Terms of Service
Updated June 28, 2016
THIS TERMS OF SERVICE (“Agreement”) contain the terms and conditions that apply to a company and/or user, as applicable (“User”, “you” or “your”) of the services (the “Services”) made available through the Web site located at https://MarketMSO.com or https://MarketMSOData.com (the “Site”) and is between you and The Sparks Solution. Please read this Agreement carefully as it governs your use of the Services.
1 – Grant of License
The Services are owned/provided by The Sparks Solution (“Company”). Company hereby grants to you a non-exclusive, non-transferable, non-sublicenseable, world-wide license to use the Services for internal business purposes only subject to the restrictions in this Agreement. Company reserves any rights not expressly granted herein. You shall be solely responsible for hardware and interconnections and telecommunications to access the Services.
2 – License Restrictions
You may not:
(a) copy the Services or any software or programming related thereto;
(b) permit other individuals or companies to use the Services;
(c) modify, translate, reverse engineer, decompile, disassemble or create derivative works based upon the Services or any software or programming related thereto;
(d) rent, lease, transfer, resell and/or or otherwise transfer rights to the Services; or
(e) delete or write over any portion of any software relating in any manner to the Services.
You also agree that you shall only use the Services in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, and that you shall not violate or infringe the rights of any third party. Any such forbidden use shall immediately and automatically terminate your license to use the Services without notice.
3 – Fees
All charges shall be at the then current prices. Upon entering this Agreement, you must choose to pay by direct charge to a credit or debit card. You hereby authorize Company to charge your credit or debit card to pay for any charges that may apply to your account as they accrue on a monthly or yearly recurring basis, as applicable. You must notify Company of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit Company from charging your account. Failure to make any payment as set forth herein shall be deemed to be a material breach of this Agreement and shall be sufficient cause for the immediate termination of this Agreement by Company. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys’ fees, court costs and collection agency fees. All charges shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assesses, other than taxes based on Company’s net income.
4 – Term and Termination
This Agreement may be terminated by any party immediately for any reason or no reason. Upon any termination of this Agreement, you shall immediately discontinue use of the Services. Sections 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, and 15 shall survive the termination, cancellation, or discontinuance of this Agreement.
5 – Your Information
You agree to provide true, accurate, current and complete transactional information and any information about your company and to maintain and promptly update such information to keep it true, accurate, current and complete.
6 – User Name and Password
You will receive a user name and password during the implementation process. You are fully responsible for maintaining the confidentiality of your user name and password and all activities that occur under your user name and password. Your user name and password are for your use only. You agree to immediately notify Company by e-mail at email@example.com of any unauthorized use of your password or account or any other breach of security.
7 – Modification Discontinuation of Services
Company may, in its sole discretion and at any time, modify or discontinue the Services, or any part thereof. For modified services, you may be requested to accept a modification or new Agreement when you login to your account. If you do not accept the amended Agreement, you will not have access to the Services.
8 – Proprietary Rights
The Services, including, without limitation, any of Company’s Internet operations, design, content, hardware designs, algorithms, software (in source and object forms), user interface designs, other templates and designs, algorithms, architecture, class libraries, and documentation (both printed and electronic), know-how, good will, moral rights, trade secrets and any related intellectual property rights throughout the world, and any derivative works, improvements, modifications, enhancements or extensions thereof shall remain the sole and exclusive property of Company, and you shall have no interest in them whatsoever.
9 – User Conduct
You are solely responsible for the contents of your transmissions through the Services. Your use of the Services is subject to all applicable local, state, national and international laws and regulations.
10 – Indemnification
You agree to immediately notify Company of and indemnify and hold Company, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Services, (including the unauthorized use of your account or any other breach of security known to you), the violation of this Agreement by you, or the infringement by you, or another user using your computer, on any intellectual property or other right of any person or entity.
11 – Disclaimer of Warranties
You agree that use of the Services is at your sole risk. The Services are provided on an “as is” and “as available” basis, and Company (including, without limitation, its independent consultants, subcontractors, distributors, or any client of Company (collectively, “Company Third Parties”)) assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any of your communications, data, or personalization settings.
Company and Company Third Parties hereby disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement, quiet enjoyment, title, merchantability of computer programs and informational content.
Neither Company nor any Company Third Parties make any warranty that the Services will meet your requirements, or that the Services will be uninterrupted, timely, secure, error or virus free; nor does Company make any warranty as to the results that may be obtained from the use of the Services or as to the accuracy or reliability of any information obtained through the Services or that defects in the software driving the Services will be corrected.
You understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk and that you will be solely responsible for any damage to a computer system or loss of data that results from the download of such material and/or data.
No advice or information, whether oral or written, obtained by you through the Services shall create any warranty not expressly made herein.
12 – Limitation of Liability
Neither Company, nor its parents, subsidiaries, affiliates, officers and employees, or any Company Third Parties shall be liable for any indirect, incidental, special or consequential damages, resulting from or concerning the use or the inability to use the Services or your failure to comply with this Agreement, including but not limited to, damages for loss of profits, use, data or other intangibles, even if advised of the possibility of such damages. In no event shall the total and aggregate liability of any party under this Agreement for any cause of action or reason whatsoever exceed your past 6 months of fees paid to the Company. Your sole and exclusive remedy under this Agreement is to discontinue the use of the Services. The liability of any party under this Agreement shall be cumulative and not per incident.
13 – Notices
Unless otherwise provided herein, notices given by Company to you will be given by e-mail. Notices will be sent to the e-mail address you provide to Company as part of the registration process, or to updated addresses which you provide to Company via notice consistent with this paragraph. Notices given by you to Company must be given by e-mail to firstname.lastname@example.org or such updated address and number as Company may provide you consistently with this notice provision. Notwithstanding anything herein to the contrary, it is your sole responsibility to update your address for notices hereunder, and notice sent to the e-mail address last provided by you to Company shall be valid and binding on you regardless of whether such address has been changed, canceled, has expired, has been terminated, or otherwise becomes inoperative.
14 – Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa notwithstanding any conflict of laws provisions. You irrevocably and unconditionally: (i) consent to submit to the exclusive jurisdiction of the state and federal courts of Iowa (the “Iowa Courts”) for any litigation or controversy arising out of or relating to this Agreement, (ii) agree not to commence any litigation arising out of or relating to this Agreement except in the Iowa Courts and (iii) agree not to plead or claim that such litigation brought therein has been brought in an inconvenient forum.
15 – General
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Any failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing. The section titles in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance. This Agreement may be assigned in whole or in part by the Company. This Agreement may not be assigned in any manner by you without the express, prior written permission of the Company.
16 – Privacy
The Sparks Solution is committed to respecting our customer’s privacy. Once you choose to provide personally identifiable information, it will only be used in the context of your customer relationship with The Sparks Solution. The Sparks Solution will not sell, rent, or lease your personally identifiable information to others. Unless required by law or your prior permission is obtained, The Sparks Solution will only share the personal data you provide with other The Sparks Solution entities and/or business partners who are acting on The Sparks Solution behalf to provide you services. Such The Sparks Solution entities and/or national or international business partners are governed by The Sparks Solution privacy policies with respect to the use of this data.
Affiliate Terms of Service
This Agreement contains the complete terms and conditions that apply to your participation as a member of the MarketMSO.com Affiliate Program
1 – Enrollment in this Program
To begin the enrollment process, you will activate your affiliate account through our website. Your account will be instantly active in our program. We will evaluate your account in good faith to ensure you comply with all our rules and agreements. We may reject your account if we determine in our sole discretion that your site is unsuitable for the Program for any reason, including, but not limited to, if your site incorporates images or content that is unlawful, defamatory, obscene, harassing or otherwise objectionable, such as sites that facilitate illegal activity or promote violence or promote or assist others in promoting copyright infringement, or if your site is or promotes a business-opportunity program (collectively, “Content Restrictions”).
2 – Utilizing Links on Your Site
As an affiliate website of MarketMSO, you may use any form of promotion you choose, consistent with the terms of this Agreement. You may use banner advertisements, button links and/or text links to our site (the “Links”), however, you CANNOT SPAM. Any activity by you or on your behalf that we determine or reasonably suspect to be the result of an unsolicited bulk e-mail program will result in your immediate termination from the Program and your forfeiting of credit otherwise due you hereunder. Allowable promotional links may contain MarketMSO’s trade names, service marks, and/or logos for display on your Affiliate Site. Subject to the terms and conditions hereof, you are granted a limited, non-exclusive, non-transferable license to access and download such Links and other designated promotional materials for placement on your Affiliate Site for the sole and exclusive purpose of promoting websites owned, operated or controlled by MarketMSO. In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Link or Links. A Link may only be visually modified with our consent.
3 – Credits
We will issue you a credit based on the below structure:
1 signup – $5
Example: If you send us 20 sign-ups in any month you will get $5 x 20 = $100 in credit
Incentivized commissions, and offering any form of incentive to obtain a sale is forbidden, unless prior approval is given and cleared by MarketMSO Staff. To inquire on whether your incentive is acceptable, please e-mail support [@] marketmso [dot] com
The Commission Rate is subject to change from time to time, upon e-mail notice to you and commencing the 30-days following such notice.
4 – Credit Payment
Credit deemed due and owed to you under the program will be credited to your account directly by MarketMSO after any holding period and in accordance with a regular payout cycle established by MarketMSO.com. MarketMSO reserves the right to only pay for referrals that are active. Active is defined by clients with an active MarketMSO website. Credit can be earned per each new client referred through the unique affiliate link. An existing customer, defined by any client who has had an existing account with us at anytime in the past, would not be eligible for a commission with the program. We reserve the right to cancel any of your affiliate coupons, even if you are currently using the coupon.
5 – Responsibility for Your Site
You will be solely responsible for the development, operation and maintenance of your site and for all materials that appear on your site. We shall have no responsibility for the development, operation and maintenance of your site and for all materials that appear on your site. You shall also be responsible for ensuring that materials posted on your site do not violate or infringe upon any laws, including but not limited to 18 U.S.C. Section 2257, or the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), and ensuring that materials posted on your site are not libelous or otherwise illegal. You must have express permission to use another party’s copyrighted or other proprietary material. We will not be responsible if you use another party’s copyrighted or other proprietary material in violation of the law.
MarketMSO expressly requires you to disclose that there is a “material connection” between you and MarketMSO any time you offer an endorsement or testimonial on our services, in accordance with the Federal Trade Commission guidance as outlined here. Such disclosure should be clear and prominent, meaning close to the endorsement or testimonial.
Please note: You should obtain legal advice on how to fully comply with these responsibilities in your specific situation.
In addition to the foregoing, we will immediately terminate your participation in the Program if we believe you have engaged in any of the following:
– Unsolicited mass e-mail solicitations, IRC postings or any other form of spamming, including but not limited to, newsgroups or AOL customers or otherwise violate the anti-spamming policies of MarketMSO or state law;
– Provide inaccurate or incomplete information to MarketMSO concerning your identity, address or other required information;
– Attempt to cheat, defraud or mislead us in any way;
– Misrepresent to the public the terms and conditions of our sites or your sites;
– Engage in popup advertisement network activities;
– IFrames may not be used unless given express permission by MarketMSO, sales made through hidden IFrames or Cookie Stuffing methods will be considered invalid
6 – Term of the Agreements
The term of this Agreement will begin upon our acceptance of your Affiliate Program Application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination. Notice by e-mail, to your e-mail address on our records, is considered sufficient notice for to terminate this Agreement. If this Agreement is terminated because you have violated the terms of this Agreement you are not eligible to receive any commissions payments, even for commissions earned prior to the date of termination. If this Agreement is terminated for any other reason, you are only eligible to earn a commission on sales occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
7 – Modification
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion. Notice of any change by e-mail, to your address on our records, or the posting on our site of a change notice of a new agreement, is considered sufficient notice for notifying you of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Affiliate Program rules. All such modifications shall take effect 48 hours after we serve notice as provided above, unless we indicate otherwise. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Program, following our posting of a change notice or new agreement on our site, will constitute binding acceptance of the change.
8 – Relationship of Parties
You and MarketMSO are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section. You are not an agent of the MarketMSO and MarketMSO expressly disclaims responsibility for any conduct by you in violation of our terms of agreement.
9 – Limitation of Liability
We will not be liable for indirect, special, or consequential damages, or any loss of revenue, profits, or data, arising in connection with this Agreement or the Affiliate Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Affiliate Program will not exceed the total commissions paid or payable to you under this Agreement.
10 – Disclaimers
We make no express or implied warranties or representations with respect to the Affiliate Program or any COMPANY services or other items sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
11 – Representations and Warranties
You hereby represent and warrant to us that this Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; and that the execution, delivery and performance by you of this Agreement are within your legal capacity and power; have been duly authorized by all requisite action on your part; require the approval or consent of no other persons; and neither violate nor constitute a default under the (i) provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or (ii) the terms of any other agreement, document or instrument applicable to you or binding upon you. Should any law enforcement agency or internet service provider provide MarketMSO with notice that you have engaged in transmission of unsolicited bulk e-mails or have otherwise engaged in unlawful conduct or conduct in violation of said service provider’s terms of service, we reserve the right to cooperate in any investigation relating to your activities including disclosure of your account information in connection therewith.
12 – Confidentiality
We may disclose to you certain information as a result of your participation as part of the Program, which information we consider to be confidential (herein referred to as “Confidential Information”). For purpose of this Agreement, the term “Confidential Information” shall include, but not be limited to, any modifications to the terms and provisions of this Affiliate Program Agreement made specifically for your site and not generally available to other members of the Affiliate Program, website, business and financial information relating to MarketMSO, customer and vendor lists relating to MarketMSO and any members of the Affiliate Program, other than you. Confidential Information shall also include any information that we designate as confidential during the term of this Agreement. You agree not to disclose any Confidential Information and that such Confidential Information shall also include any information that we designate as confidential during the term of this Agreement. You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if same is required by law or legal process. We make no warranty, expressed or implied, with respect to any information delivered hereunder, including implied warranties of merchantability, fitness for a particular purpose or freedom from patent, trademark or copyright infringements, whether arising by law, custom or conduct, or as to the accuracy or completeness of the information and we shall not have any liability to you or to any other person resulting from your or such third person’s use of the information.
13 – Indemnification
You hereby agree to indemnify, defend and hold harmless TheSparksSolution, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expense (including attorneys’ fees and costs) of any nature whatsoever incurred or suffered by us (collectively the “Losses”), in so far as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim or threatened claim that our use of the Affiliate Trademarks infringes on the rights of any third party; (ii) the breach of any promise, covenant, representation or warranty made by you herein; or (iii) or any claim related to your site.
14 – Miscellaneous
Terminated accounts cannot later apply to the Program without our express written consent. This Agreement will be governed by the laws of the United States and the State of Texas, without reference to rules governing choice of laws. TheSparksSolution will be the sole and final arbitrator for any and all disputes or claims related to the validity of sales. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
15 – Binding Arbitration
By participating in this affiliate program, you agree to binding arbitration for any disputes or claims that arise against TheSparksSolution.com LLC or its subsidiaries in conjunction with this program. An arbitration firm selected by TheSparksSolution.com LLC will be the sole and final arbitrator for any and all disputes or claims related or resulting from participation in this program. All decisions rendered are final. You also are responsible for any and all costs related to such arbitration.