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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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