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Acceptable Use Policy
MARKET AMERICA TERMS OF SERVICE FOR WEBSITE DESIGN
AND WEBSITE HOSTING
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1.0 |
The Market America Service ("Service") is provided to you ("you"
or "User") under the terms and conditions of this Market America
Website Service Agreement and written amendments thereto and
any operating rules or policies (collectively, the "Agreement").
Market America reserves the right, in its sole discretion, to change,
modify, add or remove all or part of the Agreement at any time.
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1.1 |
By accepting the terms and conditions of the Agreement, User
(a) represents and warrants that (1) it is a company or business
located within the United States, Canada or Australia, (2) authorizes the
representatives initiating and accessing the web site services
to do so on its behalf, (3) will restrict such representatives
to persons 18 years old or older, (c) agrees to provide true,
accurate, current and complete information about User as prompted
by the Account Registration Form; and (c) agrees to maintain
and update this information to keep it true, accurate, current
and complete. If any information provided by User is untrue,
inaccurate, not current or incomplete, Market America has the right
to terminate User's account and refuse any and all current or
future use of the Service.
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1.2 |
BY COMPLETING THE ACCOUNT REGISTRATION PROCESS AND CLICKING
THE "I ACCEPT" OR "I AGREE" BUTTON, OR BY UTILIZING OR ALLOWING
OTHER PERSONS TO UTILIZE THE WEB SITE PROVIDED IN ANY WAY, USER
("User" or "you") AGREES TO BE BOUND BY THE AGREEMENT. If these
terms and conditions or any future changes are unacceptable
to you, you may cancel your account pursuant to Section 7.1,
regarding termination of service.
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2.0 DESCRIPTION OF MARKET AMERICA SERVICE.
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2.1 |
Market America hosts sites on the World Wide Web ("Sites") and
provides Users with access to certain Market America Software ("Software")
to facilitate the creation and maintenance of Sites ("Online
Site Services").
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2.2 |
No Site submitted to Market America may contain any content, products,
services or other information that, in Market America's sole determination,
may be illegal to sell under any applicable law, statute, ordinance
or regulation, that may infringe or violate anyone's rights,
or that, Market America believes, in its sole discretion, is inflammatory,
offensive, or otherwise inconsistent with the spirit of Market America.
These criteria are minimum requirements only and Market America in
its sole discretion may consider other criteria before accepting
a Site. NOTHING IN THIS AGREEMENT OBLIGATES MARKET AMERICA TO LIST,
LINK TO, ACCEPT OR OTHERWISE HOST YOUR SITE ANYWHERE ON MARKET AMERICA.
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3.0 USER'S OBLIGATIONS
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3.1 |
User acknowledges and agrees that it shall be responsible
for all goods and services offered at User's Site, all materials
used or displayed at the Site, and all acts or omissions that
occur at the Site or in connection with User's account or password.
Certain Sites may be subject to additional requirements.
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3.2 |
User agrees to display in the Site User's contact information,
including but not limited to User's company name, address, telephone
number, fax number and e-mail address. User also agrees to update
such information to keep it true, accurate, current and complete.
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3.3 |
User agrees that any and all press releases and other public
announcements related to this Agreement and subsequent transactions
between Market America and User, including the method and timing
of such announcements, must be approved in advance by an authorized
representative of Market America in writing. Market America reserves the
right to withhold approval of any public announcement in its
sole discretion. Without limitation, any breach of User's obligation
regarding public announcements shall be a material breach of
the Agreement.
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3.4 |
User represents and warrants that it has full power and authority
under all relevant laws and regulations: 1) To offer and sell
the goods and services offered at the Site, including but not
limited to holding all necessary licenses from all necessary
jurisdictions; 2) to engage in the advertising and sale of the
goods or services offered at the Site; 3) to copy and display
the materials used or displayed at the Site.
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3.5 |
User represents and warrants that it will not engage in any
activities: 1) that constitute or encourage a violation of any
applicable law or regulation, including but not limited to the
sale of illegal goods or the violation of export control or
obscenity laws; 2) that defame, impersonate or invade the privacy
of any third party or entity; 3) that infringe the rights of
any third party, including but not limited to the intellectual
property, business, contractual or fiduciary rights of others
and 4) that are in any way connected with the transmission of
"junk mail", "spam" or the unsolicited mass distribution of
e-mail or with any unethical marketing practices.
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3.6 |
Market America reserves the right to refuse to host or continue
to host any Site which it believes, in its sole discretion:
(1) offers for sale goods or services, or uses or displays materials,
that are illegal, obscene, vulgar, offensive, dangerous or are
otherwise inappropriate; (2) has substantially changed its Site
from the time it was accepted; (3) received a significant number
of complaints for failing to be reasonably accessible to customers
or timely fulfill customer orders; (4) has become the subject
of a government complaint or investigation; or (5) has violated
or threatens to violate the letter or spirit of the Agreement.
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4.0 PROPRIETARY RIGHTS
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4.1 |
Software License. Market America hereby grants User a non-exclusive,
non-transferable license to use the Software in object code
form only on a server controlled by Market America for the sole purpose
of creating and maintaining Sites on such server. User is not
being granted any right to copy the Software or to use it on
computers other than a server controlled by Market America. User
may not use Web pages or parts of Web pages generated by means
of the Software, other than content that originates from and
is proprietary to User, on any server other than the servers
controlled by Market America without Market America' express written agreement.
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4.2 |
User also acknowledges and agrees that the Software is intended
for access and use by means of web browsing software and that
Market America does not commit to support any particular browsing
platform. Market America reserves the right at any time to revise
and modify the Software, release subsequent versions thereof
and to alter features, specifications, capabilities, functions
and other characteristics of the Software, without notice to
User. If any revision or modification to the Software materially
changes User's ability to conduct business, User's sole remedy
is to terminate the Agreement pursuant to Section 7.1 regarding
termination of service.
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4.3 |
Market America Intellectual Property. User acknowledges and agrees
that content available from Market America or the Service, including
but not limited to text, software, music, sound, logos, trademarks,
service marks, photographs, graphics, or video, is protected
by copyright, trademark, patent or other proprietary rights
and laws and may not be used in any manner other than as specified
in Section 4.1 above.
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4.4 |
User's Property. User agrees that by using the Service, User
grants Market America and its successors and assigns, a non-exclusive,
worldwide, royalty-free, perpetual, non-revocable license under
User's copyrights and other intellectual property rights, if
any, in all material and content displayed in User's Site to
use, distribute, display, reproduce, and create derivative works
from such material in any and all media, and to display in any
manner and on any Market America property the results of search queries
and comparisons conducted on Market America. User also grants Market America
the right to maintain such content on Market America's servers during
the term of the Agreement and to authorize the downloading and
printing of such material, or any portion thereof, by end users
for their personal use.
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4.5 |
Unauthorized Access. Users shall not attempt to gain unauthorized
access to any servers controlled by Market America.
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5.0 FEES AND PAYMENT
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5.1 |
User shall pay Market America pursuant to one of the following
payment plans, as selected by Market America in its sole discretion
at time of account registration. Time is of the essence for
all payments
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5.2 |
Direct Billing Payment Plan: User shall pay an account initiation
fee, monthly service fee and other fees as specified at time
of registration and as modified from time to time pursuant to
Agreement. All such fees are due and payable in U.S. dollars
to Market America. User agrees to make payment 1) by charge to the
credit card number given by User to Market America on the date of
registration, 2) automatically without further action by User,
by charge to same credit card number on the first day of each
month thereafter until service is terminated pursuant to Section
6 or Section 7 below and 3) automatically without further action
by User, by charge to same credit card number for any unpaid
services or fees as of the date of service termination, pursuant
to Section 6 or Section 7 below.
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5.3 |
All amounts due and unpaid for more than 30 days from the
due date specified by the payment plan shall be deemed delinquent.
Delinquent payments may result in the imposition of a late fee,
at which the rate of one percent of the unpaid balance per month,
or the maximum allowable under applicable state law, whichever
is higher. Acceptance of late or partial payments (even if marked
"Paid in Full") shall not waive any of Market America's rights to
collect the full amount due under this AGREEMENT. Notice of
any disputes regarding payment or charges must be received by
Market America at help@mawebcenters.com
within 60 days after the payment is due or User will waive any
objection.
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5.4 |
Market America may upon 30 days prior notice to User, alter its
fee schedules and terms of the Agreement.
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6.0 TERMS
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6.1 |
Term. The term of the Agreement shall be 30 days commencing
on the date that User's credit card is first charged for the
Site or when the User begins utilization of the Site by electronically
confirming with the "I Accept", "I Agree", or "Purchase My Site"
button, or whenever User utilizes or allows others to utilize
the web site provided, whichever sooner occurs. The term shall
automatically renew for successive monthly periods at renewal
rates applicable at the time, unless notice of non-renewal is
provide in accordance with Section 6.2, below; provided, however,
that to qualify for each renewal User must at the time of renewal
be in substantial compliance with the material terms and conditions
of the Agreement. Market America shall have the right but not the
obligation to review any Site for compliance with the Agreement
as part of the renewal process or at any time.
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6.2 |
Trial Period: User may terminate the Agreement within the
first ten calendar days after Site acceptance is confirmed with
the "I Accept" or "I Agree" button, or after User utilizes or
allows other to utilize the web site provided, whichever sooner
occurs. Any charges made to User's credit card account for plan
services will be refunded to User within thirty days of receipt
of termination notice. Termination notice under this Section
6.2 must be provided in the manner described in Section 14.
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6.3 |
Non-Renewal. Either party, in its sole and absolute discretion,
may give notice of nonrenewable with or without cause and without
stating any reason therefor. Except as specified in Section
6.1 above, any notice of nonrenewable must be given at least
thirty days prior to the end of the term then in effect and
in the manner described in Section 14 regarding notice. Plan
Terms accepted at time of Service initiation may specify that
costs incurred by Market America but deferred, including costs to
register User's domain name and Site design, will be due and
owing upon non-renewal notice, where User has not completed
Market America term commitments for these or other optional Market America
services received by User.
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7.0 TERMINATION
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7.1 |
Termination. Either party may terminate the Agreement on 30
days notice if the other party has materially breached or is
otherwise not in compliance with any provision of the Agreement,
and such breach or noncompliance is not cured within such 30
day period. Market America reserves the right to immediately suspend
any customer access to the Site, without notice, until such
breach or noncompliance is cured.
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7.2 |
Termination for Illegal or Other Activity. Notwithstanding
the foregoing, Market America may, but has no duty to, immediately
terminate User and remove it from Market America servers without
notice if Market America in its sole discretion concludes that User
is engaged in illegal activities or the sale of illegal or harmful
goods or services or is engaged in activities or sales that
may damage the rights of Market America or others. Any termination
under this Section 7.2 shall take effect immediately and User
expressly agrees that it shall not have any opportunity to cure.
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7.3 |
Waiver. User expressly waives any statutory or other legal
protection in conflict with the provisions of this Section 7.
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7.4 |
Deletion of Information. Upon termination, Market America reserves
the right to delete from its servers any and all information
contained in User's account, including but no limited to order
processing information, mailing lists and nay Web pages generated
by the Software.
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7.5 |
This provision expressly confirms that Section 4 (Proprietary
Rights), Section 10 (Indemnity), and Section 11 (Disclaimer
of Warranties and Liabilities) of this agreement shall survive
any termination of the Agreement.
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8.0 |
USER PRIVACY
User Information. Market America maintains information about User
and Site on Market America servers, including but not limited to
Users account registration information and clickstream data
("User Information"). User agrees that Market America may use User
information for marketing or other promotional purposes and
may share this information with its affiliates and partners.
To remove this consent at any time, User must notify Market America
in writing to: CUSTOMER RELATIONS, Market America, 3660 Wilshire
Boulevard, 4th Floor, Los Angeles, California 90010, providing
all User's contact information, including but not limited to:
User's Company Name, address, telephone number, fax number,
web site address and e-mail address.
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8.1 |
User agrees that Market America may disclose User information in
good faith belief that such an action is reasonably necessary:
(a) to comply with the law; (b) to comply with the legal process;
(c) to enforce the AGREEMENT; (d) to respond to claims that
User or Site is engaged in activities that violate the rights
of third parties; or (e) to protect the rights or interest of
Market America, or others; provided, however, that nothing in this
section shall impose a duty on to make any such disclosures.
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8.2 |
Password. User shall receive a password from Market America to
provide access to and use of the Software and Online Site Services.
User is entirely responsible for any and all activities, which
occur under Users account and password. User agrees to keep
its password confidential, to allow no other person or company
to use its account, and to notify Market America within 24 hours
if User has any reason to believe that the security of its account
has been compromised.
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8.3 |
Technical Access. User acknowledges and agrees that technical
processing of User Information is and may be required: (a) for
the Service to function; (b) to conform to the technical requirements
of connecting networks; (c) to conform to the technical requirements
of the Service; or (d) to conform to other, similar technical
requirements. User also acknowledges and agrees that Market America
may access User's account and its contents as necessary to identify
or resolve technical problems or respond to complaints about
the Service.
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8.4 |
Market America is not liable for any lack of privacy, which may
be experienced with regard to services provided under this AGREEMENT.
User authorizes Market America's monitoring and recording of calls
to Market America concerning User's account or services.
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9.0 MAINTENANCE AND SUPPORT
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9.1 |
User can obtain assistance with any technical difficulty that
may arise in connection wit User's utilization of the software
or Online Site Services by requesting assistance by email to
help@mawebcenters.com.
Market America reserves the right to establish limitations on the
extent of such support, and the hours at which it is available.
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9.2 |
User is responsible for obtaining and maintaining all telephone,
computer hardware and other equipment needed for its access
to and use of the Software and Online Site Services and User
shall be responsible for all charges related thereto.
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10.0 |
DISCLAIMER OF WARRANTIES AND LIABLILITIES:
User agrees to indemnify and hold harmless Market America and its
parents, subsidiaries, affiliates, officers, directors, shareholders,
employees, and agents, from any claim or demand, including reasonable
attorneys fees, made by any third party due to or arising out
of Users conduct, Users use of any alleged violation of the
AGREEMENT, or any alleged violation of any rights of another,
including but not limited to User use of any content, trademarks,
service marks, trade names, copyrighted or patented material,
or other intellectual property used in connection with Users
Site. Market America reserves the right, at its own expense, to assume
the exclusive defense and control of any matter otherwise subject
to indemnification by User, but doing so shall not excuse Users
indemnity obligations. User agrees to pay Market America's reasonable
attorney and expert witness fees and costs incurred in enforcing
this AGREEMENT.
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11.0 |
INDEMNITY
THE SERVICE AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED
OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
NEITHER THIS AGREEMENT OR ANY DOCUMENTATION FURNISHED UNDER
IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE ONLINE
SITE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE
OR THAT THE SOFTWARE WILL PROVIDE UNINTERRUPTED, TIMELY OR
ERROR FREE SERVICE.
THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT
LIMITATIONS AND USER MUST DETERMINE THAT THE SOFTWARE ADEQUATELY
MEETS ITS REQUIREMENTS.
USER ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE
IS DONE AT ITS OWN DISCRETION AND RISK AND THAT USER WILL
BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM
OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL
AND/OR DATA. MARKET AMERICA, AND ITS PARENTS, SUBSIDIARIES, AFFILIATES,
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL
NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER,
FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE
OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN
IF MARKET AMERICA IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT
IN ANY WAY FROM USER'S USE OR INABILITY TO USE THE ONLINE
SITE SERVICES OR THE SOFTWARE, OR THAT RESULT FORM ERRORS,
DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR
ANY OTHER FAILURE OR PERFORMANCE OF THE ONLINE SERVICES OR
THE SOFTWARE.
MARKET AMERICA'S LIABILITY TO USER SHALL NOT, FOR ANY REASON,
EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY USER TO MARKET AMERICA
OVER THE COURSE OF THE EXISTING TERM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN
WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS
MAY NOT APPLY TO YOU.
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12.0 |
NO RESALE OR ASSIGNMENT OF SERVICE
User agrees not to resale or assign or otherwise transfer its
rights or obligations under the AGREEMENT without the express
written authorization of Market America.
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13.0 |
FORCE MAJEURE
Neither party shall be liable to the other for any delay or
failure in performance under the AGREEMENT resulting directly
or indirectly from acts of nature or causes beyond its reasonable
control.
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14.0 |
THIRD-PARTY GOODS OR SERVICES
The Market America premium content package is included with your $9.95 monthly hosting package. All content providers and content are subject to change. Included in the premium content package are two monthly issues of ESPN The Magazine and unlimited online access to ESPN Insider. The value of your monthly subscription to ESPN The Magazine is $1.38 per month, which is non-deductible. You'll also receive membership to 3 other premium sites.
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14.1 |
MARKET AMERICA may from time to time send e-mail messages to User containing advertisements,
promotions and other inducements offered by third parties. MARKET AMERICA makes no
representation or warranty with respect to the content of any such third party
communications or with respect to any goods or services which may be obtained
in response to such communications and User agrees that MARKET AMERICA shall not have
any liability with respect thereto, nor shall any such messages amend the Terms and Conditions
unless expressly agreed to in writing by MARKET AMERICA. MARKET AMERICA may provide links to web
sites operated by parties other than MARKET AMERICA. Such links are provided for User's
convenience only. MARKET AMERICA does not control such web sites and is not responsible
for their contents. MARKET AMERICA's inclusion of links to such web sites does not imply
any endorsement of the material on such web sites or any association with their operators.
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15.0 |
NOTICES
Any notices or communications under the AGREEMENT shall be by
electronic mail or in writing and shall be deemed delivered
upon receipt to the party to whom such communication is directed,
at the addresses specified below. If to Market America: (1) General
notices, including cancellation notice or other account inquiries,
shall be addressed to help@mawebcenters.com; (2) all
legal notices and notices which purport to change the Agreement
or assert entitlements under the Agreement must be sent in writing
to General Counsel, Market America, 3660 Wilshire Boulevard, 4th
Floor, Los Angeles, CA 90010. Notices to User shall be addressed
to the electronic address specified when User opens an account
with Market America Site, or such other address as either party may
give the other by notices as provided above. User is responsible
for notifying Market America of any changes in address. User notice
must identify User contact information, including but limited
to: User Company name, address, telephone number, fax number,
web site address and e-mail address.
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16.0 |
ENTIRE AGREEMENT: The AGREEMENT constitutes the entire agreement
between the parties with respect to the subject matter hereof
and supersedes all previous proposals, both oral and written,
negotiations, representations, writings and all other communications
between parties.
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17.0 |
DISPUTE RESOLUTION
All disputes concerning the AGREEMENT and the relationship between
User and Market America, including but not limited to disputes relating
to any service, rating of services, transfer of service, performance
of service, payments on account, credits, promotions, special
offers, performance, interruption of service or any other terms
under AGREEMENT shall be resolved through the following procedures:
User must first present any claim or dispute to Market America
by contacting help@mawebcenters.com. User
must request arbitration if User's claim or dispute cannot
be resolved within 60 days and User chooses to continue dispute.
Arbitration is mandatory and binding; counterclaims may be
asserted. Arbitration shall be conducted in accordance with
American Arbitration Association ("AAA") Commercial Dispute
Resolution rules and procedures, as modified by this AGREEMENT.
User agrees that this AGREEMENT evidences a transaction in
interstate commerce and this arbitration provision will be
interpreted and enforced in accord with the Federal Arbitration
Act and federal arbitration law. The parties agree that Los
Angeles, California shall be the location for any arbitration
proceedings. An arbitrator may not award relief in excess
of or contrary to what this AGREEMENT provides, order consolidation
or class arbitration, or award punitive damages or any other
damages aside from the prevailing party's actual damages.
Any Arbitration shall be confidential and neither User nor
Market America may disclose the existence, content or results of
any arbitration, except as may be required by law or for purposes
of enforcement of the arbitration award. Judgement on any
arbitration award may be entered in any court having proper
jurisdiction. If any portion of this arbitration clause is
determined by a court to be inapplicable or invalid, the remainder
shall still be given full force and effect.
WAIVER OF PUNITIVE DAMAGE CLAIMS AND CLASS ACTIONS: By this
AGREEMENT, both USER and MARKET AMERICA are waiving certain rights
to litigate a dispute in court. If for any reason, this arbitration
clause is deemed inapplicable or invalid, USER and MARKET AMERICA
both waive, to the fullest extent allowed by law, any claims
to recover punitive or exemplary damages and any right to
pursue any claims on a class or consolidated basis or in a
representative capacity.
For any matter not subject to arbitration, User and Market America
agree to submit to the personal and exclusive jurisdiction
of the United States District Court for the Central District
of California or the Los Angeles County Superior Court, as
appropriate.
For any dispute, User and Market America agree that applicable
federal laws, federal or state tariffs, if any, and the laws
of the state of California shall govern, without regard to
its conflict of law provisions.
Market America's failure to exercise or enforce any right or provision
of the AGREEMENT shall not constitute a waiver of such right
or provision. If any provision of AGREEMENT is found by a
court of competent jurisdiction to be invalid, the parties
nevertheless agree that the arbitrator or the court should
endeavor to give effect to the parties intentions as reflected
in the provision, and agree that the other provisions of the
AGREEMENT remain in full force and effect.
User agrees that regardless of any statute or law to the
contrary, and any claim or cause of action arising out of
or related to use of the Service or the AGREEMENT must be
filed within one (1) year after such claim or cause of action
arose, or be forever barred.
The section titles in the AGREEMENT are for convenience only
and have no legal or contractual effect.
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18.0 |
DISCLAIMER TO CUSTOMERS OF MARKET AMERICA CUSTOMERS AND THIRD PARTIES
Every site hosted by Market America is individually owned and
operated by the merchant and is the sole responsibility of
that merchant.
Market America expressly disclaims any responsibility or liability
for any damage, loss or injury arising out of: the activities
of any merchant; the goods or services offered or the content
displayed by or in any site; for any loss or injury resulting
from access or inability to access any site; or arising out
of your purchase or use of goods or services offered by merchants
may be prohibited in your area. If you have any questions
or complaints regarding the goods or services of any site,
please contact the site merchant directly and not Market America.
Most sites will have a link to their contact information on
their home page.
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19.0 |
MARKETING OF SERVICES
Market America may use telemarketing, direct mail campaigns, independent
agents, or any combination thereof, in the marketing of its
services. Each agent, telemarketer and all marketing personnel
are instructed as to its services and the exclusive application
of the Agreement. Market America expressly disclaims and User acknowledges
any Market America liability for any such agent's, telemarketer's
or marketing personnel's actions, inactions, representations,
promises and/or statements which in any material way conflict
with, modify, or are in contravention of the provisions of
Agreement or any tariff underwhich Market America's optional telecommunications
services are provided. Each User accepts the notice provided
by the terms of Agreement and the constructive notice of the
terms, conditions and rates governing Market America's telecommunications
services provided under tariffs, such as those with the Federal
Communications Commission and state public utility commissions.
No agent, telemarketer or marketing personnel may change,
alter, revise, move or terminate the terms of any User's service
without the express written and authorized consent of Market America.
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