Markodojo Terms of Service
These Terms of Service (“TOS”) govern You, Your company, and Your Authorized Users (collectively “You” or “Your”), access to and use of Markodojo’s Services, which include Markodojo’s websites, applications, mobile applications, SMS, APIs, email notifications, buttons, widgets, polls, questionnaires and ratings, as well materials displayed or provided by Markodojo via the Services including, but not limited to text, graphics, news articles, photographs, images, illustrations, files, audio clips and video clips (collectively, the “Services”). Your access to and use of the Services are conditioned on Your acceptance of and compliance with these TOS. By accessing or using the Services You agree to be bound by these TOS.
1. Basic Terms
1.1. You are responsible for Your use of the Services, for any data, proprietary data, text, comments, graphics, news articles, photographs, images, illustrations, audio clips, video clips, files you upload, or other information (collectively “Customer Data”) You provide to Markodojo in connection with the Services, or You post to the Services, and for any consequences thereof. You agree not to post any Customer Data that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable in any way.
1.2. You may use the Services only if You can form a binding contract with Markodojo and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. If You are accepting these TOS and using the Services on behalf of a company, organization, government, or other legal entity, You represent and warrant that You are authorized to do so. You may use the Services only in compliance with these TOS and all applicable local, state, national, and international laws, rules and regulations.
1.3. The Services that Markodojo provides are always evolving and Markodojo may provide enhancements and updates to the Services from time to time without prior notice to You. In addition, Markodojo may stop (permanently or temporarily) providing certain features of the Services to You and may not be able to provide You with prior notice, however, Markodojo will make reasonable efforts to provide notice. Markodojo also retains the right to create limits on use and storage at Markodojo’s sole discretion at any time, and should such limits be implemented, Markodojo will provide You reasonable notice beforehand.
1.4. Prior to access to or usage of the Services, you agree to provide Markodojo Your full and accurate name, email address, and contact phone number, as well as a full and accurate name of any organization You represent. Failure to provide such accurate information will be considered a material breach of these TOS and, and Markodojo reserves the right to suspend or terminate the Services without liability in such case.
2. Privacy and Data
2.1 You are solely responsible for the acquisition, selection, arrangement, accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. All Customer Data, is the sole responsibility of the person who originated such Customer Data. Markodojo will not monitor or control the Customer Data posted via the Services and cannot and will not take responsibility for such Customer Data. Any use or reliance on any Customer Data or materials posted via the Services or obtained by You through the Services is at Your own risk. You assume sole responsibility and liability for Your use of the Services, including, without limitation, any Customer Data posted via the Services.
3. Third Party Services.
3.1. The Services may be linked to third party sites, tools or applications (“Third Party Services”). Markodojo does not endorse, warrant, or control such Third Party Services, and is not responsible for the legality, quality, accuracy, integrity, fitness, reliability, or availability of any Third Party Services You purchase or connect to, or any descriptions or promises related to the foregoing. Your agreement to use such Third Party Services is solely between You and such third party provider. If You enable Third Party Services for use with the Services or access the Services from the Third Party Services, You acknowledge Markodojo may access and use basic account information and Customer Data solely as required for provisioning of such Third Party Services for use with the Services, including providing Customer Data to such Third Party Services. If You do not want to permit the exchange of Customer Data or account information with Third Party Services, You may prohibit or restrict such access by not enabling such Third Party Apps for use with the Services. You assume sole responsibility and liability for Your use of Third Party Services, including, without limitation, any Customer Data that is accessed therein.
4.1 You are responsible for safeguarding the password that You use to access the Services and for any activities or actions under Your password. We encourage You to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with Your account. Markodojo will not be liable for any loss or damage arising from any password-related compromise of any kind or type.
5. Your License To Use the Services
5.1. Subject to Your payment of applicable Fees and compliance with the terms and conditions of these TOS, Markodojo gives You a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Services, solely for Your own internal business purposes (and not for the use or benefit of any third party) and subject to the quantities specified and any terms and restrictions in Your electronic, online, paper or other order form agreed to by You and Markodojo (collectively Your “Order”) for the period specified per Your Subscription Term.
6. Subscription Term
6.1 Your subscription to the Services will start on the date specified in and continue for the duration specified in Your Order (the “Subscription Term”). The Subscription Term will automatically renew for additional Subscription Terms of the same duration unless either party provides notice of its intention not to renew at least thirty (30) days prior to expiration of the then-current Subscription Term. The initial and each renewal Subscription Term is subject to and contingent upon the payment of the applicable fees, if any, due 30 days prior to the start of the Subscription Term, (or other period as set forth on the Order). Markodojo reserves the right to change the applicable fees or charges and to institute new charges and fees at the end of the initial Subscription Term or then current renewal Subscription Term upon 60 days prior notice to You, (which may be sent by electronic mail).
7. Your Responsibilities
7.1 You are responsible for all activity occurring under Your user accounts. You will: (i) maintain the accuracy, completeness, and timeliness (within 15 days of any change) of the information You provide in Your account registration and information You provide on Your users; (ii) purchase a sufficient number of user seats for your usage, e.g., assigning and using only one person per user seat (You shall not use or share a user seat among multiple users); and (iii) notify Markodojo promptly of any unauthorized use of any password or account or any other known or suspected breach of security.
7.2. You are responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other equipment and services needed for Your use of the Services.
7.3. You are responsible for all users and usage of the Services under Your account. This includes both those users You specifically grant user names and user seats to, as well as those with whom You share links to the Service (collectively “Authorized Users”). One of the benefits of the Services is the ability to collaborate with, grant visibility to, or collect information from a broad range of people (inside and outside of your company) through these links to the Service, and You acknowledge that You are responsible for all users and use of such links. While You cannot avoid such responsibility, You understand that You control use and access to and through such links, and can discontinue Authorized Users use and availability at any time within the Services.
8. Fees And Payment
8.1. You shall pay to Markodojo the applicable compensation for the Services as indicated in Your Order (“Fees”). Fees are due and payable as of the Effective Date of Your Order. If You provide credit card information to Markodojo, You authorize Markodojo to transmit customer identifying information in order to bill such credit card, at the time You order any Services or Professional Services as set forth in Your Order and, at the time of any renewal, for the amount charged for any renewal Subscription Term(s). Payments must be made in US dollars. Fees are exclusive of all taxes, levies, and duties imposed by taxing authorities, and You are responsible for all such taxes. Except as provided herein, or specifically in Your Order, all Fees paid are non-refundable. Any billing disputes must be reported to Markodojo in writing within 30 days of the date of the invoice. If Your account is 30 days or more past due (except with respect to fees or charges for which there is a reasonable and good faith dispute), this shall be a material breach, and Markodojo reserves the right to suspend the Services without liability until such amounts are paid in full, in addition to any of its other rights or remedies.
9. Markodojo Rights
9.1. All right, title, and interest in and to the Services (excluding Customer Data) are and will remain the exclusive property of Markodojo and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in the TOS gives You a right to use the Markodojo name or any of the Markodojo trademarks, logos, domain names, and other distinctive brand features. Any feedback, comments, or suggestions You may provide regarding Markodojo, or the Services is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to You.
10.1 You agree not to: (i) use the Services except as expressly authorized in these TOS; (ii) copy, modify, or create derivative works based on the Services; (iii) use any device, software, or routine that (a) interferes with any application, function, or use of the Services, or (b) is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication; (iv) access for purposes of monitoring the availability, performance, or security of the Services without Markodojo consent; (v) frame or mirror the Services in an unauthorized manner; (vi) decompile, disassemble or reverse-engineer the underlying software that is part of the Services or otherwise attempt to derive its source code; (vii) use the Services either directly or indirectly to support any illegal activity; (viii) access the Services in order to build a competitive service or product; (ix) resell, sublicense, time-share, or otherwise share the Services with any third party; (x) distribute the Services to third parties other than Your Authorized Users; (xi) authorize any third parties to do any of the above other than Your Authorized Users.
11.1 As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party, including Authorized Users (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), Customer Data, the Services, business and marketing plans, technology and technical information, product designs, and business processes. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
11.2. The obligation of nondisclosure set forth herein shall not apply to any Confidential Information (except Customer Data) that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party including; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; (iv) is received from a third party without breach of any obligation owed to the Disclosing Party; nor shall the obligations of confidentiality apply to any information that You, or Your users post on third party websites including through the Services. The obligation of non-disclosure shall not apply when the Receiving Party is required to disclose by applicable law, rule or regulation of any court or government agency of competent jurisdiction, or pursuant to legal process; provided that the Receiving Party gives Disclosing Party prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure and limits such disclosure to that portion of the information strictly required by such court, government agency or legal process.
12. Proprietary Rights
12.1 Markodojo and/or its licensors own all worldwide right, title and interest in and to the Services, in any form, format, forum, medium, means, or method now known or hereafter developed, including all related intellectual property rights throughout the world, and any suggestions, ideas, enhancement requests, feedback, recommendations that may be provided by You or any of Your users relating to the Services. You may not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on the Services. You agree to abide by all access and use restrictions contained in anything made available through the Services.
12.2. As between Markodojo and You, You exclusively own all rights, title and interest in and to all Customer Data.
13. Term And Termination
13.1 These TOS will continue in full effect unless and until Your account or this TOS is terminated as described herein.
13.2. Either party may terminate this Agreement for cause upon 30 days written notice if the other party breaches any material provision of these TOS and does not cure such breach prior by the end of such thirty (30) day period.
13.3. Markodojo may immediately suspend access to the Services if Markodojo reasonably determines that Your actions are materially interfering with, causing substantive harm to, or disrupting the Services or are causing material legal liability to Markodojo, its licensors or other customers. In the event that Markodojo suspends Your access to the Services, Markodojo will use commercially reasonable efforts to provide prior notice to You and resolve the issues causing the suspension of Services. You agree that Markodojo shall not be liable to You or to any other third party for any suspension of the Services, or any consequences thereof, pursuant to this section 13.
13.4. Further, with respect to any trial version of the Services, either party may terminate an Order under this Agreement for convenience at any time.
13.5. Upon any expiration or termination of the Subscription Term or the Agreement, the rights and licenses granted hereunder will automatically terminate, and You may not continue to use the Services. Upon termination by You for Markodojo’s material uncured breach, Markodojo will refund You any unused prepaid Fees for the remainder of the Subscription Term for all effected Orders. Upon termination by Markodojo for Your material uncured breach, You will pay the full value of the Fees owed for the remainder of the Subscription Term for all effected Orders. Termination shall not relieve You of the obligation to pay any Fees accrued or payable to Markodojo under these TOS or the applicable Order after the date of termination, except where You have terminated due to Markodojo’s uncured material breach. The provisions of Sections 7 through 17 will survive termination. Markodojo is under no obligation to retain Customer Data upon termination.
14. Warranty, Disclaimer
14.1 Markodojo hereby represents and warrants it will provide any training, consulting or other project based services (collectively “Professional Services”) in a professional, workmanlike manner.
14.2 To the extent permitted by law, Your sole and exclusive remedy arising out of or in connection with a breach of the warranty in Section 14.1 is limited to a termination of the applicable Services and a refund of any pre-paid unused fees for the applicable Services. Markodojo is not responsible for damages suffered by any users for their actions taken in reliance on Markodojo supplied Services or Professional Services, including losses for purchases or sales of any securities or investments or delays in removing, inaccurate, unlawful or otherwise objectionable information. Except as expressly provided, Markodojo is not responsible or liable for the accuracy, completeness, reliability, or availability of the Services. You assume sole responsibility and liability for Your use of the Services, and all Authorized Users use of the Service, including, without limitation, any Customer Data that is accessed therein.
14.3 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 14.1 ABOVE, THE SERVICES ARE PROVIDED TO YOU AS-IS AND ON AN AS NEEDED BASIS. MARKODOJO HEREBY DISCLAIMS AND MAKES NO OTHER REPRESENTATION OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, GUARANTEES, OR WARRANTIES OF MERCHANTABILITY, ACCURACY, QUALITY OF THE SERVICES, OPERATION OF THE INCLUDING THE RESULTS, SERVICE AVAILABILITY, SATISFACTORY QUALITY, LACK OF VIRUSES, TITLE, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR WARRANTIES OF ITS THIRD PARTY PROVIDERS. MARKODOJO SPECIFICALLY DISCLAIMS AND MAKES NO REPRESENTATION OR WARRANTY, ORAL OR IN WRITING, CONCERNING THE VIABILITY, ENFORCEABILITY, OR COMPLIANCE OF USING SERVICES IN A PARTICULAR COUNTRY AND/OR FOR A PARTICULAR PRODUCT OR SERVICE.
14.4. You hereby represent and warrant that You and Your Authorized Users will use the Services within the scope of these TOS and that You have obtained all necessary consents, and have sufficient, right, title or authority to provide Markodojo with copies of or access to any Customer Data which You have divulged, transmitted or disclosed to Markodojo under these TOS and that You will use the Services in accord with all applicable laws.
15.1. Markodojo will defend You against a claim that the Services, as provided by Markodojo and used within the scope of these TOS, infringe any third party’s U.S. copyright or trademark rights (“Covered Claim”) and will indemnify You against any damages, costs or attorneys fees awarded by a court of final appeal or settlements to which Markodojo consents arising out of a Covered Claim. Markodojo’s indemnity obligation shall not apply with respect to claims arising out of (i) Your use or supply of unauthorized or infringing Customer Data (ii) any modification or alteration of the Services (other than by Markodojo), (iii) Your violation of applicable law or (iv) materials furnished by You.
15.2. You will defend Markodojo and its licensors against any third party claim: (i) that the Customer Data, or Your use of the Services, or any Authorized Users use of the Services, in violation of this Agreement, infringes any third party’s U.S. copyright or trademark rights or has otherwise harmed a third party or violates applicable law; (ii) arising from Your or any Authorized User’s breach of section 14.4, or Your or any Authorized User’s unlawful redistribution of the Services, and You will indemnify Markodojo against any associated damages, liability or costs, or attorney’s fees awarded by a court of final appeal or settlements related to such claims. Your indemnity obligation shall not apply with respect to claims caused by Markodojo’s violation of applicable law.
15.3. A party’s obligation to indemnify the other party is contingent upon: (i) the indemnified party promptly notifying the indemnifying party in writing of the claim; (ii) the indemnifying party having sole control of the defense and of any negotiations for its settlement; and (iii) the indemnified party providing the indemnifying party with reasonable assistance, information, and authority necessary to perform the above.
16. LIMITATION OF LIABILITY
16.1. IN NO EVENT SHALL MARKODOJO OR ITS LICENSOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY You HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.
16.2. IN NO EVENT SHALL MARKODOJO OR ITS LICENSORS HAVE ANY LIABILITY TO You FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT You HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
17.1. These TOS are intended for the sole and exclusive benefit of the parties and are not intended to benefit any third party other than Authorized Users. If any provision is deemed unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these TOS will otherwise remain in full force and effect and enforceable.
17.2. Assignment. These TOS are not assignable in whole or in part by either party except with the other party’s prior written consent, except that either party may assign without consent: (i) to an affiliate or (ii) to a successor in the event of a merger, corporate reorganization, or acquisition involving all or substantially all of a party’s assets. Any purported assignment in violation of this Agreement shall be null and void.
17.3. Agency, Compliance with Law. No agency, partnership, joint venture, or employment is created as a result of these TOS. Each party must abide by all applicable laws and regulations in connection with the Services and these TOS. All notices required hereunder will be in writing and are deemed given when received/delivered.
17.4. Choice of Law. These TOS shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Venue for any dispute shall be the state and federal courts located in San Francisco County, California which shall have exclusive jurisdiction to adjudicate disputes arising out of this Agreement. In the event that any legal action, including arbitration, is required to enforce or interpret any of the provisions of this Agreement, the prevailing party in such action shall recover all reasonable costs and expenses, including attorney’s fees, incurred in connection therewith.
17.5. Trademarks. All trademarks are the property of their owners; no endorsements are indicated.
17.6. Modification. To the maximum extent permitted under law, Markodojo reserves the right to modify the terms and conditions of these TOS at any time, effective upon the posting of an updated version of these TOS (which can be found at www.markodojo.com/terms-of-service). You are responsible for regularly reviewing these TOS. Continued use of the Services after any such changes shall constitute Your consent to such changes.
17.7. Complete Understanding. These TOS (along with any applicable Order) are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these TOS. To the extent of any conflict or inconsistency between the provisions in the body of these TOS and any Order, the terms of such Order shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Your purchase order or in any other customer order documentation (except an Order) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
17.8. Waiver. The failure of either party at any time to require performance of the other party of any provision of these TOS shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of these TOS be taken or held to be a waiver of any further breach of the same provision.
Effective: August 1, 2015