suffered by the Indemnitees on account of your acts or omissions.
  23. Limitation of Liability.  EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, IN NO EVENT SHALL MARKETPATH OR OWNERS, EMPLOYEES, AFFILIATES, OFFICERS, REPRESENTATIVES OR AGENTS BE LIABLE TO ANY USER, ACCOUNT OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE MARKETPATH CMS APPLICATION OR ITS ACCOUNTS OR SITES, EVEN IF MARKETPATH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MARKETPATH’S LIABILITY TO USERS FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL, AT ALL TIMES, BE LIMITED TO THE AMOUNT PAID TO, IF ANY, BY THE USER OR ACCOUNT TO MARKETPATH IN THE PAST SIX MONTHS.
  24. Informal Resolution of Disputes.  In the event of any claim or controversy at law or equity that arises out of this Agreement or the Services (“Claims”), we strongly encourage you to first contact us directly to seek a resolution and we will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation.
  25. Dispute Resolution Procedures and Forums.  For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is $8,000.00 or less, such disputes shall be resolved in the Marion County Small Claims Court, Indianapolis, Indiana.  For all other claims, such dispute shall be resolved, at the sole discretion of Marketpath, through (1) litigation in the Superior or Circuit Courts of Marion County, Indiana or (2) binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required.  In such cases, the arbitration shall be administered by the American Arbitration Association in accordance with their applicable rules, or any other established ADR provider mutually agreed upon by the parties.  Any judgment on the award rendered by the arbitrator may be entered and enforced in any Marion County, Indiana Superior or Circuit Court, to which the parties consent to jurisdiction and waive any defenses thereto.  In the event Marketpath substantially prevails on any of its claims or defenses, it shall be entitled to recover from claimant its reasonable attorney fees, expenses of litigation and court costs.  
  26. No Waiver.   No failure on the part of either party at any time to require the performance by the other party of any term hereof shall be taken or held to be a waiver of such term or in any way affect the complying party’s right to enforce such term.  No waiver on the part of either party of any term hereof shall be taken or held to be a waiver of any other term hereof or the breach thereof.
  27. Integration and Modifications.   This Agreement is intended by the parties as a final expression of their agreement as a complete and exclusive statement of the terms thereof, all negotiations, considerations and representations between the parties having been incorporated herein with the exception of any additional documents provided by Marketpath and relating to the Services.  No course of dealing between the parties shall be relevant or admissible to supplement, explain, or vary any of the terms of this Agreement.  Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement between the parties or their affiliates shall not be relevant or admissible to determine the meaning of any of the terms of this Agreement other than those specifically set forth herein.  Marketpath reserves the unilaterally modify the terms and conditions of this Agreement.  In the event of such a modification, Users and Accounts shall be notified by e-mail and again upon their next login of such changes, which the parties deem to be adequate notice, and continued use of the Services shall constitute acceptance of said modifications.
  28. Severability.    The invalidity or unenforceability of any particular provision thereof shall not affect the other provisions, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision had not been contained herein.
  29. Meanings.   Whenever a singular word is used herein, it shall also include the plural wherever required by the context, and vice versa; and whenever any gender is used herein, it shall also include the other genders wherever required by the context.  “Marketpath” means Marketpath and its owners, officers, agents, employees and representatives.  The terms and conditions of this Agreement represent the result of bargaining and negotiations between the parties, each of which has been represented by counsel of its own selection, and neither of which has acted under duress or compulsion, whether legal, economic, otherwise, and represent the results of a combined draftsmanship effort. Consequently, the terms and conditions hereof shall be interpreted and construed in accordance with their usual and customary meanings, and the parties hereby expressly waive and disclaim, in connection with the interpretation and construction hereof, any rule of law or procedure requiring otherwise, specifically including, but not limited to, any rule of law to the effect that ambiguous or conflicting terms and conditions contained herein shall be interpreted or construed against the party whose counsel prepared this Agreement or any earlier draft hereof.
  30. No Third-Party Beneficiaries.  No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than the parties any rights, remedies, or other benefits under or by reason of this Agreement.
  31. Force Majeure.  Notwithstanding anything herein to the contrary, Marketpath shall not be liable for any delay or failure of performance (other than the obligation to pay monies) to the extent that such delay or failure is caused by any event beyond its reasonable control, including, without limitation, (i) acts of God, war or terrorism, (ii) acts of the government of the United States or of any state or political subdivision thereof (not including acts which result in the loss or termination of any franchise or license of Marketpath necessary for the provision of the Services), or (iii) strikes, civil riots or disturbances, fire, floods, explosions, earthquakes, wind, storms, hurricanes, lightning, or other similar catastrophe, whether natural or man-made; provided, that the non-performing party is without fault in failing to prevent or causing such default or delay, and such default or delay could not reasonably have been circumvented by the non-performing party through the use of alternate services, sources, workaround plans or other means (collectively, “Force Majeure Condition”).
  32. Governing Law.  This Agreement shall be governed by Indiana law, without regard to principles of conflicts of law.
  33. Time.  Time is of the essence in this Agreement and a substantial and material term hereof.
  34. Authority.  By (1) signing a document agreeing to be bound by this Agreement, (2) clicking a button or checkbox on a computer screen identifying acceptance of this Agreement or (3) proceeding to use the Services, the signee represents and warrants that he or she is an authorized employee, agent, or representative of the User or Account and has the authority to bind the User or Account to the terms and conditions of this Agreement.