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boatscalling

Terms and Conditions


IMPORTANT! PLEASE READ CAREFULLY. THIS IS A CONTRACT. IN CONSIDERATION FOR PROVIDING YOU ACCESS TO BOATSCALLING. YOU AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS ("BOATSCALLING TERMS AND CONDITIONS") SET FORTH BELOW.

This Agreement is made by and between Markette Systems Corp ("Markette") represented by Boats.com as boatscalling, and the individual or entity registering for Markette services ("Client"). "Markette Systems Products" means the Markette Systems software applications and the systems being integrated that have been designed to provide call routing and connecting, telecommunications management reporting, customer feedback, text chat, email management, and integration abilities including but not limited to Markette Systems, Callbutton, Kall8, CallSource and Instant Service. Markette agrees to license Markette Systems Products (collectively the "Product") to Client, only under the condition that Client agrees to accept these Terms and Conditions of Use (the "Terms") and that said Property and Services are used only in accordance with these Terms.

Copyright and Limited License

Portions of the Product may be subject to pending or issued patent protection. The Product and the structure, organization and code of the Product are confidential and proprietary information of Markette and/or its licensors. Client agrees to take adequate steps to protect the Product from unauthorized disclosure or use. Client agrees that any Trademark, trade name, service mark, copyright, or other proprietary notices, legends, symbols, or labels appearing on or in the Product provided to Client shall not be removed or altered, and shall be accurately reproduced by Client on any and all copies of the Product. Client also agrees to give Markette the right to review your use of the Trademarks and revoke your right to use the Trademarks if client violates any term or condition of this Agreement. Client agrees to hold Markette harmless and defend Markette in all third-party copyright disputes. It is Clients sole responsibility to obtain all permissions to use copyrighted materials used in conjunction with the Product and to forward written copies of such permissions to Markette for Markette 's files. Markette will not be held liable for copyright infringement on materials provided or referenced by way of hyperlink by Client.

License

The code included with and in the Product may be used only in conjunction with the Product and modifications to such code may be made to facilitate use of the Product; provided, however, such use and modifications shall be subject to all the terms and conditions of this Agreement. Nothing herein shall be construed as granting license rights to the Product for any other purpose, including, without limitation, a general Internet or general Intranet call or contact service. THE PRODUCT MAY NOT BE USED, COPIED, TRANSFERRED, OR MODIFIED EXCEPT AS EXPRESSLY PERMITTED IN THIS AGREEMENT.

Ownership

Client acknowledges that, as between Client and Markette, Markette owns all right, title and interest in and to the Trademarks and the Products. Client shall not take any action that is inconsistent with the ownership of the Trademarks and Products by Markette. All goodwill and improved reputation in respect of the Trademarks generated by your use thereof shall inure to the benefit of Markette.

Term

The term of this Agreement shall be Original Term of Agreement on the boatscalling Dealer Services Agreement effective from the boatscalling Authorized Signature Date also found on the boatscalling Dealer Services Agreement. Client may cancel service for any reason whatsoever at any time up to 30 days from the boatscalling Authorized Signature Date found on the boatscalling Dealer Services Agreement. Markette an dBoats.com reserves the right to terminate this Agreement if Client appears to Markette or Boats.com to be using Markette Services in a manner inconsistent with the letter of this Agreement, the intent of this Agreement, or Markette Acceptable Use Policy. CLIENTS RIGHT TO USE MARKETTE SERVICES IMMEDIATELY CEASES UPON TERMINATION OF THIS AGREEMENT.

Fees, Payments, and Collection

Service fees will consist of a combination of setup, monthly service, usage, and applicable taxes and other charges as set forth in the boatscalling Dealer Services Agreement. If Client applies for and receives Net Terms, Client agrees to make payment to Boats.com within fifteen (15) days of the invoice date. Any unpaid balance not paid after 60 days of the invoice date shall bear interest at a rate of one and one-half percent (1-1/2%) per month compounded monthly or such lower rate as may be required to conform with state and federal law. Any invoice that is more than thirty (30) days past due shall, if still unpaid after a ten (10) day Notice to Cure, result in suspension of Services until all overdue invoices are brought current. In the event it becomes necessary for Boats.com, to institute legal action against Client to collect fees and/or expenses owed to Boats.com hereunder, Client agrees to compensate Boats.com for all reasonable expenses incurred, including court costs, and attorney's fees and expenses.

Service Standards

In order to preserve the value of the trademarks of Markette and its vendors, all use of the intellectual property and Markette Services shall conform to the image, reputation, branding and positioning standards promulgated by Markette from time to time. Should Markette notify you that any of your business activities or your use of the trademarks or Markette Services does not comply with the Service Standards, you shall promptly correct such non-compliance.

Account

Upon providing Markette with designated account information, a Markette account shall be opened in Client's name and recognized by Client's Account Number, User Name and Password. Client agrees to immediately notify Markette of any unauthorized use of Client's Account or User Name and Password. Client is responsible for all activity taking place with use of Client's Account and User Name and Password (including, without limitation, financial responsibility for all Services used).

Rights to Data

ALL DATA RECEIVED VIA CALLBUTTON CALLS, TEXT MESSAGES, TEXT CHAT, AND TOLL-FREE NUMBERS CALLS REMAIN THE RIGHTS OF CLIENT. bBOATS.COM AND MARKETTE RESERVES THE RIGHT TO ACCESS ANY AND ALL DATA AS NECESSARY TO SERVICE CLIENT. CLIENT'S DATA DETAIL WILL NOT BE SHARED WITH ANY PERSON OUTSIDE THE EMPLOY OF BOATS.COM OR MARKETTE. CLIENT'S DATA MAY BE COMBINED WITH OTHER DATA IN ORDER TO ACHIEVE STATISTICAL COUNTS AND METRICS WHICH MAY BE SHARED WITH OTHER BOATS.COM OR MARKETTE CLIENTS.

Call Recording

Client agrees to and acknowledges that Markette Systems may record inbound phones calls that pass through Markette Systems' phones switches or its partners' phone switches in route to Client. Client agrees to notify present and future employees that their conversations may be recorded. Client understands that Markette Systems will notify all callers that their call may be recorded by recorded greeting. Client agrees to hold Boats.com and Markette Systems harmless for any wrongful or accidental recording.

General Disclaimer and Content Disclaimers

THE TRADEMARKS AND THE MARKETTE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND MAY CONTAIN ERRORS OR INACCURACIES OR EXPERIENCE DOWN-TIME. YOU USE THE TRADEMARKS AND MARKETTE SERVICES AT YOUR OWN RISK. BOATS.COM AND MARKETTE HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. BOATS.COM AND MARKETTE ASSUMES NO RESPONSIBILITY FOR THE SELECTION OF THE PRODUCT TO ACHIEVE ANY INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF THE PRODUCT OR FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THIS PRODUCT. BOATS.COM AND MARKETTE AND ITS LICENSORS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE PRODUCT. BOATS.COM AND MARKETTE LICENSES THIS PRODUCT "AS-IS" AND DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THIS PRODUCT WILL MEET ANY REQUIREMENTS, THAT THE PRODUCT IS FIT FOR A PARTICULAR OR THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE. ANY IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY EXCLUDED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSION MAY NOT APPLY TO CLIENT.
No judgment or warranty is made with respect to the accuracy, timeliness, or suitability of the content of any Website to which any Markette Website may link, nor is Markette endorsing services provided by any third party Website's sponsoring organization, and Markette takes no responsibility therefore. Under no circumstances will Markette be held liable for any computer viruses, system failure, or malfunction that may occur during hyperlink to third party Web sites. Markette reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time without prior notification. In addition, when using a particular Markette Service, Client and Markette shall be subject to any posted guidelines or rules applicable to such service that may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the Terms. Markette may terminate, change, suspend or discontinue any aspect of the Markette Web site, including the availability of any features of the Web site or Markette Services, at any time. Markette may also impose limits on certain features and services or restrict your access to parts or the entire Web site without notice or liability.

Limitation of Liability

IN NO EVENT SHALL MARKETTE BE LIABLE TO CLIENT OR ANY OTHER INDIVIDUAL OR ENTITY FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH: (i) THE DEFICIENCY OR INADEQUACY OF THE TRADEMARKS OR MARKETTE SERVICES FOR ANY PURPOSE WHETHER OR NOT KNOWN OR DISCLOSED TO CLIENT; (ii) USE OF THE TRADEMARKS OR THE AVAILABILITY OF THE MARKETTE SERVICES; OR (iii) THE ACCURACY OF THE TRADEMARKS OR ERROR-FREE OPERATION OF THE MARKETTE SERVICES. MARKETTE SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA OR OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IRRESPECTIVE OF WHETHER MARKETTE HAS BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. MARKETTE'S LIABILITY FOR CLAIMS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU TO MARKETTE IN THE PRIOR THIRTY (30) DAYS. REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL MARKETTE OR ITS LICENSORS BE LIABLE FOR (i) ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE) ARISING OUT OF ANY USE OR INABILITY TO USE THIS PRODUCT OR THE BREACH OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; OR (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE PRODUCT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CLIENT. MARKETTE IS NOT RESPONSIBLE FOR AND ASSUMES NO LIABILITY FOR CHANGES OR DISCONTINUANCE OF SERVICES.

Indemnity

Client agrees to defend and hold Boats.com, Markette and their directors, officers, employees, consultants, partners, and/or agents ("Affiliates") harmless from and against any and all claims, judgments, damages, losses, costs, expenses, obligations, liabilities (including reasonable attorney's fees and costs) resulting from any breach of this Agreement.

Governing Law and Enforcement

This Agreement is made and performed in King County, Washington, and shall be governed and construed according to the laws of the State of Washington. In the event that any action is brought by either party to enforce any term or condition of this Agreement, the prevailing party shall be entitled to recover actual legal costs, including attorneys' fees, court costs and costs of collection, in addition to whatever other relief a court may award. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action of Markette against Client or Client against Markette, whether predicated on this Agreement or otherwise. If any part of this Agreement is found to be invalid or otherwise unenforceable, the remainder of the Agreement shall remain in full effect.

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